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Labor & Employment

Muldrow v. City of St. Louis, Missouri

https://supreme.justia.com/cases/federal/us/601/22-193/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–193 _________________ Jatonya Clayborn Muldrow, PETITIONER v. City of St. Louis, Missouri, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 17, 2024] Justice Kagan delivered the opinion of the Court. Sergeant Jatonya Clayborn Muldrow maintains that her employer, the St. Louis Police Department, transferred her from one job to another because she is a woman. She sued the City of St. Louis under Title VII, alleging that she had suffered sex discrimination with respect to the “terms [or] conditions” of her employment. 42 U. S. C. §2000e–2(a)(1). The courts below rejected the claim on the ground that the transfer did not cause Muldrow a “significant” employment disadvantage. Other courts have used similar standards in addressing Title VII suits arising from job transfers. Today, we disapprove that approach. Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test. Title VII’s text nowhere establishes that high bar. I From 2008 through 2017, Sergeant Muldrow worked as a plainclothes officer in the St. Louis Police Department’s specialized Intelligence Division. During her tenure there, she investigated public corruption and human trafficking cases, oversaw the Gang Unit, and served as head of the Gun Crimes Unit. By virtue of her Division position, Muldrow was also deputized as a Task Force Officer with the Federal Bureau of Investigation—a status granting her, among other things, FBI credentials, an unmarked take-home vehicle, and the authority to pursue investigations outside St. Louis. In 2017, the outgoing commander of the Intelligence Division told her newly appointed successor that Muldrow was a “workhorse”—still more, that “if there was one sergeant he could count on in the Division,” it was Muldrow. 2020 WL 5505113, *1 (ED Mo., Sept. 11, 2020). But the new Intelligence Division commander, Captain Michael Deeba, instead asked the Department to transfer Muldrow out of the unit. Deeba wanted to replace Muldrow—whom he sometimes called “Mrs.” rather than the customary “Sergeant”—with a male police officer. See id., at *1–*2. That officer, Deeba later testified, seemed a better fit for the Division’s “very dangerous” work. Id ., at *2; App. 139. The Department approved the transfer against Muldrow’s wishes. It reassigned her to a uniformed job in the Department’s Fifth District. While Muldrow’s rank and pay remained the same in the new position, her responsibilities, perks, and schedule did not. Instead of working with high-ranking officials on the departmental priorities lodged in the Intelligence Division, Muldrow now supervised the day-to-day activities of neighborhood patrol officers. Her new duties included approving their arrests, reviewing their reports, and handling other administrative matters; she also did some patrol work herself. Because she no longer served in the Intelligence Division, she lost her FBI status and the car that came with it. And the change of jobs made Muldrow’s workweek less regular. She had worked a traditional Monday-through-Friday week in the Intelligence Division. Now she was placed on a “rotating schedule” that often involved weekend shifts. 2020 WL 5505113, *2. Muldrow brought this Title VII suit to challenge the transfer. Her complaint alleged that the City, in ousting her from the Intelligence Division, had “discriminate[d] against” her based on sex “with respect to” the “terms [or] conditions” of her employment. §2000e–2(a)(1). In later deposition testimony, Muldrow set out her view of what the transfer had cost her. She had been moved out of a “premier position [in] the Police Department” into a less “prestigious” and more “administrative” uniformed role. App. 105, 114, 120. She had fewer “opportunities” to work on “important investigations,” as well as to “network” with commanding officers. Id ., at 104. And she lost material benefits—her weekday work schedule and take-home car. Or as she summarized the situation: “I went from straight days, weekends off with a take-home car and more visibility and responsibility within the Department to a rotating schedule with few weekends off, assigned to . . . uniformed patrol,” with “responsibilities being limited to that of administrative work” and “supervising officers on patrol.” Id ., at 120. Title VII, Muldrow asserted in her suit, prevented the City from making those changes to her employment because of her sex. The District Court, viewing the matter differently, granted the City summary judgment. Under Circuit precedent, the court explained, Muldrow needed to show that her transfer effected a “significant” change in working conditions producing “material employment disadvantage.” 2020 WL 5505113, *8–*9. And Muldrow, the court held, could not meet that heightened-injury standard. “[S]he experienced no change in salary or rank.” Id., at *9. Her loss of “the networking [opportunities] available in Intelligence” was immaterial because she had not provided evidence that it had harmed her “career prospects.” Id., at *8. And given her continued “supervisory role,” she had not “suffered a significant alteration to her work responsibilities.” Id., at *9. Finally, the District Court concluded that the switch to a rotating schedule (including weekend work) and the loss of a take-home vehicle could not fill the gap. Although mentioning those changes “in her statement of facts,” Muldrow had not relied on them in “her argument against summary judgment.” Ibid. , n. 20. And anyway, the court stated, they “appear to be minor alterations of employment, rather than material harms.” Ibid. The Court of Appeals for the Eighth Circuit affirmed. It agreed that Muldrow had to—but could not—show that the transfer caused a “materially significant disadvantage.” 30 F. 4th 680, 688 (2022). Like the District Court, the Eighth Circuit emphasized that the transfer “did not result in a diminution to her title, salary, or benefits.” Id., at 688–689. And the Circuit, too, maintained that the change in her job responsibilities was “insufficient” to support a Title VII claim. Id., at 689. In the Fifth District, the court reasoned, Muldrow still had a “supervisory role” and participated in investigating serious crimes. Id., at 688. So the court thought Muldrow’s view of the new job—“more administrative and less prestigious”—was unsupported by record evidence and not “persuasive.” Ibid. The court did not address Muldrow’s new schedule or her loss of a car, apparently thinking those matters either forfeited or too slight to mention. Overall, the court held, Muldrow’s claim could not proceed because she had experienced “only minor changes in working conditions.” Ibid. We granted certiorari, 600 U. S. ___ (2023), to resolve a Circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar.[ 1 ] We now vacate the judgment below because the text of Title VII imposes no such requirement. II A Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). Muldrow’s suit, as described above, alleges that she was transferred to a lesser position because she is a woman. That transfer, as both parties agree, implicated “terms” and “conditions” of Muldrow’s employment, changing nothing less than the what, where, and when of her police work. See Brief for Muldrow 19; Brief for City 1, 45–46. So the statutory language applicable to this case prohibits “discriminat[ing] against” an individual “with respect to” the “terms [or] conditions” of employment because of that individual’s sex. That language requires Muldrow to show that the transfer brought about some “disadvantageous” change in an employment term or condition. Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 , 80 (1998). The words “discriminate against,” we have explained, refer to “differences in treatment that injure” employees. Bostock v. Clayton County , 590 U.S. 644, 681 (2020). Or otherwise said, the statute targets practices that “treat[ ] a person worse” because of sex or other protected trait. Id., at 658. And in the typical transfer case, that “worse” treatment must pertain to—must be “with respect to”—employment “terms [or] conditions.” §2000e–2(a)(1). The “terms [or] conditions” phrase, we have made clear, is not used “in the narrow contractual sense”; it covers more than the “economic or tangible.” Oncale , 523 U. S., at 78; Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 , 64 (1986). Still, the phrase circumscribes the injuries that can give rise to a suit like this one. To make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment. What the transferee does not have to show, according to the relevant text, is that the harm incurred was “significant.” 30 F. 4th, at 688. Or serious, or substantial, or any similar adjective suggesting that the disadvantage to the employee must exceed a heightened bar. See supra, at 4, and 4–5, n. 1. “Discriminate against” means treat worse, here based on sex. See, e.g. , Bostock , 590 U. S., at 657–658, 681. But neither that phrase nor any other says anything about how much worse. There is nothing in the provision to distinguish, as the courts below did, between transfers causing significant disadvantages and transfers causing not-so-significant ones. And there is nothing to otherwise establish an elevated threshold of harm. To demand “significance” is to add words—and significant words, as it were—to the statute Congress enacted. It is to impose a new requirement on a Title VII claimant, so that the law as applied demands something more of her than the law as written. And that difference can make a real difference for complaining transferees. Many forced transfers leave workers worse off respecting employment terms or conditions. (After all, a transfer is not usually forced when it leaves the employee better off.) But now add another question—whether the harm is significant. As appellate decisions reveal, the answers can lie in the eye of the beholder—and can disregard varied kinds of disadvantage. Take just a few examples from the caselaw. An engineering technician is assigned to work at a new job site—specifically, a 14-by-22-foot wind tunnel; a court rules that the transfer does not have a “significant detrimental effect.” Boone v. Goldin , 178 F.3d 253 , 256 (CA4 1999). A shipping worker is required to take a position involving only nighttime work; a court decides that the assignment does not “constitute a significant change in employment.” Daniels v. United Parcel Serv., Inc. , 701 F.3d 620, 635 (CA10 2012). And a school principal is forced into a non-school-based administrative role supervising fewer employees; a court again finds the change in job duties not “significant.” Cole v. Wake Cty. Bd. of Educ. , 834 Fed. Appx. 820, 821 (CA4 2021) ( per curiam ). All those employees suffered some injury in employment terms or conditions (allegedly because of race or sex). Their claims were rejected solely because courts rewrote Title VII, compelling workers to make a showing that the statutory text does not require.[ 2 ] B The City, in defense of that added requirement, makes three main arguments—one about the text, one about our precedent, and one about policy. None justifies the use of a “significance” standard. The textual claim invokes the ejusdem generis canon—the idea that a general phrase following an enumeration of things should be read to encompass only things of the same basic kind. Recall the prohibition at issue here: An employer may not, based on sex, “fail or refuse to hire” or “discharge” any person or “otherwise . . . discriminate against [her] with respect to [her] compensation, terms, conditions, or privileges of employment.” §2000e–2(a)(1); see supra , at 5. Refusing to hire or discharging a person, the City notes, causes a significant disadvantage; so the subsequent “otherwise” phrase, the City claims, can apply only to things causing an equal level of harm. See Brief for City 16, 25–27. But the City fails to explain why the presence of significant disadvantage must be part of the list’s common denominator. The text itself provides a different shared trait. Each kind of prohibited discrimination occurs by way of an employment action—whether pertaining to hiring, or firing, or compensating, or (as here) altering terms or conditions through a transfer. That is a more than sufficient basis to unite the provision’s several parts and avoid ejusdem generis problems. There is no need for courts to introduce a significant-harm requirement. The City’s argument from precedent fares no better. It relies on Burlington Northern & Santa Fe Railway Co. v. White , 548 U.S. 53 (2006), which addressed Title VII’s separate anti-retaliation provision. Under that section, an employer may not take action against an employee for bringing or aiding a Title VII charge. See §2000e–3(a). The Court held that the provision applies only when the retaliatory action is “materially adverse,” meaning that it causes “significant” harm. Id ., at 68. The City thinks we should import the same standard into the anti-discrimination provision at issue. See Brief for City 18–19. But that would create a mismatch. White adopted the standard for reasons peculiar to the retaliation context. The test was meant to capture those (and only those) employer actions serious enough to “dissuade[ ] a reasonable worker from making or supporting a charge of discrimination.” 548 U. S., at 68. If an action causes less serious harm, the Court reasoned, it will not deter Title VII enforcement; and if it will not deter Title VII enforcement, it falls outside the purposes of the ban on retaliation. See id. , at 63, 68. But no such (frankly extra-textual) reasoning is applicable to the discrimination bar. Whether an action causes significant enough harm to deter any employee conduct is there beside the point. White itself noted the difference: The anti-discrimination provision, we explained, simply “seeks a workplace where individuals are not discriminated against” because of traits like race and sex. Id., at 63. The provision thus flatly “prevent[s] injury to individuals based on” status, ibid. , without distinguishing between significant and less significant harms. Finally, the City’s policy objections cannot override Title VII’s text. In the City’s view, a significant-injury requirement is needed to prevent transferred employees from “swamp[ing] courts and employers” with insubstantial lawsuits requiring “burdensome discovery and trials.” Brief for City 45, 49 (capitalization and boldface omitted). But there is reason to doubt that the floodgates will open in the way feared. As we have explained, the anti-discrimination provision at issue requires that the employee show some injury. See supra , at 5–6. It requires that the injury asserted concern the terms or conditions of her employment. See ibid. Perhaps most notably, it requires that the employer have acted for discriminatory reasons—“because of ” sex or race or other protected trait. §2000e–2(a)(1). And in addressing that issue, a court may consider whether a less harmful act is, in a given context, less suggestive of intentional discrimination. So courts retain multiple ways to dispose of meritless Title VII claims challenging transfer decisions. But even supposing the City’s worst predictions come true, that would be the result of the statute Congress drafted. As we noted in another Title VII decision, we will not “add words to the law” to achieve what some employers might think “a desirable result.” EEOC v. Abercrombie & Fitch Stores, Inc. , 575 U.S. 768 , 774 (2015). Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so. By contrast, this Court does not get to make that judgment. III In light of everything said above, the Court of Appeals’ treatment of Muldrow’s suit cannot survive. The court required Muldrow to show that the allegedly discriminatory transfer out of the Intelligence Division produced a significant employment disadvantage. See supra , at 4. As we have explained, that is the wrong standard. Muldrow need show only some injury respecting her employment terms or conditions. The transfer must have left her worse off, but need not have left her significantly so. And Muldrow’s allegations, if properly preserved and supported, meet that test with room to spare. Recall her principal allegations. She was moved from a plainclothes job in a prestigious specialized division giving her substantial responsibility over priority investigations and frequent opportunity to work with police commanders. She was moved to a uniformed job supervising one district’s patrol officers, in which she was less involved in high-visibility matters and primarily performed administrative work. Her schedule became less regular, often requiring her to work weekends; and she lost her take-home car. If those allegations are proved, she was left worse off several times over. It does not matter, as the courts below thought (and Justice Thomas echoes), that her rank and pay remained the same, or that she still could advance to other jobs. See supra, at 3–4; post, at 2. Title VII prohibits making a transfer, based on sex, with the consequences Muldrow described. We recognize, however, that the decisions below may have rested in part on issues of forfeiture and proof. The District Court noted, for example, that Muldrow had failed to discuss in her argument against summary judgment the changes in her work schedule and vehicle access; and perhaps following that lead, the Court of Appeals did not address those harms. See supra , at 3–4. In addition, both courts suggested that some of the allegations Muldrow made about the nature of the work she did in her old and new jobs lacked adequate evidentiary support. See ibid . We leave such matters for the courts below to address. All we require is that they use the proper Title VII standard, and not demand that Muldrow demonstrate her transfer caused “significant” harm. We accordingly vacate the judgment of the Court of Appeals for the Eighth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 Compare, e . g ., 30 F. 4th 680, 688 (CA8 2022) (case below) (“materially significant disadvantage”); Caraballo-Caraballo v. Correctional Admin. , 892 F.3d 53, 61 (CA1 2018) (“materially changes” employment conditions in a manner “more disruptive than a mere inconvenience or an alteration of job responsibilities”); Williams v. R. H. Donnelley, Corp. , 368 F.3d 123 , 128 (CA2 2004) (“materially significant disadvantage”); James v. Booz-Allen & Hamilton, Inc. , 368 F.3d 371 , 376 (CA4 2004) (“significant detrimental effect”); O’Neal v. Chicago , 392 F.3d 909 , 911 (CA7 2004) (“materially adverse”); Sanchez v. Denver Public Schools , 164 F.3d 527 , 532 (CA10 1998) (“significant change”); and Webb-Edwards v. Orange Cty. Sheriff ’s Office , 525 F.3d 1013, 1033 (CA11 2008) (“serious and material change”), with Chambers v. District of Columbia , 35 F. 4th 870, 872, 876–877 (CADC 2022) (en banc) (overruling precedent that demanded an “objectively tangible harm” and rejecting a “material adversity” requirement). 2 Justice Thomas’s concurring opinion appears to disagree in two respects. He initially disputes that courts have applied a heightened-harm requirement in demanding that a plaintiff show something like “materially significant disadvantage.” See post, at 1 (opinion concurring in judgment). And as a corollary, he denies that courts will have to change their treatment of Title VII claims once they start to apply the simple injury standard set out in this opinion. See post, at 2–3. In light of those views, we underscore two points. First, this decision changes the legal standard used in any circuit that has previously required “significant,” “material,” or “serious” injury. It lowers the bar Title VII plaintiffs must meet. Second, because it does so, many cases will come out differently. The decisions described above are examples, intended to illustrate how claims that failed under a significance standard should now succeed. And as we will discuss, the decision below is another such example, putting to one side case-specific issues of forfeiture and proof. See infra , at 10–11. SUPREME COURT OF THE UNITED STATES _________________ No. 22–193 _________________ Jatonya Clayborn Muldrow, PETITIONER v. City of St. Louis, Missouri, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 17, 2024] Justice Thomas, concurring in the judgment. I agree with Justice Alito that the Courts of Appeals all appear to articulate the same principle, but with slightly varying verbal formulations: A plaintiff bringing a claim under 42 U. S. C. §2000e–2(a)(1) must show harm that is more than trifling. Post, at 1–2 (opinion concurring in judgment). And, there is little practical difference between that principle and the Court’s holding. Ante, at 1 (holding that an employee “must show some harm”). I am not convinced, however, that the Court accurately characterizes the Eighth Circuit’s decision. I do not read the Eighth Circuit to have necessarily imposed a heightened-harm requirement in the form of a “significance” test. The Eighth Circuit defined an adverse employment action as “a tangible change in working conditions that produces a material employment disadvantage.” 30 F. 4th 680, 688 (2022) (internal quotation marks omitted). It further explained that “minor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage, do not rise to the level of an adverse employment action.” Ibid. (alteration and internal quotation marks omitted). In other words, a plaintiff must have suffered an actual disadvantage as compared to minor changes— i.e. , more than a trifling harm. That standard aligns with the Court’s observation that a plaintiff must show “some ‘disadvantageous’ change in an employment term or condition.” Ante, at 5 (quoting Oncale v. Sundowner Offshore Services, Inc ., 523 U.S. 75 , 80 (1998)). The Court insists that the Eighth Circuit must have demanded more given the weight of Muldrow’s allegations. Specifically, the Court underscores Muldrow’s claims that the City of St. Louis “moved [her] from a plainclothes job in a prestigious specialized division” with a take-home car and a regular schedule, to a “uniformed job supervising one district’s patrol officers,” with no take-home car and an irregular schedule. Ante , at 10. But, most of those allegations are forfeited or attributable to a nonparty, the Federal Bureau of Investigation. See 2020 WL 5505113, *9, n. 20 (ED Mo., Sept. 11, 2020) (observing that Muldrow did not raise arguments based on “having to return her take-home [car],” “changes to her schedule, including having to work weekends,” or “having to work in plain clothes”); 30 F. 4th, at 689 (concluding that “the FBI had the sole authority to revoke” Muldrow’s plainclothes and take-home car privileges). Before the Eighth Circuit, Muldrow argued only that the City moved her to a job that was “more administrative and less prestigious.” Id. , at 688. Her “only evidence” in support of that argument was “her own deposition testimony,” which neither the District Court nor the Eighth Circuit found persuasive. Ibid . And, Muldrow’s testimony certainly did not establish any “proof of harm resulting from [her] reassignment.” Ibid. After the transfer, Muldrow’s “pay and rank remained the same, she was given a supervisory role, and she was responsible for investigating violent crimes, such as homicides and robberies.” Ibid . Muldrow even conceded that the transfer “did not harm her future career prospects.” Ibid . At most, then, Muldrow “expresse[d] a mere preference for one position over the other.” Id ., at 689. Muldrow failed to prove that there was any nontrifling change in her job’s prestige—which was her lone theory of harm. Id ., at 688–689. The Eighth Circuit rejected Muldrow’s adverse employment action claim accordingly. I fail to see how the Eighth Circuit’s reasoning—that a plaintiff must offer colorable evidence of harm—is equivalent to the heightened-harm requirement the Court concludes the Eighth Circuit applied. Ante, at 10 (agreeing that “[t]he transfer must have left [Muldrow] worse off ”). All that said, I recognize that the terms “material” and “significant” can (but do not always) imply a heightened-harm requirement. Although I find it unlikely, it is possible that the Eighth Circuit had such a stringent test in mind when it stated that a plaintiff must show a “ ‘materially significant disadvantage.’ ” 30 F. 4th, at 688. I thus agree to vacate and remand to the extent the Eighth Circuit’s analysis is inconsistent with a more-than-trifling-harm requirement. SUPREME COURT OF THE UNITED STATES _________________ No. 22–193 _________________ Jatonya Clayborn Muldrow, PETITIONER v. City of St. Louis, Missouri, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 17, 2024] Justice Alito, concurring in the judgment. I agree with the judgment in this case. Assuming without deciding that all the facts mentioned by the Court are relevant and properly presented, petitioner’s transfer altered the “terms” or “conditions” of her employment, 42 U. S. C. §2000e–2(a)(1), and therefore she can prevail if she can prove that she was transferred because of her sex. I do not join the Court’s unhelpful opinion. For decades, dozens of lower court judges, with a wealth of experience handling Title VII cases, have held that not every unwanted employment experience affects an employee’s “terms” or “conditions” of employment. The lower courts have used various verbal formulations to express this point, and the Court, dubious about the words they had selected, granted review to provide guidance. Now, after briefing and argument, that guidance is as follows: Title VII plaintiffs must show that the event they challenge constituted a “harm” or “injury,” but that the event need not be “significant” or “substantial.” See ante , at 10–11. I have no idea what this means, and I can just imagine how this guidance will be greeted by lower court judges. The primary definition of “harm” is “physical or mental damage,” and an “injury” is defined as “an act that damages, harms, or hurts: an unjust or undeserved infliction of suffering or harm.” Webster’s Third International Dictionary 1034, 1164 (1976). These definitions incorporate at least some degree of significance or substantiality. We do not typically say that we were harmed or injured by every unwanted experience. What would we think if a friend said, “I was harmed because the supermarket had run out of my favorite brand of peanut butter,” or, “I was injured because I ran into three rather than the usual two red lights on the way home from work”? I see little if any substantive difference between the terminology the Court approves and the terminology it doesn’t like. The predictable result of today’s decision is that careful lower court judges will mind the words they use but will continue to do pretty much just what they have done for years. SUPREME COURT OF THE UNITED STATES _________________ No. 22–193 _________________ Jatonya Clayborn Muldrow, PETITIONER v. City of St. Louis, Missouri, et al. on writ of certiorari to the united states court of appeals for the eighth circuit [April 17, 2024] Justice Kavanaugh, concurring in the judgment. Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The question presented in this case is whether transferring an employee—for example, changing an employee’s job responsibilities or job location—on the basis of race, color, religion, sex, or national origin violates Title VII. The answer is yes. I therefore agree with the straightforward opinion jointly authored by Judge Tatel and Judge Ginsburg for the en banc D. C. Circuit. See Chambers v. District of Columbia , 35 F. 4th 870 (2022). As that court explained, even when a transfer does not change an employee’s compensation, a transfer does change the employee’s terms, conditions, or privileges of employment. See id. , at 874–879. Therefore, a transfer made on the basis of the employee’s race, color, religion, sex, or national origin violates Title VII. See id. , at 874–875. As I see it and as the D. C. Circuit saw it, the issue here is not complicated. Suppose that an employer says to an employee in the Columbus office: “We are transferring you to the Cincinnati office because you are black. But your compensation will not change.” Does that violate Title VII? Of course it does. To begin with, the employer has treated the employee differently because of race. To be sure, the fact that a transfer may not involve a change in compensation can affect the amount of any damages, as Muldrow’s attorney acknowledged. See Tr. of Oral Arg. 41–42. But a transfer changes the terms, conditions, or privileges of employment. Therefore, a discriminatory transfer violates the statute. “The plain text of Title VII requires no more.” Chambers , 35 F. 4th, at 875.[ 1 ] Unlike the D. C. Circuit, some Courts of Appeals have held that discriminatory transfers are not prohibited by Title VII unless the transfer also causes significant employment disadvantage. Ante , at 4–5, n. 1. Today, this Court definitively rejects those rulings. Ante , at 6, 7, n. 2. I fully agree with the Court on that point. But the Court’s opinion then goes on to require that a plaintiff in a discriminatory-transfer case show at least “some harm” beyond the harm of being transferred on the basis of race, color, religion, sex, or national origin. Ante , at 6. I disagree with the Court’s new some-harm requirement. No court has adopted a some-harm requirement, and no party or amicus advocated that requirement to this Court. More to the point, the text of Title VII does not require a separate showing of some harm. The discrimination is harm. The only question then is whether the relevant employment action changes the compensation, terms, conditions, or privileges of employment. A transfer does so. Therefore, as the D. C. Circuit explained, a transfer on the basis of race, color, religion, sex, or national origin is actionable under Title VII. Chambers , 35 F. 4th, at 874–879. All of that said, the Court’s new some-harm requirement appears to be a relatively low bar. Importantly, the Court emphasizes that “some harm” is less than significant harm, serious harm, or substantial harm. Ante , at 6. Therefore, anyone who has been transferred because of race, color, religion, sex, or national origin should easily be able to show some additional harm—whether in money, time, satisfaction, schedule, convenience, commuting costs or time, prestige, status, career prospects, interest level, perks, professional relationships, networking opportunities, effects on family obligations, or the like. So even though I respectfully disagree with the Court’s new some-harm requirement, I expect that the Court’s approach and my preferred approach will land in the same place and lead to the same result in 99 out of 100 discriminatory-transfer cases, if not in all 100. Notes 1 To be sure, the employment action in a transfer case must actually be a transfer (or denied transfer), which requires a change (or denied change) in the compensation, terms, conditions, or privileges of employment. See Brief for District of Columbia et al. as Amici Curiae 17–18. There may be edge cases about what qualifies as a transfer. But as the Solicitor General notes, a change in an employee’s job location or job responsibilities readily qualifies. See Brief for United States as Amicus Curiae 11, 22.

The Supreme Court ruled that an employee who is forcibly transferred due to discriminatory reasons must show some harm to prevail in a Title VII lawsuit, but this harm does not need to be significant. The Court's ruling sets a lower bar for employees to prove harm, focusing on any changes to compensation, terms, conditions, or privileges of employment, rather than requiring a substantial disadvantage. This decision expands the protections for employees against discriminatory transfers and provides a clearer standard for lower courts to apply.

Labor & Employment

Digital Reality Trust, Inc. v. Somers

https://supreme.justia.com/cases/federal/us/583/16-1276/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1276 _________________ DIGITAL REALTY TRUST, INC., PETITIONER v. PAUL SOMERS on writ of certiorari to the united states court of appeals for the ninth circuit [February 21, 2018] Justice Ginsburg delivered the opinion of the Court. Endeavoring to root out corporate fraud, Congress passed the Sarbanes-Oxley Act of 2002, 116Stat. 745 (Sarbanes-Oxley), and the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, 124Stat. 1376 (Dodd-Frank). Both Acts shield whistleblowers from retaliation, but they differ in important respects. Most notably, Sarbanes-Oxley applies to all “employees” who report misconduct to the Securities and Exchange Commission (SEC or Commission), any other federal agency, Congress, or an internal supervisor. 18 U. S. C. §1514A(a)(1). Dodd-Frank delineates a more circumscribed class; it defines “whistleblower” to mean a person who provides “information relating to a violation of the securities laws to the Commission.” 15 U. S. C. §78u–6(a)(6). A whistleblower so defined is eligible for an award if original information he or she provides to the SEC leads to a successful enforcement action. §78u–6(b)–(g). And, most relevant here, a whistleblower is protected from retaliation for, inter alia , “making disclosures that are required or protected under” Sarbanes-Oxley, the Securities Exchange Act of 1934, the criminal anti-retaliation proscription at 18 U. S. C. §1513(e), or any other law subject to the SEC’s jurisdiction. 15 U. S. C. §78u–6(h)(1)(A)(iii). The question presented: Does the anti-retaliation provision of Dodd-Frank extend to an individual who has not reported a violation of the securities laws to the SEC and therefore falls outside the Act’s definition of “whistleblower”? Pet. for Cert. (I). We answer that question “No”: To sue under Dodd-Frank’s anti-retaliation provision, a person must first “provid[e] . . . information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6). I A “To safeguard investors in public companies and restore trust in the financial markets following the collapse of Enron Corporation,” Congress enacted Sarbanes-Oxley in 2002. Lawson v. FMR LLC , 571 U. S. 429 , ___ (2014) (slip op., at 1). Most pertinent here, Sarbanes-Oxley created new protections for employees at risk of retaliation for reporting corporate misconduct. See 18 U. S. C. §1514A. Section 1514A prohibits certain companies from discharging or otherwise “discriminat[ing] against an employee in the terms and conditions of employment because” the employee “provid[es] information . . . or otherwise assist[s] in an investigation regarding any conduct which the employee reasonably believes constitutes a violation” of certain criminal fraud statutes, any SEC rule or regulation, or “any provision of Federal law relating to fraud against shareholders.” §1514A(a)(1). An employee qualifies for protection when he or she provides information or assistance either to a federal regulatory or law enforcement agency, Congress, or any “person with supervisory authority over the employee.” §1514A(a)(1)(A)–(C).[ 1 ] To recover under §1514A, an aggrieved employee must exhaust administrative remedies by “filing a complaint with the Secretary of Labor.” §1514A(b)(1)(A); see Lawson , 571 U. S., at ___–___ (slip op., at 5–6). Congress prescribed a 180-day limitation period for filing such a complaint. §1514A(b)(2)(D). If the agency “does not issue a final decision within 180 days of the filing of [a] complaint, and the [agency’s] delay is not due to bad faith on the claimant’s part, the claimant may proceed to federal district court for de novo review.” Id. , at ___ (slip op., at 6) (citing §1514A(b)). An employee who prevails in a proceeding under §1514A is “entitled to all relief necessary to make the employee whole,” including reinstatement, backpay with interest, and any “special damages sustained as a result of the discrimination,” among such damages, litigation costs. §1514A(c). B 1 At issue in this case is the Dodd-Frank anti-retaliation provision enacted in 2010, eight years after the enactment of Sarbanes-Oxley. Passed in the wake of the 2008 financial crisis, Dodd-Frank aimed to “promote the financial stability of the United States by improving accountability and transparency in the financial system.” 124Stat. 1376. Dodd-Frank responded to numerous perceived shortcomings in financial regulation. Among them was the SEC’s need for additional “power, assistance and money at its disposal” to regulate securities markets. S. Rep. No. 111–176, pp. 36, 37 (2010). To assist the Commission “in identifying securities law violations,” the Act established “a new, robust whistleblower program designed to motivate people who know of securities law violations to tell the SEC.” Id., at 38. And recognizing that “whistleblowers often face the difficult choice between telling the truth and . . . committing ‘career suicide,’ ” Congress sought to protect whistleblowers from employment discrimination. Id., at 111, 112. Dodd-Frank implemented these goals by adding a new provision to the Securities Exchange Act of 1934: 15 U. S. C. §78u–6. Section 78u–6 begins by defining a “whistleblower” as “any individual who provides . . . information relating to a violation of the securities laws to the Commission , in a manner established, by rule or regulation, by the Commission.” §78u–6(a)(6) (emphasis added). That definition, the statute directs, “shall apply” “[i]n this section”— i.e., throughout §78u–6. §78u–6(a). Section 78u–6 affords covered whistleblowers both incentives and protection. First, the section creates an award program for “whistleblowers who voluntarily provid[e] original information to the Commission that le[ads] to the successful enforcement of [a] covered judicial or administrative action.” §78u–6(b)(1). A qualifying whistleblower is entitled to a cash award of 10 to 30 percent of the monetary sanctions collected in the enforcement action. See §78u–6(b)(1)(A)–(B). Second, §78u–6(h) prohibits an employer from discharging, harassing, or otherwise discriminating against a “whistleblower” “because of any lawful act done by the whistleblower” in three situations: first, “in providing information to the Commission in accordance with [§78u–6],” §78u–6(h)(1)(A)(i); second, “in initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information provided to the SEC in accordance with §78u–6, §78u–6(h)(1)(A)(ii); and third, “in making disclosures that are required or protected under” either Sarbanes-Oxley, the Securities Exchange Act of 1934, the criminal anti-retaliation prohibition at 18 U. S. C. §1513(e),[ 2 ] or “any other law, rule, or regulation subject to the jurisdiction of the Commission,” §78u–6(h)(1)(A)(iii). Clause (iii), by cross-referencing Sarbanes-Oxley and other laws, protects disclosures made to a variety of individuals and entities in addition to the SEC. For example, the clause shields an employee’s reports of wrongdoing to an internal supervisor if the reports are independently safeguarded from retaliation under Sarbanes-Oxley. See supra, at 2–3.[ 3 ] The recovery procedures under the anti-retaliation provisions of Dodd-Frank and Sarbanes-Oxley differ in critical respects. First, unlike Sarbanes-Oxley, which contains an administrative-exhaustion requirement and a 180-day administrative complaint-filing deadline, see 18 U. S. C. §1514A(b)(1)(A), (2)(D), Dodd-Frank permits a whistleblower to sue a current or former employer directly in federal district court, with a default limitation period of six years, see §78u–6(h)(1)(B)(i), (iii)(I)(aa). Second, Dodd-Frank instructs a court to award to a prevailing plaintiff double backpay with interest, see §78u–6(h)(1)(C)(ii), while Sarbanes-Oxley limits recovery to actual backpay with interest, see 18 U. S. C. §1514A(c)(2)(B). Like Sarbanes-Oxley, however, Dodd-Frank authorizes reinstatement and compensation for litigation costs, expert witness fees, and reasonable attorneys’ fees. Compare §78u–6(h)(1)(C)(i), (iii), with 18 U. S. C. §1514A(c)(2)(A), (C).[ 4 ] 2 Congress authorized the SEC “to issue such rules and regulations as may be necessary or appropriate to implement the provisions of [§78u–6] consistent with the purposes of this section.” §78u–6(j). Pursuant to this author- ity, the SEC published a notice of proposed rulemaking to “Implemen[t] the Whistleblower Provisions” of Dodd-Frank. 75 Fed. Reg. 70488 (2010). Proposed Rule 21F–2(a) defined a “whistleblower,” for purposes of both the award and anti-retaliation provisions of §78u–6, as one or more individuals who “provide the Commission with information relating to a potential violation of the securities laws.” Id., at 70519 (proposed 17 CFR §240.21F–2(a)). The proposed rule, the agency noted, “tracks the statutory definition of a ‘whistleblower’ ” by requiring information reporting to the SEC itself. 75 Fed. Reg. 70489. In promulgating the final Rule, however, the agency changed course. Rule 21F–2, in finished form, contains two discrete “whistleblower” definitions. See 17 CFR §240.21F–2(a)–(b) (2017). For purposes of the award program, the Rule states that “[y]ou are a whistleblower if . . . you provide the Commission with information . . . relat[ing] to a possible violation of the Federal securities laws.” §240.21F–2(a)(1) (emphasis added). The information must be provided to the SEC through its website or by mailing or faxing a specified form to the SEC Office of the Whistleblower. See ibid. ; §240.21F–9(a)(1)–(2). “For purposes of the anti-retaliation protections,” however, the Rule states that “[y]ou are a whistleblower if . . . [y]ou possess a reasonable belief that the information you are providing relates to a possible securities law violation” and “[y]ou provide that information in a manner described in” clauses (i) through (iii) of §78u–6(h)(1)(A). 17 CFR §240.21F–2(b)(1)(i)–(ii). “The anti-retaliation protections apply,” the Rule emphasizes, “whether or not you satisfy the requirements, procedures and conditions to qualify for an award.” §240.21F–2(b)(1)(iii). An individual may therefore gain anti-retaliation protection as a “whistleblower” under Rule 21F–2 without providing information to the SEC, so long as he or she provides information in a manner shielded by one of the anti-retaliation provision’s three clauses. For example, a report to a company supervisor would qualify if the report garners protection under the Sarbanes-Oxley anti-retaliation provision.[ 5 ] C Petitioner Digital Realty Trust, Inc. (Digital Realty) is a real estate investment trust that owns, acquires, and develops data centers. See Brief for Petitioner 3. Digital Realty employed respondent Paul Somers as a Vice President from 2010 to 2014. See 119 F. Supp. 3d 1088, 1092 (ND Cal. 2015). Somers alleges that Digital Realty terminated him shortly after he reported to senior management suspected securities-law violations by the company. See ibid. Although nothing impeded him from alerting the SEC prior to his termination, he did not do so. See Tr. of Oral Arg. 45. Nor did he file an administrative complaint within 180 days of his termination, rendering him ineligible for relief under Sarbanes-Oxley. See ibid. ; 18 U. S. C. §1514A(b)(2)(D). Somers brought suit in the United States District Court for the Northern District of California alleging, inter alia , a claim of whistleblower retaliation under Dodd-Frank. Digital Realty moved to dismiss that claim, arguing that “Somers does not qualify as a ‘whistleblower’ under [§78u–6(h)] because he did not report any alleged law violations to the SEC.” 119 F. Supp. 3d, at 1094. The District Court denied the motion. Rule 21F–2, the court observed, does not necessitate recourse to the SEC prior to gaining “whistleblower” status under Dodd-Frank. See id., at 1095–1096. Finding the statutory scheme ambiguous, the court accorded deference to the SEC’s Rule under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. , 467 U. S. 837 (1984) . See 119 F. Supp. 3d, at 1096–1106. On interlocutory appeal, a divided panel of the Court of Appeals for the Ninth Circuit affirmed. 850 F. 3d 1045 (2017). The majority acknowledged that Dodd-Frank’s definitional provision describes a “whistleblower” as an individual who provides information to the SEC itself. Id., at 1049. But applying that definition to the anti-retaliation provision, the majority reasoned, would narrow the third clause of §78u–6(h)(1)(A) “to the point of absurd- ity”: The statute would protect employees only if they “reported possible securities violations both internally and to the SEC.” Ibid. Such dual reporting, the majority believed, was unlikely to occur. Ibid. Therefore, the majority concluded, the statute should be read to protect employees who make disclosures privileged by clause (iii) of §78u–6(h)(1)(A), whether or not those employees also provide information to the SEC. Id., at 1050. In any event, the majority held, the SEC’s resolution of any statutory ambiguity warranted deference. Ibid. Judge Owens dissented. In his view, the statutory definition of whistleblower was clear, left no room for interpretation, and plainly governed. Id., at 1051. Two other Courts of Appeals have weighed in on the question before us. The Court of Appeals for the Fifth Circuit has held that employees must provide information to the SEC to avail themselves of Dodd-Frank’s anti-retaliation safeguard. See Asadi v. G. E. Energy (USA), L. L. C. , 720 F. 3d 620, 630 (2013). A divided panel of the Court of Appeals for the Second Circuit reached the opposite conclusion, over a dissent by Judge Jacobs. See Berman v. NEO@OGILVY LLC , 801 F. 3d 145, 155 (2013). We granted certiorari to resolve this conflict, 582 U. S. ___ (2017), and now reverse the Ninth Circuit’s judgment. II “When a statute includes an explicit definition, we must follow that definition,” even if it varies from a term’s ordinary meaning. Burgess v. United States , 553 U. S. 124, 130 (2008) (internal quotation marks omitted). This principle resolves the question before us. A Our charge in this review proceeding is to determine the meaning of “whistleblower” in §78u–6(h), Dodd-Frank’s anti-retaliation provision. The definition section of the statute supplies an unequivocal answer: A “whistleblower” is “any individual who provides . . . information relating to a violation of the securities laws to the Commission .” §78u–6(a)(6) (emphasis added). Leaving no doubt as to the definition’s reach, the statute instructs that the “definitio[n] shall apply” “[i]n this section,” that is , throughout §78u–6. §78u–6(a)(6) . The whistleblower definition operates in conjunction with the three clauses of §78u–6(h)(1)(A) to spell out the provision’s scope. The definition first describes who is eligible for protection—namely, a whistleblower who provides pertinent information “to the Commission.” §78u–6(a)(6). The three clauses of §78u–6(h)(1)(A) then describe what conduct , when engaged in by a whistle- blower, is shielded from employment discrimination. See §78u–6(h)(1)(A)(i)–(iii). An individual who meets both measures may invoke Dodd-Frank’s protections. But an individual who falls outside the protected category of “whistleblowers” is ineligible to seek redress under the statute, regardless of the conduct in which that individual engages. Reinforcing our reading, another whistleblower-protection provision in Dodd-Frank imposes no requirement that information be conveyed to a government agency. Title 10 of the statute, which created the Consumer Financial Protection Bureau (CFPB), prohibits discrimination against a “covered employee” who, among other things, “provide[s] . . . information to [his or her] employer, the Bureau, or any other State, local, or Federal, government authority or law enforcement agency relating to” a violation of a law subject to the CFPB’s jurisdiction. 12 U. S. C. §5567(a)(1). To qualify as a “covered employee,” an individual need not provide information to the CFPB, or any other entity. See §5567(b) (“covered employee” means “any individual performing tasks related to the offering or provision of a consumer financial product or service”). “[W]hen Congress includes particular language in one section of a statute but omits it in another[,] . . . this Court presumes that Congress intended a difference in meaning.” Loughrin v. United States , 573 U. S. ___, ___ (2014) (slip op., at 6) (internal quotation marks and alteration omitted). Congress placed a government-reporting requirement in §78u–6(h), but not elsewhere in the same statute. Courts are not at liberty to dispense with the condition—tell the SEC—Congress imposed. B Dodd-Frank’s purpose and design corroborate our comprehension of §78u–6(h)’s reporting requirement. The “core objective” of Dodd-Frank’s robust whistleblower program, as Somers acknowledges, Tr. of Oral Arg. 45, is “to motivate people who know of securities law violations to tell the SEC ,” S. Rep. No. 111–176, at 38 (emphasis added). By enlisting whistleblowers to “assist the Government [in] identify[ing] and prosecut[ing] persons who have violated securities laws,” Congress undertook to improve SEC enforcement and facilitate the Commission’s “recover[y] [of] money for victims of financial fraud.” Id., at 110. To that end, §78u–6 provides substantial monetary rewards to whistleblowers who furnish actionable information to the SEC. See §78u–6(b). Financial inducements alone, Congress recognized, may be insufficient to encourage certain employees, fearful of employer retaliation, to come forward with evidence of wrongdoing. Congress therefore complemented the Dodd-Frank monetary incentives for SEC reporting by heightening protection against retaliation. While Sarbanes-Oxley contains an administrative-exhaustion requirement, a 180-day administrative complaint-filing deadline, and a remedial scheme limited to actual damages, Dodd-Frank provides for immediate access to federal court, a generous statute of limitations (at least six years), and the opportunity to recover double backpay. See supra, at 5–6. Dodd-Frank’s award program and anti-retaliation provision thus work synchronously to motivate individuals with knowledge of illegal activity to “tell the SEC.” S. Rep. No. 111–176, at 38. When enacting Sarbanes-Oxley’s whistleblower regime, in comparison, Congress had a more far-reaching objective: It sought to disturb the “corporate code of silence” that “discourage[d] employees from reporting fraudulent behavior not only to the proper authorities, such as the FBI and the SEC, but even internally.” Lawson , 571 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). Accordingly, the Sarbanes-Oxley anti-retaliation provision covers employees who report fraud not only to the SEC, but also to any other federal agency, Congress, or an internal supervisor. See 18 U. S. C. §1514A(a)(1). C In sum, Dodd-Frank’s text and purpose leave no doubt that the term “whistleblower” in §78u–6(h) carries the meaning set forth in the section’s definitional provision. The disposition of this case is therefore evident: Somers did not provide information “to the Commission” before his termination, §78u–6(a)(6), so he did not qualify as a “whistleblower” at the time of the alleged retaliation. He is therefore ineligible to seek relief under §78u–6(h). III Somers and the Solicitor General tender a different view of Dodd-Frank’s compass. The whistleblower definition, as they see it, applies only to the statute’s award program, not to its anti-retaliation provision, and thus not, as the definition plainly states, throughout “this section,” §78u–6(a). See Brief for Respondent 30; Brief for United States as Amicus Curiae 10–11. For purposes of the anti-retaliation provision alone, they urge us to construe the term “whistleblower” in its “ordinary sense,” i.e., without any SEC-reporting requirement. Brief for Respondent 18. Doing so, Somers and the Solicitor General contend, would align with our precedent, specifically Lawson v. Suwannee Fruit & S. S. Co. , 336 U. S. 198 (1949) , and Utility Air Regulatory Group v. EPA , 573 U. S. ___ (2014). In those decisions, we declined to apply a statutory definition that ostensibly governed where doing so would have been “incompatible with . . . Congress’ regulatory scheme,” id ., at ___ (slip op., at 18) (internal quotation marks omitted), or would have “destroy[ed] one of the [statute’s] major purposes,” Suwannee Fruit , 336 U. S., at 201 . This case is of a piece, Somers and the Solicitor General maintain. Applying the statutory definition here, they variously charge, would “create obvious incongruities,” Brief for United States as Amicus Curiae 19 (internal quotation marks omitted), “produce anomalous results,” id., at 22, “vitiate much of the [statute’s] protection,” id., at 20 (internal quotation marks omitted), and, as the Court of Appeals put it, narrow clause (iii) of §78u–6(h)(1)(A) “to the point of absurdity,” Brief for Respondent 35 (quoting 850 F. 3d, at 1049). We next address these concerns and explain why they do not lead us to depart from the statutory text. A It would gut “much of the protection afforded by” the third clause of §78u–6(h)(1)(a), Somers and the Solicitor General urge most strenuously, to apply the whistleblower definition to the anti-retaliation provision. Brief for United States as Amicus Curiae 20 (internal quotation marks omitted); Brief for Respondent 28–29. As earlier noted, see supra, at 4–5, clause (iii) prohibits retaliation against a “whistleblower” for “making disclosures” to various persons and entities, including but not limited to the SEC, to the extent those disclosures are “required or protected under” various laws other than Dodd-Frank. §78u–6(h)(1)(A)(iii). Applying the statutory definition of whistleblower, however, would limit clause (iii)’s protection to “only those individuals who report to the Commission.” Brief for United States as Amicus Curiae 22. The plain-text reading of the statute undoubtedly shields fewer individuals from retaliation than the alternative proffered by Somers and the Solicitor General. But we do not agree that this consequence “vitiate[s]” clause (iii)’s protection, id ., at 20 (internal quotation marks omitted), or ranks as “absur[d],” Brief for Respondent 35 (internal quotation marks omitted).[ 6 ] In fact, our reading leaves the third clause with “substantial meaning.” Brief for Petitioner 32. With the statutory definition incorporated, clause (iii) protects a whistleblower who reports misconduct both to the SEC and to another entity, but suffers retaliation because of the latter, non-SEC, disclosure. That would be so, for example, where the retaliating employer is un- aware that the employee has alerted the SEC. In such a case, without clause (iii), retaliation for internal reporting would not be reached by Dodd-Frank, for clause (i) applies only where the employer retaliates against the employee “because of” the SEC reporting. §78u–6(h)(1)(A). More- over, even where the employer knows of the SEC reporting, the third clause may operate to dispel a proof problem: The employee can recover under the statute without having to demonstrate whether the retaliation was motivated by the internal report (thus yielding protection under clause (iii)) or by the SEC disclosure (thus gaining protection under clause (i)). While the Solicitor General asserts that limiting the protections of clause (iii) to dual reporters would “shrink to insignificance the [clause’s] ban on retaliation,” Brief for United States as Amicus Curiae 22 (internal quotation marks omitted), he offers scant evidence to support that assertion. Tugging in the opposite direction, he reports that approximately 80 percent of the whistleblowers who received awards in 2016 “reported internally before reporting to the Commission.” Id., at 23. And Digital Realty cites real-world examples of dual reporters seeking Dodd-Frank or Sarbanes-Oxley recovery for alleged retaliation. See Brief for Petitioner 33, and n. 4 (collecting cases). Overlooked by Somers and the Solicitor General, in dual-reporting cases, retaliation not prompted by SEC disclosures (and thus unaddressed by clause (i)) is likely commonplace: The SEC is required to protect the identity of whistleblowers, see §78u–6(h)(2)(A), so employers will often be unaware that an employee has reported to the Commission. In any event, even if the number of individuals qualifying for protection under clause (iii) is relatively limited, “[i]t is our function to give the statute the effect its language suggests, however modest that may be.” Morrison v. National Australia Bank Ltd. , 561 U. S. 247, 270 (2010) . B Somers and the Solicitor General express concern that our reading would jettison protection for auditors, attorneys, and other employees subject to internal-reporting requirements. See Brief for Respondent 35; Brief for United States as Amicus Curiae 21. Sarbanes-Oxley, for example, requires auditors and attorneys to report certain information within the company before making disclosures externally. See 15 U. S. C. §§78j–1(b), 7245; 17 CFR §205.3. If the whistleblower definition applies, Somers and the Solicitor General fear, these professionals will be “le[ft] . . . vulnerable to discharge or other retaliatory action for complying with” their internal-reporting obligations. Brief for United States as Amicus Curiae 22 (internal quotation marks omitted). Our reading shields employees in these circumstances, however, as soon as they also provide relevant information to the Commission . True, such employees will remain ineligible for Dodd-Frank’s protection until they tell the SEC, but this result is consistent with Congress’ aim to encourage SEC disclosures. See S. Rep. No. 111–176, at 38; supra, at 3–4, 11. Somers worries that lawyers and auditors will face retaliation quickly, before they have a chance to report to the SEC. Brief for Respondent 35–36. But he offers nothing to show that Congress had this concern in mind when it enacted §78u–6(h). Indeed, Congress may well have considered adequate the safeguards already afforded by Sarbanes-Oxley, protections specifi- cally designed to shield lawyers, accountants, and similar professionals. See Lawson , 571 U. S., at ___ (slip op., at 17). C Applying the whistleblower definition as written, Somers and the Solicitor General further protest, will create “an incredibly unusual statutory scheme”: “[I]dentical misconduct”— i.e., retaliating against an employee for internal reporting—will “go punished or not based on the happenstance of a separate report” to the SEC, of which the wrongdoer may “not even be aware.” Brief for Respondent 37–38. See also Brief for United States as Amicus Curiae 24. The upshot, the Solicitor General warns, “would [be] substantially diminish[ed] Dodd-Fran[k] deterrent effect.” Ibid. Overlooked in this protest is Dodd-Frank’s core objective: to prompt reporting to the SEC. Supra, at 3–4, 11. In view of that precise aim, it is understandable that the statute’s retaliation protections, like its financial rewards, would be reserved for employees who have done what Dodd-Frank seeks to achieve, i.e., they have placed information about unlawful activity before the Commission to aid its enforcement efforts. D Pointing to another purported anomaly attending the reading we adopt today, the Solicitor General observes that neither the whistleblower definition nor §78u–6(h) contains any requirement of a “temporal or topical connection between the violation reported to the Commission and the internal disclosure for which the employee suffers retaliation.” Brief for United States as Amicus Curiae 25. It is therefore possible, the Solicitor General posits, that “an employee who was fired for reporting accounting fraud to his supervisor in 2017 would have a cause of action under [§78u–6(h)] if he had reported an insider-trading violation by his previous employer to the Commission in 2012.” Ibid. For its part, Digital Realty agrees that this scenario could arise, but does not see it as a cause for concern: “Congress,” it states, “could reasonably have made the policy judgment that individuals who report securities-law violations to the SEC should receive broad protection over time against retaliation for a variety of disclosures.” Reply Brief 11. We need not dwell on the situation hypothesized by the Solicitor General, for it veers far from the case before us. We note, however, that the interpretation offered by Somers and the Solicitor General— i.e., ignoring the statutory definition when construing the anti-retaliation provision—raises an even thornier question about the law’s scope. Their view, which would not require an employee to provide information relating to a securities-law violation to the SEC, could afford Dodd-Frank protection to an employee who reports information bearing no relationship whatever to the securities laws. That prospect could be imagined based on the broad array of federal statutes and regulations cross-referenced by clause (iii) of the anti-retaliation provision. E.g., 18 U. S. C. §1513(e) (criminalizing retaliation for “providing to a law enforcement officer any truthful information relating to the commission . . . of any Federal offense ” (emphasis added)); see supra, at 5, and n. 2. For example, an employee fired for reporting a coworker’s drug dealing to the Federal Bureau of Investigation might be protected. Brief for Petitioner 38. It would make scant sense, however, to rank an FBI drug-trafficking informant a whistleblower under Dodd-Frank, a law concerned only with encouraging the reporting of “ securities law violations.” S. Rep. No. 111–176, at 38 (emphasis added). E Finally, the interpretation we adopt, the Solicitor General adds, would undermine not just clause (iii) of §78u–6(h)(1)(A), but clause (ii) as well. Clause (ii) prohibits retaliation against a whistleblower for “initiating, testifying in, or assisting in any investigation or . . . action of the Commission based upon” information conveyed to the SEC by a whistleblower in accordance with the statute. §78u–6(h)(1)(A)(ii). If the whistleblower definition is applied to §78u–6(h), the Solicitor General states, “an employer could fire an employee for giving . . . testimony [to the SEC] if the employee had not previously reported to the Commission online or through the specified written form”— i.e., the methods currently prescribed by Rule 21F–9 for a whistleblower to provide information to the Commission. Brief for United States as Amicus Curiae 20–21 (citing 17 CFR §240.21F–9(a)(1)–(2)). But the statute expressly delegates authority to the SEC to establish the “manner” in which information may be provided to the Commission by a whistleblower. See §78u–6(a)(6). Nothing in today’s opinion prevents the agency from enumerating additional means of SEC reporting—including through testimony protected by clause (ii). IV For the foregoing reasons, we find the statute’s definition of “whistleblower” clear and conclusive. Because “Congress has directly spoken to the precise question at issue,” Chevron , 467 U. S., at 842, we do not accord deference to the contrary view advanced by the SEC in Rule 21F–2. See 17 CFR §240.21F–2(b)(1); supra, at 6–7. The statute’s unambiguous whistleblower definition, in short, precludes the Commission from more expansively interpreting that term. See Burgess , 553 U. S., at 130. *  *  * The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Sarbanes-Oxley also prohibits retaliation against an “employee” who “file[s], . . . testif[ies], participate[s] in, or otherwise assist[s] in a proceeding filed or about to be filed . . . relating to an alleged violation of” the same provisions of federal law addressed in 18 U. S. C. §1514A(a)(1). See §1514A(a)(2). 2 Section 1513(e) provides: “Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.” 3 Section 78u–6(h)(1)(A) reads in full: 4 Unlike Dodd-Frank, Sarbanes-Oxley explicitly entitles a prevailing employee to “all relief necessary to make the employee whole,” including “compensation for any special damages sustained as a result of the discrimination.” 18 U. S. C. §1514A(c)(1), (2)(C). 5 In 2015, the SEC issued an interpretive rule reiterating that anti-retaliation protection is not contingent on a whistleblower’s provision of information to the Commission. See 80 Fed. Reg. 47829 (2015). 6 The Solicitor General, unlike Somers, acknowledges that it would not be absurd to apply the “whistleblower” definition to the anti-retaliation provision. Tr. of Oral Arg. 52. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1276 _________________ DIGITAL REALTY TRUST, INC., PETITIONER v. PAUL SOMERS on writ of certiorari to the united states court of appeals for the ninth circuit [February 21, 2018] Justice Sotomayor, with whom Justice Breyer joins, concurring. I join the Court’s opinion in full. I write separately only to note my disagreement with the suggestion in my colleague’s concurrence that a Senate Report is not an appropriate source for this Court to consider when interpreting a statute. Legislative history is of course not the law, but that does not mean it cannot aid us in our understanding of a law. Just as courts are capable of assessing the reliability and utility of evidence generally, they are capable of assessing the reliability and utility of legislative-history materials. Committee reports, like the Senate Report the Court discusses here, see ante, at 3–4, 11–12, 16–18, are a particularly reliable source to which we can look to ensure our fidelity to Congress’ intended meaning. See Garcia v. United States , 469 U. S. 70, 76 (1984) (“In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature’s intent lies in the Committee Reports on the bill, which ‘represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation’ ” (quoting Zuber v. Allen , 396 U. S. 168, 186 (1969) )). Bills presented to Congress for consideration are generally accompanied by a committee report. Such reports are typically circulated at least two days before a bill is to be considered on the floor and provide Members of Congress and their staffs with information about “a bill’s context, purposes, policy implications, and details,” along with information on its supporters and opponents. R. Katzmann, Judging Statutes 20, and n. 62 (2014) (citing A. LaRue, Senate Manual Containing the Standing Rules, Orders, Laws, and Resolutions Affecting the Business of the United States Senate, S. Doc. No. 107–1, p. 17 (2001)). These materials “have long been important means of informing the whole chamber about proposed legislation,” Katzmann, Judging Statutes , at 19, a point Members themselves have emphasized over the years.[ 1 ]* It is thus no surprise that legislative staffers view committee and conference reports as the most reliable type of legislative history. See Gluck & Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stan. L. Rev. 901, 977 (2013). Legislative history can be particularly helpful when a statute is ambiguous or deals with especially complex matters. But even when, as here, a statute’s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text. See, e.g., Tapia v. United States , 564 U. S. 319 –332 (2011); Carr v. United States , 560 U. S. 438 –458 (2010). Moreover, confirming our construction of a statute by considering reliable legislative history shows respect for and promotes comity with a coequal branch of Government. See Katzmann , Judging Statutes, at 35–36. For these reasons, I do not think it wise for judges to close their eyes to reliable legislative history—and the realities of how Members of Congress create and enact laws—when it is available. Notes 1 * See, e.g., Hearings on the Nomination of Judge Antonin Scalia, To Be Associate Justice of the Supreme Court of the United States before the Senate Committee on the Judiciary, 99th Cong., 2d Sess., 65–66 (1986) (Sen. Charles E. Grassley) (“[A]s one who has served in Congress for 12 years, legislative history is very important to those of us here who want further detailed expression of that legislative intent”); Mikva, Reading and Writing Statutes, 28 S. Tex. L. Rev. 181, 184 (1986) (“The committee report is the bone structure of the legislation. It is the road map that explains why things are in and things are out of the statute”); Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response? 93 Mich. L. Rev. 1, 28 (1994) (compiling the views of former Members on “the central importance of committee reports to their own understanding of statutory text”). In fact, some Members “are more likely to vote . . . based on a reading of the legislative history than on a reading of the statute itself.” Gluck & Bressman, Statutory Interpretation From the Inside—An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I, 65 Stan. L. Rev. 901, 968 (2013). SUPREME COURT OF THE UNITED STATES _________________ No. 16–1276 _________________ DIGITAL REALTY TRUST, INC., PETITIONER v. PAUL SOMERS on writ of certiorari to the united states court of appeals for the ninth circuit [February 21, 2018] Justice Thomas, with whom Justice Alito and Justice Gorsuch join, concurring in part and concurring in the judgment. I join the Court’s opinion only to the extent it relies on the text of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), 124Stat. 1376. The question in this case is whether the term “whistleblower” in Dodd-Frank’s antiretaliation provision, 15 U. S. C. §78u–6(h)(1), includes a person who does not report information to the Securities and Exchange Commission. The answer is in the definitions section of the statute, which states that the term “whistleblower” means a person who provides “information relating to a violation of the securities laws to the Commission.” §78u–6(a)(6). As the Court observes, this statutory definition “resolves the question before us.” Ante , at 9. The Court goes on, however, to discuss the supposed “purpose” of the statute, which it primarily derives from a single Senate Report. See ante , at 3–4, 11–12, 16–18. Even assuming a majority of Congress read the Senate Report, agreed with it, and voted for Dodd-Frank with the same intent, “we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended.”[ 1 ] Lawson v. FMR LLC , 571 U. S. 429 , ___ (2014) (Scalia, J., concurring in part and concurring in judgment) (slip op., at 1). And “it would be a strange canon of statutory construction that would require Congress to state in committee reports . . . that which is obvious on the face of a statute.” Harrison v. PPG Industries, Inc. , 446 U. S. 578, 592 (1980) . For these reasons, I am unable to join the portions of the Court’s opinion that venture beyond the statutory text. Notes 1 For what it is worth, I seriously doubt that a committee report is a “particularly reliable source” for discerning “Congress’ intended meaning.” Ante , at 1 (Sotomayor, J., concurring). The following exchange on the Senate floor is telling: “Mr. ARMSTRONG. Mr. President, will the Senator tell me whether or not he wrote the committee report? “Mr. DOLE. Did I write the committee report? “Mr. ARMSTRONG. Yes. “Mr. DOLE. No; the Senator from Kansas did not write the com-mittee report. “Mr. ARMSTRONG. Did any Senator write the committee report? “Mr. DOLE. I have to check. “Mr. ARMSTRONG. Does the Senator know of any Senator who wrote the committee report? “Mr. DOLE. I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked. . . . “Mr. ARMSTRONG. Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety? “Mr. DOLE. I am working on it. It is not a bestseller, but I am working on it. “Mr. ARMSTRONG. Mr. President, did members of the Finance Committee vote on the committee report? “Mr. DOLE. No. “Mr. ARMSTRONG. . . . The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate. . . . If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the committee report. . . . [ L]et me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.” Hirschey v. FERC , 777 F. 2d 1, 7–8, n. 1 (CADC 1985) (Scalia, J., concurring) (quoting 128 Cong. Rec. 16918–16919 (1982)). See also Kethledge, Ambiguities and Agency Cases: Reflections After (Almost) Ten Years on the Bench, 70 Vand. L. Rev. En Banc 315, 317–318 (2017) (describing his experience as a Senate staffer who drafted legislative history “like being a teenager at home while your parents are away for the weekend: there was no supervision. I was able to write more or less what I pleased. . . . [ M ]ost members of Congress . . . have no idea at all about what is in the legislative history for a particular bill”).

The Supreme Court ruled that the Dodd-Frank Act's anti-retaliation provision does not apply to individuals who have not reported securities law violations to the SEC and thus do not meet the Act's definition of "whistleblower."

LGBTQ+ Rights

Bowers v. Hardwick

https://supreme.justia.com/cases/federal/us/478/186/

U.S. Supreme Court Bowers v. Hardwick, 478 U.S. 186 (1986) Bowers v. Hardwick No. 85-140 Argued March 31, 1986 Decided June 30, 1986 478 U.S. 186 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT Syllabus After being charged with violating the Georgia statute criminalizing sodomy by committing that act with another adult male in the bedroom of his home, respondent Hardwick (respondent) brought suit in Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. The court granted the defendants' motion to dismiss for failure to state a claim. The Court of Appeals reversed and remanded, holding that the Georgia statute violated respondent's fundamental rights. Held: The Georgia statute is constitutional. Pp. 478 U. S. 190 -196. (a) The Constitution does not confer a fundamental right upon homosexuals to engage in sodomy. None of the fundamental rights announced in this Court's prior cases involving family relationships, marriage, or procreation bear any resemblance to the right asserted in this case. And any claim that those cases stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Pp. 478 U. S. 190 -191. (b) Against a background in which many States have criminalized sodomy and still do, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. Pp. 478 U. S. 191 -194. (c) There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority. The claimed right in this case falls far short of overcoming this resistance. Pp. 478 U. S. 194 -195. (d) The fact that homosexual conduct occurs in the privacy of the home does not affect the result. Stanley v. Georgia, 394 U. S. 557 , distinguished. Pp. 478 U. S. 195 -196. (e) Sodomy laws should not be invalidated on the asserted basis that majority belief that sodomy is immoral is an inadequate rationale to support the laws. P. 478 U. S. 196 . 760 F.2d 1202, reversed. Page 478 U. S. 187 WHITE, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BURGER, C.J., post, p. 478 U. S. 196 , and POWELL, J., post, p. 478 U. S. 197 , filed concurring opinions. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS, JJ., joined, post, p. 478 U. S. 199 . STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 478 U. S. 214 . JUSTICE WHITE delivered the opinion of the Court. In August, 1982, respondent Hardwick (hereafter respondent) was charged with violating the Georgia statute criminalizing Page 478 U. S. 188 sodomy [ Footnote 1 ] by committing that act with another adult male in the bedroom of respondent's home. After a preliminary hearing, the District Attorney decided not to present the matter to the grand jury unless further evidence developed. Respondent then brought suit in the Federal District Court, challenging the constitutionality of the statute insofar as it criminalized consensual sodomy. [ Footnote 2 ] He asserted that he was a practicing homosexual, that the Georgia sodomy statute, as administered by the defendants, placed him in imminent danger of arrest, and that the statute for several reasons violates the Federal Constitution. The District Court granted the defendants' motion to dismiss for failure to state a claim, relying on Doe v. Commonwealth's Attorney for the City of Richmond, 403 F. Supp. 1199 (ED Va.1975), which this Court summarily affirmed, 425 U.S. 901 (1976). Page 478 U. S. 189 A divided panel of the Court of Appeals for the Eleventh Circuit reversed. 760 F.2d 1202 (1985). The court first held that, because Doe was distinguishable and, in any event, had been undermined by later decisions, our summary affirmance in that case did not require affirmance of the District Court. Relying on our decisions in Griswold v. Connecticut, 381 U. S. 479 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972); Stanley v. Georgia, 394 U. S. 557 (1969); and Roe v. Wade, 410 U. S. 113 (1973), the court went on to hold that the Georgia statute violated respondent's fundamental rights because his homosexual activity is a private and intimate association that is beyond the reach of state regulation by reason of the Ninth Amendment and the Due Process Clause of the Fourteenth Amendment. The case was remanded for trial, at which, to prevail, the State would have to prove that the statute is supported by a compelling interest and is the most narrowly drawn means of achieving that end. Because other Courts of Appeals have arrived at judgments contrary to that of the Eleventh Circuit in this case, [ Footnote 3 ] we granted the Attorney General's petition for certiorari questioning the holding that the sodomy statute violates the fundamental rights of homosexuals. We agree with petitioner that the Court of Appeals erred, and hence reverse its judgment. [ Footnote 4 ] Page 478 U. S. 190 This case does not require a judgment on whether laws against sodomy between consenting adults in general, or between homosexuals in particular, are wise or desirable. It raises no question about the right or propriety of state legislative decisions to repeal their laws that criminalize homosexual sodomy, or of state court decisions invalidating those laws on state constitutional grounds. The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time. The case also calls for some judgment about the limits of the Court's role in carrying out its constitutional mandate. We first register our disagreement with the Court of Appeals and with respondent that the Court's prior cases have construed the Constitution to confer a right of privacy that extends to homosexual sodomy and, for all intents and purposes, have decided this case. The reach of this line of cases was sketched in Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 685 (1977). Pierce v. Society of Sisters, 268 U. S. 510 (1925), and Meyer v. Nebraska, 262 U. S. 390 (1923), were described as dealing with childrearing and education; Prince v. Massachusetts, 321 U. S. 158 (1944), with family relationships; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 (1942), with procreation; Loving v. Virginia, 388 U. S. 1 (1967), with marriage; Griswold v. Connecticut, supra, and Eisenstadt v. Baird, supra, with contraception; and Roe v. Wade, 410 U. S. 113 (1973), with abortion. The latter three cases were interpreted as construing the Due Process Clause of the Fourteenth Amendment to confer a fundamental individual right to decide whether or not to beget or bear a child. Carey v. Population Services International, supra, at 431 U. S. 688 -689. Accepting the decisions in these cases and the above description of them, we think it evident that none of the rights announced in those cases bears any resemblance to the Page 478 U. S. 191 claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case. No connection between family, marriage, or procreation, on the one hand, and homosexual activity, on the other, has been demonstrated, either by the Court of Appeals or by respondent. Moreover, any claim that these cases nevertheless stand for the proposition that any kind of private sexual conduct between consenting adults is constitutionally insulated from state proscription is unsupportable. Indeed, the Court's opinion in Carey twice asserted that the privacy right, which the Griswold line of cases found to be one of the protections provided by the Due Process Clause, did not reach so far. 431 U.S. at 431 U. S. 688 , n. 5, 431 U. S. 694 , n. 17. Precedent aside, however, respondent would have us announce, as the Court of Appeals did, a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do. It is true that, despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appears to focus only on the processes by which life, liberty, or property is taken, the cases are legion in which those Clauses have been interpreted to have substantive content, subsuming rights that to a great extent are immune from federal or state regulation or proscription. Among such cases are those recognizing rights that have little or no textual support in the constitutional language. Meyer, Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey. Striving to assure itself and the public that announcing rights not readily identifiable in the Constitution's text involves much more than the imposition of the Justices' own choice of values on the States and the Federal Government, the Court has sought to identify the nature of the rights qualifying for heightened judicial protection. In Palko v. Connecticut, 302 U. S. 319 , 302 U. S. 325 , 302 U. S. 326 (1937), it was said that this category includes those fundamental liberties that are "implicit in the concept of ordered liberty," such that "neither Page 478 U. S. 192 liberty nor justice would exist if [they] were sacrificed." A different description of fundamental liberties appeared in Moore v. East Cleveland, 431 U. S. 494 , 431 U. S. 503 (1977) (opinion of POWELL, J.), where they are characterized as those liberties that are "deeply rooted in this Nation's history and tradition." Id. at 431 U. S. 503 (POWELL, J.). See also Griswold v. Connecticut, 381 U.S. at 381 U. S. 506 . It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. See generally Survey on the Constitutional Right to Privacy in the Context of Homosexual Activity, 40 U.Miami L.Rev. 521, 525 (1986). Sodomy was a criminal offense at common law, and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. [ Footnote 5 ] In 1868, when the Fourteenth Amendment was Page 478 U. S. 193 ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. [ Footnote 6 ] In fact, until 1961, [ Footnote 7 ] all 50 States outlawed sodomy, and today, 24 States and the District of Columbia Page 478 U. S. 194 continue to provide criminal penalties for sodomy performed in private and between consenting adults. See Survey, U.Miami L.Rev. supra, at 524, n. 9. Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious. Nor are we inclined to take a more expansive view of our authority to discover new fundamental rights imbedded in the Due Process Clause. The Court is most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or design of the Constitution. That this is so was painfully demonstrated by the face-off between the Executive and the Court in the 1930's, which resulted in the repudiation Page 478 U. S. 195 of much of the substantive gloss that the Court had placed on the Due Process Clauses of the Fifth and Fourteenth Amendments. There should be, therefore, great resistance to expand the substantive reach of those Clauses, particularly if it requires redefining the category of rights deemed to be fundamental. Otherwise, the Judiciary necessarily takes to itself further authority to govern the country without express constitutional authority. The claimed right pressed on us today falls far short of overcoming this resistance. Respondent, however, asserts that the result should be different where the homosexual conduct occurs in the privacy of the home. He relies on Stanley v. Georgia, 394 U. S. 557 (1969), where the Court held that the First Amendment prevents conviction for possessing and reading obscene material in the privacy of one's home: "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his house, what books he may read or what films he may watch." Id. at 394 U. S. 565 . Stanley did protect conduct that would not have been protected outside the home, and it partially prevented the enforcement of state obscenity laws; but the decision was firmly grounded in the First Amendment. The right pressed upon us here has no similar support in the text of the Constitution, and it does not qualify for recognition under the prevailing principles for construing the Fourteenth Amendment. Its limits are also difficult to discern. Plainly enough, otherwise illegal conduct is not always immunized whenever it occurs in the home. Victimless crimes, such as the possession and use of illegal drugs, do not escape the law where they are committed at home. Stanley itself recognized that its holding offered no protection for the possession in the home of drugs, firearms, or stolen goods. Id. at 394 U. S. 568 , n. 11. And if respondent's submission is limited to the voluntary sexual conduct between consenting adults, it would be difficult, except by fiat, to limit the claimed right to homosexual conduct Page 478 U. S. 196 while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road. Even if the conduct at issue here is not a fundamental right, respondent asserts that there must be a rational basis for the law, and that there is none in this case other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Even respondent makes no such claim, but insists that majority sentiments about the morality of homosexuality should be declared inadequate. We do not agree, and are unpersuaded that the sodomy laws of some 25 States should be invalidated on this basis. [ Footnote 8 ] Accordingly, the judgment of the Court of Appeals is Reversed. [ Footnote 1 ] Georgia Code Ann. § 16-6-2 (1984) provides, in pertinent part, as follows: "(a) A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. . . ." "(b) A person convicted of the offense of sodomy shall be punished by imprisonment for not less than one nor more than 20 years. . . ." [ Footnote 2 ] John and Mary Doe were also plaintiffs in the action. They alleged that they wished to engage in sexual activity proscribed by § 16-6-2 in the privacy of their home, App. 3, and that they had been "chilled and deterred" from engaging in such activity by both the existence of the statute and Hardwick's arrest. Id. at 5. The District Court held, however, that, because they had neither sustained, nor were in immediate danger of sustaining, any direct injury from the enforcement of the statute, they did not have proper standing to maintain the action. Id. at 18. The Court of Appeals affirmed the District Court's judgment dismissing the Does' claim for lack of standing, 760 F.2d 1202, 1206-1207 (CA11 1985), and the Does do not challenge that holding in this Court. The only claim properly before the Court, therefore, is Hardwick's challenge to the Georgia statute as applied to consensual homosexual sodomy. We express no opinion on the constitutionality of the Georgia statute as applied to other acts of sodomy. [ Footnote 3 ] See Baker v. Wade, 769 F.2d 289, rehearing denied, 774 F.2d 1285 (CA5 1985) (en banc); Dronenburg v. Zech, 239 U.S.App.D.C. 229, 741 F.2d 1388, rehearing denied, 241 U.S.App.D.C. 262, 746 F.2d 1579 (1984). [ Footnote 4 ] Petitioner also submits that the Court of Appeals erred in holding that the District Court was not obligated to follow our summary affirmance in Doe. We need not resolve this dispute, for we prefer to give plenary consideration to the merits of this case rather than rely on our earlier action in Doe. See Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 14 (1976); Massachusetts Board of Retirement v. Murgia, 427 U. S. 307 , 427 U. S. 309 , n. 1 (1976); Edelman v. Jordan, 415 U. S. 651 , 415 U. S. 671 (1974). Cf. Hicks v. Miranda, 422 U. S. 332 , 422 U. S. 344 (1975). [ Footnote 5 ] Criminal sodomy laws in effect in 1791: Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672). Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719). Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981). Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975). Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785. New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978). Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7. New York: Laws of New York, ch. 21 (passed 1787) At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North Carolina, ch. 17, p. 314 (Martin ed. 1792). Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790). Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977). South Carolina: Public Laws of the State of South Carolina, p. 49 (1790). At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776). [ Footnote 6 ] Criminal sodomy statutes in effect in 1868: Alabama: Ala.Rev.Code § 3604 (1867). Arizona (Terr.): Howell Code, ch. 10, § 48 (1865). Arkansas: Ark.Stat., ch. 51, Art. IV, § 5 (1858). California: 1 Cal.Gen.Laws, � 1450, § 48 (1865). Colorado (Terr.): Colo.Rev.Stat., ch. 22, §§ 45, 46 (1868). Connecticut: Conn.Gen.Stat., Tit. 122, ch. 7, § 124 (1866). Delaware: Del.Rev.Stat., ch. 131, § 7 (1893). Florida: Fla.Rev.Stat., div. 5, § 2614 (passed 1868) (1892). Georgia: Ga.Code §§ 4286, 4287, 4290 (1867). Kingdom of Hawaii: Haw.Penal Code, ch. 13, § 11 (1869). Illinois: Ill.Rev.Stat., div. 5, §§ 49, 50 (1845). Kansas (Terr.): Kan.Stat., ch. 53, § 7 (1855). Kentucky: 1 Ky.Rev.Stat., ch. 28, Art. IV, § 11 (1860). Louisiana: La.Rev.Stat., Crimes and Offences, § 5 (1856). Maine: Me.Rev.Stat., Tit. XII, ch. 160, § 4 (1840). Maryland: 1 Md. Code, Art. 30, § 201 (1860). Massachusetts: Mass. Gen.Stat., ch. 165, § 18 (1860). Michigan: Mich. Rev.Stat., Tit. 30, ch. 158, § 16 (1846). Minnesota: Minn.Stat., ch. 96, § 13 (1859). Mississippi: Miss. Rev. Code, ch. 64, § LII, Art. 238 (1857). Missouri: 1 Mo.Rev.Stat., ch. 50, Art. VIII, § 7 (1856). Montana (Terr.): Mont. Acts, Resolutions, Memorials, Criminal Practice Acts, ch. IV, § 44 (1866). Nebraska (Terr.): Neb.Rev.Stat., Crim.Code, ch. 4, § 47 (1866). Nevada (Terr.): Nev.Comp.Laws, 1861-1900, Crimes and Punishments, § 45. New Hampshire: N.H.Laws, Act. of June 19, 1812, § 5 (1815). New Jersey: N.J.Rev.Stat., Tit. 8, ch. 1 § 9 (1847). New York: 3 N.Y.Rev.Stat., pt. 4. ch. 1, Tit. 5, § 20 (5th ed. 1859). North Carolina: N.C.Rev.Code, ch. 34, § 6 (1855). Oregon: Laws of Ore., Crimes Against Morality, etc., ch. 7, § 655 (1874). Pennsylvania: Act of Mar. 31, 1860, § 32, Pub.L. 392, in 1 Digest of Statute Law of Pa. 1700-1903, p. 1011 (Purdon 1905). Rhode Island: R.I.Gen.Stat., ch. 232, § 12 (1872). South Carolina: Act of 1712, in 2 Stat. at Large of S.C. 1682-1716, p. 493 (1837). Tennessee: Tenn.Code, ch. 8, Art. 1, § 4843 (1858). Texas: Tex.Rev.Stat., Tit. 10, ch. 5, Art. 342 (1887) (passed 1860). Vermont: Acts and Laws of the State of Vt. (1779). Virginia: Va.Code, ch. 149, § 12 (1868). West Virginia: W.Va.Code, ch. 149, § 12 (1868). Wisconsin (Terr.): Wis.Stat. § 14, p. 367 (1839). [ Footnote 7 ] In 1961, Illinois adopted the American Law Institute's Model Penal Code, which decriminalized adult, consensual, private, sexual conduct. Criminal Code of 1961, §§ 11-2, 11-3, 1961 Ill.Laws, pp.1985, 2006 ( codified as amended at Ill.Rev.Stat., ch. 38, �� 11-2, 11-3 (1983) (repealed 1984)). See American Law Institute, Model Penal Code § 213.2 (Proposed Official Draft 1962). [ Footnote 8 ] Respondent does not defend the judgment below based on the Ninth Amendment, the Equal Protection Clause, or the Eighth Amendment. CHIEF JUSTICE BURGER, concurring. I join the Court's opinion, but I write separately to underscore my view that, in constitutional terms, there is no such thing as a fundamental right to commit homosexual sodomy. As the Court notes, ante at 478 U. S. 192 , the proscriptions against sodomy have very "ancient roots." Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law. See Code Theod. 9.7.6; Code Just. 9.9.31. See also D. Bailey, Homosexuality Page 478 U. S. 197 and the Western Christian Tradition 70-81 (1975). During the English Reformation, when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed. 25 Hen. VIII, ch. 6. Blackstone described "the infamous crime against nature " as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." 4 W. Blackstone, Commentaries *215. The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching. This is essentially not a question of personal "preferences," but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here. JUSTICE POWELL, concurring. I join the opinion of the Court. I agree with the Court that there is no fundamental right -- i.e., no substantive right under the Due Process Clause -- such as that claimed by respondent Hardwick, and found to exist by the Court of Appeals. This is not to suggest, however, that respondent may not be protected by the Eighth Amendment of the Constitution. The Georgia statute at issue in this case, Ga.Code Ann. § 16-6-2 (1984), authorizes a court to imprison a person for up to 20 years for a single private, consensual act of sodomy. In my view, a prison sentence for such conduct -- certainly a sentence of long duration -- would create a serious Eighth Amendment issue. Under the Georgia statute, a single act of sodomy, even in the private setting of a home, is a Page 478 U. S. 198 felony comparable in terms of the possible sentence imposed to serious felonies such as aggravated battery, § 16-5-24, first-degree arson, § 16-7-60, and robbery, § 16-8-40. [ Footnote 2/1 ] In this case, however, respondent has not been tried, much less convicted and sentenced. [ Footnote 2/2 ] Moreover, respondent has not raised the Eighth Amendment issue below. For these reasons this constitutional argument is not before us. Page 478 U. S. 199 [ Footnote 2/1 ] Among those States that continue to make sodomy a crime, Georgia authorizes one of the longest possible sentences. See Ala.Code § 13A6-65(a)(3) (1982) (1-year maximum); Ariz.Rev.Stat.Ann. §§ 13-1411, 13-1412 (West Supp.1985) (30 days); Ark.Stat.Ann. § 41-1813 (1977) (1-year maximum); D.C.Code § 22-3502 (1981) (10-year maximum); Fla.Stat. § 800.02 (1985) (60-day maximum); Ga.Code Ann. § 16-6-2 (1984) (1 to 20 years); Idaho Code § 18-6605 (1979) (5-year minimum); Kan.Stat.Ann. § 21-3505 (Supp.1985) (6-month maximum); Ky.Rev.Stat. § 510.100 (1985) (90 days to 12 months); La.Rev.Stat.Ann. § 14:89 (West 1986) (5-year maximum); Md.Ann.Code, Art. 27, §§ 553-554 (1982) (10-year maximum); Mich.Comp.Laws § 750.158 (1968) (15-year maximum); Minn.Stat. § 609.293 (1984) (1-year maximum); Miss.Code Ann. § 97-29-59 (1973) (10-year maximum); Mo.Rev.Stat. § 566.090 (Supp.1984) (1-year maximum); Mont.Code Ann. § 45-5-505 (1985) (10-year maximum); Nev.Rev.Stat. § 201.190 (1985) (6-year maximum); N.C.Gen.Stat. § 14-177 (1981) (10-year maximum); Okla.Stat., Tit. 21, § 886 (1981) (10-year maximum); R.I.Gen.Laws § 11-10-1 (1981) (7 to 20 years); S.C.Code § 16-15-120 (1985) (5-year maximum); Tenn.Code Ann. § 39-2-612 (1982) (5 to 15 years); Tex.Penal Code Ann. § 21.06 (1974) ($200 maximum fine); Utah Code Ann. § 76-5-403 (1978) (6-month maximum); Va.Code § 18.2-361 (1982) (5-year maximum). [ Footnote 2/2 ] It was conceded at oral argument that, prior to the complaint against respondent Hardwick, there had been no reported decision involving prosecution for private homosexual sodomy under this statute for several decades. See Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799 (1939). Moreover, the State has declined to present the criminal charge against Hardwick to a grand jury, and this is a suit for declaratory judgment brought by respondents challenging the validity of the statute. The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct. Some 26 States have repealed similar statutes. But the constitutional validity of the Georgia statute was put in issue by respondents, and for the reasons stated by the Court, I cannot say that conduct condemned for hundreds of years has now become a fundamental right. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS join, dissenting. This case is no more about "a fundamental right to engage in homosexual sodomy," as the Court purports to declare, ante at 478 U. S. 191 , than Stanley v. Georgia, 394 U. S. 557 (1969), was about a fundamental right to watch obscene movies, or Katz v. United States, 389 U. S. 347 (1967), was about a fundamental right to place interstate bets from a telephone booth. Rather, this case is about "the most comprehensive of rights and the right most valued by civilized men," namely, "the right to be let alone." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). The statute at issue, Ga.Code Ann. § 16-6-2 (1984), denies individuals the right to decide for themselves whether to engage in particular forms of private, consensual sexual activity. The Court concludes that § 16-6-2 is valid essentially because "the laws of . . . many States . . . still make such conduct illegal and have done so for a very long time." Ante at 478 U. S. 190 . But the fact that the moral judgments expressed by statutes like § 16-6-2 may be "'natural and familiar . . . ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.'" Roe v. Wade, 410 U. S. 113 , 410 U. S. 117 (1973), quoting Lochner v. New York, 198 U. S. 45 , 198 U. S. 76 (1905) (Holmes, J., dissenting). Like Justice Holmes, I believe that "[i]t is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past." Holmes, The Path of the Law, 10 Harv.L.Rev. 457, 469 (1897). I believe we must analyze respondent Hardwick's claim in the light of the values that underlie the constitutional right to privacy. If that right means anything, it means that, before Georgia can prosecute its citizens for making choices about the most intimate Page 478 U. S. 200 aspects of their lives, it must do more than assert that the choice they have made is an " abominable crime not fit to be named among Christians.'" Herring v. State, 119 Ga. 709, 721, 46 S.E. 876, 882 (1904). I In its haste to reverse the Court of Appeals and hold that the Constitution does not "confe[r] a fundamental right upon homosexuals to engage in sodomy," ante at 478 U. S. 190 , the Court relegates the actual statute being challenged to a footnote, and ignores the procedural posture of the case before it. A fair reading of the statute and of the complaint clearly reveals that the majority has distorted the question this case presents. First, the Court's almost obsessive focus on homosexual activity is particularly hard to justify in light of the broad language Georgia has used. Unlike the Court, the Georgia Legislature has not proceeded on the assumption that homosexuals are so different from other citizens that their lives may be controlled in a way that would not be tolerated if it limited the choices of those other citizens. Cf. ante at 478 U. S. 188 , n. 2. Rather, Georgia has provided that "[a] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another." Ga.Code Ann. § 16-6-2(a) (1984). The sex or status of the persons who engage in the act is irrelevant as a matter of state law. In fact, to the extent I can discern a legislative purpose for Georgia's 1968 enactment of § 16-6-2, that purpose seems to have been to broaden the coverage of the law to reach heterosexual as well as homosexual activity. [ Footnote 3/1 ] I therefore see no basis for the Page 478 U. S. 201 Court's decision to treat this case as an "as applied" challenge to § 16-6-2, see ante at 478 U. S. 188 , n. 2, or for Georgia's attempt, both in its brief and at oral argument, to defend § 16-6-2 solely on the grounds that it prohibits homosexual activity. Michael Hardwick's standing may rest in significant part on Georgia's apparent willingness to enforce against homosexuals a law it seems not to have any desire to enforce against heterosexuals. See Tr. of Oral Arg. 4-5; cf. 760 F.2d 1202, 1205-1206 (CA11 1985). But his claim that § 16-6-2 involves an unconstitutional intrusion into his privacy and his right of intimate association does not depend in any way on his sexual orientation. Second, I disagree with the Court's refusal to consider whether § 16-6-2 runs afoul of the Eighth or Ninth Amendments or the Equal Protection Clause of the Fourteenth Amendment. Ante at 478 U. S. 196 , n. 8. Respondent's complaint expressly invoked the Ninth Amendment, see App. 6, and he relied heavily before this Court on Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 484 (1965), which identifies that Amendment as one of the specific constitutional provisions giving "life and substance" to our understanding of privacy. See Brief for Respondent Hardwick 10-12; Tr. of Oral Arg. 33. More importantly, the procedural posture of the case requires that we affirm the Court of Appeals' judgment if there is any ground on which respondent may be entitled to relief. This case is before us on petitioner's motion to dismiss for failure to state a claim, Fed.Rule Civ.Proc. 12(b)(6). See App. 17. It is a well-settled principle of law that "a complaint should not be dismissed merely because a plaintiff's allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory. Page 478 U. S. 202 Bramlet v. Wilson, 495 F.2d 714, 716 (CA8 1974); see Parr v. Great Lakes Express Co., 484 F.2d 767, 773 (CA7 1973); Due v. Tallahassee Theatres, Inc., 333 F.2d 630, 631 (CA5 1964); United States v. Howell, 318 F.2d 162, 166 (CA9 1963); 5 C. Wright & A. Miller, Federal Practice and Procedure § 1357, pp. 601-602 (1969); see also Conley v. Gibson, 355 U. S. 41 , 355 U. S. 45 -46 (1957). Thus, even if respondent did not advance claims based on the Eighth or Ninth Amendments, or on the Equal Protection Clause, his complaint should not be dismissed if any of those provisions could entitle him to relief. I need not reach either the Eighth Amendment or the Equal Protection Clause issues, because I believe that Hardwick has stated a cognizable claim that § 16-6-2 interferes with constitutionally protected interests in privacy and freedom of intimate association. But neither the Eighth Amendment nor the Equal Protection Clause is so clearly irrelevant that a claim resting on either provision should be peremptorily dismissed. [ Footnote 3/2 ] The Court's cramped reading of the Page 478 U. S. 203 issue before it makes for a short opinion, but it does little to make for a persuasive one." II "Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government." Thornburgh v. American College of Obstetricians & Gynecologists, 476 U. S. 747 , 476 U. S. 772 (1986). In construing the right to privacy, the Court has proceeded along two somewhat distinct, Page 478 U. S. 204 albeit complementary, lines. First, it has recognized a privacy interest with reference to certain decisions that are properly for the individual to make. E.g., Roe v. Wade, 410 U. S. 113 (1973); Pierce v. Society of Sisters, 268 U. S. 510 (1925). Second, it has recognized a privacy interest with reference to certain places without regard for the particular activities in which the individuals who occupy them are engaged. E.g., United States v. Karo, 468 U. S. 705 (1984); Payton v. New York, 445 U. S. 573 (1980); Rios v. United States, 364 U. S. 253 (1960). The case before us implicates both the decisional and the spatial aspects of the right to privacy. A The Court concludes today that none of our prior cases dealing with various decisions that individuals are entitled to make free of governmental interference "bears any resemblance to the claimed constitutional right of homosexuals to engage in acts of sodomy that is asserted in this case." Ante at 478 U. S. 190 -191. While it is true that these cases may be characterized by their connection to protection of the family, see Roberts v. United States Jaycees, 468 U. S. 609 , 468 U. S. 619 (1984), the Court's conclusion that they extend no further than this boundary ignores the warning in Moore v. East Cleveland, 431 U. S. 494 , 431 U. S. 501 (1977) (plurality opinion), against "clos[ing] our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment's Due Process Clause." We protect those rights not because they contribute, in some direct and material way, to the general public welfare, but because they form so central a part of an individual's life. "[T]he concept of privacy embodies the moral fact that a person belongs to himself, and not others nor to society as a whole.'" Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. at 476 U. S. 777 , n. 5 (STEVENS, J., concurring), quoting Fried, Correspondence, 6 Phil. & Pub.Affairs 288-289 (1977). And so we protect the decision whether to Page 478 U. S. 205 marry precisely because marriage "is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects." Griswold v. Connecticut, 381 U.S. at 381 U. S. 486 . We protect the decision whether to have a child because parenthood alters so dramatically an individual's self-definition, not because of demographic considerations or the Bible's command to be fruitful and multiply. Cf. Thornburgh v. American College of Obstetricians & Gynecologists, supra, at 476 U. S. 777 , n. 6 (STEVENS, J., concurring). And we protect the family because it contributes so powerfully to the happiness of individuals, not because of a preference for stereotypical households. Cf. Moore v. East Cleveland, 431 U.S. at 431 U. S. 500 -506 (plurality opinion). The Court recognized in Roberts, 468 U.S. at 468 U. S. 619 , that the "ability independently to define one's identity that is central to any concept of liberty" cannot truly be exercised in a vacuum; we all depend on the "emotional enrichment from close ties with others." Ibid. Only the most willful blindness could obscure the fact that sexual intimacy is "a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality," Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 63 (1973); see also Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 685 (1977). The fact that individuals define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that there may be many "right" ways of conducting those relationships, and that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds. See Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 637 (1980); cf. Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 (1972); Roe v. Wade, 410 U.S. at 410 U. S. 153 . In a variety of circumstances, we have recognized that a necessary corollary of giving individuals freedom to choose Page 478 U. S. 206 how to conduct their lives is acceptance of the fact that different individuals will make different choices. For example, in holding that the clearly important state interest in public education should give way to a competing claim by the Amish to the effect that extended formal schooling threatened their way of life, the Court declared: "There can be no assumption that today's majority is 'right' and the Amish and others like them are 'wrong.' A way of life that is odd or even erratic, but interferes with no rights or interests of others, is not to be condemned because it is different." Wisconsin v. Yoder, 406 U. S. 205 , 406 U. S. 223 -224 (1972). The Court claims that its decision today merely refuses to recognize a fundamental right to engage in homosexual sodomy; what the Court really has refused to recognize is the fundamental interest all individuals have in controlling the nature of their intimate associations with others. B The behavior for which Hardwick faces prosecution occurred in his own home, a place to which the Fourth Amendment attaches special significance. The Court's treatment of this aspect of the case is symptomatic of its overall refusal to consider the broad principles that have informed our treatment of privacy in specific cases. Just as the right to privacy is more than the mere aggregation of a number of entitlements to engage in specific behavior, so too protecting the physical integrity of the home is more than merely a means of protecting specific activities that often take place there. Even when our understanding of the contours of the right to privacy depends on "reference to a place,'" Katz v. United States, 389 U.S. at 389 U. S. 361 (Harlan, J., concurring), "the essence of a Fourth Amendment violation is 'not the breaking of [a person's] doors, and the rummaging of his drawers,' but rather is 'the invasion of his indefeasible right of personal security, personal liberty and private property.'" California v. Ciraolo, 476 U. S. 207 , 476 U. S. 226 (1986) (POWELL, J., dissenting), Page 478 U. S. 207 quoting Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 (1886). The Court's interpretation of the pivotal case of Stanley v. Georgia, 394 U. S. 557 (1969), is entirely unconvincing. Stanley held that Georgia's undoubted power to punish the public distribution of constitutionally unprotected, obscene material did not permit the State to punish the private possession of such material. According to the majority here, Stanley relied entirely on the First Amendment, and thus, it is claimed, sheds no light on cases not involving printed materials. Ante at 478 U. S. 195 . But that is not what Stanley said. Rather, the Stanley Court anchored its holding in the Fourth Amendment's special protection for the individual in his home: "'The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.'" " * * * *" "These are the rights that appellant is asserting in the case before us. He is asserting the right to read or observe what he pleases -- the right to satisfy his intellectual and emotional needs in the privacy of his own home." 394 U.S. at 394 U. S. 564 -565, quoting Olmstead v. United States, 277 U.S. at 277 U. S. 478 (Brandeis, J., dissenting). The central place that Stanley gives Justice Brandeis' dissent in Olmstead, a case raising no First Amendment claim, shows that Stanley rested as much on the Court's understanding of the Fourth Amendment as it did on the First. Indeed, in Paris Adult Theatre I v. Slaton, 413 U. S. 49 (1973), the Court suggested that reliance on the Fourth Page 478 U. S. 208 Amendment not only supported the Court's outcome in Stanley but actually was necessary to it: "If obscene material unprotected by the First Amendment, in itself, carried with it a 'penumbra' of constitutionally protected privacy, this Court would not have found it necessary to decide Stanley on the narrow basis of the 'privacy of the home,' which was hardly more than a reaffirmation that 'a man's home is his castle.'" 413 U.S. at 413 U. S. 66 . "The right of the people to be secure in their . . . houses," expressly guaranteed by the Fourth Amendment, is perhaps the most "textual" of the various constitutional provisions that inform our understanding of the right to privacy, and thus I cannot agree with the Court's statement that "[t]he right pressed upon us here has no . . . support in the text of the Constitution," ante at 478 U. S. 195 . Indeed, the right of an individual to conduct intimate relationships in the intimacy of his or her own home seems to me to be the heart of the Constitution's protection of privacy. III The Court's failure to comprehend the magnitude of the liberty interests at stake in this case leads it to slight the question whether petitioner, on behalf of the State, has justified Georgia's infringement on these interests. I believe that neither of the two general justifications for § 16-6-2 that petitioner has advanced warrants dismissing respondent's challenge for failure to state a claim. First, petitioner asserts that the acts made criminal by the statute may have serious adverse consequences for "the general public health and welfare," such as spreading communicable diseases or fostering other criminal activity. Brief for Petitioner 37. Inasmuch as this case was dismissed by the District Court on the pleadings, it is not surprising that the record before us is barren of any evidence to support petitioner's claim. [ Footnote 3/3 ] In light of the state of the record, I see Page 478 U. S. 209 no justification for the Court's attempt to equate the private, consensual sexual activity at issue here with the "possession in the home of drugs, firearms, or stolen goods," ante at 478 U. S. 195 , to which Stanley refused to extend its protection. 394 U.S. at 394 U. S. 568 , n. 11. None of the behavior so mentioned in Stanley can properly be viewed as "[v]ictimless," ante at 478 U. S. 195 : drugs and weapons are inherently dangerous, see, e.g., McLaughlin v. United States, 476 U. S. 16 (1986), and for property to be "stolen," someone must have been wrongfully deprived of it. Nothing in the record before the Court provides any justification for finding the activity forbidden by § 16-6-2 to be physically dangerous, either to the persons engaged in it or to others. [ Footnote 3/4 ] Page 478 U. S. 210 The core of petitioner's defense of § 16-6-2, however, is that respondent and others who engage in the conduct prohibited by § 16-6-2 interfere with Georgia's exercise of the " right of the Nation and of the States to maintain a decent society,'" Paris Adult Theatre I v. Slaton, 413 U.S. at 413 U. S. 59 -60, quoting Jacobellis v. Ohio, 378 U. S. 184 , 378 U. S. 199 (1964) (Warren, C.J., dissenting). Essentially, petitioner argues, and the Court agrees, that the fact that the acts described in § 16-6-2 "for hundreds of years, if not thousands, have been uniformly condemned as immoral" is a sufficient reason to permit a State to ban them today. Brief for Petitioner 19; see ante at 478 U. S. 190 , 478 U. S. 192 -194, 478 U. S. 196 . I cannot agree that either the length of time a majority has held its convictions or the passions with which it defends them can withdraw legislation from this Court's scrutiny. See, e.g., Roe v. Wade, 410 U. S. 113 (1973); Loving v. Virginia, 388 U. S. 1 (1967); Brown v. Board of Education, 347 U. S. 483 (1954). [ Footnote 3/5 ] As Justice Jackson wrote so eloquently Page 478 U. S. 211 for the Court in West Virginia Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 641 -642 (1943), "we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse, or even contrary, will disintegrate the social organization. . . . [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order." See also Karst, 89 Yale L.J. at 627. It is precisely because the issue raised by this case touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority. The assertion that "traditional Judeo-Christian values proscribe" the conduct involved, Brief for Petitioner 20, cannot provide an adequate justification for § 16-6-2. That certain, but by no means all, religious groups condemn the behavior at issue gives the State no license to impose their judgments on the entire citizenry. The legitimacy of secular legislation depends, instead, on whether the State can advance some justification for its law beyond its conformity to religious doctrine. See, e.g., McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 429 -453 (1961); Stone v. Graham, 449 U. S. 39 (1980). Thus, far from buttressing his case, petitioner's invocation of Leviticus, Romans, St. Thomas Aquinas, and sodomy's heretical status during the Middle Ages undermines his suggestion that § 16-6-2 represents a legitimate use of secular coercive power. [ Footnote 3/6 ] A State can no more punish private behavior because Page 478 U. S. 212 of religious intolerance than it can punish such behavior because of racial animus. "The Constitution cannot control such prejudices, but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect." Palmore v. Sidoti, 466 U. S. 429 , 466 U. S. 433 (1984). No matter how uncomfortable a certain group may make the majority of this Court, we have held that "[m]ere public intolerance or animosity cannot constitutionally justify the deprivation of a person's physical liberty." O'Connor v. Donaldson, 422 U. S. 563 , 422 U. S. 575 (1975). See also Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 (1985); United States Dept. of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 534 (1973). Nor can § 16-6-2 be justified as a "morally neutral" exercise of Georgia's power to "protect the public environment," Paris Adult Theatre I, 413 U.S. at 413 U. S. 68 -69. Certainly, some private behavior can affect the fabric of society as a whole. Reasonable people may differ about whether particular sexual acts are moral or immoral, but "we have ample evidence for believing that people will not abandon morality, will not think any better of murder, cruelty and dishonesty, merely because some private sexual practice which they abominate is not punished by the law." H. L. A. Hart, Immorality and Treason, reprinted in The Law as Literature 220, 225 (L. Blom-Cooper ed.1961). Petitioner and the Court fail to see the difference between laws that protect public sensibilities and those that enforce private morality. Statutes banning Page 478 U. S. 213 public sexual activity are entirely consistent with protecting the individual's liberty interest in decisions concerning sexual relations: the same recognition that those decisions are intensely private which justifies protecting them from governmental interference can justify protecting individuals from unwilling exposure to the sexual activities of others. But the mere fact that intimate behavior may be punished when it takes place in public cannot dictate how States can regulate intimate behavior that occurs in intimate places. See Paris Adult Theatre I, 413 U.S. at 413 U. S. 66 , n. 13 ("marital intercourse on a street corner or a theater stage" can be forbidden despite the constitutional protection identified in Griswold v. Connecticut, 381 U. S. 479 (1965)). [ Footnote 3/7 ] This case involves no real interference with the rights of others, for the mere knowledge that other individuals do not adhere to one's value system cannot be a legally cognizable interest, cf. Diamond v. Charles, 476 U. S. 54 , 476 U. S. 65 -66 (1986), let alone an interest that can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently. IV It took but three years for the Court to see the error in its analysis in Minersville School District v. Gobitis , 310 U.S. Page 478 U. S. 214 586 (1940), and to recognize that the threat to national cohesion posed by a refusal to salute the flag was vastly outweighed by the threat to those same values posed by compelling such a salute. See West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943). I can only hope that here, too, the Court soon will reconsider its analysis and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do. Because I think the Court today betrays those values, I dissent. [ Footnote 3/1 ] Until 1968, Georgia defined sodomy as "the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman." Ga.Crim.Code § 26-5901 (1933). In Thompson. v. Aldredge, 187 Ga. 467, 200 S.E. 799 (1939), the Georgia Supreme Court held that § 26-5901 did not prohibit lesbian activity. And in Riley v. Garrett, 219 Ga. 345, 133 S.E.2d 367 (1963), the Georgia Supreme Court held that § 26-5901 did not prohibit heterosexual cunnilingus. Georgia passed the act-specific statute currently in force "perhaps in response to the restrictive court decisions such as Riley, " Note, The Crimes Against Nature, 16 J.Pub.L. 159, 167, n. 47 (1967). [ Footnote 3/2 ] In Robinson v. California, 370 U. S. 660 (1962), the Court held that the Eighth Amendment barred convicting a defendant due to his "status" as a narcotics addict, since that condition was "apparently an illness which may be contracted innocently or involuntarily." Id. at 370 U. S. 667 . In Powell v. Texas, 392 U. S. 514 (1968), where the Court refused to extend Robinson to punishment of public drunkenness by a chronic alcoholic, one of the factors relied on by JUSTICE MARSHALL, in writing the plurality opinion, was that Texas had not "attempted to regulate appellant's behavior in the privacy of his own home." Id. at 392 U. S. 532 . JUSTICE WHITE wrote separately: "Analysis of this difficult case is not advanced by preoccupation with the label "condition." In Robinson, the Court dealt with "a statute which makes the status' of narcotic addiction a criminal offense. . . ." 370 U.S. at 370 U. S. 666 . By precluding criminal conviction for such a "status," the Court was dealing with a condition brought about by acts remote in time from the application of the criminal sanctions contemplated, a condition which was relatively permanent in duration, and a condition of great magnitude and significance in terms of human behavior and values. . . . If it were necessary to distinguish between "acts" and "conditions" for purposes of the Eighth Amendment, I would adhere to the concept of "condition" implicit in the opinion in Robinson. . . . The proper subject of inquiry is whether volitional acts brought about the "condition" and whether those acts are sufficiently proximate to the "condition" for it to be permissible to impose penal sanctions on the "condition."" Id. at 392 U. S. 550 -551, n. 2. Despite historical views of homosexuality, it is no longer viewed by mental health professionals as a "disease" or disorder. See Brief for American Psychological Association and American Public Health Association as Amici Curiae 8-11. But, obviously, neither is it simply a matter of deliberate personal election. Homosexual orientation may well form part of the very fiber of an individual's personality. Consequently, under JUSTICE WHITE's analysis in Powell, the Eighth Amendment may pose a constitutional barrier to sending an individual to prison for acting on that attraction regardless of the circumstances. An individual's ability to make constitutionally protected "decisions concerning sexual relations," Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 711 (1977) (POWELL, J., concurring in part and concurring in judgment), is rendered empty indeed if he or she is given no real choice but a life without any physical intimacy. With respect to the Equal Protection Clause's applicability to § 16-6-2, I note that Georgia's exclusive stress before this Court on its interest in prosecuting homosexual activity despite the gender-neutral terms of the statute may raise serious questions of discriminatory enforcement, questions that cannot be disposed of before this Court on a motion to dismiss. See Yick Wo v. Hopkins, 118 U. S. 356 , 118 U. S. 373 -374 (1886). The legislature having decided that the sex of the participants is irrelevant to the legality of the acts, I do not see why the State can defend § 16-6-2 on the ground that individuals singled out for prosecution are of the same sex as their partners. Thus, under the circumstances of this case, a claim under the Equal Protection Clause may well be available without having to reach the more controversial question whether homosexuals are a suspect class. See, e.g., Rowland v. Mad River Local School District, 470 U. S. 1009 (1985) (BRENNAN, J., dissenting from denial of certiorari); Note, The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification, 98 Harv.L.Rev. 1285 (1985). [ Footnote 3/3 ] Even if a court faced with a challenge to § 16-6-2 were to apply simple rational basis scrutiny to the statute, Georgia would be required to show an actual connection between the forbidden acts and the ill effects it seeks to prevent. The connection between the acts prohibited by § 16-6-2 and the harms identified by petitioner in his brief before this Court is a subject of hot dispute, hardly amenable to dismissal under Federal Rule of Civil Procedure 12(b)(6). Compare, e.g., Brief for Petitioner 36-37 and Brief for David Robinson, Jr., as Amicus Curiae 23-28, on the one hand, with People v. Onofre, 51 N.Y.2d 476, 489, 415 N.E.2d 936, 941 (1980); Brief for the Attorney General of the State of New York, joined by the Attorney General of the State of California, as Amici Curiae 11-14; and Brief for the American Psychological Association and American Public Health Association as Amici Curiae 19-27, on the other. [ Footnote 3/4 ] Although I do not think it necessary to decide today issues that are not even remotely before us, it does seem to me that a court could find simple analytically sound distinctions between certain private, consensual sexual conduct, on the one hand, and adultery and incest (the only two vaguely specific "sexual crimes" to which the majority points, ante at 478 U. S. 196 ), on the other. For example, marriage, in addition to its spiritual aspects, is a civil contract that entitles the contracting parties to a variety of governmentally provided benefits. A State might define the contractual commitment necessary to become eligible for these benefits to include a commitment of fidelity, and then punish individuals for breaching that contract. Moreover, a State might conclude that adultery is likely to injure third persons, in particular, spouses and children of persons who engage in extramarital affairs. With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted. See Tr. of Oral Arg. 21-22. Notably, the Court makes no effort to explain why it has chosen to group private, consensual homosexual activity with adultery and incest, rather than with private, consensual heterosexual activity by unmarried persons or, indeed, with oral or anal sex within marriage. [ Footnote 3/5 ] The parallel between Loving and this case is almost uncanny. There, too, the State relied on a religious justification for its law. Compare 388 U.S. at 388 U. S. 3 (quoting trial court's statement that "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. . . . The fact that he separated the races shows that he did not intend for the races to mix"), with Brief for Petitioner 20-21 (relying on the Old and New Testaments and the writings of St. Thomas Aquinas to show that "traditional Judeo-Christian values proscribe such conduct"). There, too, defenders of the challenged statute relied heavily on the fact that, when the Fourteenth Amendment was ratified, most of the States had similar prohibitions. Compare Brief for Appellee in Loving v. Virginia, O.T. 1966, No. 395, pp. 28-29, with ante at 478 U. S. 192 -194, and n. 6. There, too, at the time the case came before the Court, many of the States still had criminal statutes concerning the conduct at issue. Compare 388 U.S. at 388 U. S. 6 , n. 5 (noting that 16 States still outlawed interracial marriage), with ante at 478 U. S. 193 -194 (noting that 24 States and the District of Columbia have sodomy statutes). Yet the Court held not only that the invidious racism of Virginia's law violated the Equal Protection Clause, see 388 U.S. at 388 U. S. 7 -12, but also that the law deprived the Lovings of due process by denying them the "freedom of choice to marry" that had "long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men." Id. at 388 U. S. 12 . [ Footnote 3/6 ] The theological nature of the origin of Anglo-American antisodomy statutes is patent. It was not until 1533 that sodomy was made a secular offense in England. 25 Hen. VIII, ch. 6. Until that time, the offense was, in Sir James Stephen's words, "merely ecclesiastical." 2 J. Stephen, A History of the Criminal Law of England 429-430 (1883). Pollock and Maitland similarly observed that "[t]he crime against nature . . . was so closely connected with heresy that the vulgar had but one name for both." 2 F. Pollock & F. Maitland, The History of English Law 554 (1895). The transfer of jurisdiction over prosecutions for sodomy to the secular courts seems primarily due to the alteration of ecclesiastical jurisdiction attendant on England's break with the Roman Catholic Church, rather than to any new understanding of the sovereign's interest in preventing or punishing the behavior involved. Cf. 6 E. Coke, Institutes, ch. 10 (4th ed. 1797). [ Footnote 3/7 ] At oral argument, a suggestion appeared that, while the Fourth Amendment's special protection of the home might prevent the State from enforcing § 16-6-2 against individuals who engage in consensual sexual activity there, that protection would not make the statute invalid. See Tr. of Oral Arg. 10-11. The suggestion misses the point entirely. If the law is not invalid, then the police can invade the home to enforce it, provided, of course, that they obtain a determination of probable cause from a neutral magistrate. One of the reasons for the Court's holding in Griswold v. Connecticut, 381 U. S. 479 (1965), was precisely the possibility, and repugnancy, of permitting searches to obtain evidence regarding the use of contraceptives. Id. at 381 U. S. 485 -486. Permitting the kinds of searches that might be necessary to obtain evidence of the sexual activity banned by § 16-6-2 seems no less intrusive or repugnant. Cf. Winston v. Lee, 470 U. S. 753 (1985); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1274 (CA7 1983). JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. Like the statute that is challenged in this case, [ Footnote 4/1 ] the rationale of the Court's opinion applies equally to the prohibited conduct regardless of whether the parties who engage in it are married or unmarried, or are of the same or different sexes. [ Footnote 4/2 ] Sodomy was condemned as an odious and sinful type of behavior during the formative period of the common law. [ Footnote 4/3 ] Page 478 U. S. 215 That condemnation was equally damning for heterosexual and homosexual sodomy. [ Footnote 4/4 ] Moreover, it provided no special exemption for married couples. [ Footnote 4/5 ] The license to cohabit and to produce legitimate offspring simply did not include any permission to engage in sexual conduct that was considered a "crime against nature." The history of the Georgia statute before us clearly reveals this traditional prohibition of heterosexual, as well as homosexual, sodomy. [ Footnote 4/6 ] Indeed, at one point in the 20th century, Georgia's law was construed to permit certain sexual conduct between homosexual women even though such conduct was prohibited between heterosexuals. [ Footnote 4/7 ] The history of the statutes cited by the majority as proof for the proposition that sodomy is not constitutionally protected, ante at 478 U. S. 192 -194, Page 478 U. S. 216 and nn. 5 and 6, similarly reveals a prohibition on heterosexual, as well as homosexual, sodomy. [ Footnote 4/8 ] Because the Georgia statute expresses the traditional view that sodomy is an immoral kind of conduct regardless of the identity of the persons who engage in it, I believe that a proper analysis of its constitutionality requires consideration of two questions: first, may a State totally prohibit the described conduct by means of a neutral law applying without exception to all persons subject to its jurisdiction? If not, may the State save the statute by announcing that it will only enforce the law against homosexuals? The two questions merit separate discussion. I Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack. [ Footnote 4/9 ] Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Griswold v. Connecticut, 381 U. S. 479 (1965). Moreover, this protection extends to intimate choices by unmarried, as well as married, persons. Carey v. Population Services International, 431 U. S. 678 (1977); Eisenstadt v. Baird, 405 U. S. 438 (1972). Page 478 U. S. 217 In consideration of claims of this kind, the Court has emphasized the individual interest in privacy, but its decisions have actually been animated by an even more fundamental concern. As I wrote some years ago: "These cases do not deal with the individual's interest in protection from unwarranted public attention, comment, or exploitation. They deal, rather, with the individual's right to make certain unusually important decisions that will affect his own, or his family's, destiny. The Court has referred to such decisions as implicating 'basic values,' as being 'fundamental,' and as being dignified by history and tradition. The character of the Court's language in these cases brings to mind the origins of the American heritage of freedom -- the abiding interest in individual liberty that makes certain state intrusions on the citizen's right to decide how he will live his own life intolerable. Guided by history, our tradition of respect for the dignity of individual choice in matters of conscience and the restraints implicit in the federal system, federal judges have accepted the responsibility for recognition and protection of these rights in appropriate cases." Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 719-720 (CA7 1975) (footnotes omitted), cert. denied, 425 U.S. 916 (1976). Society has every right to encourage its individual members to follow particular traditions in expressing affection for one another and in gratifying their personal desires. It, of course, may prohibit an individual from imposing his will on another to satisfy his own selfish interests. It also may prevent an individual from interfering with, or violating, a legally sanctioned and protected relationship, such as marriage. And it may explain the relative advantages and disadvantages of different forms of intimate expression. But when individual married couples are isolated from observation by others, the way in which they voluntarily choose to conduct their intimate relations is a matter for them -- not the Page 478 U. S. 218 State -- to decide. [ Footnote 4/10 ] The essential "liberty" that animated the development of the law in cases like Griswold, Eisenstadt, and Carey surely embraces the right to engage in nonreproductive sexual conduct that others may consider offensive or immoral. Paradoxical as it may seem, our prior cases thus establish that a State may not prohibit sodomy within "the sacred precincts of marital bedrooms," Griswold, 381 U.S. at 381 U. S. 485 , or, indeed, between unmarried heterosexual adults. Eisenstadt, 405 U.S. at 405 U. S. 453 . In all events, it is perfectly clear that the State of Georgia may not totally prohibit the conduct proscribed by § 16-6-2 of the Georgia Criminal Code. II If the Georgia statute cannot be enforced as it is written -- if the conduct it seeks to prohibit is a protected form of liberty for the vast majority of Georgia's citizens -- the State must assume the burden of justifying a selective application of its law. Either the persons to whom Georgia seeks to apply its statute do not have the same interest in "liberty" that others have, or there must be a reason why the State may be permitted to apply a generally applicable law to certain persons that it does not apply to others. The first possibility is plainly unacceptable. Although the meaning of the principle that "all men are created equal" is not always clear, it surely must mean that every free citizen has the same interest in "liberty" that the members of the majority share. From the standpoint of the individual, the homosexual and the heterosexual have the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary Page 478 U. S. 219 associations with his companions. State intrusion into the private conduct of either is equally burdensome. The second possibility is similarly unacceptable. A policy of selective application must be supported by a neutral and legitimate interest -- something more substantial than a habitual dislike for, or ignorance about, the disfavored group. Neither the State nor the Court has identified any such interest in this case. The Court has posited as a justification for the Georgia statute "the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable." Ante at 478 U. S. 196 . But the Georgia electorate has expressed no such belief -- instead, its representatives enacted a law that presumably reflects the belief that all sodomy is immoral and unacceptable. Unless the Court is prepared to conclude that such a law is constitutional, it may not rely on the work product of the Georgia Legislature to support its holding. For the Georgia statute does not single out homosexuals as a separate class meriting special disfavored treatment. Nor, indeed, does the Georgia prosecutor even believe that all homosexuals who violate this statute should be punished. This conclusion is evident from the fact that the respondent in this very case has formally acknowledged in his complaint and in court that he has engaged, and intends to continue to engage, in the prohibited conduct, yet the State has elected not to process criminal charges against him. As JUSTICE POWELL points out, moreover, Georgia's prohibition on private, consensual sodomy has not been enforced for decades. [ Footnote 4/11 ] The record of nonenforcement, in this case and in the last several decades, belies the Attorney General's representations Page 478 U. S. 220 about the importance of the State's selective application of its generally applicable law. [ Footnote 4/12 ] Both the Georgia statute and the Georgia prosecutor thus completely fail to provide the Court with any support for the conclusion that homosexual sodomy, simpliciter, is considered unacceptable conduct in that State, and that the burden of justifying a selective application of the generally applicable law has been met. III The Court orders the dismissal of respondent's complaint even though the State's statute prohibits all sodomy; even though that prohibition is concededly unconstitutional with respect to heterosexuals; and even though the State's post hoc explanations for selective application are belied by the State's own actions. At the very least, I think it clear at this early stage of the litigation that respondent has alleged a constitutional claim sufficient to withstand a motion to dismiss. [ Footnote 4/13 ] I respectfully dissent. [ Footnote 4/1 ] See Ga.Code Ann. § 16-6-2(a) (1984) ("A person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another"). [ Footnote 4/2 ] The Court states that the "issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy, and hence invalidates the laws of the many States that still make such conduct illegal, and have done so for a very long time." Ante at 478 U. S. 190 . In reality, however, it is the indiscriminate prohibition of sodomy, heterosexual as well as homosexual, that has been present "for a very long time." See nn. 478 U.S. 186 fn4/3|>3, 478 U.S. 186 fn4/4|>4, and 478 U.S. 186 fn4/5|>5, infra. Moreover, the reasoning the Court employs would provide the same support for the statute as it is written as it does for the statute as it is narrowly construed by the Court. [ Footnote 4/3 ] See, e.g., 1 W. Hawkins, Pleas of the Crown 9 (6th ed. 1787) ("All unnatural carnal copulations, whether with man or beast, seem to come under the notion of sodomy, which was felony by the ancient common law, and punished, according to some authors, with burning; according to others, with burying alive"); 4 W. Blackstone, Commentaries *215 (discussing "the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished"). [ Footnote 4/4 ] See 1 E. East, Pleas of the Crown 480 (1803) ("This offence, concerning which the least notice is the best, consists in a carnal knowledge committed against the order of nature by man with man, or in the same unnatural manner with woman, or by man or woman in any manner with beast"); J. Hawley & M. McGregor, The Criminal Law 287 (3d ed. 1899) ("Sodomy is the carnal knowledge against the order of nature by two persons with each other, or of a human being with a beast. . . . The offense may be committed between a man and a woman, or between two male persons, or between a man or a woman and a beast"). [ Footnote 4/5 ] See J. May, The Law of Crimes § 203 (2d ed. 1893) ("Sodomy, otherwise called buggery, bestiality, and the crime against nature, is the unnatural copulation of two persons with each other, or of a human being with a beast. . . . It may be committed by a man with a man, by a man with a beast, or by a woman with a beast, or by a man with a woman -- his wife, in which case, if she consent, she is an accomplice"). [ Footnote 4/6 ] The predecessor of the current Georgia statute provided: "Sodomy is the carnal knowledge and connection against the order of nature, by man with man, or in the same unnatural manner with woman." Ga.Code, Tit. 1, Pt. 4, § 4251 (1861). This prohibition of heterosexual sodomy was not purely hortatory. See, e.g., Comer v. State, 21 Ga.App. 306, 94 S.E. 314 (1917) (affirming prosecution for consensual heterosexual sodomy). [ Footnote 4/7 ] See Thompson v. Aldredge, 187 Ga. 467, 200 S.E. 799 (1939). [ Footnote 4/8 ] A review of the statutes cited by the majority discloses that, in 1791, in 1868, and today, the vast majority of sodomy statutes do not differentiate between homosexual and heterosexual sodomy. [ Footnote 4/9 ] See Loving v. Virginia, 388 U. S. 1 (1967). Interestingly, miscegenation was once treated as a crime similar to sodomy. See Hawley & McGregor, The Criminal Law, at 287 (discussing crime of sodomy); id. at 288 (discussing crime of miscegenation). [ Footnote 4/10 ] Indeed, the Georgia Attorney General concedes that Georgia's statute would be unconstitutional if applied to a married couple. See Tr. of Oral Arg. 8 (stating that application of the statute to a married couple "would be unconstitutional" because of the "right of marital privacy as identified by the Court in Griswold "). Significantly, Georgia passed the current statute three years after the Court's decision in Griswold. [ Footnote 4/11 ] Ante at 478 U. S. 198 , n. 2 (POWELL, J., concurring). See also Tr. of Oral Arg. 4-5 (argument of Georgia Attorney General) (noting, in response to question about prosecution "where the activity took place in a private residence," the "last case I can recall was back in the 1930's or 40's"). [ Footnote 4/12 ] It is, of course, possible to argue that a statute has a purely symbolic role. Cf. Carey v. Population Services International, 431 U. S. 678 , 431 U. S. 715 , n. 3 (1977) (STEVENS, J., concurring in part and concurring in judgment) ("The fact that the State admittedly has never brought a prosecution under the statute . . . is consistent with appellants' position that the purpose of the statute is merely symbolic"). Since the Georgia Attorney General does not even defend the statute as written, however, see 478 U.S. 186 fn4/10|>n. 10, supra, the State cannot possibly rest on the notion that the statute may be defended for its symbolic message. [ Footnote 4/13 ] Indeed, at this stage, it appears that the statute indiscriminately authorizes a policy of selective prosecution that is neither limited to the class of homosexual persons nor embraces all persons in that class, but rather applies to those who may be arbitrarily selected by the prosecutor for reasons that are not revealed either in the record of this case or in the text of the statute. If that is true, although the text of the statute is clear enough, its true meaning may be "so intolerably vague that evenhanded enforcement of the law is a virtual impossibility." Marks v. United States, 430 U. S. 188 , 430 U. S. 198 (1977) (STEVENS, J., concurring in part and dissenting in part).

In Bowers v. Hardwick (1986), the U.S. Supreme Court upheld the constitutionality of a Georgia statute criminalizing sodomy, committed by consenting adults in private. The Court held that there is no fundamental right for homosexuals to engage in sodomy and that sodomy laws do not violate privacy rights, even when the act occurs in the home. The Court also argued that the majority's belief in the immorality of sodomy is a sufficient rationale for such laws and that there is a long history of sodomy being criminalized. This decision was later overturned in Lawrence v. Texas (2003).

LGBTQ+ Rights

Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc.

https://supreme.justia.com/cases/federal/us/515/557/

OCTOBER TERM, 1994 Syllabus HURLEY ET AL. v. IRISH-AMERICAN GAY, LESBIAN AND BISEXUAL GROUP OF BOSTON, INC., ET AL. CERTIORARI TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS No. 94-749. Argued April 25, 1995-Decided June 19, 1995 Petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various veterans groups, was authorized by the city of Boston to organize and conduct the St. Patrick's Day-Evacuation Day Parade. The Council refused a place in the 1993 event to respondent GLIB, an organization formed for the purpose of marching in the parade in order to express its members' pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York St. Patrick's Day parade. GLIB and some of its members filed this suit in state court, alleging that the denial of their application to march violated, inter alia, a state law prohibiting discrimination on account of sexual orientation in places of public accommodation. In finding such a violation and ordering the Council to include GLIB in the parade, the trial court, among other things, concluded that the parade had no common theme other than the involvement of the participants, and that, given the Council's lack of selectivity in choosing parade participants and its failure to circumscribe the marchers' messages, the parade lacked any expressive purpose, such that GLIB's inclusion therein would not violate the Council's First Amendment rights. The Supreme Judicial Court of Massachusetts affirmed. Held: The state courts' application of the Massachusetts public accommodations law to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey violates the First Amendment. Pp. 566-581. (a) Confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the realm of nonexpressive conduct, this Court has a constitutional duty to conduct an independent examination of the record as a whole, without deference to those courts, to assure that their judgment does not constitute a forbidden intrusion on the field offree expression. See, e. g., New York Times Co. v. Sullivan, 376 U. S. 254 , 285. Pp. 566-568. 558 Syllabus (b) The selection of contingents to make a parade is entitled to First Amendment protection. Parades such as petitioners' are a form of protected expression because they include marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Cf., e. g., Gregory v. Chicago, 394 U. S. 111 , 112. Moreover, such protection is not limited to a parade's banners and songs, but extends to symbolic acts. See, e. g., West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 632, 642. Although the Council has been rather lenient in admitting participants to its parade, a private speaker does not forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message as the exclusive subject matter of the speech, or by failing to generate, as an original matter, each item featured in the communication. Thus, petitioners are entitled to protection under the First Amendment. GLIB's participation as a unit in the parade was equally expressive, since the organization was formed to celebrate its members' sexual identities and for related purposes. Pp. 568-570. (c) The Massachusetts law does not, as a general matter, violate the First or Fourteenth Amendments. Its provisions are well within a legislature's power to enact when it has reason to believe that a given group is being discriminated against. And the statute does not, on its face, target speech or discriminate on the basis of its content. Pp.571-572. (d) The state court's application, however, had the effect of declaring the sponsors' speech itself to be the public accommodation. Since every participating parade unit affects the message conveyed by the private organizers, the state courts' peculiar application of the Massachusetts law essentially forced the Council to alter the parade's expressive content and thereby violated the fundamental First Amendment rule that a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say. Petitioners' claim to the benefit of this principle is sound, since the Council selects the expressive units of the parade from potential participants and clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another, free from state interference. The constitutional violation is not saved by Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 . The Council is a speaker in its own right; a parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience; and there is no assertion here that some speakers will be destroyed in the absence of 559 the Massachusetts law. Nor has any other legitimate interest been identified in support of applying that law in the way done by the state courts to expressive activity like the parade. PruneYard Shopping Center v. Robins, 447 U. S. 74 ,87, and New York State Club Assn., Inc. v. City of New York, 487 U. S. 1 , 13, distinguished. Pp. 572-581. 418 Mass. 238, 636 N. E. 2d 1293, reversed and remanded. SOUTER, J., delivered the opinion for a unanimous Court. Chester Darling argued the cause for petitioners. With him on the briefs were Dwight G. Duncan and William M. Connolly. John Ward argued the cause for respondents. With him on the brief were David Duncan, Gretchen Van Ness, Gary Buseck, Mary Bonauto, Larry W Yackle, and Charles S. Sims. * JUSTICE SOUTER delivered the opinion of the Court. The issue in this case is whether Massachusetts may require private citizens who organize a parade to include among the marchers a group imparting a message the organizers do not wish to convey. We hold that such a mandate violates the First Amendment. *Briefs of amici curiae urging reversal were filed for the Boy Scouts of America by George A. Davidson, Carla A. Kerr, and David K. Park; for the Catholic War Veterans of the United States of America, Inc., by John P. Hale; for the Center for Individual Rights et al. by Gary B. Born, Ernest L. Mathews, Jr., Maura R. Cahill, and Michael P. McDonald; and for the Christian Legal Society et al. by Steven T. McFarland, Samuel B. Casey, and Gregory S. Baylor. Briefs of amici curiae urging affirmance were filed for the AntiDefamation League et al. by Walter A. Smith, Jr., Thomas N. Bulleit, Jr., Steven M. Freeman, Arlene B. Mayerson, Antonia Hernandez, Alice E. Zaft, Judith L. Lichtman, and Donna R. Lenhoff; and for the Irish Lesbian and Gay Organization et al. by R. Paul Wickes and Michael Burt Neuborne, Steven R. Shapiro, and Marjorie Heins filed a brief for the American Civil Liberties Union as amicus curiae. 560 I March 17 is set aside for two celebrations in South Boston. As early as 1737, some people in Boston observed the feast of the apostle to Ireland, and since 1776 the day has marked the evacuation of royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on Dorchester Heights under General Washington's command. Washington himself reportedly drew on the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in the colonial lines on evacuation day. See J. Crimmins, St. Patrick's Day: Its Celebration in New York and other American Places, 1737-1845, pp. 15, 19 (1902); see generally 1 H. Commager & R. Morris, The Spirit of 'Seventy Six, pp. 138-183 (1958); The American Book of Days 262-265 (J. Hatch ed., 3d ed. 1978). Although the General Court of Massachusetts did not officially designate March 17 as Evacuation Day until 1938, see Mass. Gen. Laws § 6:12K (1992), the City Council of Boston had previously sponsored public celebrations of Evacuation Day, including notable commemorations on the centennial in 1876, and on the 125th anniversary in 1901, with its parade, salute, concert, and fireworks display. See Celebration of the Centennial Anniversary of the Evacuation of Boston by the British Army (G. Ellis ed. 1876); Irish-American Gay, Lesbian and Bisexual Group of Boston v. City of Boston et al., Civ. Action No. 92-1518A (Super. Ct., Mass., Dec. 15, 1993), reprinted in App. to Pet. for Cert. B1, B8-B9. The tradition of formal sponsorship by the city came to an end in 1947, however, when Mayor James Michael Curley himself granted authority to organize and conduct the St. Patrick's Day-Evacuation Day Parade to the petitioner South Boston Allied War Veterans Council, an unincorporated association of individuals elected from various South Boston veterans groups. Every year since that time, the Council has applied for and received a permit for the parade, which at times has included as many as 20,000 marchers and drawn 561 up to 1 million watchers. No other applicant has ever applied for that permit. Id., at B9. Through 1992, the city allowed the Council to use the city's official seal, and provided printing services as well as direct funding. In 1992, a number of gay, lesbian, and bisexual descendants of the Irish immigrants joined together with other supporters to form the respondent organization, GLIB, to march in the parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals, to demonstrate that there are such men and women among those so descended, and to express their solidarity with like individuals who sought to march in New York's St. Patrick's Day Parade. Id., at B3; App. 51. Although the Council denied GLIB's application to take part in the 1992 parade, GLIB obtained a state-court order to include its contingent, which marched "uneventfully" among that year's 10,000 participants and 750,000 spectators. App. to Pet. for Cert. B3, and n. 4. In 1993, after the Council had again refused to admit GLIB to the upcoming parade, the organization and some of its members filed this suit against the Council, the individual petitioner John J. "Wacko" Hurley, and the city of Boston, alleging violations of the State and Federal Constitutions and of the state public accommodations law, which prohibits "any distinction, discrimination or restriction on account of ... sexual orientation ... relative to the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws § 272:98 (1992). After finding that "[f]or at least the past 47 years, the Parade has traveled the same basic route along the public streets of South Boston, providing entertainment, amusement, and recreation to participants and spectators alike," App. to Pet. for Cert. B5-B6, the state trial court ruled that the parade fell within the statutory definition of a public accommodation, which includes "any place ... which is open to and accepts or solicits the patronage of the general public 562 and, without limiting the generality of this definition, whether or not it be ... (6) a boardwalk or other public highway [or] ... (8) a place of public amusement, recreation, sport, exercise or entertainment," Mass. Gen. Laws § 272:92A (1992). The court found that the Council had no written criteria and employed no particular procedures for admission, voted on new applications in batches, had occasionally admitted groups who simply showed up at the parade without having submitted an application, and did "not generally inquire into the specific messages or views of each applicant." App. to Pet. for Cert. B8-B9. The court consequently rejected the Council's contention that the parade was "private" (in the sense of being exclusive), holding instead that "the lack of genuine selectivity in choosing participants and sponsors demonstrates that the Parade is a public event." Id., at B6. It found the parade to be "eclectic," containing a wide variety of "patriotic, commercial, political, moral, artistic, religious, athletic, public service, trade union, and eleemosynary themes," as well as conflicting messages. Id., at B24. While noting that the Council had indeed excluded the Ku Klux Klan and ROAR (an antibusing group), id., at B7, it attributed little significance to these facts, concluding ultimately that "[t]he only common theme among the participants and sponsors is their public involvement in the Parade," id., at B24. The court rejected the Council's assertion that the exclusion of "groups with sexual themes merely formalized [the fact] that the Parade expresses traditional religious and social values," id., at B3, and found the Council's "final position [to be] that GLIB would be excluded because of its values and its message, i. e., its members' sexual orientation," id., at B4, n. 5, citing Tr. of Closing Arg. 43, 51-52 (Nov. 23, 1993). This position, in the court's view, was not only violative of the public accommodations law but "paradoxical" as well, since "a proper celebration of St. Patrick's and Evacuation Day requires diversity and inclusiveness." App. to Pet. for 563 Cert. B24. The court rejected the notion that GLIB's admission would trample on the Council's First Amendment rights since the court understood that constitutional protection of any interest in expressive association would "requir[e] focus on a specific message, theme, or group" absent from the parade. Ibid. "Given the [Council's] lack of selectivity in choosing participants and failure to circumscribe the marchers' message," the court found it "impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment." Id., at B25. It concluded that the parade is "not an exercise of [the Council's] constitutionally protected right of expressive association," but instead "an open recreational event that is subject to the public accommodations law." Id., at B27. The court held that because the statute did not mandate inclusion of GLIB but only prohibited discrimination based on sexual orientation, any infringement on the Council's right to expressive association was only "incidental" and "no greater than necessary to accomplish the statute's legitimate purpose" of eradicating discrimination. Id., at B25, citing Roberts v. United States Jaycees, 468 U. S. 609 , 628-629 (1984). Accordingly, it ruled that "GLIB is entitled to participate in the Parade on the same terms and conditions as other participants." App. to Pet. for Cert. B27.1 The Supreme Judicial Court of Massachusetts affirmed, seeing nothing clearly erroneous in the trial judge's findings 1 The court dismissed the public accommodations law claim against the city because it found that the city's actions did not amount to inciting or assisting in the Council's violations of § 272:98. App. to Pet. for Cert. B12-B13. It also dismissed respondents' First and Fourteenth Amendment challenge against the Council for want of state action triggering the proscriptions of those Amendments. Id., at B14-B22. Finally, the court did not reach the state constitutional questions, since respondents had apparently assumed in their arguments that those claims, too, depended for their success upon a finding of state action and because of the court's holding that the public accommodation statutes apply to the parade. Id., at B22. 564 that GLIB was excluded from the parade based on the sexual orientation of its members, that it was impossible to detect an expressive purpose in the parade, that there was no state action, and that the parade was a public accommodation within the meaning of § 272:92A. Irish-American Gay, Lesbian and Bisexual Group of Boston v. Boston, 418 Mass. 238,242-248,636 N. E. 2d 1293, 1295-1298 (1994).2 Turning to petitioners' First Amendment claim that application of the public accommodations law to the parade violated their freedom of speech (as distinguished from their right to expressive association, raised in the trial court), the court's majority held that it need not decide on the particular First Amendment theory involved "because, as the [trial] judge found, it is 'impossible to discern any specific expressive purpose entitling the Parade to protection under the First Amendment.'" Id., at 249, 636 N. E. 2d, at 1299 (footnote omitted). The defendants had thus failed at the trial level "to demonstrate that the parade truly was an exercise of ... First Amendment rights," id., at 250, 636 N. E. 2d, at 1299, citing Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293, n. 5 (1984), and on appeal nothing indicated to the majority of the Supreme Judicial Court that the trial judge's assessment of the evidence on this point was clearly erroneous, 418 Mass., at 250, 636 N. E. 2d, at 1299. The court rejected petitioners' further challenge to the law as overbroad, holding that it does not, on its face, regulate speech, does not let public officials examine the content of speech, and would not be interpreted as reaching speech. Id., at 251-252, 636 N. E. 2d, at 1300. Finally, the court rejected the challenge that the public accommodations law was unconstitutionally vague, holding that this case did not present an issue of speech and that the law gave persons of 2 Since respondents did not cross-appeal the dismissal of their claims against the city, the Supreme Judicial Court declined to reach those claims. 418 Mass., at 245, n. 12, 636 N. E. 2d, at 1297. 565 ordinary intelligence a reasonable opportunity to know what was prohibited. Id., at 252,636 N. E. 2d, at 1300-130l. Justice Nolan dissented. In his view, the Council "does not need a narrow or distinct theme or message in its parade for it to be protected under the First Amendment." Id., at 256, 636 N. E. 2d, at 1303. First, he wrote, even if the parade had no message at all, GLIB's particular message could not be forced upon it. Id., at 257, 636 N. E. 2d, at 1303, citing Wooley v. Maynard, 430 U. S. 705 , 717 (1977) (state requirement to display "Live Free or Die" on license plates violates First Amendment). Second, according to Justice Nolan, the trial judge clearly erred in finding the parade devoid of expressive purpose. 418 Mass., at 257, 636 N. E. 2d, at 1303. He would have held that the Council, like anyexpressive association, cannot be barred from excluding applicants who do not share the views the Council wishes to advance. Id., at 257-259, 636 N. E. 2d, at 1303-1304, citing Roberts, supra. Under either a pure speech or associational theory, the State's purpose of eliminating discrimination on the basis of sexual orientation, according to the dissent, could be achieved by more narrowly drawn means, such as ordering admission of individuals regardless of sexual preference, without taking the further step of prohibiting the Council from editing the views expressed in their parade. 418 Mass., at 256, 258, 636 N. E. 2d, at 1302, 1304. In Justice Nolan's opinion, because GLIB's message was separable from the status of its members, such a narrower order would accommodate the State's interest without the likelihood of infringing on the Council's First Amendment rights. Finally, he found clear error in the trial judge's equation of exclusion on the basis of GLIB's message with exclusion on the basis of its members' sexual orientation. To the dissent this appeared false in the light of "overwhelming evidence" that the Council objected to GLIB on account of its message and a dearth of testimony or documentation indicating that sexual orientation was the bar to admission. Id., at 260,636 566 N. E. 2d, at 1304. The dissent accordingly concluded that the Council had not even violated the State's public accommodations law. We granted certiorari to determine whether the requirement to admit a parade contingent expressing a message not of the private organizers' own choosing violates the First Amendment. 513 U. S. 1071 (1995). We hold that it does and reverse. II Given the scope of the issues as originally joined in this case, it is worth noting some that have fallen aside in the course of the litigation, before reaching us. Although the Council presents us with a First Amendment claim, respondents do not. Neither do they press a claim that the Council's action has denied them equal protection of the laws in violation of the Fourteenth Amendment. While the guarantees of free speech and equal protection guard only against encroachment by the government and "erec[t] no shield against merely private conduct," Shelley v. Kraemer, 334 U. S. 1 , 13 (1948); see Hudgens v. NLRB, 424 U. S. 507 , 513 (1976), respondents originally argued that the Council's conduct was not purely private, but had the character of state action. The trial court's review of the city's involvement led it to find otherwise, however, and although the Supreme Judicial Court did not squarely address the issue, it appears to have affirmed the trial court's decision on that point as well as the others. In any event, respondents have not brought that question up either in a cross-petition for certiorari or in their briefs filed in this Court. When asked at oral argument whether they challenged the conclusion by the Massachusetts' courts that no state action is involved in the parade, respondents' counsel answered that they "do not press that issue here." Tr. of Oral Arg. 22. In this Court, then, their claim for inclusion in the parade rests solely on the Massachusetts public accommodations law. 567 There is no corresponding concession from the other side, however, and certainly not to the state courts' characterization of the parade as lacking the element of expression for purposes of the First Amendment. Accordingly, our review of petitioners' claim that their activity is indeed in the nature of protected speech carries with it a constitutional duty to conduct an independent examination of the record as a whole, without deference to the trial court. See Bose Corp. v. Consumers Union of United States, Inc., 466 U. S. 485 , 499 (1984). The "requirement of independent appellate review ... is a rule of federal constitutional law," id., at 510, which does not limit our deference to a trial court on matters of witness credibility, Harte-Hanks Communications, Inc. v. Connaughton, 491 U. S. 657 , 688 (1989), but which generally requires us to "review the finding of facts by a State court ... where a conclusion of law as to a Federal right and a finding of fact are so intermingled as to make it necessary, in order to pass upon the Federal question, to analyze the facts," Fiske v. Kansas, 274 U. S. 380 , 385-386 (1927). See also Niemotko v. Maryland, 340 U. S. 268 , 271 (1951); Jacobellis v. Ohio, 378 U. S. 184 , 189 (1964) (opinion of Brennan, J.). This obligation rests upon us simply because the reaches of the First Amendment are ultimately defined by the facts it is held to embrace, and we must thus decide for ourselves whether a given course of conduct falls on the near or far side of the line of constitutional protection. See Bose Corp., supra, at 503. Even where a speech case has originally been tried in a federal court, subject to the provision of Federal Rule of Civil Procedure 52 (a) that "[f]indings of fact ... shall not be set aside unless clearly erroneous," we are obliged to make a fresh examination of crucial facts. Hence, in this case, though we are confronted with the state courts' conclusion that the factual characteristics of petitioners' activity place it within the vast realm of nonexpressive conduct, our obligation is to " 'make an independent examina- 568 tion of the whole record,' ... so as to assure ourselves that th[is] judgment does not constitute a forbidden intrusion on the field of free expression." New York Times Co. v. Sullivan, 376 U. S. 254 , 285 (1964) (footnote omitted), quoting Edwards v. South Carolina, 372 U. S. 229 , 235 (1963). III A If there were no reason for a group of people to march from here to there except to reach a destination, they could make the trip without expressing any message beyond the fact of the march itself. Some people might call such a procession a parade, but it would not be much of one. Real "[p]arades are public dramas of social relations, and in them performers define who can be a social actor and what subjects and ideas are available for communication and consideration." S. Davis, Parades and Power: Street Theatre in Nineteenth-Century Philadelphia 6 (1986). Hence, we use the word "parade" to indicate marchers who are making some sort of collective point, not just to each other but to bystanders along the way. Indeed, a parade's dependence on watchers is so extreme that nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no media coverage, it may as well not have happened." Id., at 171. Parades are thus a form of expression, not just motion, and the inherent expressiveness of marching to make a point explains our cases involving protest marches. In Gregory v. Chicago, 394 U. S. 111 , 112 (1969), for example, petitioners had taken part in a procession to express their grievances to the city government, and we held that such a "march, if peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment." Similarly, in Edwards v. South Carolina, supra, at 235, where petitioners had joined in a march of protest and pride, carrying placards and singing The Star Spangled Banner, we held that the activities "reflect an exercise of these basic constitutional 569 rights in their most pristine and classic form." Accord, Shuttlesworth v. Birmingham, 394 U. S. 147 , 152 (1969). The protected expression that inheres in a parade is not limited to its banners and songs, however, for the Constitution looks beyond written or spoken words as mediums of expression. Noting that "[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 , 632 (1943), our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), id., at 632, 642, wearing an armband to protest a war, Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503 , 505-506 (1969), displaying a red flag, Stromberg v. California, 283 U. S. 359 , 369 (1931), and even "[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of America v. Skokie, 432 U. S. 43 (1977). As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, 418 U. S. 405 , 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or J abberwocky verse of Lewis Carroll. Not many marches, then, are beyond the realm of expressive parades, and the South Boston celebration is not one of them. Spectators line the streets; people march in costumes and uniforms, carrying flags and banners with all sorts of messages (e. g., "England get out of Ireland," "Say no to drugs"); marching bands and pipers play; floats are pulled along; and the whole show is broadcast over Boston television. See Record, Exh. 84 (video). To be sure, we agree with the state courts that in spite of excluding some applicants, the Council is rather lenient in admitting participants. But a private speaker does not forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive 570 subject matter of the speech. Nor, under our precedent, does First Amendment protection require a speaker to generate, as an original matter, each item featured in the communication. Cable operators, for example, are engaged in protected speech activities even when they only select programming originally produced by others. Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 , 636 (1994) ("Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment"). For that matter, the presentation of an edited compilation of speech generated by other persons is a staple of most newspapers' opinion pages, which, of course, fall squarely within the core of First Amendment security, Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 , 258 (1974), as does even the simple selection of a paid noncommercial advertisement for inclusion in a daily paper, see New York Times, 376 U. S., at 265266. The selection of contingents to make a parade is entitled to similar protection. Respondents' participation as a unit in the parade was equally expressive. GLIB was formed for the very purpose of marching in it, as the trial court found, in order to celebrate its members' identity as openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such individuals in the community, and to support the like men and women who sought to march in the New York parade. App. to Pet. for Cert. B3. The organization distributed a fact sheet describing the members' intentions, App. A51, and the record otherwise corroborates the expressive nature of GLIB's participation, see Record, Exh. 84 (video); App. A67 (photograph). In 1993, members of GLIB marched behind a shamrock-strewn banner with the simple inscription "Irish American Gay, Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part of the existing parade, rather than staging one of its own. 571 B The Massachusetts public accommodations law under which respondents brought suit has a venerable history. At common law, innkeepers, smiths, and others who "made profession of a public employment," were prohibited from refusing, without good reason, to serve a customer. Lane v. Cotton, 12 Mod. 472, 484-485, 88 Eng. Rep. 1458, 1464-1465 (K. B. 1701) (Holt, C. J.); see Bell v. Maryland, 378 U. S. 226 , 298, n. 17 (1964) (Goldberg, J., concurring); Lombard v. Louisiana, 373 U. S. 267 , 277 (1963) (Douglas, J., concurring). As one of the 19th-century English judges put it, the rule was that "[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants." Rex v. Ivens, 7 Car. & P. 213, 219, 173 Eng. Rep. 94, 96 (N. P. 1835); M. Konvitz & T. Leskes, A Century of Civil Rights 160 (1961). After the Civil War, the Commonwealth of Massachusetts was the first State to codify this principle to ensure access to public accommodations regardless of race. See Act Forbidding Unjust Discrimination on Account of Color or Race, 1865 Mass. Acts, ch. 277 (May 16, 1865); Konvitz & Leskes, supra, at 155-156; Lerman & Sanderson, Discrimination in Access to Public Places: A Survey of State and Federal Public Accommodations Laws, 7 N. Y. U. Rev. L. & Soc. Change 215, 238 (1978); Fox, Discrimination and Antidiscrimination in Massachusetts Law, 44 B. U. L. Rev. 30, 58 (1964). In prohibiting discrimination "in any licensed inn, in any public place of amusement, public conveyance or public meeting," 1865 Mass. Acts, ch. 277, § 1, the original statute already expanded upon the common law, which had not conferred any right of access to places of public amusement, Lerman & Sanderson, supra, at 248. As with many public accommodations statutes across the Nation, the legislature continued to 572 broaden the scope of legislation, to the point that the law today prohibits discrimination on the basis of "race, color, religious creed, national origin, sex, sexual orientation ... , deafness, blindness or any physical or mental disability or ancestry" in "the admission of any person to, or treatment in any place of public accommodation, resort or amusement." Mass. Gen. Laws § 272:98 (1992). Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments. See, e. g., New York State Club Assn., Inc. v. City of New York, 487 U. S. 1 , 11-16 (1988); Roberts v. United States Jaycees, 468 U. S., at 624 626; Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 , 258-262 (1964). Nor is this statute unusual in any obvious way, since it does not, on its face, target speech or discriminate on the basis of its content, the focal point of its prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds. C In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual individuals in various units admitted to the parade. Petitioners disclaim any intent to exclude homosexuals as such, and no individual member of GLIB claims to have been excluded from parading as a member of any group that the Council has approved to march. Instead, the disagreement goes to the admission of GLIB as its own parade unit carrying its own banner. See App. to Pet. for Cert. B26-B27, and n. 28. Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content 573 of their parade. Although the state courts spoke of the parade as a place of public accommodation, see, e. g., 418 Mass., at 247-248, 636 N. E. 2d, at 1297-1298, once the expressive character of both the parade and the marching GLIB contingent is understood, it becomes apparent that the state courts' application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation. Under this approach any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own. But this use of the State's power violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message. "Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas & Electric Co. v. Public Utilities Comm'n of Cal., 475 U. S. 1 , 11 (1986) (plurality opinion) (emphasis in original), one important manifestation of the principle of free speech is that one who chooses to speak may also decide "what not to say," id., at 16. Although the State may at times "prescribe what shall be orthodox in commercial advertising" by requiring the dissemination of "purely factual and uncontroversial information," Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U. S. 626 , 651 (1985); see Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations, 413 U. S. 376 , 386-387 (1973), outside that context it may not compel affirmance of a belief with which the speaker disagrees, see Barnette, 319 U. S., at 642. Indeed this general rule, that the speaker has the right to tailor the speech, applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid, McIntyre v. Ohio Elections Comm'n, 514 U. S. 334 , 341-342 (1995); Riley v. National Federation of Blind of N. c., Inc., 574 487 U. S. 781 , 797-798 (1988), subject, perhaps, to the permissive law of defamation, New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U. S. 323 , 347-349 (1974); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46 (1988). Nor is the rule's benefit restricted to the press, being enjoyed by business corporations generally and by ordinary people engaged in unsophisticated expression as well as by professional publishers. I ts point is simply the point of all speech protection, which is to shield just those choices of content that in someone's eyes are misguided, or even hurtful. See Brandenburg v. Ohio, 395 U. S. 444 (1969); Terminiello v. Chicago, 337 U. S. 1 (1949). Petitioners' claim to the benefit of this principle of autonomy to control one's own speech is as sound as the South Boston parade is expressive. Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified 575 social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control. Respondents argue that any tension between this rule and the Massachusetts law falls short of unconstitutionality, citing the most recent of our cases on the general subject of compelled access for expressive purposes, Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994). There we reviewed regulations requiring cable operators to set aside channels for designated broadcast signals, and applied only intermediate scrutiny. Id., at 662. Respondents contend on this authority that admission of GLIB to the parade would not threaten the core principle of speaker's autonomy because the Council, like a cable operator, is merely "a conduit" for the speech of participants in the parade "rather than itself a speaker." Brief for Respondents 21. But this metaphor is not apt here, because GLIB's participation would likely be perceived as having resulted from the Council's customary determination about a unit admitted to the parade, that its message was worthy of presentation and quite possibly of support as well. A newspaper, similarly, "is more than a passive receptacle or conduit for news, comment, and advertising," and we have held that "[t]he choice of material ... and the decisions made as to limitations on the size and content ... and treatment of public issues ... -whether fair or unfair-constitute the exercise of editorial control and judgment" upon which the State can not intrude. Tornillo, 418 U. S., at 258. Indeed, in Pacific Gas & Electric, we invalidated coerced access to the envelope of a private utility's bill and newsletter because the utility "may be forced either to appear to agree with [the intruding leaflet] or to respond." 475 U. S., at 15 (plurality opinion) (citation omitted). The plurality made the further point that if "the government 576 [were] freely able to compel ... speakers to propound political messages with which they disagree, ... protection [of a speaker's freedom] would be empty, for the government could require speakers to affirm in one breath that which they deny in the next." Id., at 16. Thus, when dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised. In Turner Broadcasting, we found this problem absent in the cable context, because "[g]iven cable's long history of serving as a conduit for broadcast signals, there appears little risk that cable viewers would assume that the broadcast stations carried on a cable system convey ideas or messages endorsed by the cable operator." 512 U. S., at 655. We stressed that the viewer is frequently apprised of the identity of the broadcaster whose signal is being received via cable and that it is "common practice for broadcasters to disclaim any identity of viewpoint between the management and the speakers who use the broadcast facility." Ibid. (citation omitted); see id., at 684 (O'CONNOR, J., concurring in part and dissenting in part) (noting that Congress "might ... conceivably obligate cable operators to act as common carriers for some of their channels"). Parades and demonstrations, in contrast, are not understood to be so neutrally presented or selectively viewed. Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow "any identity of viewpoint" between themselves and the selected participants. Practice follows practicability here, for such disclaimers would be quite curious in a moving 577 parade. Cf. PruneYard Shopping Center v. Robins, 447 U. S. 74 , 87 (1980) (owner of shopping mall "can expressly disavow any connection with the message by simply posting signs in the area where the speakers or hand billers stand"). Without deciding on the precise significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an expressive parade, as with a protest march, the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole. An additional distinction between Turner Broadcasting and this case points to the fundamental weakness of any attempt to justify the state-court order's limitation on the Council's autonomy as a speaker. A cable is not only a conduit for speech produced by others and selected by cable operators for transmission, but a franchised channel giving monopolistic opportunity to shut out some speakers. This power gives rise to the Government's interest in limiting monopolistic autonomy in order to allow for the survival of broadcasters who might otherwise be silenced and consequently destroyed. The Government's interest in Turner Broadcasting was not the alteration of speech, but the survival of speakers. In thus identifying an interest going beyond abridgment of speech itself, the defenders of the law at issue in Turner Broadcasting addressed the threshold requirement of any review under the Speech Clause, whatever the ultimate level of scrutiny, that a challenged restriction on speech serve a compelling, or at least important, governmental object, see, e. g., Pacific Gas & Electric, supra, at 19; Turner Broadcasting, supra, at 662; United States v. O'Brien, 391 U. S. 367 , 377 (1968). In this case, of course, there is no assertion comparable to the Turner Broadcasting claim that some speakers will be destroyed in the absence of the challenged law. True, the size and success of petitioners' parade makes it an enviable vehicle for the dissemination of GLIB's views, but that fact, 578 without more, would fall far short of supporting a claim that petitioners enjoy an abiding monopoly of access to spectators. See App. to Pet. for Cert. B9; Brief for Respondents 10 (citing trial court's finding that no other applicant has applied for the permit). Considering that GLIB presumably would have had a fair shot (under neutral criteria developed by the city) at obtaining a parade permit of its own, respondents have not shown that petitioners enjoy the capacity to "silence the voice of competing speakers," as cable operators do with respect to program providers who wish to reach subscribers, Turner Broadcasting, supra, at 656. Nor has any other legitimate interest been identified in support of applying the Massachusetts statute in this way to expressive activity like the parade. The statute, Mass. Gen. Laws § 272:98 (1992), is a piece of protective legislation that announces no purpose beyond the object both expressed and apparent in its provisions, which is to prevent any denial of access to (or discriminatory treatment in) public accommodations on proscribed grounds, including sexual orientation. On its face, the object of the law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference. When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. But in the absence of some further, legitimate end, this object is merely to allow exactly what the general rule of speaker's autonomy forbids. It might, of course, have been argued that a broader objective is apparent: that the ultimate point of forbidding acts of discrimination toward certain classes is to produce a society free of the corresponding biases. Requiring access to a 579 speaker's message would thus be not an end in itself, but a means to produce speakers free of the biases, whose expressive conduct would be at least neutral toward the particular classes, obviating any future need for correction. But if this indeed is the point of applying the state law to expressive conduct, it is a decidedly fatal objective. Having availed itself of the public thoroughfares "for purposes of assembly [and] communicating thoughts between citizens," the Council is engaged in a use of the streets that has "from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens." Hague v. Committee for Industrial Organization, 307 U. S. 496 , 515 (1939) (opinion of Roberts, J.). Our tradition of free speech commands that a speaker who takes to the street corner to express his views in this way should be free from interference by the State based on the content of what he says. See, e. g., Police Dept. of Chicago v. Mosley, 408 U. S. 92 , 95 (1972); cf. H. Kalven, A Worthy Tradition 6-19 (1988); Fiss, Free Speech and Social Structure, 71 Iowa L. Rev. 1405, 1408-1409 (1986). The very idea that a noncommercial speech restriction be used to produce thoughts and statements acceptable to some groups or, indeed, all people, grates on the First Amendment, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression. The Speech Clause has no more certain antithesis. See, e. g., Barnette, 319 U. S., at 642; Pacific Gas & Electric, 475 U. S., at 20. While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government. Far from supporting GLIB, then, Turner Broadcasting points to the reasons why the present application of the Massachusetts law can not be sustained. So do the two other principal authorities GLIB has cited. In PruneYard Shopping Center v. Robins, supra, to be sure, we 580 sustained a state law requiring the proprietors of shopping malls to allow visitors to solicit signatures on political petitions without a showing that the shopping mall owners would otherwise prevent the beneficiaries of the law from reaching an audience. But we found in that case that the proprietors were running "a business establishment that is open to the public to come and go as they please," that the solicitations would "not likely be identified with those of the owner," and that the proprietors could "expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand." 447 U. S., at 87. Also, in Pacific Gas & Electric, supra, at 12, we noted that PruneYard did not involve "any concern that access to this area might affect the shopping center owner's exercise of his own right to speak: the owner did not even allege that he objected to the content of the pamphlets .... " The principle of speaker's autonomy was simply not threatened in that case. New York State Club Assn. is also instructive by the contrast it provides. There, we turned back a facial challenge to a state antidiscrimination statute on the assumption that the expressive associational character of a dining club with over 400 members could be sufficiently attenuated to permit application of the law even to such a private organization, but we also recognized that the State did not prohibit exclusion of those whose views were at odds with positions espoused by the general club memberships. 487 U. S., at 13; see also Roberts, 468 U. S., at 627. In other words, although the association provided public benefits to which a State could ensure equal access, it was also engaged in expressive activity; compelled access to the benefit, which was upheld, did not trespass on the organization's message itself. If we were to analyze this case strictly along those lines, GLIB would lose. Assuming the parade to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could 581 nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members. IV Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

The Supreme Court ruled that the state court's decision to force the South Boston Allied War Veterans Council to include a gay, lesbian, and bisexual group in their St. Patrick's Day parade violated the First Amendment. The Court found that the parade was a form of protected expression and that the Council had a right to choose who could participate and what messages were conveyed. The Court also emphasized the importance of protecting freedom of speech, even if it disagrees with the speaker's statement.

LGBTQ+ Rights

Romer v. Evans

https://supreme.justia.com/cases/federal/us/517/620/

OCTOBER TERM, 1995 Syllabus ROMER, GOVERNOR OF COLORADO, ET AL. v. EVANS ET AL. CERTIORARI TO THE SUPREME COURT OF COLORADO No. 94-1039. Argued October 10, 1995-Decided May 20, 1996 After various Colorado municipalities passed ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities, Colorado voters adopted by statewide referendum "Amendment 2" to the State Constitution, which precludes all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Respondents, who include aggrieved homosexuals and municipalities, commenced this litigation in state court against petitioner state parties to declare Amendment 2 invalid and enjoin its enforcement. The trial court's grant of a preliminary injunction was sustained by the Colorado Supreme Court, which held that Amendment 2 was subject to strict scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. On remand, the trial court found that the amendment failed to satisfy strict scrutiny. It enjoined Amendment 2's enforcement, and the State Supreme Court affirmed. Held: Amendment 2 violates the Equal Protection Clause. Pp. 626-636. (a) The State's principal argument that Amendment 2 puts gays and lesbians in the same position as all other persons by denying them special rights is rejected as implausible. The extent of the change in legal status effected by this law is evident from the authoritative construction of Colorado's Supreme Court-which establishes that the amendment's immediate effect is to repeal all existing statutes, regulations, ordinances, and policies of state and local entities barring discrimination based on sexual orientation, and that its ultimate effect is to prohibit any governmental entity from adopting similar, or more protective, measures in the future absent state constitutional amendment-and from a review of the terms, structure, and operation of the ordinances that would be repealed and prohibited by Amendment 2. Even if, as the State contends, homosexuals can find protection in laws and policies of general application, Amendment 2 goes well beyond merely depriving them of special rights. It imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection 621 from injuries caused by discrimination in a wide range of public and private transactions. Pp. 626-631. (b) In order to reconcile the Fourteenth Amendment's promise that no person shall be denied equal protection with the practical reality that most legislation classifies for one purpose or another, the Court has stated that it will uphold a law that neither burdens a fundamental right nor targets a suspect class so long as the legislative classification bears a rational relation to some independent and legitimate legislative end. See, e. g., Heller v. Doe, 509 U. S. 312 , 319-320. Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment is at once too narrow and too broad, identifying persons by a single trait and then denying them the possibility of protection across the board. This disqualification of a class of persons from the right to obtain specific protection from the law is unprecedented and is itself a denial of equal protection in the most literal sense. Second, the sheer breadth of Amendment 2, which makes a general announcement that gays and lesbians shall not have any particular protections from the law, is so far removed from the reasons offered for it, i. e., respect for other citizens' freedom of association, particularly landlords or employers who have personal or religious objections to homosexuality, and the State's interest in conserving resources to fight discrimination against other groups, that the amendment cannot be explained by reference to those reasons; the amendment raises the inevitable inference that it is born of animosity toward the class that it affects. Amendment 2 cannot be said to be directed to an identifiable legitimate purpose or discrete objective. It is a status-based classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. Pp. 631-636. 882 P. 2d 1335, affirmed. KENNEDY, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined, post, p. 636. Timothy M. Tymkovich, Solicitor General of Colorado, argued the cause for petitioners. With him on the briefs were Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, John Daniel Dailey and Paul Farley, Deputy Attorneys General, and Rex E. Lee and Carter G. Phillips, Special Assistant Attorneys General. Jean E. Dubofsky argued the cause for respondents. With her on the brief for respondents Evans et al. were Rod- 622 Counsel erick M. Hills, Jr., Matthew Coles, Steven R. Shapiro, Clyde J. Wadsworth, Suzanne B. Goldberg, Jeanne Winer, Gregory A. Eurich, David H. Miller, Darlene M. Ebert, Joseph N. de Raismes III, and Walter A. Smith, Jr. John P. Worcester and Edward M. Caswall filed a brief for respondents City of Aspen et al. * *Briefs of amici curiae urging reversal were filed for the State of Alabama et al. by Charles J. Cooper, and by the Attorneys General for their respective States as follows: Jeff Sessions of Alabama, Daniel E. Lungren of California, Alan G. Lance of Idaho, Don Stenberg of Nebraska, Charles Molony Condon of South Carolina, Mark Barnett of South Dakota, and James S. Gilmore III of Virginia; for the American Center for Law and Justice Family Life Project by Jay Alan Sekulow and Keith A. Fournier; for the Christian Legal Society et al. by Steven T. McFarland, Samuel B. Casey, Gregory S. Baylor, and John K. Hulston Hall; for Colorado for Family Values by Robert K. Skolrood; for Concerned Women for America, Inc., by David J. Myers and Wendell R. Bird; for Equal Rights, Not Special Rights, Inc., by Michael A. Carvin, William L. McGrath, and Robert H. Bork; for the Family Research Council by Melissa Wells-Petry; for the Pacific Legal Foundation by Anthony T. Caso and Deborah J. La Fetra; and for the Oregon Citizens Alliance et al. by Lawrence J. Hall. Briefs of amici curiae urging affirmance were filed for the State of Oregon et al. by Theodore R. Kulongoski, Attorney General of Oregon, Thomas A. Balmer, Deputy Attorney General, Virginia L. Linder, Solicitor General, Michael D. Reynolds, Assistant Solicitor General, and Rives Kistler, Assistant Attorney General, Thomas J. Miller, Attorney General of Iowa, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Hubert H. Humphrey III, Attorney General of Minnesota, Frankie Sue Del Papa, Attorney General of Nevada, Christine O. Gregoire, Attorney General of Washington, and Garland Pinkston, Jr., Acting Corporation Counsel of the District of Columbia; for the City of Atlanta et al. by Louise H. Renne, Dennis Aftergut, Burk E. Delventhal, Julia M. C. Friedlander, Mary Carole Cooney, Robin Joy Shahar, Neal M. Janey, Stephen H. Clark, James K. Hahn, David I. Schulman, Eunice Gibson, Paul A. Crotty, Leonard A. Kerner, Jeffrey L. Rogers, Linda Meng, Janet E. Halley, Mark H. Sidran, Henry W Underhill, Jr., and Susan S. Sher; for Affirmation: United Methodists for Gay, Lesbian and Bisexual Concerns et al. by Celeste McCollough; for the American Bar Association by George E. Bushnell, Jr.; for the American Association on Mental Retardation et al. by James W Ellis and Maureen A. Sanders; for The American Federation of State, County and 623 JUSTICE KENNEDY delivered the opinion of the Court. One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Plessy v. Ferguson, 163 U. S. 537 , 559 (1896) (dissenting opinion). Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had Municipal Employees, AFL-CIO, by John C. Dempsey and Larry P. Weinberg; for the American Friends Service Committee et al. by Stark Ritchie; for the American Psychological Association et al. by Paul M. Smith, James L. McHugh, Jr., and Richard G. Taranto; for the Asian American Legal Defense and Education Fund et al. by Eben Moglen and Pamela S. Karlan; for the Colorado Bar Association et al. by Stephen V. Bomse, Martha Minow, and Frances A. Koncilja; for the Gay and Lesbian Lawyers of Philadelphia by Cletus P. Lyman; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Eric Schnapper, Elaine R. Jones, Theodore M. Shaw, Antonia Hernandez, Judith L. Lichtman, and Donna R. Lenhoff; for the National Bar Association by J. Clay Smith, Jr.; for the National Education Association et al. by Robert H. Chanin and John M. West; for James E. Andrews by Eric J. Graninger; and for Laurence H. Tribe et al. by Mr. Tribe, pro se, John Hart Ely, pro se, Philip Chai R. Feldblum filed a brief for the Human Rights Campaign Fund et al. as amici curiae. 624 enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV; §§ 28-91 to 28-116 (1991); Aspen Municipal Code § 13-98 (1977); Boulder Rev. Code §§ 12-1-1 to 12-1-11 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code § 12-1-1 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, § 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colo. Const., Art. II, § 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." Ibid. 625 Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. Evans v. Romer, 854 P. 2d 1270 (Colo. 1993) (Evans I). To reach this conclusion, the state court relied on our voting rights cases, e. g., Reynolds v. Sims, 377 U. S. 533 (1964); Carrington v. Rash, 380 U. S. 89 (1965); Harper v. Virginia Bd. of Elections, 383 U. S. 663 (1966); Williams v. Rhodes, 393 U. S. 23 (1968), and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. g., Hunter v. Erickson, 393 U. S. 385 (1969); Reitman v. Mulkey, 387 U. S. 369 (1967); Washington v. Seattle School Dist. No.1, 458 U. S. 457 (1982); Gordon v. Lance, 403 U. S. 1 (1971). On remand, the State advanced various arguments in an effort to show that 626 Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. 882 P. 2d 1335 (1994) (Evans II). We granted certiorari, 513 U. S. 1146 (1995), and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code § 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code §§ 12-1-2 to -4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, §§28-91 to -116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for 'all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, § 10-3-1104, 4A C. R. S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's 627 sexual orientation); and various prOVISIOns prohibiting discrimination based on sexual orientation at state colleges.26 "26 Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. "The 'ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." 854 P. 2d, at 12841285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. "At common law, innkeepers, smiths, and others who 'made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 , 571 (1995). The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved 628 insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights Cases, 109 U. S. 3 , 25 (1883). In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. See, e. g., S. D. Codified Laws §§20-13-10, 20-13-22, 20-13-23 (1995); Iowa Code §§ 216.6-216.8 (1994); Okla. Stat., Tit. 25, §§ 1302, 1402 (1987); 43 Pa. Cons. Stat. §§ 953, 955 (Supp. 1995); N. J. Stat. Ann. §§ 10:5-3, 10:5-4 (West Supp. 1995); N. H. Rev. Stat. Ann. §§ 354-A:7, 354-A:10, 354-A:17 (1995); Minn. Stat. § 363.03 (1991 and Supp. 1995). Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code § 12-1-1(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, § 28-92 (1991). These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have 629 not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127 , 135 (1994) (sex); Lalli v. Lalli, 439 U. S. 259, 265 (1978) (illegitimacy); McLaughlin v. Florida, 379 U. S. 184 , 191-192 (1964) (race); Oyama v. California, 332 U. S. 633 (1948) (ancestry). Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates-and, in recent times, sexual orientation. Aspen Municipal Code § 13-98(a)(1) (1977); Boulder Rev. Code §§ 12-1-1 to 12-1-4 (1987); Denver Rev. Municipal Code, Art. IV, §§28-92 to 28-119 (1991); Colo. Rev. Stat. §§ 24-34-401 to 24-34-707 (1988 and Supp. 1995). Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. See, e. g., Aspen Municipal Code §§ 13-98(b), (c) (1977); Boulder Rev. Code §§ 12-1-2, 12-1-3 (1987); Denver Rev. Municipal Code, Art. IV; §§ 28-93 to 28-95, 28-97 (1991). Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against "'all state employees, classified and exempt' on the basis of sexual orientation." 854 P. 2d, at 1284. Also repealed, and now forbid- 630 den, are "various provisions prohibiting discrimination based on sexual orientation at state colleges." Id., at 1284, 1285. The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. § 24-4-106(7) (1988) (agency action subject to judicial review under arbitrary and capricious standard); § 18-8-405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); § 10-3-1104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Su- 631 preme Court made the limited observation that the amendment is not intended to affect many antidiscrimination laws protecting non suspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256 , 271-272 (1979); F. S. Royster Guano Co. v. Virginia, 253 U. S. 412 , 415 (1920). We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., Heller v. Doe, 509 U. S. 312 , 319-320 (1993). 632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New Orleans v. Dukes, 427 U. S. 297 (1976) (tourism benefits justified classification favoring pushcart vendors of certain longevity); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955) (assumed health concerns justified law favoring optometrists over opticians); Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949) (potential traffic hazards justified exemption of vehicles advertising the owner's products from general advertising ban); Kotch v. Board of River Port Pilot Comm'rs for Port of New Orleans, 330 U. S. 552 (1947) (licensing scheme that disfavored persons unrelated to current river boat pilots justified by possible efficiency and safety benefits of a closely knit pilotage system). The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to 633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement Bd. v. Fritz, 449 U. S. 166 , 181 (1980) (STEVENS, J., concurring) ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32 , 37-38 (1928). It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. " 'Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'" Sweatt v. Painter, 339 U. S. 629 , 635 (1950) (quoting Shelley v. Kraemer, 334 U. S. 1, 22 (1948)). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of 'equal protection of the laws 634 is a pledge of the protection of equal laws.'" Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535 , 541 (1942) (quoting Yick Wo v. Hopkins, 118 U. S. 356 , 369 (1886)). Davis v. Beason, 133 U. S. 333 (1890), not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." Id., at 347. To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. Dunn v. Blumstein, 405 U. S. 330 , 337 (1972); cf. United States v. Brown, 381 U. S. 437 (1965); United States v. Robel, 389 U. S. 258 (1967). To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See Richardson v. Ramirez, 418 U. S. 24 (1974). A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of Agriculture v. Moreno, 413 U. S. 528 , 534 635 (1973). Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, Kadrmas v. Dickinson Public Schools, 487 U. S. 450, 462 (1988), and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation ... [is] obnoxious to the prohibitions of the Fourteenth Amendment .... " Civil Rights Cases, 109 U. S., at 24. We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, 636 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered. JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting. The Court has mistaken a Kulturkampf for a fit of spite. The constitutional amendment before us here is not the manifestation of a "'bare ... desire to harm' " homosexuals, ante, at 634, but is rather a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws. That objective, and the means chosen to achieve it, are not only unimpeachable under any constitutional doctrine hitherto pronounced (hence the opinion's heavy reliance upon principles of righteousness rather than judicial holdings); they have been specifically approved by the Congress of the United States and by this Court. In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago, see Bowers v. Hardwick, 478 U. S. 186 (1986), and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that "animosity" toward homosexuality, ante, at 634, is evil. I vigorously dissent. 637 I Let me first discuss Part II of the Court's opinion, its longest section, which is devoted to rejecting the State's arguments that Amendment 2 "puts gays and lesbians in the same position as all other persons," and "does no more than deny homosexuals special rights," ante, at 626. The Court concludes that this reading of Amendment 2's language is "implausible" under the "authoritative construction" given Amendment 2 by the Supreme Court of Colorado. Ibid. In reaching this conclusion, the Court considers it unnecessary to decide the validity of the State's argument that Amendment 2 does not deprive homosexuals of the "protection [afforded by] general laws and policies that prohibit arbitrary discrimination in governmental and private settings." Ante, at 630. I agree that we need not resolve that dispute, because the Supreme Court of Colorado has resolved it for us. In the case below, 882 P. 2d 1335 (1994), the Colorado court stated: "[I]t is significant to note that Colorado law currently proscribes discrimination against persons who are not suspect classes, including discrimination based on age, § 24-34-402(1)(a), lOA C. R. S. (1994 Supp.); marital or family status, § 24-34-502(1)(a), lOA C. R. S. (1994 Supp.); veterans' status, § 28-3-506, llB C. R. S. (1989); and for any legal, off-duty conduct such as smoking tobacco, § 24-34-402.5, lOA C. R. S. (1994 Supp.). Of course Amendment 2 is not intended to have any effect on this legislation, but seeks only to prevent the adoption of anti-discrimination laws intended to protect gays, lesbians, and bisexuals." Id., at 1346, n. 9 (emphasis added). The Court utterly fails to distinguish this portion of the Colorado court's opinion. Colorado Rev. Stat. § 24-34-402.5 (Supp. 1995), which this passage authoritatively declares not to be affected by Amendment 2, was respondents' primary 638 example of a generally applicable law whose protections would be unavailable to homosexuals under Amendment 2. See Brief for Respondents Evans et al. 11-12. The clear import of the Colorado court's conclusion that it is not affected is that "general laws and policies that prohibit arbitrary discrimination" would continue to prohibit discrimination on the basis of homosexual conduct as well. This analysis, which is fully in accord with (indeed, follows inescapably from) the text of the constitutional provision, lays to rest such horribles, raised in the course of oral argument, as the prospect that assaults upon homosexuals could not be prosecuted. The amendment prohibits special treatment of homosexuals, and nothing more. It would not affect, for example, a requirement of state law that pensions be paid to all retiring state employees with a certain length of service; homosexual employees, as well as others, would be entitled to that benefit. But it would prevent the State or any municipality from making death-benefit payments to the "life partner" of a homosexual when it does not make such payments to the long-time roommate of a nonhomosexual employee. Or again, it does not affect the requirement of the State's general insurance laws that customers be afforded coverage without discrimination unrelated to anticipated risk. Thus, homosexuals could not be denied coverage, or charged a greater premium, with respect to auto collision insurance; but neither the State nor any municipality could require that distinctive health insurance risks associated with homosexuality (if there are any) be ignored. Despite all of its hand wringing about the potential effect of Amendment 2 on general antidiscrimination laws, the Court's opinion ultimately does not dispute all this, but assumes it to be true. See ante, at 630. The only denial of equal treatment it contends homosexuals have suffered is this: They may not obtain preferential treatment without amending the State Constitution. That is to say, the principle underlying the Court's opinion is that one who is ac- 639 corded equal treatment under the laws, but cannot as readily as others obtain preferential treatment under the laws, has been denied equal protection of the laws. If merely stating this alleged "equal protection" violation does not suffice to refute it, our constitutional jurisprudence has achieved terminal silliness. The central thesis of the Court's reasoning is that any group is denied equal protection when, to obtain advantage (or, presumably, to avoid disadvantage), it must have recourse to a more general and hence more difficult level of political decisionmaking than others. The world has never heard of such a principle, which is why the Court's opinion is so long on emotive utterance and so short on relevant legal citation. And it seems to me most unlikely that any multilevel democracy can function under such a principle. For whenever a disadvantage is imposed, or conferral of a benefit is prohibited, at one of the higher levels of democratic decisionmaking (i. e., by the state legislature rather than local government, or by the people at large in the state constitution rather than the legislature), the affected group has (under this theory) been denied equal protection. To take the simplest of examples, consider a state law prohibiting the award of municipal contracts to relatives of mayors or city councilmen. Once such a law is passed, the group composed of such relatives must, in order to get the benefit of city contracts, persuade the state legislature-unlike all other citizens, who need only persuade the municipality. It is ridiculous to consider this a denial of equal protection, which is why the Court's theory is unheard of. The Court might reply that the example I have given is not a denial of equal protection only because the same "rational basis" (avoidance of corruption) which renders constitutional the substantive discrimination against relatives (i. e., the fact that they alone cannot obtain city contracts) also automatically suffices to sustain what might be called the electoral-procedural discrimination against them (i. e., 640 the fact that they must go to the state level to get this changed). This is of course a perfectly reasonable response, and would explain why "electoral-procedural discrimination" has not hitherto been heard of: A law that is valid in its substance is automatically valid in its level of enactment. But the Court cannot afford to make this argument, for as I shall discuss next, there is no doubt of a rational basis for the substance of the prohibition at issue here. The Court's entire novel theory rests upon the proposition that there is something special-something that cannot be justified by normal "rational basis" analysis-in making a disadvantaged group (or a nonpreferred group) resort to a higher decisionmaking level. That proposition finds no support in law or logic. II I turn next to whether there was a legitimate rational basis for the substance of the constitutional amendment-for the prohibition of special protection for homosexuals.1 It is unsurprising that the Court avoids discussion of this question, since the answer is so obviously yes. The case most relevant to the issue before us today is not even mentioned in the Court's opinion: In Bowers v. Hardwick, 478 U. S. 186 (1986), we held that the Constitution does not prohibit what virtually all States had done from the founding of the Republic until very recent years-making homosexual conduct a crime. That holding is unassailable, except by those who 1 The Court evidently agrees that "rational basis" -the normal test for compliance with the Equal Protection Clause-is the governing standard. The trial court rejected respondents' argument that homosexuals constitute a "suspect" or "quasi-suspect" class, and respondents elected not to appeal that ruling to the Supreme Court of Colorado. See 882 P. 2d 1335, 1341, n. 3 (1994). And the Court implicitly rejects the Supreme Court of Colorado's holding, Evans v. Romer, 854 P. 2d 1270, 1282 (1993), that Amendment 2 infringes upon a "fundamental right" of "independently identifiable class[es]" to "participate equally in the political process." See ante, at 625. 641 think that the Constitution changes to suit current fashions. But in any event it is a given in the present case: Respondents' briefs did not urge overruling Bowers, and at oral argument respondents' counsel expressly disavowed any intent to seek such overruling, Tr. of Oral Arg. 53. If it is constitutionally permissible for a State to make homosexual conduct criminal, surely it is constitutionally permissible for a State to enact other laws merely disfavoring homosexual conduct. (As the Court of Appeals for the District of Columbia Circuit has aptly put it: "If the Court [in Bowers] was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open ... to conclude that state sponsored discrimination against the class is invidious. After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Padula v. Webster, 822 F.2d 97 , 103 (1987).) And a fortiori it is constitutionally permissible for a State to adopt a provision not even disfavoring homosexual conduct, but merely prohibiting all levels of state government from bestowing special protections upon homosexual conduct. Respondents (who, unlike the Court, cannot afford the luxury of ignoring inconvenient precedent) counter Bowers with the argument that a greater-includes-the-Iesser rationale cannot justify Amendment 2's application to individuals who do not engage in homosexual acts, but are merely of homosexual "orientation." Some Courts of Appeals have concluded that, with respect to laws of this sort at least, that is a distinction without a difference. See Equality Foundation of Greater Cincinnati, Inc. v. Cincinnati, 54 F.3d 261 , 267 (CA6 1995) ("[F]or purposes of these proceedings, it is virtually impossible to distinguish or separate individuals of a particular orientation which predisposes them toward a particular sexual conduct from those who actually engage in that particular type of sexual conduct"); Steffan v. Perry, 41 F.3d 677 , 689-690 (CADC 1994). The Supreme Court of Colorado itself appears to be of this view. See 882 P. 2d, at 642 1349-1350 ("Amendment 2 targets this class of persons based on four characteristics: sexual orientation; conduct; practices, and relationships. Each characteristic provides a potentially different way of identifying that class of persons who are gay, lesbian, or bisexual. These four characteristics are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons") (emphasis added). But assuming that, in Amendment 2, a person of homosexual "orientation" is someone who does not engage in homosexual conduct but merely has a tendency or desire to do so, Bowers still suffices to establish a rational basis for the provision. If it is rational to criminalize the conduct, surely it is rational to deny special favor and protection to those with a self-avowed tendency or desire to engage in the conduct. Indeed, where criminal sanctions are not involved, homosexual "orientation" is an acceptable stand-in for homosexual conduct. A State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect," Dandridge v. Williams, 397 U. S. 471 , 485 (1970). Just as a policy barring the hiring of methadone users as transit employees does not violate equal protection simply because some methadone users pose no threat to passenger safety, see New York City Transit Authority v. Beazer, 440 U. S. 568 (1979), and just as a mandatory retirement age of 50 for police officers does not violate equal protection even though it prematurely ends the careers of many policemen over 50 who still have the capacity to do the job, see Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (1976) (per curiam), Amendment 2 is not constitutionally invalid simply because it could have been drawn more precisely so as to withdraw special antidiscrimination protections only from those of homosexual "orientation" who actually engage in homosexual conduct. As JUSTICE KENNEDY wrote, when he was on the Court of Appeals, in a case involving discharge of homosexuals from the Navy: "Nearly any 643 statute which classifies people may be irrational as applied in particular cases. Discharge of the particular plaintiffs before us would be rational, under minimal scrutiny, not because their particular cases present the dangers which justify Navy policy, but instead because the general policy of discharging all homosexuals is rational." Beller v. Middendorf, 632 F.2d 788 , 808-809, n. 20 (CA9 1980) (citation omitted). See also Ben-Shalom v. Marsh, 881 F.2d 454 , 464 (CA7 1989), cert. denied, 494 U. S. 1004 (1990). Moreover, even if the provision regarding homosexual "orientation" were invalid, respondents' challenge to Amendment 2-which is a facial challenge-must fail. "A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." United States v. Salerno, 481 U. S. 739 , 745 (1987). It would not be enough for respondents to establish (if they could) that Amendment 2 is unconstitutional as applied to those of homosexual "orientation"; since, under Bowers, Amendment 2 is unquestionably constitutional as applied to those who engage in homosexual conduct, the facial challenge cannot succeed. Some individuals of homosexual "orientation" who do not engage in homosexual acts might successfully bring an as-applied challenge to Amendment 2, but so far as the record indicates, none of the respondents is such a person. See App. 4-5 (complaint describing each of the individual respondents as either "a gay man" or "a lesbian").2 2 The Supreme Court of Colorado stated: "We hold that the portions of Amendment 2 that would remain if only the provision concerning sexual orientation were stricken are not autonomous and thus, not severable," 882 P. 2d, at 1349. That statement was premised, however, on the proposition that "[the] four characteristics [described in the Amendment-sexual orientation, conduct, practices, and relationships] are not truly severable from one another because each provides nothing more than a different way of identifying the same class of persons." Id., at 1349-1350 (emphasis added). As I have discussed above, if that premise is true-if the 644 III The foregoing suffices to establish what the Court's failure to cite any case remotely in point would lead one to suspect: No principle set forth in the Constitution, nor even any imagined by this Court in the past 200 years, prohibits what Colorado has done here. But the case for Colorado is much stronger than that. What it has done is not only unprohibited, but eminently reasonable, with close, congressionally approved precedent in earlier constitutional practice. First, as to its eminent reasonableness. The Court's opinion contains grim, disapproving hints that Coloradans have been guilty of "animus" or "animosity" toward homosexuality, as though that has been established as un-American. Of course it is our moral heritage that one should not hate any human being or class of human beings. But I had thought that one could consider certain conduct reprehensible-murder, for example, or polygamy, or cruelty to animals-and could exhibit even "animus" toward such conduct. Surely that is the only sort of "animus" at issue here: moral disapproval of homosexual conduct, the same sort of moral disapproval that produced the centuries-old criminal laws that we held constitutional in Bowers. The Colorado amendment does not, to speak entirely precisely, prohibit giving favored status to people who are homosexuals; they can be favored for many reasons-for example, because they are senior citizens or members of racial minorities. But it prohibits giving them favored status because of their homosexual conduct-that is, it prohibits favored status for homosexuality. But though Coloradans are, as I say, entitled to be hostile toward homosexual conduct, the fact is that the degree of hostility reflected by Amendment 2 is the smallest conceiv- entire class affected by the Amendment takes part in homosexual conduct, practices, and relationships-Bowers alone suffices to answer all constitutional objections. Separate consideration of persons of homosexual "orientation" is necessary only if one believes (as the Supreme Court of Colorado did not) that that is a distinct class. 645 able. The Court's portrayal of Coloradans as a society fallen victim to pointless, hate-filled "gay-bashing" is so false as to be comical. Colorado not only is one of the 25 States that have repealed their antisodomy laws, but was among the first to do so. See 1971 Colo. Sess. Laws, ch. 121, § 1. But the society that eliminates criminal punishment for homosexual acts does not necessarily abandon the view that homosexuality is morally wrong and socially harmful; often, abolition simply reflects the view that enforcement of such criminal laws involves unseemly intrusion into the intimate lives of citizens. Cf. Brief for Lambda Legal Defense and Education Fund, Inc., et al. as Amici Curiae in Bowers v. Hardwick, O. T. 1985, No. 85-140, p. 25, n. 21 (antisodomy statutes are "unenforceable by any but the most offensive snooping and wasteful allocation of law enforcement resources"); Kadish, The Crisis of Overcriminalization, 374 The Annals of the American Academy of Political and Social Science 157, 161 (1967) ("To obtain evidence [in sodomy cases], police are obliged to resort to behavior which tends to degrade and demean both themselves personally and law enforcement as an institution"). There is a problem, however, which arises when criminal sanction of homosexuality is eliminated but moral and social disapprobation of homosexuality is meant to be retained. The Court cannot be unaware of that problem; it is evident in many cities of the country, and occasionally bubbles to the surface of the news, in heated political disputes over such matters as the introduction into local schools of books teaching that homosexuality is an optional and fully acceptable "alternative life style." The problem (a problem, that is, for those who wish to retain social disapprobation of homosexuality) is that, because those who engage in homosexual conduct tend to reside in disproportionate numbers in certain communities, see Record, Exh. MMM, have high disposable income, see ibid.; App. 254 (affidavit of Prof. James Hunter), and, of course, care about homosexual-rights issues much 646 more ardently than the public at large, they possess political power much greater than their numbers, both locally and statewide. Quite understandably, they devote this political power to achieving not merely a grudging social toleration, but full social acceptance, of homosexuality. See, e. g., J acobs, The Rhetorical Construction of Rights: The Case of the Gay Rights Movement, 1969-1991, 72 Neb. L. Rev. 723, 724 (1993) ("[T]he task of gay rights proponents is to move the center of public discourse along a continuum from the rhetoric of disapprobation, to rhetoric of tolerance, and finally to affirmation"). By the time Coloradans were asked to vote on Amendment 2, their exposure to homosexuals' quest for social endorsement was not limited to newspaper accounts of happenings in places such as N ew York, Los Angeles, San Francisco, and Key West. Three Colorado cities-Aspen, Boulder, and Denver-had enacted ordinances that listed "sexual orientation" as an impermissible ground for discrimination, equating the moral disapproval of homosexual conduct with racial and religious bigotry. See Aspen Municipal Code § 13-98 (1977); Boulder Rev. Municipal Code §§ 12-1-1 to 12-1-11 (1987); Denver Rev. Municipal Code, Art. IV, §§28-91 to 28-116 (1991). The phenomenon had even appeared statewide: The Governor of Colorado had signed an executive order pronouncing that "in the State of Colorado we recognize the diversity in our pluralistic society and strive to bring an end to discrimination in any form," and directing state agencyheads to "ensure non-discrimination" in hiring and promotion based on, among other things, "sexual orientation." Executive Order No. D0035 (Dec. 10, 1990). I do not mean to be critical of these legislative successes; homosexuals are as entitled to use the legal system for reinforcement of their moral sentiments as is the rest of society. But they are subject to being countered by lawful, democratic countermeasures as well. 647 That is where Amendment 2 came in. It sought to counter both the geographic concentration and the disproportionate political power of homosexuals by (1) resolving the controversy at the statewide level, and (2) making the election a single-issue contest for both sides. It put directly, to all the citizens of the State, the question: Should homosexuality be given special protection? They answered no. The Court today asserts that this most democratic of procedures is unconstitutional. Lacking any cases to establish that facially absurd proposition, it simply asserts that it must be unconstitutional, because it has never happened before. "[Amendment 2] identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive .... "It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Ante, at 633. As I have noted above, this is proved false every time a state law prohibiting or disfavoring certain conduct is passed, because such a law prevents the adversely affected groupwhether drug addicts, or smokers, or gun owners, or motorcyclists-from changing the policy thus established in "each of [the] parts" of the State. What the Court says is even demonstrably false at the constitutional level. The Eighteenth Amendment to the Federal Constitution, for example, deprived those who drank alcohol not only of the power to alter the policy of prohibition locally or through state legislation, but even of the power to alter it through state constitutional amendment or federal legislation. The 648 Establishment Clause of the First Amendment prevents theocrats from having their way by converting their fellow citizens at the local, state, or federal statutory level; as does the Republican Form of Government Clause prevent monarchists. But there is a much closer analogy, one that involves precisely the effort by the majority of citizens to preserve its view of sexual morality statewide, against the efforts of a geographically concentrated and politically powerful minority to undermine it. The Constitutions of the States of Arizona, Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions stating that polygamy is "forever prohibited." See Ariz. Const., Art. XX, par. 2; Idaho Const., Art. I, § 4; N. M. Const., Art. XXI, § 1; Okla. Const., Art. I, § 2; Utah Const., Art. III, § 1. Polygamists, and those who have a polygamous "orientation," have been "singled out" by these provisions for much more severe treatment than merely denial of favored status; and that treatment can only be changed by achieving amendment of the state constitutions. The Court's disposition today suggests that these provisions are unconstitutional, and that polygamy must be permitted in these States on a state-legislated, or perhaps even localoption, basis-unless, of course, polygamists for some reason have fewer constitutional rights than homosexuals. The United States Congress, by the way, required the inclusion of these antipolygamy provisions in the Constitutions of Arizona, New Mexico, Oklahoma, and Utah, as a condition of their admission to statehood. See Arizona Enabling Act, 36 Stat. 569; New Mexico Enabling Act, 36 Stat. 558; Oklahoma Enabling Act, 34 Stat. 269; Utah Enabling Act, 28 Stat. 108. (For Arizona, New Mexico, and Utah, moreover, the Enabling Acts required that the antipolygamy provisions be "irrevocable without the consent of the United States and the people of said State"-so that not only were "each of [the] parts" of these States not "open on impartial terms" to polygamists, but even the States as a whole were not; 649 polygamists would have to persuade the whole country to their way of thinking.) Idaho adopted the constitutional provision on its own, but the 51st Congress, which admitted Idaho into the Union, found its Constitution to be "republican in form and ... in conformity with the Constitution of the United States." Act of Admission of Idaho, 26 Stat. 215 (emphasis added). Thus, this "singling out" of the sexual practices of a single group for statewide, democratic vote-so utterly alien to our constitutional system, the Court would have us believe-has not only happened, but has received the explicit approval of the United States Congress. I cannot say that this Court has explicitly approved any of these state constitutional provisions; but it has approved a territorial statutory provision that went even further, depriving polygamists of the ability even to achieve a constitutional amendment, by depriving them of the power to vote. In Davis v. Beason, 133 U. S. 333 (1890), Justice Field wrote for a unanimous Court: "In our judgment, § 501 of the Revised Statutes of Idaho Territory, which provides that 'no person ... who is a bigamist or polygamist or who teaches, advises, counsels, or encourages any person or persons to become bigamists or polygamists, or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels, or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law ... is permitted to vote at any election, or to hold any position or office of honor, trust, or profit within this Territory,' is not open to any constitutional or legal objection." Id., at 346-347 (emphasis added). To the extent, if any, that this opinion permits the imposition of adverse consequences upon mere abstract advocacy of po- 650 lygamy, it has, of course, been overruled by later cases. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But the proposition that polygamy can be criminalized, and those engaging in that crime deprived of the vote, remains good law. See Richardson v. Ramirez, 418 U. S. 24 , 53 (1974). Beason rejected the argument that "such discrimination is a denial of the equal protection of the laws." Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. Among the Justices joining in that rejection were the two whose views in other cases the Court today treats as equal protection lodestars-Justice Harlan, who was to proclaim in Plessy v. Ferguson, 163 U. S. 537 , 559 (1896) (dissenting opinion), that the Constitution "neither knows nor tolerates classes among citizens," quoted ante, at 623, and Justice Bradley, who had earlier declared that "class legislation ... [is] obnoxious to the prohibitions of the Fourteenth Amendment," Civil Rights Cases, 109 U. S. 3 , 24 (1883), quoted ante, at 635.3 3 The Court labors mightily to get around Beason, see ante, at 634, but cannot escape the central fact that this Court found the statute at issuewhich went much further than Amendment 2, denying polygamists not merely special treatment but the right to vote-"not open to any constitutional or legal objection," rejecting the appellant's argument (much like the argument of respondents today) that the statute impermissibly "singleEd] him out," Brief for Appellant in Davis v. Beason, O. T. 1889, No. 1261, p. 41. The Court adopts my conclusions that (a) insofar as Beason permits the imposition of adverse consequences based upon mere advocacy, it has been overruled by subsequent cases, and (b) insofar as Beason holds that convicted felons may be denied the right to vote, it remains good law. To these conclusions, it adds something new: the claim that "[t]o the extent [Beason] held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome." Ante, at 634. But if that is so, it is only because we have declared the right to vote to be a "fundamental political right," see, e. g., Dunn v. Blumstein, 405 U. S. 330 , 336 (1972), deprivation of which triggers strict scrutiny. Amendment 2, of course, does not deny the fundamental right to vote, and the Court rejects the Colorado court's view that there exists a fundamental right to participate in the political process. Strict scrutiny is thus not in play here. See ante, at 631. Finally, the Court's 651 This Court cited Beason with approval as recently as 1993, in an opinion authored by the same Justice who writes for the Court today. That opinion said: "[A]dverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination .... See, e. g., ... Davis v. Beason, 133 U. S. 333 (1890)." Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520 , 535 (1993). It remains to be explained how § 501 of the Idaho Revised Statutes was not an "impermissible targeting" of polygamists, but (the much more mild) Amendment 2 is an "impermissible targeting" of homosexuals. Has the Court concluded that the perceived social harm of polygamy is a "legitimate concern of government," and the perceived social harm of homosexuality is not? IV I strongly suspect that the answer to the last question is yes, which leads me to the last point I wish to make: The Court today, announcing that Amendment 2 "defies ... conventional [constitutional] inquiry," ante, at 632, and "confounds [the] normal process of judicial review," ante, at 633, employs a constitutional theory heretofore unknown to frustrate Colorado's reasonable effort to preserve traditional American moral values. The Court's stern disapproval of "animosity" towards homosexuality might be compared with what an earlier Court (including the revered Justices Harlan and Bradley) said in Murphy v. Ramsey, 114 U. S. 15 (1885), rejecting a constitutional challenge to a United States statute that denied the franchise in federal territories to those who engaged in polygamous cohabitation: "[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self- suggestion that § 501 of the Revised Statutes of Idaho, and Amendment 2, deny rights on account of "status" (rather than conduct) opens up a broader debate involving the significance of Bowers to this case, a debate which the Court is otherwise unwilling to join, see supra, at 640-643. 652 governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement." Id., at 45. I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war. But the Court today has done so, not only by inventing a novel and extravagant constitutional doctrine to take the victory away from traditional forces, but even by verbally disparaging as bigotry adherence to traditional attitudes. To suggest, for example, that this constitutional amendment springs from nothing more than "'a bare ... desire to harm a politically unpopular group,'" ante, at 634, quoting Department of Agriculture v. Moreno, 413 U. S. 528 , 534 (1973), is nothing short of insulting. (It is also nothing short of preposterous to call "politically unpopular" a group which enjoys enormous influence in American media and politics, and which, as the trial court here noted, though composing no more than 4% of the population had the support of 46% of the voters on Amendment 2, see App. to Pet. for Cert. C-18.) When the Court takes sides in the culture wars, it tends to be with the knights rather than the villeins-and more specifically with the Templars, reflecting the views and values of the lawyer class from which the Court's Members are drawn. How that class feels about homosexuality will be evident to anyone who wishes to interview job applicants at virtually any of the Nation's law schools. The interviewer may refuse to offer a job because the applicant is a Republican; because he is an adulterer; because he went to the wrong 653 prep school or belongs to the wrong country club; because he eats snails; because he is a womanizer; because she wears real-animal fur; or even because he hates the Chicago Cubs. But if the interviewer should wish not to be an associate or partner of an applicant because he disapproves of the applicant's homosexuality, then he will have violated the pledge which the Association of American Law Schools requires all its member schools to exact from job interviewers: "assurance of the employer's willingness" to hire homosexuals. Bylaws of the Association of American Law Schools, Inc. § 6-4(b); Executive Committee Regulations of the Association of American Law Schools § 6.19, in 1995 Handbook, Association of American Law Schools. This law-school view of what "prejudices" must be stamped out may be contrasted with the more plebeian attitudes that apparently still prevail in the United States Congress, which has been unresponsive to repeated attempts to extend to homosexuals the protections of federal civil rights laws, see, e. g., Employment NonDiscrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments of 1975, H. R. 5452, 94th Cong., 1st Sess. (1975), and which took the pains to exclude them specifically from the Americans with Disabilities Act of 1990, see 42 U. S. C. § 12211(a) (1988 ed., Supp. V). *** Today's opinion has no foundation in American constitutional law, and barely pretends to. The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will. I dissent.

The Supreme Court of the United States ruled that Colorado's Amendment 2, which prohibited legislative, executive, or judicial action to protect the status of persons based on their "homosexual, lesbian, or bisexual orientation, conduct, practices, or relationships," violated the Equal Protection Clause of the Fourteenth Amendment. The Court found that the amendment imposed a broad disability on homosexuals alone, forbidding them from seeking legal protection from discrimination in a wide range of public and private transactions. The Court held that the amendment was not a permissible way for Colorado to "put gays and lesbians in their place," as the state had argued, but rather an unconstitutional attempt to take away their right to seek protection from discrimination.

Labor & Employment

Starbucks Corporation v. McKinney

https://supreme.justia.com/cases/federal/us/602/23-367/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 23–367 _________________ Starbucks Corporation, PETITIONER v. M. Kathleen McKinney, Regional Di- rector of region 15 of the Nation- al Labor Relations Board, for and on behalf of the National Labor Relations Board on writ of certiorari to the united states court of appeals for the sixth circuit [June 13, 2024] Justice Thomas delivered the opinion of the Court. The National Labor Relations Board can bring in-house enforcement proceedings against employers and labor unions for engaging in unfair labor practices. Section 10( j) of the National Labor Relations Act authorizes the Board to seek a preliminary injunction from a federal district court while these administrative enforcement proceedings take place. The question in this case is whether the traditional four-factor test for a preliminary injunction articulated in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 (2008), governs the Board’s requests under §10( j). We conclude that it does, and therefore vacate and remand. I A The National Labor Relations Act (NLRA) prohibits employers and unions from engaging in certain “unfair labor practice[s].” 49Stat. 452, 29 U. S. C. §§158(a), (b). The National Labor Relations Board enforces that prohibition. §160(a). The Board’s “authority kicks in when a person files a charge with the agency alleging that” an employer or labor union has engaged in an unfair labor practice. Glacier Northwest, Inc. v. Teamsters , 598 U.S. 771, 775 (2023) (citing 29 CFR §101.2 (2021)). A regional Director then investigates the charge. §101.4 (2023). And, “[i]f the charge appears to have merit,” the director institutes a formal action against the offending party by issuing an administrative complaint. §101.8. This complaint triggers adjudicatory proceedings within the agency, first before an administrative law judge, and then before the Board itself. See 29 U. S. C. §§160(b), (c); 29 CFR §§101.10 to 101.12. A federal court of appeals may review the Board’s final order, if an aggrieved party seeks judicial review or if the Board seeks enforcement of its order. 29 U. S. C. §§160(e)–(f ). On review, the Board’s findings of fact are “conclusive” “if supported by substantial evidence.” Ibid. Because the Board’s administrative proceedings take years, Congress vested the Board with authority to seek a preliminary injunction in federal court while the proceedings unfold. Section 10( j) of the NLRA provides that, “upon issuance of a complaint,” the Board may “petition any United States district court . . . for appropriate temporary relief.” §160( j). A district court considering a §10( j) petition may “grant to the Board such temporary relief . . . as it deems just and proper.” Ibid. B Starbucks is the world’s largest coffeehouse chain, with over 34,000 locations. In 2022, six employees at a Memphis, Tennessee, location announced plans to unionize the store and formed an organizing committee. Several employees, including some members of the organizing committee, invited a news crew from a local television station to visit the store after hours to promote their unionizing effort. The news crew interviewed the employees about their reasons for organizing and what they hoped to achieve. The next day, store management learned about the media event and launched an investigation. Starbucks ultimately fired multiple employees involved with the media event for violating company policy. These included the members of the organizing committee who were in attendance. The union coordinating with the employees filed charges with the Board. The union alleged that Starbucks unlawfully interfered with the employees’ right to unionize and discriminated against union supporters, in violation of 29 U. S. C. §§158(a)(1) and (3). After investigating the allegations, the Board issued a complaint against Starbucks. The regional Director then filed a §10( j) petition in the United States District Court for the Western District of Tennessee, seeking a preliminary injunction that would, among other things, require Starbucks to reinstate the fired employees. To assess whether the Board was entitled to a preliminary injunction under §10( j), the District Court applied the two-part test established by Sixth Circuit precedent. That test asks whether “there is reasonable cause to believe that unfair labor practices have occurred,” and whether injunctive relief is “just and proper.” McKinney v. Ozburn-Hessey Logistics, LLC , 875 F.3d 333, 339 (2017) (internal quotation marks omitted). The Board could establish reasonable cause by simply showing that its “legal theory [was] substantial and not frivolous.” Ibid. (internal quotation marks omitted). And, relief would be just and proper if it were “necessary to return the parties to [the] status quo pending the Board’s proceedings in order to protect the Board’s remedial powers under the NLRA.” Ibid . (internal quotation marks omitted). Applying this standard, the District Court granted an injunction to the Board. 2022 WL 5434206, *12 (WD Tenn., Aug. 18, 2022). And, applying Circuit precedent, the Sixth Circuit affirmed. 77 F. 4th 391, 400–401 (2023).[ 1 ]* Not all courts evaluate petitions for §10( j) injunctions under the standard applied by the Sixth Circuit. Some courts instead apply the four-part test for preliminary injunctions articulated in Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 . See, e . g ., Hooks v. Nexstar Broadcasting, Inc. , 54 F. 4th 1101, 1114 (CA9 2022); McKinney v. Southern Bakeries, LLC , 786 F.3d 1119, 1122 (CA8 2015); Muffley v. Spartan Mining Co. , 570 F.3d 534, 542–543 (CA4 2009); Bloedorn v. Francisco Foods, Inc. ¸ 276 F.3d 270 , 286 (CA7 2001). That familiar standard requires a plaintiff to make a clear showing that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter , 555 U. S., at 20, 22. We granted certiorari to resolve the Circuit split about what standard governs the Board’s requests for preliminary injunctions under §10( j), 601 U. S. ___ (2024), and now vacate and remand. II Section 10( j) authorizes a federal district court “to grant . . . such temporary relief . . . as it deems just and proper” during the pendency of the Board’s administrative proceedings. §160( j). When Congress empowers courts to grant equitable relief, there is a strong presumption that courts will exercise that authority in a manner consistent with traditional principles of equity. For preliminary injunctions, the four criteria identified in Winter encompass the relevant equitable principles. Nothing in §10( j) displaces the presumption that those traditional principles govern. We therefore conclude that district courts must use the traditional four-part test when evaluating the Board’s request for a preliminary injunction under §10( j). A A preliminary injunction is an “extraordinary” equitable remedy that is “never awarded as of right.” Winter , 555 U. S., at 24. Its purpose “is merely to preserve the relative positions of the parties until a trial on the merits can be held.” University of Tex. v. Camenisch , 451 U.S. 390 , 395 (1981). The default rule is that a plaintiff seeking a preliminary injunction must make a clear showing that “he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter , 555 U. S., at 20, 22. “These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a ‘practice with a background of several hundred years of history.’ ” Weinberger v. Romero-Barcelo , 456 U.S. 305 , 313 (1982) (quoting Hecht Co. v. Bowles , 321 U.S. 321 , 329 (1944)); see also Georgia v. Brailsford , 2 Dall. 402, 406 (1792) (opinion of Iredell, J.); id ., at 407 (opinion of Blair, J.). When interpreting a statute that authorizes federal courts to grant preliminary injunctions, “we do not lightly assume that Congress has intended to depart from established principles.” Romero-Barcelo , 456 U. S., at 313; see also Porter v. Warner Holding Co. , 328 U.S. 395 , 398 (1946). This Court has consistently employed this presumption when interpreting a wide variety of statutes that authorize preliminary and permanent injunctions. See, e . g ., United States v. Oakland Cannabis Buyers’ Cooperative , 532 U.S. 483 , 496 (2001) (Controlled Substances Act); Romero-Barcelo , 456 U. S., at 312–313 (Federal Water Pollution Control Act); Amoco Production Co. v. Gambell , 480 U.S. 531 , 542–544 (1987) (Alaska National Interest Lands Conservation Act); Hecht , 321 U. S., at 329 (Emergency Price Control Act). Thus, absent a clear command from Congress, courts must adhere to the traditional four-factor test. Nothing in §10( j)’s text overcomes the presumption that the four traditional criteria govern a preliminary-injunction request by the Board. Section 10( j) authorizes a district court “to grant to the Board such temporary relief . . . as it deems just and proper.” We do not understand the statutory directive to grant relief when the district court “deems” it “just and proper” to jettison the normal equitable rules. To the contrary, the phrase “just and proper” invokes the discretion that courts have traditionally exercised when faced with requests for equitable relief. As a matter of ordinary meaning, the word “just” means “fair” and “righteous.” Funk & Wagnalls New Standard Dictionary 1334 (1942); see also Webster’s New International Dictionary 1348 (2d ed. 1934) (“righteous” and “equitable”). And, the word “proper” means “appropriate,” “suitable,” or “correct.” Id., at 1983. Crafting “fair” and “appropriate” equitable relief necessitates the exercise of discretion—the hallmark of traditional equitable practice. See Hecht , 321 U. S., at 329 (“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case”); see also 77 F. 4th, at 403 (Readler, J., concurring); Kinney v. Pioneer Press , 881 F.2d 485, 491 (CA7 1989) (Easterbrook, J.) (“Section 10( j) tells the district court to do what’s ‘just and proper’, which we read as a statement that traditional rules govern”). This Court’s precedent also counsels against reading §10( j) to supplant the traditional equitable principles governing injunctions. In Hecht , the Court interpreted the Emergency Price Control Act of 1942’s instruction that an injunction “shall be granted” if the Office of Price Administration shows that a defendant “has engaged or is about to engage” in a prohibited act. 321 U. S., at 322 (quoting ch. 26, 56Stat. 23, 50 U. S. C. App. §925 (1940 ed., Supp. II)). This language is far more favorable to the agency than §10( j) because it seemingly suggests that courts must grant injunctive relief where the agency makes the required showing. Yet, the Court refused to read the Emergency Price Control Act to create such “a major departure from th[e] long tradition” of equity. 321 U. S., at 330. The Court reasoned that “if Congress desired to make such an abrupt departure from traditional equity practice . . . , it would have made its desire plain.” Ibid. If the Emergency Price Control Act did not displace the presumption that traditional equitable principles apply, then §10( j)’s discretion-inviting directive to grant injunctive relief as district courts “dee[m] just and proper” does not either. Finally, §10( j)’s text bears no resemblance to the language that Congress has employed when it has altered the normal equitable rules. Some statutes increase the burden for obtaining an injunction. Another provision in the NLRA itself, for example, makes it harder for the Government to obtain an injunction against union strikes and lockouts by requiring a showing that the strike or lockout “affects an entire industry or a substantial part thereof ” and “imperil[s] the national health or safety.” 29 U. S. C. §178(a). And, courts evaluating preliminary-injunction requests under the Prison Litigation Reform Act must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system.” 18 U. S. C. §3626(a)(2). Other statutes expressly relieve the party moving for an injunction from showing that he can satisfy one of the traditional criteria. For instance, plaintiffs alleging trademark violations are entitled to “a rebuttable presumption of irreparable harm . . . upon a finding of likelihood of success on the merits.” 132Stat. 2208, 15 U. S. C. §1116(a). Unlike these statutes, §10( j) omits any specific instruction that suggests Congress altered the traditional equitable rules. It simply invites courts to grant equitable relief where they deem it “just and proper.” And, in exercising this discretionary authority, courts must “be guided by sound [equitable] principles.” Nken v. Holder , 556 U.S. 418 , 434 (2009) (internal quotation marks omitted). In sum, because nothing in §10( j)’s text overcomes the presumption that traditional equitable principles govern, district courts considering the Board’s request for a preliminary injunction must apply the Winter framework, which embodies those traditional principles. B Rather than contest that traditional equitable criteria govern, the Board recasts the dispute as one about how statutory context informs the application of those criteria. The Board highlights that Congress made the Board, not federal courts, responsible for adjudicating charges of unfair labor practices in the first instance and that courts of appeals must review the Board’s final decisions deferentially. According to the Board, these contextual considerations require district courts evaluating §10( j) petitions to apply the traditional criteria in a less exacting way, and the Sixth Circuit’s reasonable-cause standard appropriately accounts for context. The partial dissent also asserts that “a district court’s preliminary look at the merits” of a §10(j) petition “should be far less searching than normal” for similar reasons. Post , at 14 (Jackson, J., concurring in part, concurring in judgment, and dissenting in part). We disagree. The reasonable-cause standard goes far beyond simply fine tuning the traditional criteria to the §10( j) context—it substantively lowers the bar for securing a preliminary injunction by requiring courts to yield to the Board’s preliminary view of the facts, law, and equities. Nowhere is this more evident than with what the Board, as movant, must show about the merits of its claims. Under the traditional standard, the Board would have to make a clear showing that it “is likely to succeed on the merits.” Winter , 555 U. S., at 20. And, in assessing that likelihood, a district court must evaluate any factual conflicts or difficult questions of law. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3 (3d ed. 2013). By contrast, the Board may obtain a §10( j) injunction under the reasonable-cause standard by merely showing “reasonable cause to believe that unfair labor practices have occurred.” Ozburn-Hessey Logistics , 875 F. 3d, at 339 (internal quotation marks omitted). The Board “need not convince the court of the validity of [its] theory of liability, as long as the theory is substantial and not frivolous.” Gottfried v. Frankel , 818 F.2d 485, 493 (CA6 1987). And, “[i]n reviewing the supporting facts, a district court may not resolve conflicting evidence or make credibility determinations.” 77 F. 4th, at 397. There is an obvious difference between having the Board show that it is “likely” to succeed on the merits and having it show only that its theory of the case is “substantial and not frivolous,” without having to convince the court that its theory is likely meritorious. In fact, it is hard to imagine how the Board could lose under the reasonable-cause test if courts deferentially ask only whether the Board offered a minimally plausible legal theory, while ignoring conflicting law or facts. As Judge Readler explained, if the reasonable-cause standard were “applied in the traditional civil litigation setting, any complaint that could withstand Rule 12(b)(6) would automatically be deserving of injunctive relief as well, rendering the court more a spectator than a referee when it comes to matters of equity.” Id. , at 408 (concurring opinion). Perhaps unsurprisingly, courts that apply the reasonable-cause standard freely acknowledge that the threshold merits showing is “significantly lower than a requirement to show . . . ‘likelihood of success’ ” under the traditional standard. Overstreet v. El Paso Disposal, L.P. , 625 F.3d 844, 851, n. 10 (CA5 2010); see also Fleischut v. Nixon Detroit Diesel, Inc. , 859 F.2d 26, 29 (CA6 1988) (characterizing the Board’s burden to show reasonable cause as “relatively insubstantial” (internal quotation marks omitted)). Section 10( j)’s statutory context does not compel this watered-down approach to equity. The Board and the partial dissent are correct that §10( j) proceedings are different from ordinary preliminary-injunction proceedings insofar as the Board, not the district court, will adjudicate the claims in the first instance. But, they do not explain why this difference should matter. The Board suggests that district courts risk supplanting its adjudicatory authority by conducting an independent assessment of the merits and equitable factors. But, no matter how searching the district court’s merits inquiry or what evidence it considers or credits, the Board remains free to reach its own legal conclusions and develop its own record in its administrative proceedings. See Camenisch , 451 U. S., at 395. Also, since irreparable harm and the other equitable factors are not part of the unfair-labor-practice claim, the district court’s assessment of those factors is completely irrelevant to the Board’s adjudicatory authority. The Board and the partial dissent also reason that district courts should apply a deferential standard because the Board’s final decisions are reviewed deferentially by a court of appeals. But, none of the views advanced in a §10( j) petition represent the Board’s formal position—they are simply the preliminary legal and factual views of the Board’s in-house attorneys who investigated and initiated the administrative complaint. And, deference to what is “nothing more than an agency’s convenient litigating position” is “entirely inappropriate.” Bowen v. Georgetown Univ. Hospital , 488 U.S. 204 , 213 (1988). The Board’s attempt to salvage the reasonable-cause standard using statutory context thus fails. III For the foregoing reasons, we hold that district courts must apply the traditional four factors articulated in Winter when considering the Board’s requests for a preliminary injunction under §10( j). We therefore vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Notes 1 *Other courts have applied a similar two-part test when assessing §10( j) petitions. See, e . g ., Kinard v. Dish Network Corp. , 890 F.3d 608, 612 (CA5 2018); Chester v. Grane Healthcare Co. , 666 F.3d 87, 89–90 (CA3 2011). SUPREME COURT OF THE UNITED STATES _________________ No. 23–367 _________________ Starbucks Corporation, PETITIONER v. M. Kathleen McKinney, Regional Di- rector of region 15 of the Nation- al Labor Relations Board, for and on behalf of the National Labor Relations Board on writ of certiorari to the united states court of appeals for the sixth circuit [June 13, 2024] Justice Jackson, concurring in part, concurring in the judgment, and dissenting in part. “When Congress entrusts to an equity court the enforcement of prohibitions contained in a regulatory enactment, it must be taken to have acted cognizant of the historic power of equity to provide complete relief in light of the statutory purposes.” Mitchell v. Robert DeMario Jewelry, Inc. , 361 U.S. 288 , 291–292 (1960). Accordingly, when interpreting a statute that authorizes equitable relief, like a preliminary injunction, this Court typically employs what amounts to a two-part inquiry focused on congressional intent. See Hecht Co. v. Bowles , 321 U.S. 321 , 328–331 (1944). First, we determine whether Congress has stripped courts of their traditional equitable discretion by “a clear and valid legislative command.” Porter v. Warner Holding Co. , 328 U.S. 395 , 398 (1946). Second, if no such clear command is found, we look to the statutory context to assess how courts should exercise their equitable discretion “ ‘as conditioned by the necessities of the public interest which Congress has sought to protect.’ ” Weinberger v. Romero-Barcelo , 456 U.S. 305 , 320 (1982) (quoting Hecht , 321 U. S., at 330). Today, the Court correctly applies the first step, but ignores the second. I agree with the majority that nothing in the National Labor Relations Act (NLRA) clearly strips courts of their equitable discretion to determine whether to issue a so-called §10(j) injunction. And I concur in the conclusion that we should vacate and remand for the Sixth Circuit to reevaluate this case under our traditional four-factor test for assessing requests for preliminary injunctions. But I cannot join the majority in ignoring the choices Congress has made in the NLRA about how courts should exercise their discretion in light of the National Labor Relations Board’s authority over labor disputes. Because the majority chooses the simplicity of unfettered judicial discretion over the nuances of Congress’s direction, I respectfully dissent in part. I The question in this case is how district courts should evaluate the Board’s request for a preliminary injunction in light of Congress’s intentions. See 29 U. S. C. §160(j) (authorizing a district court to issue “such temporary relief or restraining order as it deems just and proper”). The majority suggests a sharp dichotomy: Either courts retain all of their equitable discretion, or the Board gets undue deference. See ante, at 8–10. But, “[w]hen Congress invokes the Chancellor’s conscience to further transcendent legislative purposes, what is required is the principled application of standards consistent with those purposes,” not unbridled equitable discretion, “ ‘which varies like the Chancellor’s foot.’ ” Albemarle Paper Co. v. Moody , 422 U.S. 405 , 417 (1975) (alteration omitted). Our Hecht case is instructive, for it establishes the framework we have long used to assess whether an injunction authorized by a statute should issue.[ 1 ] In Hecht , the Court was asked to determine whether the Emergency Price Control Act’s direction that an injunction “ ‘shall be granted’ ” after a violation was found displaced a court’s equitable discretion. 321 U. S., at 322. As the majority acknowledges, after finding no clear indication that Congress intended to displace equitable discretion, the Hecht Court concluded that the answer was no. See ante, at 7.[ 2 ] But Hecht did not end there. The Court emphasized that the mere fact that the Emergency Price Control Act lacked an “unequivocal statement” displacing courts’ equitable discretion did not “imply that courts should administer [the Act] grudgingly.” 321 U. S., at 329–330. Instead, the Court explained, courts should see themselves as partners of the agency that administered the Act. Congress “entrusted” each “with a share of . . . responsibility” for effectuating its goals. Id ., at 331. In other words, “[c]ourt and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through coordinated action.” Id., at 330. Therefore, a court’s “discretion . . . must be exercised in light of the large objectives of the Act.” Id. , at 331. Hecht ’s two-step framework is still in use today. We only rarely find that a statute clearly displaces courts’ equitable discretion. See, e . g ., TVA v. Hill , 437 U.S. 153 , 193–195 (1978) (finding such displacement in the Endangered Species Act). So, in most cases in which equitable relief is authorized by statute, the movant must contend with the court’s equitable authority. In statutes that involve preliminary injunctive relief, that means the party seeking relief “must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7 , 20 (2008). Even so, under the Hecht framework, we have consistently held that courts’ exercise of equitable discretion is informed by congressional intent. Put simply, “a court sitting in equity cannot ‘ignore the judgment of Congress, deliberately expressed in legislation.’ ” United States v. Oakland Cannabis Buyers’ Cooperative , 532 U.S. 483 , 497 (2001) (quoting Virginian R. Co. v. Railway Employees , 300 U.S. 515 , 551 (1937)). For each of the four factors, then, courts must look to the choices made by Congress for guidance. See Oakland Cannabis , 532 U. S., at 497 (“ ‘Once Congress, exercising its delegated powers, has decided the order of priorities in a given area, it is . . . for the courts to enforce them when enforcement is sought’ ” (quoting Hill , 437 U. S., at 194)). II A Here, the choices Congress has made regarding how labor disputes are to be resolved—including its decision to authorize preliminary injunctive relief in some circumstances—are clear and comprehensive. As briefly explained below, Congress has long sought to contain the unbounded exercise of judicial discretion to issue injunctions in the context of labor disputes, leaving the resolution of those particular conflicts primarily in the hands of the Board. See Brief for Service Employees International Union as Amicus Curiae 4–11. That is for good reason. To put it bluntly, courts exercising their equitable discretion amidst labor disputes today do so against the backdrop of an ignominious history of abuse. See generally F. Frankfurter & N. Greene, The Labor Injunction (1930). “In the early part of [the 20th] century, the federal courts generally were regarded as allies of management in its attempt to prevent the organization and strengthening of labor unions.” Boys Markets, Inc. v. Retail Clerks , 398 U.S. 235 , 250 (1970). “Injunctions figured in virtually every railroad strike; in most strikes in which industrial unionism, ‘amalgamation,’ or ‘federation’ was at issue; in most major organizing and recognition strikes, boycotts, closed shop or sympathy strikes or anti-union/open-shop lockouts of significant magnitude; and in a small but still significant and growing portion of ordinary mine-run strikes.” W. Forbath, The Shaping of the American Labor Movement, 102 Harv. L. Rev. 1109, 1152 (1989). “[I]n this industrial struggle the injunction became a potent weapon that was wielded against the activities of labor groups.” Boys Markets , 398 U. S., at 250 . Congress reacted to this antidemocratic “ ‘government by injunction’ ” by seeking to cabin courts’ power to intervene. Milk Wagon Drivers v. Lake Valley Farm Products, Inc. , 311 U.S. 91 , 102 (1940). Its initial attempt, in the Clayton Act of 1914, was unsuccessful, due in large part to judicial frustration of congressional intent. See BE&K Constr. Co. v. NLRB , 536 U.S. 516 , 543 (2002) (Breyer, J., concurring in part and concurring in judgment). Its next attempt, the Norris-LaGuardia Act of 1932, was impossible to ignore. There, Congress “deprive[d] the courts of jurisdiction to issue an injunction in any case involving or growing out of a labor dispute, except” under specified circumstances and with particular procedural checks. New Negro Alliance v. Sanitary Grocery Co. , 303 U.S. 552 , 561–562 (1938); see also Marine Cooks v. Panama S. S. Co. , 362 U.S. 365 , 369 (1960) (“The language [of the Norris-LaGuardia Act] is broad because Congress was intent upon taking the federal courts out of the labor injunction business except in very limited circumstances”). Three years later, in 1935, Congress passed the National Labor Relations Act, 29 U. S. C. §151 et seq . The Act aimed to “eliminate the causes of certain substantial obstructions to the free flow of commerce” by protecting workers’ rights. §151. To achieve this aim, the NLRA codified “[e]mployees[’] . . . right to self-organization,” to form and join unions, to collectively bargain, and to strike. §157. It also made it unlawful for employers and unions to engage in particular unfair labor practices. See §158. Employers, for example, cannot interfere with employees’ efforts to organize a union or engage in collective bargaining. See §§157, 158(a). Similarly, unions cannot, inter alia , coerce employees to join a union or refuse to engage in collective bargaining. See §158(b). Notably, though, Congress did not leave it to courts to protect the rights established in the NLRA. See Phelps Dodge Corp. v. NLRB , 313 U.S. 177 , 193 (1941). Instead, Congress created an expert agency, the National Labor Relations Board, to investigate, adjudicate, and stop unfair labor practices. See 29 U. S. C. §160(a). The agency is headed by a five-member board that is charged with resolving unfair labor practice cases, see §153(a); the enforcement role is occupied by a General Counsel, see §153(d). The General Counsel is charged with investigating and prosecuting unfair labor practice cases, as well as overseeing Regional Offices that carry out much of the day-to-day work of enforcing labor law and policy. See ibid. ; see also NLRB v. Food & Commercial Workers , 484 U.S. 112 , 117–118 (1987). To evaluate and remedy unfair labor practices, the Board follows a four-step process. See ante, at 2. First, a charge is filed and investigated, with parties generally permitted to present evidence and arguments related to the alleged violation. See 29 CFR §§101.2, 101.4 (2023). Second, if the investigation yields sufficient information to show an unfair labor practice, the Regional Director can issue a complaint. See §101.8. Third, an administrative law judge holds a hearing and issues a decision on the merits of the complaint, which a party can then appeal to the Board. See §§101.10 to 101.12. Finally, if the unfair labor practices alleged in the complaint are sustained, the Board can seek enforcement of the order, and any aggrieved party can seek review, in a federal court of appeals. See 29 U. S. C. § B Crucially for present purposes, Congress recognized that delay in vindicating labor rights “during the ‘notoriously glacial’ course of NLRB proceedings” can lead to their defeat. Kinney v. Pioneer Press , 881 F.2d 485, 491 (CA7 1989). This case is illustrative of the problem. In February 2022, Starbucks fired five of six members of an organizing committee, along with two other union-aligned workers, just as a campaign for unionization was building momentum. The Board took up the workers’ complaint soon after. Now, more than two years later, their case remains pending. To respond to situations such as this one, Congress gave the Board specific power to seek preliminary injunctive relief. These injunctions are generally referred to as “§10(j) injunctions,” named after the section of the Taft-Hartley Act of 1947 in which they were originally introduced. See 29 U. S. C. §160(j). There is broad consensus about why Congress allowed the Board to seek §10(j) injunctions. As summarized in the Senate Report on Taft-Hartley: “Time is usually of the essence in [labor disputes], and consequently the relatively slow procedure of Board hearing and order, followed many months later by an enforcing decree of the circuit court of appeals, falls short of achieving the desired objectives—the prompt elimination of the obstructions to the free flow of commerce and encouragement of the practice and procedure of free and private collective bargaining. Hence we have provided that the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices.” S. Rep. No. 105, 80th Cong., 1st Sess., 8 (1947). See also, e.g. , Kinney , 881 F. 2d, at 488 (Easterbrook, J.) (quoting this passage); Miller v. California Pacific Medical Center , 19 F.3d 449 , 455, n. 3 (CA9 1994) (en banc) (same); Danielson v. Joint Bd. of Coat, Suit and Allied Garment Workers’ Union , 494 F.2d 1230, 1241–1242 (CA2 1974) (Friendly, J.) (discussing similar legislative history). In short, Congress designed §10(j) “ ‘as a means of preserving or restoring the status quo as it existed before the onset of unfair labor practices’ ” so that the Board’s ultimate ability to remedy an unfair labor practice would not be impeded. NLRB v. Electro-Voice, Inc. , 83 F.3d 1559 , 1575 (CA7 1996). In addition to authorizing §10(j) injunctions, Congress made two other pertinent choices in the statute. First, it granted the Board power to seek a §10(j) injunction. See 29 U. S. C. §160(j). No private party has authority to seek §10(j) relief. See Clothing Workers v. Richman Brothers Co. , 348 U.S. 511 , 517 (1955). And, by the statute’s own terms, power is left to the Board itself, rather than the General Counsel or another member of the prosecutorial branch of the agency. That is unlike a closely related section of the statute, §10( l ), which authorizes the relevant “officer or regional attorney” to file for preliminary relief in cases involving certain unfair labor practices by unions. See 29 U. S. C. §160( l ). Second, Congress granted the Board discretion to determine whether or not to seek preliminary injunctive relief. See §160(j). Thus, the Board need only seek §10(j) relief when it deems doing so appropriate or necessary. Again, by contrast, requests for relief under §10( l ) are mandatory once an investigation yields “reasonable cause to believe” that an unfair labor practice has occurred. See §160( l ). The NLRA does not specify how the Board should exercise its discretion to seek §10(j) injunctions. But the agency has crafted an extensive, and strikingly deliberative, standard operating procedure. See Brief for Respondent 4 (citing Office of the General Counsel, NLRB, Section 10(j) Manual (Mar. 2020)). First, the Regional Director must submit a written memorandum to the General Counsel explaining why temporary relief is appropriate in a given case. Second, the General Counsel must review the memorandum and determine whether the request for relief is warranted. Third, if the General Counsel determines that a §10(j) injunction should be sought, then she must present a recommendation to the Board. Fourth, and finally, the Board must either accept or reject the recommendation. It is only after the Board approves the filing of a request for a §10(j) injunction in this fashion that the General Counsel or relevant Regional Director files that request in federal district court. When the district court receives the Board’s application for a §10(j) injunction, the statutory scheme kicks back in. “Upon the filing of any such petition the court shall cause notice thereof to be served upon such person, and thereupon shall have jurisdiction to grant to the Board such temporary relief or restraining order as it deems just and proper.” 29 U. S. C. §160(j). If granted, a §10(j) injunction returns workers, unions, and employers to the status quo as it existed before the alleged NLRA violation. See Electro-Voice, Inc. , 83 F. 3d, at 1575. III A What standard should district courts use to decide whether granting the Board’s §10(j) request for interim relief is “just and proper”? That is the question this case presents, and as I previously explained, we use Hecht’ s framework to answer. So, first, we determine whether Congress has clearly displaced courts’ equitable discretion. And, second, if no such clear statement exists, we evaluate how that discretion should be exercised in light of Congress’s choices in the NLRA. At step one, the parties here do not dispute that §10(j)’s text, context, and legislative history lack the clear congressional intent required to preclude district courts from exercising equitable discretion. See Brief for Petitioner 15; Brief for Respondent 9. Also, no Circuit, not even the Sixth Circuit below, holds that §10(j) deprives district courts of their equitable discretion. See, e . g ., Gottfried v. Frankel , 818 F.2d 485, 493–494 (CA6 1987) (“The granting of injunctive relief under this ‘just and proper’ standard, is a matter committed to judicial discretion” (some internal quotation marks omitted)). I agree with the majority that courts faced with a Board petition for a §10(j) injunction should evaluate that request using all four factors in our established Winter test. See Winter , 555 U. S., at 20; see also ante, at 6. The remaining question— Hecht’ s second step—is the more challenging one. To the extent the majority addresses it at all, it has done an insufficient job of explaining how district courts’ equitable discretion is channeled by Congress’s choices within the NLRA. The fact that this needs to be done is uncontroversial. “Obviously,” Starbucks says, “ ‘statutory context is relevant to the consideration of equitable relief.’ ” Reply Brief 10 (quoting Brief for Respondent 15); see also Brief for Respondent 9; Reply Brief 2; Tr. of Oral Arg. 20–24, 33–35. And every relevant Circuit, including those that use the standard four-factor test, understands district courts’ equitable discretion to issue a §10(j) injunction has to be informed by the statutory context of the NLRA. See, e . g ., Pye v. Sullivan Bros. Printers, Inc. , 38 F.3d 58 , 63 (CA1 1994); Hoffman v. Inn Credible Caterers, Ltd. , 247 F.3d 360 , 368 (CA2 2001); Chester v. Grane Healthcare Co. , 666 F.3d 87, 98–100 (CA3 2011); Muffley v. Spartan Mining Co. , 570 F.3d 534, 543 (CA4 2009); McKinney v. Creative Vision Resources, LLC , 783 F.3d 293, 296–297 (CA5 2015); Ahearn v. Jackson Hospital Corp. , 351 F.3d 226 , 237–239 (CA6 2003); Bloedorn v. Francisco Foods, Inc. , 276 F.3d 270 , 287–288 (CA7 2001); McKinney v. Southern Bakeries, LLC , 786 F.3d 1119, 1122–1123 (CA8 2015); Miller , 19 F. 3d, at 459–460; Sharp v. Webco Industries, Inc. , 225 F.3d 1130 , 1133–1136 (CA10 2000); NLRB v. Hartman and Tyner, Inc. , 714 F.3d 1244, 1249–1250 (CA11 2013). But the Court today provides little helpful guidance on this front. B Given our precedents and the statute’s text, the interaction between Congress’s choices in the NLRA and a district court’s equitable assessment of a request for §10(j) relief is straightforward for three of the four equitable factors. To show irreparable harm, the Board must establish that its ability to remedy a violation of labor rights will likely be precluded absent interim relief. See, e . g ., Frankl v. HTH Corp. , 650 F.3d 1334, 1362 (CA9 2012) (“In the context of the NLRA, permitting an alleged unfair labor practice to reach fruition and thereby render meaningless the Board’s remedial authority is irreparable harm” (alteration and internal quotation marks omitted)). When evaluating the balance of the equities, district courts may consider harms to an opposing party, but they are prohibited from crediting a party’s desire to continue engaging in an alleged violation of the NLRA. See Oakland Cannabis , 532 U. S., at 498 (“[W]hen a court of equity exercises its discretion, it may not consider the advantages and disadvantages of nonenforcement of the statute”). When addressing the public interest, courts must defer to Congress’s articulation of that interest in the NLRA itself. See 29 U. S. C. §151 (“It is . . . the policy of the United States to . . . encourag[e] . . . collective bargaining and . . . protec[t] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing”); see also Virginian R. Co. , 300 U. S., at 552 (“The fact that Congress has indicated its purpose . . . is in itself a declaration of public interest and policy which should be persuasive in inducing courts to give relief ”). The final factor—the likelihood of success on the merits—is more difficult to evaluate. That factor can be articulated in “a bewildering variety of formulations,” but, at core, it asks courts to predict how likely it is that a party seeking preliminary relief will ultimately prevail on the merits of their claims. 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2948.3, p. 197 (3d ed. 2013); see also id., at 201 (“All courts agree that a plaintiff must present a prima facie case but need not show a certainty of winning” (footnote omitted)). In my view, three aspects of the NLRA’s scheme should inform this evaluation. First, as described above, the NLRA makes the Board, not district courts, the primary adjudicator of labor disputes and the central expositor of labor policy. See 29 U. S. C. §160(a); see also Beth Israel Hospital v. NLRB , 437 U.S. 483 , 500 (1978) (“It is the Board on which Congress conferred the authority to develop and apply fundamental national labor policy”); Garner v. Teamsters , 346 U.S. 485 , 490 (1953) (“Congress . . . confide[d] primary interpretation and application of its rules to a specific and specially constituted tribunal,” the Board). This means that, unlike in the typical preliminary injunction context, the district court is not making a predictive judgment about how it will rule on the merits itself. Instead, the court is predicting the future decision of the Board. See Miller , 19 F. 3d, at 460; Bloedorn , 276 F. 3d, at 288. Second, as I previously explained, §10(j) empowers the Board—acting in its adjudicatory capacity—to seek injunctive relief. 29 U. S. C. §160(j); see also Brief for Respondent 28–29; Tr. of Oral Arg. 50, 63–64. When it does so, the Board is not acting as a party to the underlying dispute.[ 3 ] We also have evidence that the Board’s screening process for determining when to seek a §10(j) injunction is exceedingly rigorous: Of the roughly 20,000 unfair labor practice charges filed last year, the Board authorized the filing of a petition for §10(j) relief only 14 times . See Brief for Respondent 39. This means that, by the time the district court gets a (rare) §10(j) request, the Board has already deemed an unfair labor charge likely meritorious, and has determined that preservation of the status quo is needed to facilitate its own likely judgment. Finally, the NLRA gives federal courts only a limited role in reviewing the Board’s decisions. In the court of appeals, the Board’s factual findings are “conclusive” if supported by substantial evidence. See §§160(e), (f ). We have also long recognized that the Board’s legal interpretations are to be accorded “considerable deference.” NLRB v. City Disposal Systems, Inc. , 465 U.S. 822 , 829 (1984); see also Ford Motor Co. (Chicago Stamping Plant) v. NLRB , 441 U.S. 488 , 497 (1979) (“Of course, the judgment of the Board is subject to judicial review; but if its construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view”); NLRB v. United Ins. Co. of America , 390 U.S. 254 , 260 (1968) (same for “application of law to facts”). What is more, absent highly unusual circumstances, district courts play no role in the review process at all. See §160(e) (allowing the Board to file enforcement orders in district courts only if “all the courts of appeals to which application may be made are in vacation”). These three features of the statutory scheme necessarily mean that a district court’s preliminary look at the merits when considering the Board’s petition for interim relief under §10(j) should be far less searching than normal. A §10(j) injunction request simply does not present the district court with an opportunity to wade into the midst of an ongoing labor dispute (over which it otherwise has no say) and offer its own take about how the merits should be decided. Instead, in deference to Congress’s choices as codified in the NLRA, the district court’s task is much simpler: to evaluate a petition for a §10(j) injunction in a manner that accounts for the statutory scheme authorizing such relief and the district court’s proper role within it. Thus, so long as the Board has presented “some evidence to support the unfair labor practice charge, together with an arguable legal theory,” a district court should find this final factor satisfied. Miller , 19 F. 3d, at 460. C The majority’s contrary conclusion on the likelihood-of-success factor is based on various misrepresentations about the Board’s authority under the NLRA. For example, in addition to mistakenly consigning the Board to the status of a mere party movant, see n. 3, supra, the majority misstates the Board’s role in seeking §10(j) relief generally, see ante, at 10 (“[T]he views advanced in a §10(j) petition . . . are simply the preliminary legal and factual views of the Board’s in-house attorneys who investigated and initiated the administrative complaint”). Similarly, the majority misrepresents the Board’s arguments in this case regarding how the statutory scheme informs district courts’ analysis. Far from failing to explain the relevance of district courts’ lack of jurisdiction over labor disputes, ibid. , the Board has offered a detailed argument, consistent with our precedent and the longstanding decisions of the lower courts, for why this structural feature of the NLRA is important and why it might well be dispositive of the likelihood of success analysis. See Brief for Respondent 26–29, 35–36; see also Tr. of Oral Arg. 35–36. The majority also completely misses the significance of the limited role that federal courts of appeal play in reviewing the Board’s decisions. See ante, at 2, 10. Unfortunately, today’s decision appears to be another installment in a series of labor cases in which this Court has failed “to heed Congress’s intent with respect to the Board’s primary role in adjudicating labor disputes.” Glacier Northwest, Inc. v. Teamsters , 598 U.S. 771, 814 (2023) (Jackson, J., dissenting). And, like its earlier decisions, “[t]he Court’s ruling is likely to cause considerable confusion among the lower courts,” which have been for decades exercising their equitable discretion informed by the NLRA. Ibid. I recognize that, as a practical matter, the majority’s decision here may make little difference, since requests for §10(j) relief are rare. But that fact is more a function of the Board’s gatekeeping role than anything else. Now that the Court has concluded the Board’s authorization to seek §10(j) interim relief is of no moment, the Board may find it unnecessary to play the gatekeeping role Congress designed for it in this context. As a result, today’s decision might force not just courts, but also the Board, to disregard Congress’s direction. *  *  * A petition for §10(j) relief serves a straightforward, but significant purpose: “to preserve the NLRB’s remedial power while the Board resolves an unfair labor practice charge.” Miller , 19 F. 3d, at 452. Today, the majority casts a district court’s decision regarding a §10(j) request as one that invokes the full sweep of a court’s traditional equitable discretion—without regard for the Board’s authority or the statutory scheme that authorizes courts to issue such interim relief in the first place. In doing so, “the Court unnecessarily and casually substitutes the chancellor’s clumsy foot for the rule of law.” Weinberger , 456 U. S., at 335 (Stevens, J., dissenting). I am loath to bless this aggrandizement of judicial power where Congress has so plainly limited the discretion of the courts, and where it so clearly intends for the expert agency it has created to make the primary determinations about both merits and process. Notes 1 As Judge Friendly explained, “Mr. Justice Douglas’ classic opinion in Hecht ” is “a decision of such widely recognized significance that it is not unreasonable to attribute knowledge of it to at least some of the framers of the Taft-Hartley Act of 1947 in which [§]10(j) . . . originated.” Danielson v. Joint Bd. of Coat, Suit and Allied Garment Workers’ Union, 494 F.2d 1230, 1240 (CA2 1974). 2 The majority correctly states this holding, but its analysis of Hecht Co. v. Bowles, 321 U.S. 321 (1944), misleadingly suggests a near-unobtainable standard for displacement. Hecht does not hold that the statutory phrase “shall be granted” is insufficiently clear to displace a court’s equitable discretion. Contra, ante, at 6–7 . Rather, the Hecht Court found that such language was “less mandatory than a literal reading might suggest” because of two other indicia of congressional intent. 321 U. S., at 328. First, the statute itself gave courts discretion to enter an injunction “or other order,” as they deemed fit. Ibid . And, second, the legislative history suggested that courts should retain their equitable discretion to provide the relief “ ‘proper in the circumstances of each particular case.’ ” Id ., at 329 (quoting S. Rep. No. 931, 77th Cong., 2d Sess., 10 (1942)). 3 If it were, then, of course, the majority would be correct to observe that the Board should have to demonstrate the merits of its claims under the traditional test. See ante, at 8. What the majority fails to adequately address is the unique position of the Board when it seeks a §10(j) injunction, per Congress’s directives. Unlike other similar movants for interim relief, the Board is the decider of the merits of the underlying dispute. So all that the Board is requesting from the district court is a legally enforceable means of preserving the status quo until it can render its decision.

The National Labor Relations Board can initiate in-house proceedings against employers and unions for unfair practices, and Section 10(j) of the NLRA allows the Board to seek a preliminary injunction from federal courts during these proceedings. The Supreme Court's verdict affirms that the traditional four-factor test for a preliminary injunction applies to the Board's requests under Section 10(j). This decision gives district courts discretion to weigh the factors and grant or deny the Board's requests as they deem appropriate.

Labor & Employment

Janus v. AFSCME

https://supreme.justia.com/cases/federal/us/585/16-1466/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1466 _________________ MARK JANUS, PETITIONER v. AMERICAN FEDER- ATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 27, 2018] Justice Alito delivered the opinion of the Court. Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern. We upheld a similar law in Abood v. Detroit Bd. of Ed. , 431 U. S. 209 (1977), and we recognize the importance of following precedent unless there are strong reasons for not doing so. But there are very strong reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases and has been undermined by more recent decisions. Developments since Abood was handed down have shed new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for the past 41 years. Abood is therefore overruled. I A Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political subdivisions are permitted to unionize. See Ill. Comp. Stat., ch. 5, §315/6(a) (West 2016). If a majority of the employees in a bargaining unit vote to be represented by a union, that union is designated as the exclusive representative of all the employees. §§315/3(s)(1), 315/6(c), 315/9. Employees in the unit are not obligated to join the union selected by their co-workers, but whether they join or not, that union is deemed to be their sole permitted representative. See §§315/6(a), (c). Once a union is so designated, it is vested with broad authority. Only the union may negotiate with the employer on matters relating to “pay, wages, hours[,] and other conditions of employment.” §315/6(c). And this authority extends to the negotiation of what the IPLRA calls “policy matters,” such as merit pay, the size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies. §315/4; see §315/6(c); see gener- ally, e.g. , Illinois Dept. of Central Management Servs. v. AFSCME, Council 31 , No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (Board Decision). Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees. Among other things, this designation means that individual employees may not be represented by any agent other than the designated union; nor may individual employees negotiate directly with their employer. §§315/6(c)–(d), 315/10(a)(4); see Matthews v. Chicago Transit Authority , 2016 IL 117638, 51 N. E. 3d 753, 782; accord, Medo Photo Supply Corp. v. NLRB , 321 U. S. 678, 683–684 (1944). Protection of the employees’ interests is placed in the hands of the union, and therefore the union is required by law to provide fair representation for all employees in the unit, members and nonmembers alike. §315/6(d). Employees who decline to join the union are not assessed full union dues but must instead pay what is generally called an “agency fee,” which amounts to a percentage of the union dues. Under Abood , nonmembers may be charged for the portion of union dues attributable to activities that are “germane to [the union’s] duties as collective-bargaining representative,” but nonmembers may not be required to fund the union’s political and ideological projects. 431 U. S., at 235; see id. , at 235–236. In labor-law parlance, the outlays in the first category are known as “chargeable” expenditures, while those in the latter are labeled “nonchargeable.” Illinois law does not specify in detail which expenditures are chargeable and which are not. The IPLRA provides that an agency fee may compensate a union for the costs incurred in “the collective bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and conditions of employment.” §315/6(e); see also §315/3(g). Excluded from the agency-fee calculation are union expenditures “related to the election or support of any candidate for political office.” §315/3(g); see §315/6(e). Applying this standard, a union categorizes its expenditures as chargeable or nonchargeable and thus determines a nonmember’s “proportionate share,” §315/6(e); this determination is then audited; the amount of the “proportionate share” is certified to the employer; and the employer automatically deducts that amount from the nonmembers’ wages. See ibid. ; App. to Pet. for Cert. 37a; see also Harris v. Quinn , 573 U. S. ___, ___–___ (2014) (slip op., at 19–20) (describing this process). Nonmembers need not be asked, and they are not required to consent before the fees are deducted. After the amount of the agency fee is fixed each year, the union must send nonmembers what is known as a Hudson notice. See Teachers v. Hudson , 475 U. S. 292 (1986). This notice is supposed to provide nonmembers with “an adequate explanation of the basis for the [agency] fee.” Id. , at 310. If nonmembers “suspect that a union has improperly put certain expenses in the [chargeable] category,” they may challenge that determination. Harris , supra , at ___ (slip op., at 19). As illustrated by the record in this case, unions charge nonmembers, not just for the cost of collective bargaining per se , but also for many other supposedly connected activities. See App. to Pet. for Cert. 28a–39a. Here, the nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,” “advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” Id. , at 28a–32a. The total chargeable amount for nonmembers was 78.06% of full union dues. Id. , at 34a. B Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a child support specialist. Id. , at 10a. The employees in his unit are among the 35,000 public employees in Illinois who are represented by respondent American Federation of State, County, and Municipal Employees, Council 31 (Union). Ibid. Janus refused to join the Union because he opposes “many of the public policy positions that [it] advocates,” including the positions it takes in collective bargaining. Id. , at 10a, 18a. Janus believes that the Union’s “behavior in bargaining does not appreciate the current fiscal crises in Illinois and does not reflect his best interests or the interests of Illinois citizens.” Id. , at 18a. Therefore, if he had the choice, he “would not pay any fees or otherwise subsidize [the Union].” Ibid. Under his unit’s collective-bargaining agreement, however, he was required to pay an agency fee of $44.58 per month, id. , at 14a—which would amount to about $535 per year. Janus’s concern about Illinois’ current financial situation is shared by the Governor of the State, and it was the Governor who initially challenged the statute authorizing the imposition of agency fees. The Governor commenced an action in federal court, asking that the law be declared unconstitutional, and the Illinois attorney general (a respondent here) intervened to defend the law. App. 41. Janus and two other state employees also moved to intervene—but on the Governor’s side. Id. , at 60. Respondents moved to dismiss the Governor’s challenge for lack of standing, contending that the agency fees did not cause him any personal injury. E.g. , id. , at 48–49. The District Court agreed that the Governor could not maintain the lawsuit, but it held that petitioner and the other individuals who had moved to intervene had standing because the agency fees unquestionably injured them. Accordingly, “in the interest of judicial economy,” the court dismissed the Governor as a plaintiff, while simultane- ously allowing petitioner and the other employees to file their own complaint. Id. , at 112. They did so, and the case proceeded on the basis of this new complaint. The amended complaint claims that all “nonmember fee deductions are coerced political speech” and that “the First Amendment forbids coercing any money from the nonmembers.” App. to Pet. for Cert. 23a. Respondents moved to dismiss the amended complaint, correctly recognizing that the claim it asserted was foreclosed by Abood . The District Court granted the motion, id. , at 7a, and the Court of Appeals for the Seventh Circuit affirmed, 851 F. 3d 746 (2017). Janus then sought review in this Court, asking us to overrule Abood and hold that public-sector agency-fee arrangements are unconstitutional. We granted certiorari to consider this important question. 582 U. S. ___ (2017). II Before reaching this question, however, we must con- sider a threshold issue. Respondents contend that the Dis- trict Court lacked jurisdiction under Article III of the Constitution because petitioner “moved to intervene in [the Governor’s] jurisdictionally defective lawsuit.” Union Brief in Opposition 11; see also id. , at 13–17; State Brief in Opposition 6; Brief for Union Respondent i, 16–17; Brief for State Respondents 14, n. 1. This argument is clearly wrong. It rests on the faulty premise that petitioner intervened in the action brought by the Governor, but that is not what happened. The District Court did not grant petitioner’s motion to intervene in that lawsuit. Instead, the court essentially treated petitioner’s amended complaint as the operative complaint in a new lawsuit. App. 110–112. And when the case is viewed in that way, any Article III issue vanishes. As the District Court recognized—and as respondents concede—petitioner was injured in fact by Illinois’ agency-fee scheme, and his injuries can be redressed by a favorable court decision. Ibid. ; see Record 2312–2313, 2322–2323. Therefore, he clearly has Article III standing. Lujan v. Defenders of Wildlife , 504 U. S. 555, 560–561 (1992). It is true that the District Court docketed petitioner’s complaint under the number originally assigned to the Governor’s complaint, instead of giving it a new number of its own. But Article III jurisdiction does not turn on such trivialities. The sole decision on which respondents rely, United States ex rel. Texas Portland Cement Co. v. McCord , 233 U. S. 157 (1914), actually works against them. That case concerned a statute permitting creditors of a government contractor to bring suit on a bond between 6 and 12 months after the completion of the work. Id. , at 162. One creditor filed suit before the 6-month starting date, but another intervened within the 6-to-12-month window. The Court held that the “[t]he intervention [did] not cure th[e] vice in the original [prematurely filed] suit,” but the Court also contemplated treating “intervention . . . as an original suit” in a case in which the intervenor met the requirements that a plaintiff must satisfy— e.g. , filing a separate complaint and properly serving the defendants. Id. , at 163–164. Because that is what petitioner did here, we may reach the merits of the question presented. III In Abood , the Court upheld the constitutionality of an agency-shop arrangement like the one now before us, 431 U. S., at 232, but in more recent cases we have recognized that this holding is “something of an anomaly,” Knox v. Service Employees , 567 U. S. 298, 311 (2012), and that Abood ’s “analysis is questionable on several grounds,” Harris , 573 U. S., at ___ (slip op., at 17); see id. , at ___–___ (slip op., at 17–20) (discussing flaws in Abood ’s reasoning). We have therefore refused to extend Abood to situations where it does not squarely control, see Harris , supra , at ___–___ (slip op., at 27–29), while leaving for another day the question whether Abood should be overruled, Harris , supra , at ___, n. 19 (slip op., at 27, n. 19); see Knox , supra , at 310–311. We now address that question. We first consider whether Abood ’s holding is consistent with standard First Amendment principles. A The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids abridgment of the freedom of speech. We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard , 430 U. S. 705, 714 (1977); see Riley v. National Federation of Blind of N. C., Inc. , 487 U. S. 781, 796–797 (1988); Harper & Row, Publishers, Inc. v. Nation Enterprises , 471 U. S. 539, 559 (1985); Miami Herald Publishing Co. v. Tornillo , 418 U. S. 241, 256–257 (1974); accord, Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 9 (1986) (plurality opinion). The right to eschew association for expressive purposes is likewise protected. Roberts v. United States Jaycees , 468 U. S. 609, 623 (1984) (“Freedom of association . . . plainly presupposes a freedom not to associate”); see Pacific Gas & Elec. , supra , at 12 (“[F]orced associations that burden protected speech are impermissible”). As Justice Jackson memorably put it: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein .” West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 642 (1943) (emphasis added). Compelling individuals to mouth support for views they find objectionable violates that cardinal constitutional command, and in most contexts, any such effort would be universally condemned. Suppose, for example, that the State of Illinois required all residents to sign a document expressing support for a particular set of positions on controversial public issues—say, the platform of one of the major political parties. No one, we trust, would seriously argue that the First Amendment permits this. Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases have involved restrictions on what can be said, rather than laws compelling speech. But measures compelling speech are at least as threatening. Free speech serves many ends. It is essential to our democratic form of government, see, e.g. , Garrison v. Louisiana , 379 U. S. 64, 74–75 (1964), and it furthers the search for truth, see, e.g. , Thornhill v. Alabama , 310 U. S. 88, 95 (1940). Whenever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines these ends. When speech is compelled, however, additional damage is done. In that situation, individuals are coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas they find objectionable is always demeaning, and for this reason, one of our landmark free speech cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require “even more immediate and urgent grounds” than a law demanding silence. Barnette , supra , at 633; see also Riley , supra , at 796–797 (rejecting “deferential test” for compelled speech claims). Compelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Knox , supra , at 309; United States v. United Foods, Inc. , 533 U. S. 405, 410 (2001); Abood , supra , at 222, 234–235. As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted); see also Hudson , 475 U. S., at 305, n. 15. We have therefore recognized that a “ ‘significant impingement on First Amendment rights’ ” occurs when public employees are required to provide financial support for a union that “takes many positions during collective bargaining that have powerful political and civic consequences.” Knox , supra , at 310–311 (quoting Ellis v. Railway Clerks , 466 U. S. 435, 455 (1984)). Because the compelled subsidization of private speech seriously impinges on First Amendment rights, it cannot be casually allowed. Our free speech cases have identified “levels of scrutiny” to be applied in different contexts, and in three recent cases, we have considered the standard that should be used in judging the constitutionality of agency fees. See Knox , supra ; Harris , supra ; Friedrichs v. California Teachers Assn. , 578 U. S. ___ (2016) ( per cu- riam ) (affirming decision below by equally divided Court). In Knox , the first of these cases, we found it sufficient to hold that the conduct in question was unconstitutional under even the test used for the compulsory subsidization of commercial speech. 567 U. S., at 309–310, 321–322. Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g. , Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y. , 447 U. S. 557, 562–563 (1980), prior precedent in that area, specifically United Foods , supra , had applied what we characterized as “exacting” scrutiny, Knox , 567 U. S., at 310, a less demanding test than the “strict” scrutiny that might be thought to apply outside the commercial sphere. Under “exacting” scrutiny, we noted, a compelled subsidy must “serve a compelling state interest that cannot be achieved through means significantly less restrictive of associa- tional freedoms.” Ibid. (internal quotation marks and altera- tions omitted). In Harris , the second of these cases, we again found that an agency-fee requirement failed “exacting scrutiny.” 573 U. S., at ___ (slip op., at 33). But we questioned whether that test provides sufficient protection for free speech rights, since “it is apparent that the speech compelled” in agency-fee cases “is not commercial speech.” Id. , at ___ (slip op., at 30). Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be subjected to “strict scrutiny.” Brief for Petitioner 36. The dissent, on the other hand, proposes that we apply what amounts to rational-basis review, that is, that we ask only whether a government employer could reasonably believe that the exaction of agency fees serves its interests. See post , at 4 (Kagan, J., dissenting) (“A government entity could reasonably conclude that such a clause was needed”). This form of minimal scrutiny is foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under even the more permissive standard applied in Knox and Harris . In the remainder of this part of our opinion (Parts III–B and III–C), we will apply this standard to the justifications for agency fees adopted by the Court in Abood . Then, in Parts IV and V, we will turn to alternative rationales proffered by respondents and their amici . B In Abood , the main defense of the agency-fee arrangement was that it served the State’s interest in “labor peace,” 431 U. S., at 224. By “labor peace,” the Abood Court meant avoidance of the conflict and disruption that it envisioned would occur if the employees in a unit were represented by more than one union. In such a situation, the Court predicted, “inter-union rivalries” would foster “dissension within the work force,” and the employer could face “conflicting demands from different unions.” Id. , at 220–221. Confusion would ensue if the employer entered into and attempted to “enforce two or more agreements specifying different terms and conditions of employment.” Id. , at 220. And a settlement with one union would be “subject to attack from [a] rival labor organizatio[n].” Id. , at 221. We assume that “labor peace,” in this sense of the term, is a compelling state interest, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear that Abood ’s fears were unfounded. The Abood Court assumed that designation of a union as the exclusive representative of all the employees in a unit and the exaction of agency fees are inextricably linked, but that is simply not true. Harris , supra , at ___ (slip op., at 31). The federal employment experience is illustrative. Under federal law, a union chosen by majority vote is designated as the exclusive representative of all the employees, but federal law does not permit agency fees. See 5 U. S. C. §§7102, 7111(a), 7114(a). Nevertheless, nearly a million federal employees—about 27% of the federal work force—are union members.[ 1 ] The situation in the Postal Service is similar. Although permitted to choose an exclusive representative, Postal Service employees are not required to pay an agency fee, 39 U. S. C. §§1203(a), 1209(c), and about 400,000 are union members.[ 2 ] Likewise, millions of public employees in the 28 States that have laws generally prohibiting agency fees are represented by unions that serve as the exclusive representatives of all the employees.[ 3 ] Whatever may have been the case 41 years ago when Abood was handed down, it is now undeniable that “labor peace” can readily be achieved “through means significantly less restrictive of associational freedoms” than the assessment of agency fees. Harris , supra , at ___ (slip op., at 30) (internal quotation marks omitted). C In addition to the promotion of “labor peace,” Abood cited “the risk of ‘free riders’ ” as justification for agency fees, 431 U. S., at 224. Respondents and some of their amici endorse this reasoning, contending that agency fees are needed to prevent nonmembers from enjoying the benefits of union representation without shouldering the costs. Brief for Union Respondent 34–36; Brief for State Respondents 41–45; see, e.g. , Brief for International Brotherhood of Teamsters as Amicus Curiae 3–5. Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus headed for a destination that he wishes to reach but is more like a person shanghaied for an unwanted voyage. Whichever description fits the majority of public employees who would not subsidize a union if given the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider arguments . . . are generally insufficient to overcome First Amendment objections.” Knox , 567 U. S., at 311. To hold otherwise across the board would have startling consequences. Many private groups speak out with the objective of obtaining government action that will have the effect of benefiting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech? Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of senior citizens or veterans or physicians, to take just a few examples. Could the government require that all seniors, veterans, or doctors pay for that service even if they object? It has never been thought that this is permissible. “[P]rivate speech often furthers the interests of nonspeakers,” but “that does not alone empower the state to compel the speech to be paid for.” Lehnert v. Ferris Faculty Assn. , 500 U. S. 507, 556 (1991) (Scalia, J., concurring in judgment in part and dissenting in part). In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.[ 4 ] Those supporting agency fees contend that the situation here is different because unions are statutorily required to “represen[t] the interests of all public employees in the unit,” whether or not they are union members. §315/6(d); see, e.g. , Brief for State Respondents 40–41, 45; post , at 7 (Kagan, J., dissenting). Why might this matter? We can think of two possible arguments. It might be argued that a State has a compelling interest in requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound. First, it is simply not true that unions will refuse to serve as the exclusive representative of all employees in the unit if they are not given agency fees. As noted, unions represent millions of public employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that designation. On the contrary, designation as exclusive representative is avidly sought.[ 5 ] Why is this so? Even without agency fees, designation as the exclusive representative confers many benefits. As noted, that status gives the union a privileged place in negotiations over wages, benefits, and working conditions. See §315/6(c). Not only is the union given the exclusive right to speak for all the employees in collective bargaining, but the employer is required by state law to listen to and to bargain in good faith with only that union. §315/7. Designation as exclusive representative thus “results in a tremendous increase in the power” of the union. American Communications Assn. v. Douds , 339 U. S. 382, 401 (1950). In addition, a union designated as exclusive representative is often granted special privileges, such as obtaining information about employees, see §315/6(c), and having dues and fees deducted directly from employee wages, §§315/6(e)–(f ). The collective-bargaining agreement in this case guarantees a long list of additional privileges. See App. 138–143. These benefits greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. What this duty entails, in simple terms, is an obligation not to “act solely in the interests of [the union’s] own members.” Brief for State Respondents 41; see Cintron v. AFSCME, Council 31 , No. S–CB–16–032, p. 1, 34 PERI ¶105 (ILRB Dec. 13, 2017) (union may not intentionally direct “animosity” toward nonmembers based on their “dissident union practices”); accord, 14 Penn Plaza LLC v. Pyett , 556 U. S. 247, 271 (2009); Vaca v. Sipes , 386 U. S. 171, 177 (1967). What does this mean when it comes to the negotiation of a contract? The union may not negotiate a collective-bargaining agreement that discriminates against nonmembers, see Steele v. Louisville & Nashville R. Co. , 323 U. S. 192, 202–203 (1944), but the union’s bargaining latitude would be little different if state law simply prohibited public employers from entering into agreements that discriminate in that way. And for that matter, it is questionable whether the Constitution would permit a public-sector employer to adopt a collective-bargaining agreement that discriminates against nonmembers. See id. , at 198–199, 202 (analogizing a private-sector union’s fair-representation duty to the duty “the Constitution imposes upon a legislature to give equal protection to the interests of those for whom it legislates”); cf. Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U. S. 47, 69 (2006) (recognizing that government may not “impose penalties or withhold benefits based on membership in a disfavored group” where doing so “ma[kes] group membership less attractive”). To the extent that an employer would be barred from acceding to a discriminatory agreement anyway, the union’s duty not to ask for one is superfluous. It is noteworthy that neither respondents nor any of the 39 amicus briefs supporting them—nor the dissent—has explained why the duty of fair representation causes public-sector unions to incur significantly greater expenses than they would otherwise bear in negotiating collective-bargaining agreements. What about the representation of nonmembers in grievance proceedings? Unions do not undertake this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector union the right to send a representative to such proceedings even if the employee declines union representation. §315/6(b). Representation of nonmembers furthers the union’s interest in keeping control of the administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can affect others. And when a union controls the grievance process, it may, as a practical matter, effectively subordinate “the interests of [an] individual em- ployee . . . to the collective interests of all employees in the bargaining unit.” Alexander v. Gardner-Denver Co. , 415 U.S. 36 , 58, n. 19 (1974); see Stahulak v. Chicago , 184 Ill. 2d 176, 180–181, 703 N. E. 2d 44, 46–47 (1998); Mahoney v. Chicago , 293 Ill. App. 3d 69, 73–74, 687 N.E.2d 132, 135–137 (1997) (union has “ ‘discretion to refuse to process’ ” a grievance, provided it does not act “arbitrar[ily]” or “in bad faith” (emphasis deleted)). In any event, whatever unwanted burden is imposed by the representation of nonmembers in disciplinary matters can be eliminated “through means significantly less restrictive of associational freedoms” than the imposition of agency fees. Harris , 573 U. S., at ___ (slip op., at 30) (internal quotation marks omitted). Individual nonmembers could be required to pay for that service or could be denied union representation altogether.[ 6 ] Thus, agency fees cannot be sustained on the ground that unions would otherwise be unwilling to represent nonmembers. Nor can such fees be justified on the ground that it would otherwise be unfair to require a union to bear the duty of fair representation. That duty is a necessary concomitant of the authority that a union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. As explained, designating a union as the exclusive representative of nonmembers substantially restricts the nonmembers’ rights. Supra , at 2–3. Protection of their interests is placed in the hands of the union, and if the union were free to disregard or even work against those interests, these employees would be wholly unprotected. That is why we said many years ago that serious “constitutional questions [would] arise” if the union were not subject to the duty to represent all employees fairly. Steele , supra , at 198. In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee context than in any other First Amendment context. See Knox , 567 U. S., at 311, 321. We therefore hold that agency fees cannot be upheld on free-rider grounds. IV Implicitly acknowledging the weakness of Abood ’s own reasoning, proponents of agency fees have come forward with alternative justifications for the decision, and we now address these arguments. A The most surprising of these new arguments is the Union respondent’s originalist defense of Abood . According to this argument, Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. Brief for Union Respondent 2–3, 17–20. As an initial matter, we doubt that the Union—or its members—actually want us to hold that public employees have “ no [free speech] rights.” Id. , at 1. Cf., e.g. , Brief for National Treasury Employees Union as Amicus Curiae in Garcetti v. Ceballos , O. T. 2005, No. 04–473, p. 7 (arguing for “broa[d]” public-employee First Amendment rights); Brief for AFL–CIO as Amicus Curiae in No. 04–473 (similar). It is particularly discordant to find this argument in a brief that trumpets the importance of stare decisis . See Brief for Union Respondent 47–57. Taking away free speech protection for public employees would mean overturning decades of landmark precedent. Under the Union’s theory, Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 (1968), and its progeny would fall. Yet Pickering , as we will discuss, is now the foundation for respondents’ chief defense of Abood . And indeed, Abood itself would have to go if public employees have no free speech rights, since Abood holds that the First Amendment prohibits the exaction of agency fees for political or ideological purposes. 431 U. S., at 234–235 (finding it “clear” that “a government may not require an individual to relinquish rights guaranteed him by the First Amendment as a condition of public employment”). Our political patronage cases would be doomed. See, e.g. , Rutan v. Republican Party of Ill. , 497 U. S. 62 (1990); Branti v. Finkel , 445 U. S. 507 (1980); Elrod v. Burns , 427 U. S. 347 (1976). Also imperiled would be older precedents like Wieman v. Updegraff , 344 U. S. 183 (1952) (loyalty oaths), Shelton v. Tucker , 364 U. S. 479 (1960) (disclosure of memberships and contributions), and Keyishian v. Board of Regents of Univ. of State of N. Y. , 385 U. S. 589 (1967) (subversive speech). Respondents presumably want none of this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits them—to retain the part of Abood that they like. See Tr. of Oral Arg. 56–57. We will not engage in this halfway originalism. Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union offers no persuasive founding-era evidence that public employees were understood to lack free speech protections. While it observes that restrictions on federal employees’ activities have existed since the First Congress, most of its historical examples involved limitations on public officials’ outside business dealings, not on their speech. See Ex parte Curtis , 106 U. S. 371, 372–373 (1882). The only early speech restrictions the Union identifies are an 1806 statute prohibiting military personnel from using “ ‘contemptuous or disrespectful words against the President’ ” and other officials, and an 1801 directive limiting electioneering by top government employees. Brief for Union Respondent 3. But those examples at most show that the government was understood to have power to limit employee speech that threatened important governmental interests (such as maintaining military discipline and preventing corruption)—not that public employees’ speech was entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while recognizing that government employees possess First Amendment rights. See, e.g. , Brown v. Glines , 444 U. S. 348, 353 (1980) (upholding military restriction on speech that threatened troop readiness); Civil Service Comm’n v. Letter Carriers , 413 U. S. 548, 556–557 (1973) (upholding limits on public employees’ political activities). Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this Court stating that, “[f]or most of th[e 20th] century, the unchallenged dogma was that a public employee had no right to object to conditions placed upon the terms of employment—including those which restricted the exercise of constitutional rights.” Connick v. Myers , 461 U. S. 138, 143; see Brief for Union Respondent 2, 17. Even on its own terms, this dictum about 20th-century views does not purport to describe how the First Amendment was understood in 1791. And a careful examination of the decisions by this Court that Connick cited to support its dictum, see 461 U. S., at 144, reveals that none of them rested on the facile premise that public employees are unprotected by the First Amendment. Instead, they considered (much as we do today) whether particular speech restrictions were “necessary to protect” fundamental government interests. Curtis , supra , at 374. The Union has also failed to show that, even if public employees enjoyed free speech rights, the First Amendment was nonetheless originally understood to allow forced subsidies like those at issue here. We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought to whether public-sector unions could charge nonmembers agency fees. Entities resembling labor unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th century. The idea of public-sector unionization and agency fees would astound those who framed and ratified the Bill of Rights.[ 7 ] Thus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. We do know, however, that prominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed. As noted, Jefferson denounced compelled support for such beliefs as “ ‘sinful and tyrannical,’ ” supra , at 9, and others expressed similar views.[ 8 ] In short, the Union has offered no basis for concluding that Abood is supported by the original understanding of the First Amendment. B The principal defense of Abood advanced by respondents and the dissent is based on our decision in Pickering , 391 U. S. 563, which held that a school district violated the First Amendment by firing a teacher for writing a letter critical of the school administration. Under Pickering and later cases in the same line, employee speech is largely unprotected if it is part of what the employee is paid to do, see Garcetti v. Ceballos , 547 U. S. 410, 421–422 (2006), or if it involved a matter of only private concern, see Connick , supra , at 146–149. On the other hand, when a public employee speaks as a citizen on a matter of public concern, the employee’s speech is protected unless “ ‘the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in commenting upon matters of public concern.’ ” Harris , 573 U. S., at ___ (slip op., at 35) (quoting Pickering , supra , at 568). Pickering was the centerpiece of the defense of Abood in Harris , see 573 U. S., at ___–___ (slip op., at 17–21) (Kagan, J., dissenting), and we found the argument unpersuasive, see id. , at ___–___ (slip op., at 34–37). The intervening years have not improved its appeal. 1 As we pointed out in Harris , Abood was not based on Pickering . 573 U. S., at ___, and n. 26 (slip op., at 34, and n. 26). The Abood majority cited the case exactly once—in a footnote—and then merely to acknowledge that “there may be limits on the extent to which an employee in a sensitive or policymaking position may freely criticize his superiors and the policies they espouse.” 431 U. S., at 230, n. 27. That aside has no bearing on the agency-fee issue here.[ 9 ] Respondents’ reliance on Pickering is thus “an effort to find a new justification for the decision in Abood .” Harris , supra , at ___ (slip op., at 34). And we have previously taken a dim view of similar attempts to recast problematic First Amendment decisions. See, e.g. , Citizens United v. Federal Election Comm’n , 558 U. S. 310, 348–349, 363 (2010) (rejecting efforts to recast Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990)); see also Citizens United , supra , at 382–385 (Roberts, C. J., concurring). We see no good reason, at this late date, to try to shoehorn Abood into the Pickering framework. 2 Even if that were attempted, the shoe would be a painful fit for at least three reasons. First, the Pickering framework was developed for use in a very different context—in cases that involve “one employee’s speech and its impact on that employee’s public responsibilities.” United States v. Treasury Employees , 513 U. S. 454, 467 (1995). This case, by contrast, involves a blanket requirement that all employees subsidize speech with which they may not agree. While we have sometimes looked to Pickering in considering general rules that affect broad categories of employees, we have acknowledged that the standard Pickering analysis requires modification in that situation. See 513 U. S., at 466–468, and n. 11. A speech-restrictive law with “widespread impact,” we have said, “gives rise to far more serious concerns than could any single supervisory decision.” Id. , at 468. Therefore, when such a law is at issue, the government must shoulder a correspondingly “heav[ier]” burden, id. , at 466, and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights, see id. , at 475–476, n. 21; accord, id. , at 482–483 (O’Connor, J., concurring in judgment in part and dissenting in part). The end product of those adjustments is a test that more closely resembles exacting scrutiny than the traditional Pickering analysis. The core collective-bargaining issue of wages and benefits illustrates this point. Suppose that a single employee complains that he or she should have received a 5% raise. This individual complaint would likely constitute a matter of only private concern and would therefore be unprotected under Pickering . But a public-sector union’s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely. Granting such a raise could have a serious impact on the budget of the government unit in question, and by the same token, denying a raise might have a significant effect on the performance of government services. When a large number of employees speak through their union, the category of speech that is of public concern is greatly enlarged, and the category of speech that is of only private concern is substantially shrunk. By disputing this, post , at 13–14, the dissent denies the obvious. Second, the Pickering framework fits much less well where the government compels speech or speech subsidies in support of third parties. Pickering is based on the insight that the speech of a public-sector employee may interfere with the effective operation of a government office. When a public employer does not simply restrict potentially disruptive speech but commands that its employees mouth a message on its own behalf, the calculus is very different. Of course, if the speech in question is part of an employee’s official duties, the employer may insist that the employee deliver any lawful message. See Garcetti , 547 U. S., at 421–422, 425–426. Otherwise, however, it is not easy to imagine a situation in which a public employer has a legitimate need to demand that its employees recite words with which they disagree. And we have never applied Pickering in such a case. Consider our decision in Connick . In that case, we held that an assistant district attorney’s complaints about the supervisors in her office were, for the most part, matters of only private concern. 461 U. S., at 148. As a result, we held, the district attorney could fire her for making those comments. Id. , at 154. Now, suppose that the assistant had not made any critical comments about the supervisors but that the district attorney, out of the blue, demanded that she circulate a memo praising the supervisors. Would her refusal to go along still be a matter of purely private concern? And if not, would the order be justified on the ground that the effective operation of the office demanded that the assistant voice complimentary sentiments with which she disagreed? If Pickering applies at all to compelled speech—a question that we do not decide—it would certainly require adjustment in that context. Third, although both Pickering and Abood divided speech into two categories, the cases’ categorization schemes do not line up. Superimposing the Pickering scheme on Abood would significantly change the Abood regime. Let us first look at speech that is not germane to collective bargaining but instead concerns political or ideological issues. Under Abood , a public employer is flatly prohibited from permitting nonmembers to be charged for this speech, but under Pickering , the employees’ free speech interests could be overcome if a court found that the employer’s interests outweighed the employees’. A similar problem arises with respect to speech that is germane to collective bargaining. The parties dispute how much of this speech is of public concern, but respondents concede that much of it falls squarely into that category. See Tr. of Oral Arg. 47, 65. Under Abood , nonmembers may be required to pay for all this speech, but Pickering would permit that practice only if the employer’s interests outweighed those of the employees. Thus, recasting Abood as an application of Pickering would substantially alter the Abood scheme. For all these reasons, Pickering is a poor fit indeed. V Even if we were to apply some form of Pickering , Illinois’ agency-fee arrangement would not survive. A Respondents begin by suggesting that union speech in collective-bargaining and grievance proceedings should be treated like the employee speech in Garcetti , i.e. , as speech “pursuant to [an employee’s] official duties,” 547 U. S., at 421. Many employees, in both the public and private sectors, are paid to write or speak for the purpose of furthering the interests of their employers. There are laws that protect public employees from being compelled to say things that they reasonably believe to be untrue or improper, see id. , at 425–426, but in general when public employees are performing their job duties, their speech may be controlled by their employer. Trying to fit union speech into this framework, respondents now suggest that the union speech funded by agency fees forms part of the official duties of the union officers who engage in the speech. Brief for Union Respondent 22–23; see Brief for State Respondents 23–24. This argument distorts collective bargaining and grievance adjustment beyond recognition. When an employee engages in speech that is part of the employee’s job duties, the employee’s words are really the words of the employer. The employee is effectively the employer’s spokesperson. But when a union negotiates with the employer or represents employees in disciplinary proceedings, the union speaks for the employees , not the employer. Otherwise, the employer would be negotiating with itself and disputing its own actions. That is not what anybody understands to be happening. What is more, if the union’s speech is really the employer’s speech, then the employer could dictate what the union says. Unions, we trust, would be appalled by such a suggestion. For these reasons, Garcetti is totally inapposite here. B Since the union speech paid for by agency fees is not controlled by Garcetti , we move on to the next step of the Pickering framework and ask whether the speech is on a matter of public or only private concern. In Harris , the dissent’s central argument in defense of Abood was that union speech in collective bargaining, including speech about wages and benefits, is basically a matter of only private interest. See 573 U. S., at ___–___ (slip op., at 19–20) (Kagan, J., dissenting). We squarely rejected that argument, see id. , at ___–___ (slip op., at 35–36), and the facts of the present case substantiate what we said at that time: “[I]t is impossible to argue that the level of . . . state spending for employee benefits . . . is not a matter of great public concern,” id. , at ___ (slip op., at 36). Illinois, like some other States and a number of counties and cities around the country, suffers from severe budget problems.[ 10 ] As of 2013, Illinois had nearly $160 billion in unfunded pension and retiree healthcare liabilities.[ 11 ] By 2017, that number had only grown, and the State was grappling with $15 billion in unpaid bills.[ 12 ] We are told that a “quarter of the budget is now devoted to paying down” those liabilities.[ 13 ] These problems and others led Moody’s and S&P to downgrade Illinois’ credit rating to “one step above junk”—the “lowest ranking on record for a U. S. state.”[ 14 ] The Governor, on one side, and public-sector unions, on the other, disagree sharply about what to do about these problems. The State claims that its employment-related debt is “ ‘squeezing core programs in education, public safety, and human services, in addition to limiting [the State’s] ability to pay [its] bills.’ ” Securities Act of 1933 Release No. 9389, 105 S. E. C. Docket 3381 (2013). It therefore “told the Union that it would attempt to address th[e financial] crisis, at least in part, through collective bargaining.” Board Decision 12–13. And “the State’s desire for savings” in fact “dr[o]ve [its] bargaining” positions on matters such as health-insurance benefits and holiday, overtime, and promotion policies. Id. , at 13; Illinois Dept. of Central Management Servs. v. AFSCME, Council 31 , No. S–CB–16–17 etc., 33 PERI ¶67 (ILRB Dec. 13, 2016) (ALJ Decision), pp. 26–28, 63–66, 224. But when the State offered cost-saving proposals on these issues, the Union countered with very different suggestions. Among other things, it advocated wage and tax increases, cutting spending “to Wall Street financial institutions,” and reforms to Illinois’ pension and tax systems (such as closing “corporate tax loopholes,” “[e]xpanding the base of the state sales tax,” and “allowing an income tax that is adjusted in accordance with ability to pay”). Id. , at 27–28. To suggest that speech on such matters is not of great public concern—or that it is not directed at the “public square,” post , at 16 (Kagan, J., dissenting)—is to deny reality. In addition to affecting how public money is spent, union speech in collective bargaining addresses many other important matters. As the examples offered by respondents’ own amici show, unions express views on a wide range of subjects—education, child welfare, healthcare, and minority rights, to name a few. See, e.g. , Brief for American Federation of Teachers as Amicus Curiae 15–27; Brief for Child Protective Service Workers et al. as Amici Curiae 5–13; Brief for Human Rights Campaign et al. as Amici Curiae 10–17; Brief for National Women’s Law Center et al. as Amici Curiae 14–30. What unions have to say on these matters in the context of collective bargaining is of great public importance. Take the example of education, which was the focus of briefing and argument in Friedrichs . The public importance of subsidized union speech is especially apparent in this field, since educators make up by far the largest category of state and local government employees, and education is typically the largest component of state and local government expenditures.[ 15 ] Speech in this area also touches on fundamental questions of education policy. Should teacher pay be based on seniority, the better to retain experienced teachers? Or should schools adopt merit-pay systems to encourage teachers to get the best results out of their students?[ 16 ] Should districts transfer more experienced teachers to the lower performing schools that may have the greatest need for their skills, or should those teachers be allowed to stay where they have put down roots?[ 17 ] Should teachers be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what procedures should teachers be subject to discipline or dismissal? How should teacher performance and student progress be measured—by standardized tests or other means? Unions can also speak out in collective bargaining on controversial subjects such as climate change,[ 18 ] the Confederacy,[ 19 ] sexual orientation and gender identity,[ 20 ] evolution,[ 21 ] and minority religions.[ 22 ] These are sensitive political topics, and they are undoubtedly matters of profound “ ‘value and concern to the public.’ ” Snyder v. Phelps , 562 U. S. 443, 453 (2011). We have often recognized that such speech “ ‘occupies the highest rung of the hierarchy of First Amendment values’ ” and merits “ ‘special protection.’ ” Id. , at 452. What does the dissent say about the prevalence of such issues? The most that it is willing to admit is that “some” issues that arise in collective bargaining “raise important non-budgetary disputes.” Post , at 17. Here again, the dissent refuses to recognize what actually occurs in public-sector collective bargaining. Even union speech in the handling of grievances may be of substantial public importance and may be directed at the “public square.” Post , at 16. For instance, the Union respondent in this case recently filed a grievance seeking to compel Illinois to appropriate $75 million to fund a 2% wage increase. State v. AFSCME Council 31 , 2016 IL 118422, 51 N. E. 3d 738, 740–742, and n. 4. In short, the union speech at issue in this case is overwhelmingly of substantial public concern. C The only remaining question under Pickering is whether the State’s proffered interests justify the heavy burden that agency fees inflict on nonmembers’ First Amendment interests. We have already addressed the state interests asserted in Abood —promoting “labor peace” and avoiding free riders, see supra , at 11–18—and we will not repeat that analysis. In Harris and this case, defenders of Abood have as- serted a different state interest—in the words of the Harris dissent, the State’s “interest in bargaining with an adequately funded exclusive bargaining agent.” 573 U. S., at ___ (Kagan, J., dissenting) (slip op., at 7); see also post , at 6–7 (Kagan, J., dissenting). This was not “the interest Abood recognized and protected,” Harris , supra , at ___ (slip op., at 7) (Kagan, J., dissenting), and, in any event, it is insufficient. Although the dissent would accept without any serious independent evaluation the State’s assertion that the absence of agency fees would cripple public-sector unions and thus impair the efficiency of government operations, see post , at 8–9, 11, ample experience, as we have noted, supra , at 12, shows that this is questionable. Especially in light of the more rigorous form of Pickering analysis that would apply in this context, see supra , at 23–25, the balance tips decisively in favor of the employees’ free speech rights.[ 23 ] We readily acknowledge, as Pickering did, that “the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” 391 U. S., at 568. Our analysis is consistent with that principle. The exacting scrutiny standard we apply in this case was developed in the context of commercial speech, another area where the government has traditionally enjoyed greater-than-usual power to regulate speech. See supra , at 10. It is also not disputed that the State may require that a union serve as exclusive bargaining agent for its employees—itself a significant impingement on associational freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the government to go further still and require all employees to support the union irrespective of whether they share its views. Nothing in the Pickering line of cases requires us to uphold every speech restriction the government imposes as an employer. See Pickering , supra , at 564–566 (holding teacher’s dismissal for criticizing school board unconstitutional); Rankin v. McPherson , 483 U. S. 378, 392 (1987) (holding clerical employ- ee’s dismissal for supporting assassination attempt on President unconstitutional); Treasury Employees , 513 U. S., at 477 (holding federal-employee honoraria ban unconstitutional). VI For the reasons given above, we conclude that public-sector agency-shop arrangements violate the First Amendment, and Abood erred in concluding otherwise. There remains the question whether stare decisis nonetheless counsels against overruling Abood . It does not. “ Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee , 501 U. S. 808, 827 (1991). We will not overturn a past decision unless there are strong grounds for doing so. United States v. International Business Machines Corp. , 517 U. S. 843, 855–856 (1996); Citizens United , 558 U. S., at 377 (Roberts, C. J., concurring). But as we have often recognized, stare decisis is “ ‘not an inexorable command.’ ” Pearson v. Callahan , 555 U. S. 223, 233 (2009); see also Lawrence v. Texas , 539 U. S. 558, 577 (2003); State Oil Co. v. Khan , 522 U. S. 3, 20 (1997); Agostini v. Felton , 521 U. S. 203, 235 (1997); Seminole Tribe of Fla. v. Florida , 517 U. S. 44, 63 (1996); Payne , supra , at 828. The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Agostini , supra , at 235. And stare decisis applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: “This Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our constitutional constellation, if there is one).” Federal Election Comm’n v. Wisconsin Right to Life, Inc. , 551 U. S. 449, 500 (2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted); see also Citizens United , supra , at 362–365 (overruling Austin , 494 U. S. 652); Barnette , 319 U. S., at 642 (overruling Minersville School Dist. v. Gobitis , 310 U. S. 586 (1940)). Our cases identify factors that should be taken into account in deciding whether to overrule a past decision. Five of these are most important here: the quality of Abood ’s reasoning, the workability of the rule it established, its consistency with other related decisions, developments since the decision was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare decisis does not require us to retain Abood . A An important factor in determining whether a precedent should be overruled is the quality of its reasoning, see Citizens United , 558 U. S., at 363–364; id. , at 382–385 (Roberts, C. J., concurring); Lawrence , 539 U. S., at 577–578, and as we explained in Harris , Abood was poorly reasoned, see 573 U. S., at ___–___ (slip op., at 17–20). We will summarize, but not repeat, Harris ’s lengthy discussion of the issue. Abood went wrong at the start when it concluded that two prior decisions, Railway Employes v. Hanson , 351 U. S. 225 (1956), and Machinists v. Street , 367 U. S. 740 (1961), “appear[ed] to require validation of the agency-shop agreement before [the Court].” 431 U. S., at 226. Properly understood, those decisions did no such thing. Both cases involved Congress’s “ bare authorization ” of private-sector union shops under the Railway Labor Act. Street , supra , at 749 (emphasis added).[ 24 ] Abood failed to appreciate that a very different First Amendment question arises when a State requires its employees to pay agency fees. See Harris , supra , at ___ (slip op., at 17). Moreover, neither Hanson nor Street gave careful consideration to the First Amendment. In Hanson , the primary questions were whether Congress exceeded its power under the Commerce Clause or violated substantive due process by authorizing private union-shop arrangements under the Commerce and Due Process Clauses. 351 U. S., at 233–235. After deciding those questions, the Court summarily dismissed what was essentially a facial First Amendment challenge, noting that the record did not substantiate the challengers’ claim. Id. , at 238; see Harris , supra , at ___ (slip op., at 17). For its part, Street was decided as a matter of statutory construction, and so did not reach any constitutional issue. 367 U. S., at 749–750, 768–769. Abood nevertheless took the view that Hanson and Street “all but decided” the important free speech issue that was before the Court. Harris , 573 U. S., at ___ (slip op., at 17). As we said in Harris , “[s]urely a First Amendment issue of this importance deserved better treatment.” Ibid. Abood ’s unwarranted reliance on Hanson and Street appears to have contributed to another mistake: Abood judged the constitutionality of public-sector agency fees under a deferential standard that finds no support in our free speech cases. (As noted, supra , at 10–11, today’s dissent makes the same fundamental mistake.) Abood did not independently evaluate the strength of the government interests that were said to support the challenged agency-fee provision; nor did it ask how well that provision actually promoted those interests or whether they could have been adequately served without impinging so heavily on the free speech rights of nonmembers. Rather, Abood followed Hanson and Street , which it interpreted as having deferred to “ the legislative assessment of the important contribution of the union shop to the system of labor relations established by Congress.” 431 U. S., at 222 (emphasis added). But Hanson deferred to that judgment in deciding the Commerce Clause and substantive due process questions that were the focus of the case. Such deference to legislative judgments is inappropriate in deciding free speech issues. If Abood had considered whether agency fees were actually needed to serve the asserted state interests, it might not have made the serious mistake of assuming that one of those interests—“labor peace”—demanded, not only that a single union be designated as the exclusive representative of all the employees in the relevant unit, but also that nonmembers be required to pay agency fees. Deferring to a perceived legislative judgment, Abood failed to see that the designation of a union as exclusive representative and the imposition of agency fees are not inextricably linked. See supra , at 11–12; Harris , supra , at ___ (slip op., at 31). Abood also did not sufficiently take into account the difference between the effects of agency fees in public- and private-sector collective bargaining. The challengers in Abood argued that collective bargaining with a government employer, unlike collective bargaining in the private sector, involves “inherently ‘political’ ” speech. 431 U. S., at 226. The Court did not dispute that characterization, and in fact conceded that “decisionmaking by a public employer is above all a political process” driven more by policy concerns than economic ones. Id. , at 228; see id. , at 228–231. But (again invoking Hanson ), the Abood Court asserted that public employees do not have “weightier First Amendment interest[s]” against compelled speech than do private employees. Id. , at 229. That missed the point. Assuming for the sake of argument that the First Amendment applies at all to private-sector agency-shop arrangements, the individual interests at stake still differ. “In the public sector, core issues such as wages, pensions, and benefits are important political issues, but that is generally not so in the private sector.” Harris , 573 U. S., at ___ (slip op., at 17). Overlooking the importance of this distinction, “ Abood failed to appreciate the conceptual difficulty of distinguishing in public-sector cases between union expenditures that are made for collective-bargaining purposes and those that are made to achieve political ends.” Id. , at ___ (slip op., at 18). Likewise, “ Abood does not seem to have anticipated the magnitude of the practical administrative problems that would result in attempting to classify public-sector union expenditures as either ‘chargeable’ . . . or nonchargeable.” Ibid. Nor did Abood “foresee the practical problems that would face objecting nonmembers.” Id. , at ___ (slip op., at 19). In sum, as detailed in Harris , Abood was not well reasoned.[ 25 ] B Another relevant consideration in the stare decisis calculus is the workability of the precedent in question, Montejo v. Louisiana , 556 U. S. 778, 792 (2009), and that factor also weighs against Abood . 1 Abood ’s line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision. We tried to give the line some definition in Lehnert . There, a majority of the Court adopted a three-part test requiring that chargeable expenses (1) be “ ‘germane’ ” to collective bargaining, (2) be “justified” by the government’s labor-peace and free-rider interests, and (3) not add “significantly” to the burden on free speech, 500 U. S., at 519, but the Court splintered over the application of this test, see id. , at 519–522 (plurality opinion); id. , at 533–534 (Marshall, J., concurring in part and dissenting in part). That division was not surprising. As the Lehnert dissenters aptly observed, each part of the majority’s test “involves a substantial judgment call,” id. , at 551 (opinion of Scalia, J.), rendering the test “altogether malleable” and “no[t] principled,” id. , at 563 (Kennedy, J., concurring in judgment in part and dissenting in part). Justice Scalia presciently warned that Lehnert ’s amorphous standard would invite “perpetua[l] give-it-a-try litigation,” id. , at 551, and the Court’s experience with union lobbying expenses illustrates the point. The Lehnert plurality held that money spent on lobbying for increased education funding was not chargeable. Id. , at 519–522. But Justice Marshall—applying the same three-prong test—reached precisely the opposite conclusion. Id. , at 533–542. And Lehnert failed to settle the matter; States and unions have continued to “give it a try” ever since. In Knox , for example, we confronted a union’s claim that the costs of lobbying the legislature and the electorate about a ballot measure were chargeable expenses under Lehnert . See Brief for Respondent in Knox v. Service Employees , O. T. 2011, No. 10–1121, pp. 48–53. The Court rejected this claim out of hand, 567 U. S., at 320–321, but the dissent refused to do so, id. , at 336 (opinion of Breyer, J.). And in the present case, nonmembers are required to pay for unspecified “[l]obbying” expenses and for “[s]ervices” that “may ultimately inure to the benefit of the members of the local bargaining unit.” App. to Pet. for Cert. 31a–32a. That formulation is broad enough to encompass just about anything that the union might choose to do. Respondents agree that Abood ’s chargeable-nonchargeable line suffers from “a vagueness problem,” that it sometimes “allows what it shouldn’t allow,” and that “a firm[er] line c[ould] be drawn.” Tr. of Oral Arg. 47–48. They therefore argue that we should “consider revisiting” this part of Abood . Tr. of Oral Arg. 66; see Brief for Union Respondent 46–47; Brief for State Respondents 30. This concession only underscores the real- ity that Abood has proved unworkable: Not even the parties defending agency fees support the line that it has taken this Court over 40 years to draw. 2 Objecting employees also face a daunting and expensive task if they wish to challenge union chargeability determinations. While Hudson requires a union to provide nonmembers with “sufficient information to gauge the propriety of the union’s fee,” 475 U. S., at 306, the Hudson notice in the present case and in others that have come before us do not begin to permit a nonmember to make such a determination. In this case, the notice lists categories of expenses and sets out the amount in each category that is said to be attributable to chargeable and nonchargeable expenses. Here are some examples regarding the Union respondent’s expenditures: See App. to Pet. for Cert. 35a–36a. How could any nonmember determine whether these numbers are even close to the mark without launching a legal challenge and retaining the services of attorneys and accountants? Indeed, even with such services, it would be a laborious and difficult task to check these figures.[ 26 ] The Union respondent argues that challenging its chargeability determinations is not burdensome because the Union pays for the costs of arbitration, see Brief for Union Respondent 10–11, but objectors must still pay for the attorneys and experts needed to mount a serious challenge. And the attorney’s fees incurred in such a proceeding can be substantial. See, e.g. , Knox v. Chiang , 2013 WL 2434606, *15 (ED Cal., June 5, 2013) (attorney’s fees in Knox exceeded $1 million). The Union respondent’s suggestion that an objector could obtain adequate review without even showing up at an arbitration, see App. to Pet. for Cert. 40a–41a, is therefore farfetched. C Developments since Abood , both factual and legal, have also “eroded” the decision’s “underpinnings” and left it an outlier among our First Amendment cases. United States v. Gaudin , 515 U. S. 506, 521 (1995). 1 Abood pinned its result on the “unsupported empirical assumption” that “the principle of exclusive representation in the public sector is dependent on a union or agency shop.” Harris , 573 U. S., at ___ (slip op., at 20); Abood , 431 U. S., at 220–222. But, as already noted, experience has shown otherwise. See supra , at 11–12. It is also significant that the Court decided Abood against a very different legal and economic backdrop. Public-sector unionism was a relatively new phenomenon in 1977. The first State to permit collective bargaining by government employees was Wisconsin in 1959, R. Kearney & P. Mareschal, Labor Relations in the Public Sector 64 (5th ed. 2014), and public-sector union membership remained relatively low until a “spurt” in the late 1960’s and early 1970’s, shortly before Abood was decided, Freeman, Unionism Comes to the Public Sector, 24 J. Econ. Lit. 41, 45 (1986). Since then, public-sector union membership has come to surpass private-sector union membership, even though there are nearly four times as many total private-sector employees as public-sector employees. B. Hirsch & D. Macpherson, Union Membership and Earnings Data Book 9–10, 12, 16 (2013 ed.). This ascendance of public-sector unions has been marked by a parallel increase in public spending. In 1970, total state and local government expenditures amounted to $646 per capita in nominal terms, or about $4,000 per capita in 2014 dollars. See Dept. of Commerce, Statistical Abstract of the United States: 1972, p. 419; CPI Inflation Calculator, BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By 2014, that figure had ballooned to approximately $10,238 per capita. ProQuest, Statistical Abstract of the United States: 2018, pp. 17, Table 14, 300, Table 469. Not all that increase can be attributed to public-sector unions, of course, but the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role. We are told, for example, that Illinois’ pension funds are underfunded by $129 billion as a result of generous public-employee retirement packages. Brief for Jason R. Barclay et al. as Amici Curiae 9, 14. Unsustainable collective-bargaining agreements have also been blamed for multiple municipal bankruptcies. See Brief for State of Michigan et al. as Amici Curiae 10–19. These developments, and the political debate over public spending and debt they have spurred, have given collective-bargaining issues a political valence that Abood did not fully appreciate. 2 Abood is also an “anomaly” in our First Amendment jurisprudence, as we recognized in Harris and Knox . Harris , supra , at ___ (slip op., at 8); Knox , 567 U. S., at 311. This is not an altogether new observation. In Abood itself, Justice Powell faulted the Court for failing to perform the “ ‘exacting scrutiny’ ” applied in other cases involving significant impingements on First Amendment rights. 431 U. S., at 259; see id. , at 259–260, and n. 14. Our later cases involving compelled speech and association have also employed exacting scrutiny, if not a more demanding standard. See, e.g. , Roberts , 468 U. S., at 623; United Foods , 533 U. S., at 414. And we have more recently refused, even in agency-fee cases, to extend Abood beyond circumstances where it directly controls. See Knox , supra , at 314; Harris , supra , at ___–___ (slip op., at 28–29). Abood particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party. See Elrod , 427 U. S. 347; Branti , 445 U. S. 507; Rutan , 497 U. S. 62; O’Hare Truck Service, Inc. v. City of Northlake , 518 U. S. 712 (1996). The Court reached that conclusion despite a “long tradition” of political patronage in government. Rutan , supra , at 95 (Scalia, J., dissenting); see also Elrod , 427 U. S., at 353 (plurality opinion); id. , at 377–378 (Powell, J., dissenting). It is an odd feature of our First Amendment cases that political patronage has been deemed largely unconstitutional, while forced subsidization of union speech (which has no such pedigree) has been largely permitted. As Justice Powell observed: “I am at a loss to understand why the State’s decision to adopt the agency shop in the public sector should be worthy of greater deference, when challenged on First Amendment grounds, than its decision to adhere to the tradition of political patronage.” Abood , supra , at 260, n. 14 (opinion concurring in judgment) (citing Elrod , supra , at 376–380, 382–387 (Powell, J., dissenting); emphasis added). We have no occasion here to reconsider our political patronage decisions, but Justice Powell’s observation is sound as far as it goes. By overruling Abood , we end the oddity of privileging compelled union support over compelled party support and bring a measure of greater coherence to our First Amendment law. D In some cases, reliance provides a strong reason for adhering to established law, see, e.g. , Hilton v. South Carolina Public Railways Comm’n , 502 U. S. 197, 202–203 (1991), and this is the factor that is stressed most strongly by respondents, their amici , and the dissent. They contend that collective-bargaining agreements now in effect were negotiated with agency fees in mind and that unions may have given up other benefits in exchange for provisions granting them such fees. Tr. of Oral Arg. 67–68; see Brief for State Respondents 54; Brief for Union Respondent 50; post , at 22–26 (Kagan, J., dissenting). In this case, however, reliance does not carry decisive weight. For one thing, it would be unconscionable to permit free speech rights to be abridged in perpetuity in order to preserve contract provisions that will expire on their own in a few years’ time. “The fact that [public-sector unions] may view [agency fees] as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that [nonmembers] share in having their constitutional rights fully protected.” Arizona v. Gant , 556 U. S. 332, 349 (2009). For another, Abood does not provide “a clear or easily applicable standard, so arguments for reliance based on its clarity are misplaced.” South Dakota v. Wayfair, Inc. , ante , at 20; see supra , at 38–41. This is especially so because public-sector unions have been on notice for years regarding this Court’s misgivings about Abood . In Knox , decided in 2012, we described Abood as a First Amendment “anomaly.” 567 U. S., at 311. Two years later in Harris , we were asked to overrule Abood , and while we found it unnecessary to take that step, we cataloged Abood ’s many weaknesses. In 2015, we granted a petition for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood . Friedrichs v. California Teachers Assn. , 576 U. S. ___. After exhaustive briefing and argument on the question whether Abood should be overruled, we affirmed the decision below by an equally divided vote. 578 U. S. ___ (2016) ( per curiam ). During this period of time, any public-sector union seeking an agency-fee provision in a collective-bargaining agreement must have understood that the constitutionality of such a provision was uncertain. That is certainly true with respect to the collective-bargaining agreement in the present case. That agreement initially ran from July 1, 2012, until June 30, 2015. App. 331. Since then, the agreement has been extended pursuant to a provision providing for automatic renewal for an additional year unless either party gives timely notice that it desires to amend or terminate the contract. Ibid . Thus, for the past three years, the Union could not have been confident about the continuation of the agency-fee arrangement for more than a year at a time. Because public-sector collective-bargaining agreements are generally of rather short duration, a great many of those now in effect probably began or were renewed since Knox (2012) or Harris (2014). But even if an agreement antedates those decisions, the union was able to protect itself if an agency-fee provision was essential to the overall bargain. A union’s attorneys undoubtedly understand that if one provision of a collective-bargaining agreement is found to be unlawful, the remaining provisions are likely to remain in effect. See NLRB v. Rockaway News Supply Co. , 345 U. S. 71, 76–79 (1953); see also 8 R. Lord, Williston on Contracts §19:70 (4th ed. 2010). Any union believing that an agency-fee provision was essential to its bargain could have insisted on a provision giving it greater protection. The agreement in the present case, by contrast, provides expressly that the invalidation of any part of the agreement “shall not invalidate the remaining portions,” which “shall remain in full force and effect.” App. 328. Such severability clauses ensure that “entire contracts” are not “br[ought] down” by today’s ruling. Post , at 23, n. 5 (Kagan, J., dissenting). In short, the uncertain status of Abood , the lack of clarity it provides, the short-term nature of collective-bargaining agreements, and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood .[ 27 ] *  *  * We recognize that the loss of payments from nonmembers may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members. But we must weigh these disadvantages against the considerable windfall that unions have received under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely. All these reasons—that Abood ’s proponents have abandoned its reasoning, that the precedent has proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent developments have eroded its underpinnings—provide the “ ‘special justification[s]’ ” for overruling Abood . Post , at 19 (Kagan, J., dissenting) (quoting Kimble v. Marvel Entertainment, LLC , 576 U. S. ___, ___ (2015) (slip op., at 8)).[ 28 ] VII For these reasons, States and public-sector unions may no longer extract agency fees from nonconsenting employees. Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from the nonmember’s wages. §315/6(e). No form of employee consent is required. This procedure violates the First Amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their First Amendment rights, and such a waiver cannot be presumed. Johnson v. Zerbst , 304 U. S. 458, 464 (1938); see also Knox , 567 U. S., at 312–313. Rather, to be effective, the waiver must be freely given and shown by “clear and compelling” evidence. Curtis Publishing Co. v. Butts , 388 U. S. 130, 145 (1967) (plurality opinion); see also College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd. , 527 U. S. 666, 680–682 (1999). Unless employees clearly and affirmatively consent before any money is taken from them, this standard cannot be met. *  *  * Abood was wrongly decided and is now overruled. The judgment of the United States Court of Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Bureau of Labor Statistics (BLS), Labor Force Statistics From the Current Population Survey (Table 42) (2017), https://www.bls.gov/cps/tables.htm (all Internet materials as visited June 26, 2018). 2 See Union Membership and Coverage Database From the Current Population Survey (Jan. 21, 2018), unionstats.com. 3 See National Conference of State Legislatures, Right-to-Work States (2018), http://www.ncsl.org/research/labor-and-employment/right-to-work-laws-and-bills.aspx#chart; see also, e.g. , Brief for Mackinac Center for Public Policy as Amicus Curiae 27–28, 34–36. 4 The collective-action problem cited by the dissent, post , at 6, is not specific to the agency-fee context. And contrary to the dissent’s suggestion, it is often not practical for an entity that lobbies or advocates on behalf of the members of a group to tailor its message so that only its members benefit from its efforts. Consider how effective it would be for a group that advocates on behalf of, say, seniors, to argue that a new measure should apply only to its dues-paying members. 5 In order to obtain that status, a union must petition to be recognized and campaign to win majority approval. Ill. Comp. Stat., ch. 5, §315/9(a) (2016); see, e.g. , County of Du Page v. Illinois Labor Relations Bd. , 231 Ill. 2d 593, 597–600, 900 N. E. 2d 1095, 1098–1099 (2008). And unions eagerly seek this support. See, e.g. , Brief for Employees of the State of Minnesota Court System as Amici Curiae 9–17. 6 There is precedent for such arrangements. Some States have laws providing that, if an employee with a religious objection to paying an agency fee “requests the [union] to use the grievance procedure or arbitration procedure on the employee’s behalf, the [union] is authorized to charge the employee for the reasonable cost of using such procedure.” E.g. , Cal. Govt. Code Ann. §3546.3 (West 2010); cf. Ill. Comp. Stat., ch. 5, §315/6(g) (2016). This more tailored alternative, if applied to other objectors, would prevent free ridership while imposing a lesser burden on First Amendment rights. 7 Indeed, under common law, “collective bargaining was unlawful,” Teamsters v. Terry , 494 U. S. 558, 565–566 (1990) (plurality opinion); see N. Citrine, Trade Union Law 4–7, 9–10 (2d ed. 1960); Notes, Legal-ity of Trade Unions at Common Law, 25 Harv. L. Rev. 465, 466 (1912), and into the 20th century, every individual employee had the “liberty of contract” to “sell his labor upon such terms as he deem[ed] proper,” Adair v. United States , 208 U. S. 161, 174–175 (1908); see R. Morris, Government and Labor in Early America 208, 529 (1946). So even the concept of a private third-party entity with the power to bind employees on the terms of their employment likely would have been foreign to the Founders. We note this only to show the problems inherent in the Union respondent’s argument; we are not in any way questioning the foundations of modern labor law. 8 See, e.g. , Ellsworth, The Landholder, VII (1787), in Essays on the Constitution of the United States 167–171 (P. Ford ed. 1892); Webster, On Test Laws, Oaths of Allegiance and Abjuration, and Partial Exclusions from Office, in A Collection of Essays and Fugitiv[e] Writings 151–153 (1790). 9 Justice Powell’s separate opinion did invoke Pickering in a relevant sense, but he did so only to acknowledge the State’s relatively greater interest in regulating speech when it acts as employer than when it acts as sovereign. Abood v. Detroit Bd. of Ed. , 431 U. S. 209, 259 (1977) (concurring in judgment). In the very next sentence, he explained that “even in public employment, a significant impairment of First Amendment rights must survive exacting scrutiny.” Ibid. (internal quotation marks omitted). That is the test we apply today. 10 See Brief for State of Michigan et al. as Amici Curiae 9–24. Nationwide, the cost of state and local employees’ wages and benefits, for example, is nearly $1.5 trillion—more than half of those jurisdictions’ total expenditures. See Dept. of Commerce, Bureau of Economic Analysis, National Data, GDP & Personal Income, Table 6.2D, line 92 (Aug. 3, 2017), and Table 3.3, line 37 (May 30, 2018), https://www.bea.gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=2&isuri=1&1921=survey. And many States and cities struggle with unfunded pension and retiree healthcare liabilities and other budget issues. 11 PEW Charitable Trusts, Fiscal 50: State Trends and Analysis (updated May 17, 2016), http://www.pewtrusts.org/en/research-and-analysis/data-visualizations/2014/fiscal-50#ind4. 12 See Brief for Jason R. Barclay et al. as Amici Curiae 9; M. Egan, How Illinois Became America’s Most Messed-Up State, CNN Money (July 1, 2017), https://cnnmon.ie/2tp9NX5. 13 Brief for Jason R. Barclay et al. as Amici Curiae 9. 14 E. Campbell, S&P, Moody’s Downgrade Illinois to Near Junk, Lowest Ever for a U. S. State, Bloomberg (June 1, 2017), https://bloom.bg/2roEJUc. 15 See National Association of State Budget Officers, Summary: Spring 2018 Fiscal Survey of States 2 (June 14, 2018), http://www.nasbo.org; ProQuest Statistical Abstract of the United States: 2018, pp. 306, Table 476, 321, Table 489. 16 See Rogers, School Districts ‘Race to the Top’ Despite Teacher Dispute, Marin Independent J., June 19, 2010. 17 See Sawchuk, Transferring Top Teachers Has Benefits: Study Probes Moving Talent to Low-Performing Schools, Education Week, Nov. 13, 2013, pp. 1, 13. 18 See Tucker, Textbooks Equivocate on Global Warming: Stanford Study Finds Portrayal ‘Dishonest,’ San Francisco Chronicle, Nov. 24, 2015, p. C1. 19 See Reagan, Anti-Confederacy Movement Rekindles Texas Textbook Controversy, San Antonio Current, Aug. 4, 2015. 20 See Watanabe, How To Teach Gay Issues in 1st Grade? A New Law Requiring California Schools To Have Lessons About LGBT Americans Raises Tough Questions, L. A. Times, Oct. 16, 2011, p. A1. 21 See Goodstein, A Web of Faith, Law and Science in Evolution Suit, N. Y. Times, Sept. 26, 2005, p. A1. 22 See Golden, Defending the Faith: New Battleground in Textbook Wars: Religion in History, Wall St. J., Jan. 25, 2006, p. A1. 23 Claiming that our decision will hobble government operations, the dissent asserts that it would prevent a government employer from taking action against disruptive non-unionized employees in two carefully constructed hypothetical situations. See post , at 17–18. Both hypotheticals are short on potentially important details, but in any event, neither would be affected by our decision in this case. Rather, both would simply call for the application of the standard Pickering test. In one of the hypotheticals, teachers “protest merit pay in the school cafeteria.” Post , at 17. If such a case actually arose, it would be important to know, among other things, whether the teachers involved were supposed to be teaching in their classrooms at the time in question and whether the protest occurred in the presence of students during the student lunch period. If both those conditions were met, the teachers would presumably be violating content-neutral rules regarding their duty to teach at specified times and places, and their conduct might well have a disruptive effect on the educational process. Thus, in the dissent’s hypothetical, the school’s interests might well outweigh those of the teachers, but in this hypothetical case, as in all Pickering cases, the particular facts would be very important. In the other hypothetical, employees agitate for a better health plan “at various inopportune times and places.” Post , at 17. Here, the lack of factual detail makes it impossible to evaluate how the Pickering balance would come out. The term “agitat[ion]” can encompass a wide range of conduct, as well as speech. Post , at 17. And the time and place of the agitation would also be important. 24 No First Amendment issue could have properly arisen in those cases unless Congress’s enactment of a provision allowing, but not requiring, private parties to enter into union-shop arrangements was sufficient to establish governmental action. That proposition was debatable when Abood was decided, and is even more questionable today. See American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U. S. 40, 53 (1999); Jackson v. Metropolitan Edison Co. , 419 U. S. 345, 357 (1974). Compare, e.g. , White v. Communications Workers of Am., AFL–CIO, Local 13000 , 370 F. 3d 346, 350 (CA3 2004) (no state action), and Kolinske v. Lubbers , 712 F. 2d 471, 477–478 (CADC 1983) (same), with Beck v. Communications Workers of Am. , 776 F. 2d 1187, 1207 (CA4 1985) (state action), and Linscott v. Millers Falls Co. , 440 F. 2d 14, 16, and n. 2 (CA1 1971) (same). We reserved decision on this question in Communications Workers v. Beck , 487 U. S. 735, 761 (1988), and do not resolve it here. 25 Contrary to the dissent’s claim, see post , at 19, and n. 4, the fact that “[t]he rationale of [ Abood ] does not withstand careful analysis” is a reason to overrule it, e.g. , Lawrence v. Texas , 539 U. S. 558, 577 (2003). And that is even truer when, as here, the defenders of the precedent do not attempt to “defend [its actual] reasoning.” Citizens United v. Federal Election Comm’n , 558 U. S. 310, 363 (2010); id. , at 382–385 (Roberts, C. J., concurring). 26 For this reason, it is hardly surprising that chargeability issues have not arisen in many Court of Appeals cases. See post , at 22 (Kagan, J., dissenting). 27 The dissent emphasizes another type of reliance, namely, that “[o]ver 20 States have by now enacted statutes authorizing [agency-fee] provisions.” Post , at 23. But as we explained in Citizens United , “[t]his is not a compelling interest for stare decisis . If it were, legislative acts could prevent us from overruling our own precedents, thereby interfering with our duty ‘to say what the law is.’ ” 558 U. S., at 365 (quoting Marbury v. Madison , 1 Cranch 137, 177 (1803)). Nor does our decision “ ‘require an extensive legislative response.’ ” Post , at 23. States can keep their labor-relations systems exactly as they are—only they cannot force nonmembers to subsidize public-sector unions. In this way, these States can follow the model of the federal government and 28 other States. 28 Unfortunately, the dissent sees the need to resort to accusations that we are acting like “black-robed rulers” who have shut down an “energetic policy debate.” Post , at 27–28. We certainly agree that judges should not “overrid[e] citizens’ choices” or “pick the winning side,” ibid. —unless the Constitution commands that they do so. But when a federal or state law violates the Constitution, the American doctrine of judicial review requires us to enforce the Constitution. Here, States with agency-fee laws have abridged fundamental free speech rights. In holding that these laws violate the Constitution, we are simply enforcing the First Amendment as properly understood, “[t]he very purpose of [which] was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 638 (1943). SUPREME COURT OF THE UNITED STATES _________________ No. 16–1466 _________________ MARK JANUS, PETITIONER v. AMERICAN FEDER- ATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 27, 2018] Justice Sotomayor, dissenting. I join Justice Kagan’s dissent in full. Although I joined the majority in Sorrell v. IMS Health Inc. , 564 U. S. 552 (2011), I disagree with the way that this Court has since interpreted and applied that opinion. See, e.g., National Institute of Family and Life Advocates v. Becerra , ante, p. ___. Having seen the troubling development in First Amendment jurisprudence over the years, both in this Court and in lower courts, I agree fully with Justice Kagan that Sorrell —in the way it has been read by this Court—has allowed courts to “wiel[d] the First Amendment in . . . an aggressive way” just as the majority does today. Post, at 27. SUPREME COURT OF THE UNITED STATES _________________ No. 16–1466 _________________ MARK JANUS, PETITIONER v. AMERICAN FEDER- ATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 31, et al. on writ of certiorari to the united states court of appeals for the seventh circuit [June 27, 2018] Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting. For over 40 years, Abood v. Detroit Bd. of Ed. , 431 U. S. 209 (1977), struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper. Under that decision, a government entity could require public employees to pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of employment. But no part of that fair-share payment could go to any of the union’s political or ideological activities. That holding fit comfortably with this Court’s general framework for evaluating claims that a condition of public employment violates the First Amendment. The Court’s decisions have long made plain that government entities have substantial latitude to regulate their employees’ speech—especially about terms of employment—in the interest of operating their workplaces effectively. Abood allowed governments to do just that. While protecting public employees’ expression about non-workplace matters, the decision enabled a government to advance important managerial interests—by ensuring the presence of an exclusive employee representative to bargain with. Far from an “anomaly,” ante, at 7, the Abood regime was a paradigmatic example of how the government can regulate speech in its capacity as an employer. Not any longer. Today, the Court succeeds in its 6-year campaign to reverse Abood . See Friedrichs v. California Teachers Assn. , 578 U. S. ___ (2016) ( per curiam ); Harris v. Quinn , 573 U. S. ___ (2014); Knox v. Service Employees , 567 U. S. 298 (2012). Its decision will have large-scale consequences. Public employee unions will lose a secure source of financial support. State and local governments that thought fair-share provisions furthered their interests will need to find new ways of managing their workforces. Across the country, the relationships of public employees and employers will alter in both predictable and wholly unexpected ways. Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard for the usual principles of stare decisis . There are no special justifications for reversing Abood. It has proved workable. No recent developments have eroded its underpinnings. And it is deeply entrenched, in both the law and the real world. More than 20 States have statutory schemes built on the decision. Those laws underpin thousands of ongoing contracts involving millions of employees. Reliance interests do not come any stronger than those surrounding Abood . And likewise, judicial disruption does not get any greater than what the Court does today. I respectfully dissent. I I begin with Abood , the 41-year-old precedent the majority overrules. That case involved a union that had been certified as the exclusive representative of Detroit’s public school teachers. The union’s collective-bargaining agreement with the city included an “agency shop” clause, which required teachers who had not joined the union to pay it “a service charge equal to the regular dues required of [u]nion members.” Abood , 431 U. S., at 212. A group of non-union members sued over that clause, arguing that it violated the First Amendment. In considering their challenge, the Court canvassed the purposes of the “agency shop” clause. It was rooted, the Court understood, in the “principle of exclusive union representation”—a “central element” in “industrial relations” since the New Deal. Id., at 220. Significant benefits, the Court explained, could derive from the “designation of a single [union] representative” for all similarly situated employees in a workplace. Ibid. In particular, such arrangements: “avoid[ ] the confusion that would result from attempting to enforce two or more agreements specifying different terms and conditions of employment”; “prevent[ ] inter-union rivalries from creating dissension within the work force”; “free[ ] the employer from the possibility of facing conflicting demands from different unions”; and “permit[ ] the employer and a single union to reach agreements and settlements that are not subject to attack from rival labor organizations.” Id., at 220–221. As proof, the Court pointed to the example of exclusive-representation arrangements in the private-employment sphere: There, Congress had long thought that such schemes would promote “peaceful labor relations” and “labor stability.” Id., at 219, 229. A public employer like Detroit, the Court believed, could reasonably make the same calculation. But for an exclusive-bargaining arrangement to work, such an employer often thought, the union needed adequate funding. Because the “designation of a union as exclusive representative carries with it great responsibilities,” the Court reasoned, it inevitably also entails substantial costs. Id., at 221. “The tasks of negotiating and administering a collective-bargaining agreement and representing the interests of employees in settling disputes and processing grievances are continuing and difficult ones.” Ibid. Those activities, the Court noted, require the “expenditure of much time and money”—for example, payment for the “services of lawyers, expert negotiators, economists, and a research staff.” Ibid. And there is no way to confine the union’s services to union members alone (and thus to trim costs) because unions must by law fairly represent all employees in a given bargaining unit—union members and non-members alike. See ibid. With all that in mind, the Court recognized why both a government entity and its union bargaining partner would gravitate toward an agency-fee clause. Those fees, the Court reasoned, “distribute fairly the cost” of collective bargaining “among those who benefit”—that is, all employees in the work unit. Id., at 222. And they “counteract[ ] the incentive that employees might otherwise have to become ‘free riders.’ ” Ibid. In other words, an agency-fee provision prevents employees from reaping all the “benefits of union representation”—higher pay, a better retirement plan, and so forth—while leaving it to others to bear the costs. Ibid. To the Court, the upshot was clear: A government entity could reasonably conclude that such a clause was needed to maintain the kind of exclusive bargaining arrangement that would facilitate peaceful and stable labor relations. But the Court acknowledged as well the “ First Amendment interests” of dissenting employees. Ibid. It recognized that some workers might oppose positions the union takes in collective bargaining, or even “unionism itself.” Ibid. And still more, it understood that unions often advance “political and ideological” views outside the collective-bargaining context—as when they “contribute to political candidates.” Id., at 232, 234. Employees might well object to the use of their money to support such “ideological causes.” Id., at 235. So the Court struck a balance, which has governed this area ever since. On the one hand, employees could be required to pay fees to support the union in “collective bargaining, contract administration, and grievance adjustment.” Id., at 225–226. There, the Court held, the “important government interests” in having a stably funded bargaining partner justify “the impingement upon” public employees’ expression. Id., at 225. But on the other hand, employees could not be compelled to fund the union’s political and ideological activities. Outside the collective-bargaining sphere, the Court determined, an employee’s First Amendment rights defeated any conflicting government interest. See id., at 234–235. II Unlike the majority, I see nothing “questionable” about Abood ’s analysis. Ante, at 7 (quoting Harris , 573 U. S., at ___ (slip op., at 17)). The decision’s account of why some government entities have a strong interest in agency fees (now often called fair-share fees) is fundamentally sound. And the balance Abood struck between public employers’ interests and public employees’ expression is right at home in First Amendment doctrine. A Abood ’s reasoning about governmental interests has three connected parts. First, exclusive representation arrangements benefit some government entities because they can facilitate stable labor relations. In particular, such arrangements eliminate the potential for inter-union conflict and streamline the process of negotiating terms of employment. See 431 U. S., at 220–221. Second, the government may be unable to avail itself of those benefits unless the single union has a secure source of funding. The various tasks involved in representing employees cost money; if the union doesn’t have enough, it can’t be an effective employee representative and bargaining partner. See id. , at 221. And third, agency fees are often needed to ensure such stable funding. That is because without those fees, employees have every incentive to free ride on the union dues paid by others. See id. , at 222. The majority does not take issue with the first point. See ante, at 33 (It is “not disputed that the State may require that a union serve as exclusive bargaining agent for its employees” in order to advance the State’s “interests as an employer”). The majority claims that the second point never appears in Abood , but is willing to assume it for the sake of argument. See ante, at 31–32; but see Abood , 431 U. S., at 221 (The tasks of an exclusive representative “often entail expenditure of much time and money”). So the majority stakes everything on the third point—the conclusion that maintaining an effective system of exclusive representation often entails agency fees. Ante , at 12 (It “is simply not true” that exclusive representation and agency fees are “inextricably linked”); see ante, at 14. But basic economic theory shows why a government would think that agency fees are necessary for exclusive representation to work. What ties the two together, as Abood recognized, is the likelihood of free-riding when fees are absent. Remember that once a union achieves exclusive-representation status, the law compels it to fairly represent all workers in the bargaining unit, whether or not they join or contribute to the union. See supra, at 4. Because of that legal duty, the union cannot give special advantages to its own members. And that in turn creates a collective action problem of nightmarish proportions. Everyone—not just those who oppose the union, but also those who back it—has an economic incentive to withhold dues; only altruism or loyalty—as against financial self-interest—can explain why an employee would pay the union for its services. And so emerged Abood ’s rule allowing fair-share agreements: That rule ensured that a union would receive sufficient funds, despite its legally imposed disability, to effectively carry out its duties as exclusive representative of the government’s employees. The majority’s initial response to this reasoning is simply to dismiss it. “[F]ree rider arguments,” the majority pronounces, “are generally insufficient to overcome First Amendment objections.” Ante, at 13 (quoting Knox , 567 U. S., at 311). “To hold otherwise,” it continues, “would have startling consequences” because “[m]any private groups speak out” in ways that will “benefit[ ] nonmembers.” Ante, at 13 . But that disregards the defining characteristic of this free-rider argument—that unions, unlike those many other private groups, must serve members and non-members alike. Groups advocating for “senior citizens or veterans” (to use the majority’s examples) have no legal duty to provide benefits to all those individuals: They can spur people to pay dues by conferring all kinds of special advantages on their dues-paying members. Unions are—by law—in a different position, as this Court has long recognized. See, e.g., Machinists v. Street , 367 U. S. 740, 762 (1961). Justice Scalia, responding to the same argument as the majority’s, may have put the point best. In a way that is true of no other private group, the “law requires the union to carry” non-members—“indeed, requires the union to go out of its way to benefit [them], even at the expense of its other interests.” Lehnert v. Ferris Faculty Assn. , 500 U. S. 507, 556 (1991) (opinion concurring in part and dissenting in part). That special feature was what justified Abood : “Where the state imposes upon the union a duty to deliver services, it may permit the union to demand reimbursement for them.” 500 U. S., at 556. The majority’s fallback argument purports to respond to the distinctive position of unions, but still misses Abood ’s economic insight. Here, the majority delivers a four-page exegesis on why unions will seek to serve as an exclusive bargaining representative even “if they are not given agency fees.” Ante, at 14; see ante, at 14–17. The gist of the account is that “designation as the exclusive representative confers many benefits,” which outweigh the costs of providing services to non-members. Ante, at 15. But that response avoids the key question, which is whether unions without agency fees will be able to (not whether they will want to ) carry on as an effective exclusive representative. And as to that question, the majority again fails to reckon with how economically rational actors behave—in public as well as private workplaces. Without a fair-share agreement, the class of union non-members spirals upward. Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. See Ichniowski & Zax, Right-to-Work Laws, Free Riders, and Unionization in the Local Public Sector, 9 J. Labor Economics 255, 257 (1991).[ 1 ] And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations. Of course, not all public employers will share that view. Some would rather not bargain with an exclusive representative. Others would prefer that representative to be poorly funded—to serve more as a front than an effectual bargaining partner. But as reflected in the number of fair-share statutes and contracts across the Nation, see supra, at 2, many government entities think that effective exclusive representation makes for good labor relations—and recognize, just as Abood did, that representation of that kind often depends on agency fees. See, e.g., Harris , 573 U. S., at ___ (slip op., at 24) (Kagan, J., dissenting) (describing why Illinois thought that bargaining with an adequately funded exclusive representative of in-home caregivers would enable the State to better serve its dis- abled citizens). Abood respected that state interest; today’s majority fails even to understand it. Little wonder that the majority’s First Amendment analysis, which involves assessing the government’s reasons for imposing agency fees, also comes up short. B 1 In many cases over many decades, this Court has addressed how the First Amendment applies when the government, acting not as sovereign but as employer, limits its workers’ speech. Those decisions have granted substantial latitude to the government, in recognition of its significant interests in managing its workforce so as to best serve the public. Abood fit neatly with that caselaw, in both reasoning and result. Indeed, its reversal today creates a significant anomaly—an exception, applying to union fees alone, from the usual rules governing public employees’ speech. “Time and again our cases have recognized that the Government has a much freer hand” in dealing with its employees than with “citizens at large.” NASA v. Nelson , 562 U. S. 134, 148 (2011) (internal quotation marks omitted). The government, we have stated, needs to run “as effectively and efficiently as possible.” Engquist v. Oregon Dept. of Agriculture , 553 U. S. 591, 598 (2008) (internal quotation marks omitted). That means it must be able, much as a private employer is, to manage its workforce as it thinks fit. A public employee thus must submit to “certain limitations on his or her freedom.” Garcetti v. Ceballos , 547 U. S. 410, 418 (2006). Government workers, of course, do not wholly “lose their constitutional rights when they accept their positions.” Engquist , 553 U. S., at 600. But under our precedent, their rights often yield when weighed “against the realities of the employment context.” Ibid. If it were otherwise—if every employment decision were to “bec[o]me a constitutional matter”—“the Government could not function.” NASA , 562 U. S., at 149 (internal quotation marks omitted). Those principles apply with full force when public employees’ expressive rights are at issue. As we have explained: “Government employers, like private employers, need a significant degree of control over their employees’ words” in order to “efficient[ly] provi[de] public services.” Garcetti , 547 U. S., at 418. Again, significant control does not mean absolute authority. In particular, the Court has guarded against government efforts to “leverage the employment relationship” to shut down its employees’ speech as private citizens. Id., at 419. But when the government imposes speech restrictions relating to workplace operations, of the kind a private employer also would, the Court reliably upholds them. See, e.g., id. , at 426; Connick v. Myers , 461 U. S. 138, 154 (1983). In striking the proper balance between employee speech rights and managerial interests, the Court has long applied a test originating in Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty. , 391 U. S. 563 (1968). That case arose out of an individual employment action: the firing of a public school teacher. As we later described the Pickering inquiry , the Court first asks whether the employee “spoke as a citizen on a matter of public concern.” Garcetti , 547 U. S., at 418. If she did not—but rather spoke as an employee on a workplace matter—she has no “possibility of a First Amendment claim”: A public employer can curtail her speech just as a private one could. Ibid. But if she did speak as a citizen on a public matter, the public employer must demonstrate “an adequate justification for treating the employee differently from any other member of the general public.” Ibid. The government, that is, needs to show that legitimate workplace interests lay behind the speech regulation. Abood coheres with that framework. The point here is not, as the majority suggests, that Abood is an overt, one-to-one “application of Pickering .” Ante, at 26. It is not. Abood related to a municipality’s labor policy, and so the Court looked to prior cases about unions, not to Pickering ’s analysis of an employee’s dismissal. (And truth be told, Pickering was not at that time much to look at: What the Court now thinks of as the two-step Pickering test, as the majority’s own citations show, really emerged from Garcetti and Connick —two cases post-dating Abood . See ante, at 22.)[ 2 ] But Abood and Pickering raised variants of the same basic issue: the extent of the government’s authority to make employment decisions affecting expression. And in both, the Court struck the same basic balance, enabling the government to curb speech when—but only when—the regulation was designed to protect its managerial interests. Consider the parallels: Like Pickering , Abood drew the constitutional line by analyzing the connection between the government’s managerial interests and different kinds of expression. The Court first discussed the use of agency fees to subsidize the speech involved in “collective bargaining, contract administration, and grievance adjustment.” 431 U. S., at 225–226. It understood that expression (really, who would not?) as intimately tied to the workplace and employment relationship. The speech was about “working conditions, pay, discipline, promotions, leave, vacations, and terminations,” Borough of Duryea v. Guarnieri , 564 U. S. 379, 391 (2011); the speech occurred (almost always) in the workplace; and the speech was directed (at least mainly) to the employer. As noted earlier, Abood described the managerial interests of employers in channeling all that speech through a single union. See 431 U. S., at 220–222, 224–226; supra, at 3. And so Abood allowed the government to mandate fees for collective bargaining—just as Pickering permits the government to regulate employees’ speech on similar workplace matters. But still, Abood realized that compulsion could go too far. The Court barred the use of fees for union speech supporting political candidates or “ideological causes.” 431 U. S., at 235. That speech, it understood, was “unrelated to [the union’s] duties as exclusive bargaining representative,” but instead was directed at the broader public sphere. Id., at 234. And for that reason, the Court saw no legitimate managerial interests in compelling its subsidization. The employees’ First Amendment claims would thus prevail—as, again, they would have under Pickering . Abood thus dovetailed with the Court’s usual attitude in First Amendment cases toward the regulation of public employees’ speech. That attitude is one of respect—even solicitude—for the government’s prerogatives as an employer. So long as the government is acting as an employer—rather than exploiting the employment relationship for other ends—it has a wide berth, comparable to that of a private employer. And when the regulated expression concerns the terms and conditions of employment—the very stuff of the employment relationship—the government really cannot lose. There, managerial interests are obvious and strong. And so government employees are . . . just employees, even though they work for the government. Except that today the government does lose, in a first for the law. Now, the government can constitutionally adopt all policies regulating core workplace speech in pursuit of managerial goals—save this single one. 2 The majority claims it is not making a special and unjustified exception. It offers two main reasons for declining to apply here our usual deferential approach, as exemplified in Pickering , to the regulation of public employee speech. First, the majority says, this case involves a “blanket” policy rather than an individualized employment decision, so Pickering is a “painful fit.” Ante, at 23. Second, the majority asserts, the regulation here involves compelling rather than restricting speech, so the pain gets sharper still. See ante , at 24–25. And finally, the majority claims that even under the solicitous Pickering standard, the government should lose, because the speech here involves a matter of public concern and the government’s managerial interests do not justify its regulation. See ante, at 27–31. The majority goes wrong at every turn. First, this Court has applied the same basic approach whether a public employee challenges a general policy or an individualized decision. Even the majority must concede that “we have sometimes looked to Pickering in considering general rules that affect broad categories of employees.” Ante, at 23. In fact, the majority cannot come up with any case in which we have not done so. All it can muster is one case in which while applying the Pickering test to a broad rule—barring any federal employee from accepting any payment for any speech or article on any topic—the Court noted that the policy’s breadth would count against the government at the test’s second step. See United States v. Treasury Employees , 513 U. S. 454 (1995). Which is completely predictable. The inquiry at that stage, after all, is whether the government has an employment-related interest in going however far it has gone—and in Treasury Employees , the government had indeed gone far. (The Court ultimately struck down the rule because it applied to speech in which the government had no identifiable managerial interest. See id., at 470, 477.) Nothing in Treasury Employees suggests that the Court defers only to ad hoc actions, and not to general rules, about public employee speech. That would be a perverse regime, given the greater regularity of rulemaking and the lesser danger of its abuse. So I would wager a small fortune that the next time a general rule governing public employee speech comes before us, we will dust off Pickering . Second, the majority’s distinction between compelling and restricting speech also lacks force. The majority posits that compelling speech always works a greater injury, and so always requires a greater justification. See ante, at 8. But the only case the majority cites for that reading of our precedent is possibly (thankfully) the most exceptional in our First Amendment annals: It involved the state forcing children to swear an oath contrary to their religious beliefs. See ibid. (quoting West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624 (1943)). Regulations challenged as compelling expression do not usually look anything like that—and for that reason, the standard First Amendment rule is that the “difference between compelled speech and compelled silence” is “without constitutional significance.” Riley v. National Federation of Blind of N. C., Inc. , 487 U. S. 781, 796 (1988); see Wooley v. Maynard , 430 U. S. 705, 714 (1977) (referring to “[t]he right to speak and the right to refrain from speaking” as “complementary components” of the First Amendment). And if anything, the First Amendment scales tip the opposite way when (as here) the government is not compelling actual speech, but instead compelling a subsidy that others will use for expression. See Brief for Eugene Volokh et al. as Amici Curiae 4–5 (offering many examples to show that the First Amendment “simply do[es] not guarantee that one’s hard-earned dollars will never be spent on speech one disapproves of”).[ 3 ] So when a government mandates a speech subsidy from a public employee—here, we might think of it as levying a tax to support collective bargaining—it should get at least as much deference as when it restricts the employee’s speech. As this case shows, the former may advance a managerial interest as well as the latter—in which case the government’s “freer hand” in dealing with its employees should apply with equal (if not greater) force. NASA , 562 U. S., at 148. Third and finally, the majority errs in thinking that under the usual deferential approach, the government should lose this case. The majority mainly argues here that, at Pickering ’s first step, “union speech in collective bargaining” is a “matter of great public concern” because it “affect[s] how public money is spent” and addresses “other important matters” like teacher merit pay or tenure. Ante, at 27, 29 (internal quotation marks omitted). But to start, the majority misunderstands the threshold inquiry set out in Pickering and later cases. The question is not, as the majority seems to think, whether the public is, or should be, interested in a government employee’s speech. Instead, the question is whether that speech is about and directed to the workplace—as contrasted with the broader public square. Treasury Employees offers the Court’s fullest explanation. The Court held there that the government’s policy prevented employees from speaking as “citizen[s]” on “matters of public concern.” 513 U. S., at 466 (quoting Pickering , 391 U. S., at 568). Why? Because the speeches and articles “were addressed to a public audience, were made outside the workplace, and involved content largely unrelated to their Government employment.” 513 U. S., at 466; see id., at 465, 470 (repeating that analysis twice more). The Court could not have cared less whether the speech at issue was “important.” Ante, at 29. It instead asked whether the speech was truly of the workplace—addressed to it, made in it, and (most of all) about it. Consistent with that focus, speech about the terms and conditions of employment—the essential stuff of collective bargaining—has never survived Pickering ’s first step. This Court has rejected all attempts by employees to make a “federal constitutional issue” out of basic “employment matters, including working conditions, pay, discipline, promotions, leave, vacations, and terminations.” Guarnieri , 564 U. S., at 391; see Board of Comm’rs, Wabaunsee Cty. v. Umbehr , 518 U. S. 668, 675 (1996) (stating that public employees’ “speech on merely private employment matters is unprotected”). For that reason, even the Justices who originally objected to Abood conceded that the use of agency fees for bargaining on “economic issues” like “salaries and pension benefits” would not raise significant First Amendment questions. 431 U. S., at 263, n. 16 (Powell, J., concurring in judgment). Of course, most of those issues have budgetary consequences: They “affect[ ] how public money is spent.” Ante, at 29. And some raise important non-budgetary disputes; teacher merit pay is a good example, see ante, at 30. But arguing about the terms of employment is still arguing about the terms of employment: The workplace remains both the context and the subject matter of the expression. If all that speech really counted as “of public concern,” as the majority suggests, the mass of public employees’ complaints (about pay and benefits and workplace policy and such) would become “federal constitutional issue[s].” Guarnieri , 564 U. S., at 391. And contrary to decades’ worth of precedent, government employers would then have far less control over their workforces than private employers do. See supra, at 9–11. Consider an analogy, not involving union fees: Suppose a government entity disciplines a group of (non-unionized) employees for agitating for a better health plan at various inopportune times and places. The better health plan will of course drive up public spending; so according to the majority’s analysis, the employees’ speech satisfies Pickering ’s “public concern” test. Or similarly, suppose a public employer penalizes a group of (non-unionized) teachers who protest merit pay in the school cafeteria. Once again, the majority’s logic runs, the speech is of “public concern,” so the employees have a plausible First Amendment claim. (And indeed, the majority appears to concede as much, by asserting that the results in these hypotheticals should turn on various “factual detail[s]” relevant to the interest balancing that occurs at the Pickering test’s second step. Ante, at 32, n. 23.) But in fact, this Court has always understood such cases to end at Pickering ’s first step: If an employee’s speech is about, in, and directed to the workplace, she has no “possibility of a First Amendment claim.” Garcetti , 547 U. S., at 418; see supra, at 11. So take your pick. Either the majority is exposing government entities across the country to increased First Amendment litigation and liability—and thus preventing them from regulating their workforces as private employers could. Or else, when actual cases of this kind come around, we will discover that today’s majority has crafted a “unions only” carve-out to our employee-speech law. What’s more, the government should prevail even if the speech involved in collective bargaining satisfies Pickering ’s first part. Recall that the next question is whether the government has shown “an adequate justification for treating the employee differently from any other member of the general public.” Garcetti , 547 U. S., at 418; supra, at 11. That inquiry is itself famously respectful of government interests. This Court has reversed the government only when it has tried to “leverage the employment relationship” to achieve an outcome unrelated to the workplace’s “effective functioning.” Garcetti , 547 U. S., at 419; Rankin v. McPherson , 483 U. S. 378, 388 (1987). Nothing like that is true here. As Abood described, many government entities have found agency fees the best way to ensure a stable and productive relationship with an exclusive bargaining agent. See 431 U. S., at 220–221, 224–226; supra, at 3–4. And here, Illinois and many governmental amici have explained again how agency fees advance their workplace goals. See Brief for State Respondents 12, 36; Brief for Governor Tom Wolf et al. as Amici Curiae 21–33. In no other employee-speech case has this Court dismissed such work-related interests, as the majority does here. See supra, at 6–9 (discussing the majority’s refusal to engage with the logic of the State’s position). Time and again, the Court has instead respected and acceded to those interests—just as Abood did. The key point about Abood is that it fit naturally with this Court’s consistent teaching about the permissibility of regulating public employees’ speech. The Court allows a government entity to regulate that expression in aid of managing its workforce to effectively provide public services. That is just what a government aims to do when it enforces a fair-share agreement. And so, the key point about today’s decision is that it creates an unjustified hole in the law, applicable to union fees alone. This case is sui generis among those addressing public employee speech—and will almost surely remain so. III But the worse part of today’s opinion is where the majority subverts all known principles of stare decisis . The majority makes plain, in the first 33 pages of its decision, that it believes Abood was wrong.[ 4 ] But even if that were true (which it is not), it is not enough. “Respecting stare decisis means sticking to some wrong decisions.” Kimble v. Marvel Entertainment, LLC , 576 U. S. ___, ___ (2015) (slip op., at 7). Any departure from settled precedent (so the Court has often stated) demands a “special justification—over and above the belief that the precedent was wrongly decided.” Id., at ___ (slip op., at 8) (internal quotation marks omitted); see, e.g., Arizona v. Rumsey , 467 U. S. 203, 212 (1984). And the majority does not have anything close. To the contrary: all that is “special” in this case—especially the massive reliance interests at stake—demands retaining Abood , beyond even the normal precedent. Consider first why these principles about precedent are so important. Stare decisis —“the idea that today’s Court should stand by yesterday’s decisions”—is “a foundation stone of the rule of law.” Kimble, 576 U. S., at ___ (slip op., at 7) (quoting Michigan v. Bay Mills Indian Community , 572 U. S. ___, ___ (2014) (slip op., at 15)). It “promotes the evenhanded, predictable, and consistent development” of legal doctrine. Payne v. Tennessee , 501 U. S. 808, 827 (1991). It fosters respect for and reliance on judicial decisions. See ibid. And it “contributes to the actual and perceived integrity of the judicial process,” ibid. , by ensuring that decisions are “founded in the law rather than in the proclivities of individuals,” Vasquez v. Hillery , 474 U. S. 254, 265 (1986). And Abood is not just any precedent: It is embedded in the law (not to mention, as I’ll later address, in the world) in a way not many decisions are. Over four decades, this Court has cited Abood favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot). See, e.g., Locke v. Karass , 555 U. S. 207, 213–214 (2009); Lehnert , 500 U. S., at 519; Teachers v. Hudson , 475 U. S. 292, 301–302 (1986); Ellis v. Railway Clerks , 466 U. S. 435, 455–457 (1984). Reviewing those decisions not a decade ago, this Court—unanimously—called the Abood rule “a general First Amendment principle.” Locke , 555 U. S., at 213. And indeed, the Court has relied on that rule when deciding cases involving compelled speech subsidies outside the labor sphere—cases today’s decision does not question. See, e.g., Keller v. State Bar of Cal. , 496 U. S. 1, 9–17 (1990) (state bar fees); Board of Regents of Univ. of Wis. System v. Southworth , 529 U. S. 217, 230–232 (2000) (public university student fees); Glickman v. Wileman Brothers & Elliott, Inc. , 521 U. S. 457, 471–473 (1997) (commercial advertising assessments); see also n. 3, supra . Ignoring our repeated validation of Abood , the majority claims it has become “an outlier among our First Amendment cases.” Ante, at 42. That claim fails most spectacularly for reasons already discussed: Abood coheres with the Pickering approach to reviewing regulation of public employees’ speech. See supra, at 11–13. Needing to stretch further, the majority suggests that Abood conflicts with “our political patronage decisions.” Ante, at 44. But in fact those decisions strike a balance much like Abood ’s. On the one hand, the Court has enabled governments to compel policymakers to support a political party, because that requirement (like fees for collective bargaining) can reasonably be thought to advance the interest in workplace effectiveness. See Elrod v. Burns , 427 U. S. 347, 366–367 (1976); Branti v. Finkel , 445 U. S. 507, 517 (1980). On the other hand, the Court has barred governments from extending that rule to non-policymaking employees because that application (like fees for political campaigns) can’t be thought to promote that interest, see Elrod, 427 U. S., at 366; the government is instead trying to “leverage the employment relationship” to achieve other goals, Garcetti , 547 U. S., at 419. So all that the majority has left is Knox and Harris . See ante, at 43. Dicta in those recent decisions indeed began the assault on Abood that has culminated today. But neither actually addressed the extent to which a public employer may regulate its own employees’ speech. Relying on them is bootstrapping—and mocking stare decisis . Don’t like a decision? Just throw some gratuitous criticisms into a couple of opinions and a few years later point to them as “special justifications.” The majority is likewise wrong to invoke “workability” as a reason for overruling Abood . Ante, at 38. Does Abood require drawing a line? Yes, between a union’s collective-bargaining activities and its political activities. Is that line perfectly and pristinely “precis[e],” as the majority demands? Ante, at 38. Well, not quite that—but as exercises of constitutional linedrawing go, Abood stands well above average. In the 40 years since Abood , this Court has had to resolve only a handful of cases raising questions about the distinction. To my knowledge, the circuit courts are not divided on any classification issue; neither are they issuing distress signals of the kind that sometimes prompt the Court to reverse a decision. See, e.g., Johnson v. United States, 576 U. S. ___ (2015) (overruling precedent because of frequent splits and mass confusion). And that tranquility is unsurprising: There may be some gray areas (there always are), but in the mine run of cases, everyone knows the difference between politicking and collective bargaining. The majority cites some disagreement in two of the classification cases this Court decided—as if non-unanimity among Justices were something startling. And it notes that a dissenter in one of those cases called the Court’s approach “malleable” and “not principled,” ante, at 39—as though those weren’t stock terms in dissenting vocabulary. See, e.g., Murr v. Wisconsin , 582 U. S. ___, ___ (2017) (Roberts, C. J., dissenting) (slip op., at 2); Dietz v. Bouldin , 579 U. S. ___, ___ (2016) (Thomas, J., dissenting) (slip op., at 1); Alabama Legislative Black Caucus v. Alabama , 575 U. S. ___, ___ (2015) (slip op., at 13) (Scalia, J., dissenting). As I wrote in Harris a few Terms ago: “If the kind of hand-wringing about blurry lines that the majority offers were enough to justify breaking with precedent, we might have to discard whole volumes of the U. S. Reports.” 573 U. S., at ___ (slip op., at 15). And in any event, one stare decisis factor—reliance—dominates all others here and demands keeping Abood . Stare decisis , this Court has held, “has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision.” Hilton v. South Carolina Public Railways Comm’n , 502 U. S. 197, 202 (1991). That is because overruling a decision would then “require an extensive legislative response” or “dislodge settled rights and expectations.” Ibid. Both will happen here: The Court today wreaks havoc on entrenched legislative and contractual arrangements. Over 20 States have by now enacted statutes authorizing fair-share provisions. To be precise, 22 States, the District of Columbia, and Puerto Rico—plus another two States for police and firefighter unions. Many of those States have multiple statutory provisions, with variations for different categories of public employees. See, e.g., Brief for State of California as Amicus Curiae 24–25. Every one of them will now need to come up with new ways—elaborated in new statutes—to structure relations between government employers and their workers. The majority responds, in a footnote no less, that this is of no proper concern to the Court. See ante, at 47, n. 27. But in fact, we have weighed heavily against “abandon[ing] our settled jurisprudence” that “[s]tate legislatures have relied upon” it and would have to “reexamine [and amend] their statutes” if it were overruled. Allied-Signal, Inc. v. Director, Div. of Taxation , 504 U. S. 768, 785 (1992); Hilton , 502 U. S., at 203. Still more, thousands of current contracts covering millions of workers provide for agency fees. Usually, this Court recognizes that “[c]onsiderations in favor of stare decisis are at their acme in cases involving property and contract rights.” Payne , 501 U. S., at 828. Not today. The majority undoes bargains reached all over the country.[ 5 ] It prevents the parties from fulfilling other commitments they have made based on those agreements. It forces the parties—immediately—to renegotiate once-settled terms and create new tradeoffs. It does so knowing that many of the parties will have to revise (or redo) multiple contracts simultaneously. (New York City, for example, has agreed to agency fees in 144 contracts with 97 public-sector unions. See Brief for New York City Municipal Labor Committee as Amicus Curiae 4.) It does so knowing that those renegotiations will occur in an environment of legal uncertainty, as state governments scramble to enact new labor legislation. See supra, at 23. It does so with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans. The majority asserts that no one should care much because the canceled agreements are “of rather short duration” and would “expire on their own in a few years’ time.” Ante, at 45, 46. But to begin with, that response ignores the substantial time and effort that state legislatures will have to devote to revamping their statutory schemes. See supra, at 23. And anyway, it misunderstands the nature of contract negotiations when the parties have a continuing relationship. The parties, in renewing an old collective-bargaining agreement, don’t start on an empty page. Instead, various “long-settled” terms—like fair-share provisions—are taken as a given. Brief for Governor Tom Wolf et al. 11; see Brief for New York City Sergeants Benevolent Assn. as Amicus Curiae 18. So the majority’s ruling does more than advance by a few years a future renegotiation (though even that would be significant). In most cases, it commands new bargaining over how to replace a term that the parties never expected to change. And not just new bargaining; given the interests at stake, complicated and possibly contentious bargaining as well. See Brief for Governor Tom Wolf et al. 11.[ 6 ] The majority, though, offers another reason for not worrying about reliance: The parties, it says, “have been on notice for years regarding this Court’s misgivings about Abood. ” Ante, at 45. Here, the majority proudly lays claim to its 6-year crusade to ban agency fees. In Knox , the majority relates, it described Abood as an “anomaly.” Ante, at 45 (quoting 567 U. S., at 311). Then, in Harris , it “cataloged Abood ’s many weaknesses.” Ante, at 45. Finally, in Friedrichs , “we granted a petition for certiorari asking us to” reverse Abood , but found ourselves equally divided. Ante, at 45. “During this period of time,” the majority concludes, public-sector unions “must have understood that the constitutionality of [an agency-fee] provision was uncertain.” Ibid . And so, says the majority, they should have structured their affairs accordingly. But that argument reflects a radically wrong understanding of how stare decisis operates. Justice Scalia once confronted a similar argument for “disregard[ing] reliance interests” and showed how antithetical it was to rule-of-law principles. Quill Corp. v. North Dakota , 504 U. S. 298, 320 (1992) (concurring opinion). He noted first what we always tell lower courts: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [they] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Id., at 321 (quoting Rodriguez de Quijas v. Shearson/ American Express, Inc. , 490 U. S. 477, 484 (1989); some alterations omitted). That instruction, Justice Scalia explained, was “incompatible” with an expectation that “private parties anticipate our overrulings.” 406 U. S., at 320. He concluded: “[R]eliance upon a square, unabandoned holding of the Supreme Court is always justifiable reliance.” Ibid. Abood ’s holding was square. It was unabandoned before today. It was, in other words, the law—however much some were working overtime to make it not. Parties, both unions and governments, were thus justified in relying on it. And they did rely, to an extent rare among our decisions. To dismiss the overthrowing of their settled expectations as entailing no more than some “adjustments” and “unpleasant transition costs,” ante, at 47, is to trivialize stare decisis. IV There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy. Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special justification,” Rumsey , 467 U. S., at 212—but the majority offers nothing like that here. In contrast to the vigor of its attack on Abood , the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The standard factors this Court considers when deciding to overrule a decision all cut one way. Abood ’s legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And Abood has generated enormous reliance interests. The majority has overruled Abood for no exceptional or special reason, but because it never liked the decision. It has overruled Abood because it wanted to. Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an energetic policy debate. Some state and local governments (and the constituents they serve) think that stable unions promote healthy labor relations and thereby improve the provision of services to the public. Other state and local governments (and their constituents) think, to the contrary, that strong unions impose excessive costs and impair those services. Americans have debated the pros and cons for many decades—in large part, by deciding whether to use fair-share arrangements. Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today, that healthy—that democratic—debate ends. The majority has adjudged who should prevail. Indeed, the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can follow the model of the federal government and 28 other States.” Ante, at 47, n. 27. And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. Today is not the first time the Court has wielded the First Amendment in such an aggressive way. See, e.g., National Institute of Family and Life Advocates v. Becerra , ante, p. ___ (invalidating a law requiring medical and counseling facilities to provide relevant information to users); Sorrell v. IMS Health Inc., 564 U. S. 552 (2011) (striking down a law that restricted pharmacies from selling various data). And it threatens not to be the last. Speech is everywhere—a part of every human activity (employment, health care, securities trading, you name it). For that reason, almost all economic and regulatory policy affects or touches speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’ choices. The First Amendment was meant for better things. It was meant not to undermine but to protect democratic governance—including over the role of public-sector unions. Notes 1 The majority relies on statistics from the federal workforce (where agency fees are unlawful) to suggest that public employees do not act in accord with economic logic. See ante, at 12. But first, many fewer federal employees pay dues than have voted for a union to represent them, indicating that free-riding in fact pervades the federal sector. See, e.g., R. Kearney & P. Mareschal, Labor Relations in the Public Sector 26 (5th ed. 2014). And second, that sector is not typical of other public workforces. Bargaining in the federal sphere is limited; most notably, it does not extend to wages and benefits. See Fort Stewart Schools v. FLRA , 495 U. S. 641, 649 (1990). That means union operating expenses are lower than they are elsewhere. And the gap further widens because the federal sector uses large, often national, bargaining units that provide unions with economies of scale. See Brief for International Brotherhood of Teamsters as Amicus Curiae 7. For those reasons, the federal workforce is the wrong place to look for meaningful empirical evidence on the issues here. 2 For those reasons, it is not surprising that the “categorization schemes” in Abood and Pickering are not precisely coterminous. Ante, at 25. The two cases are fraternal rather than identical twins—both standing for the proposition that the government receives great deference when it regulates speech as an employer rather than as a sovereign. See infra this page and 12–13. 3 That’s why this Court has blessed the constitutionality of compelled speech subsidies in a variety of cases beyond Abood , involving a variety of contexts beyond labor relations. The list includes mandatory fees imposed on state bar members (for professional expression); university students (for campus events); and fruit processors (for generic advertising). See Keller v. State Bar of Cal. , 496 U. S. 1, 14 (1990); Board of Regents of Univ. of Wis. System v. Southworth , 529 U. S. 217, 233 (2000); Glickman v. Wileman Brothers & Elliott, Inc. , 521 U. S. 457, 474 (1997); see also infra , at 20. 4 And then, after ostensibly turning to stare decisis , the majority spends another four pages insisting that Abood was “not well reasoned,” which is just more of the same. Ante, at 38; see ante, at 35–38. 5 Indeed, some agency-fee provisions, if canceled, could bring down entire contracts because they lack severability clauses. See ante, at 46 (noting that unions could have negotiated for that result); Brief for Governor Tom Wolf et al. as Amici Curiae 11. 6 In a single, cryptic sentence, the majority also claims that arguments about reliance “based on [ Abood ’s] clarity are misplaced” because Abood did not provide a “clear or easily applicable standard” to separate fees for collective bargaining from those for political activities. Ante, at 45. But to begin, the standard for separating those activities was clear and workable, as I have already shown. See supra, at 21–22. And in any event, the reliance Abood engendered was based not on the clarity of that line, but on the clarity of its holding that governments and unions could generally agree to fair-share arrangements.

The Supreme Court ruled that Illinois law, which forced public employees to subsidize a union even if they were not members, violated the free speech rights of non-members. The Court overruled a previous decision, Abood v. Detroit Board of Education, which allowed similar laws. The Court found that fundamental free speech rights were at stake and that Abood was poorly reasoned, leading to practical problems and abuse. The Court also noted that Abood was inconsistent with other First Amendment cases and had been undermined by more recent decisions.

Labor & Employment

Babb v. Wilkie

https://supreme.justia.com/cases/federal/us/589/18-882/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 18–882 _________________ NORIS BABB, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 6, 2020] Justice Alito delivered the opinion of the Court.[ 1 ]* The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88Stat. 74, 29 U. S. C. §633a(a), provides (with just a few exceptions) that “personnel actions” affecting individuals aged 40 and older “shall be made free from any discrimination based on age.” We are asked to decide whether this provision imposes liability only when age is a “but-for cause” of the personnel action in question. We hold that §633a(a) goes further than that. The plain meaning of the critical statutory language (“made free from any discrimination based on age”) demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate. I Noris Babb, who was born in 1960, is a clinical pharmacist at the U. S. Department of Veterans Affairs Medical Center in Bay Pines, Florida. Babb brought suit in 2014 against the Secretary of Veterans Affairs (hereinafter VA), claiming that she had been subjected to age and sex discrimination, as well as retaliation for engaging in activities protected by federal anti-discrimination law. Only her age-discrimination claims are now before us. Those claims center on the following personnel actions. First, in 2013, the VA took away Babb’s “advanced scope” designation, which had made her eligible for promotion on the Federal Government’s General Scale from a GS–12 to a GS–13.[ 2 ] Second, during this same time period, she was denied training opportunities and was passed over for positions in the hospital’s anticoagulation clinic. Third, in 2014, she was placed in a new position, and while her grade was raised to GS–13, her holiday pay was reduced. All these actions, she maintains, involved age discrimination, and in support of her claims, she alleges, among other things, that supervisors made a variety of age-related comments. The VA moved for summary judgment and offered non-discriminatory reasons for the challenged actions, and the District Court granted that motion. Evaluating each of Babb’s claims under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), the court found that Babb had established a prima facie case, that the Secretary had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. Babb appealed, contending that the District Court should not have used the McDonnell Douglas framework because it is not suited for “mixed motives” claims. She argued that under the terms of the ADEA’s federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. As a result, she explained that even if the VA’s proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part. The Eleventh Circuit panel that heard Babb’s appeal found that her argument was “foreclosed” by Circuit precedent but added that it might have agreed with her if it were “writing on a clean slate.” Babb v. Secretary , Dept. of Veterans Affairs , 743 Fed. Appx. 280, 287 (2018) (citing Trask v. Secretary , Dept. of Veterans Affairs , 822 F.3d 1179 (CA11 2016)). We granted certiorari, 588 U. S. ___ (2019), to resolve a Circuit split over the interpretation of §633a(a). II That provision of the ADEA states in relevant part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U. S. C. §633a(a). The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision. According to the Government, even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. This interpretation, the Government contends, follows both from the meaning of the statutory text and from the “default rule” that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct. See, e.g. , University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , 346–347 (2013). Babb interprets the provision differently. She maintains that its language prohibits any adverse consideration of age in the decision-making process. Accordingly, she argues proof that age was a but-for cause of a challenged employment decision is not needed. A Which interpretation is correct? To decide, we start with the text of the statute, see Gross v. FBL Financial Services , Inc. , 557 U.S. 167 , 175 (2009), and as it turns out, it is not necessary to go any further. The plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation of §633a(a). To explain the basis for our interpretation, we will first define the important terms in the statute and then consider how they relate to each other. 1 Section 633a(a) concerns “personnel actions,” and while the ADEA does not define this term, its meaning is easy to understand. The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a “personnel action” to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. See 5 U. S. C. §2302(a)(2)(A). That interpretation is consistent with the term’s meaning in general usage, and we assume that it has the same meaning under the ADEA. Under §633a(a), personnel actions must be made “free from” discrimination. The phrase “free from” means “untainted” or “[c]lear of (something which is regarded as objectionable).” Webster’s Third New International Dictionary 905 (def. 4(a)(2)) (1976); 4 Oxford English Dictionary 521 (def. 12) (1933); see also American Heritage Dictionary 524 (def. 5(a)) (1969) (defining “free” “used with from” as “[n]ot affected or restricted by a given condition or circumstance”); Random House Dictionary of the English Language 565 (def. 12) (1966) (defining “free” as “exempt or released from something specified that controls, restrains, burdens, etc.”). Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.[ 3 ] And as for “discrimination,” we assume that it carries its “ ‘normal definition,’ ” which is “ ‘differential treatment.’ ” Jackson v. Birm- ingham Bd. of Ed. , 544 U.S. 167 , 174 (2005). Under §633a(a), the type of discrimination forbidden is “discrimination based on age,” and “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Safeco Ins. Co. of America v. Burr , 551 U.S. 47 , 63 (2007); cf. Comcast Corp. v. National Assn. of African American-Owned Media , ante , at 6. Therefore, §633a(a) requires that age be a but-for cause of the discrimination alleged. What remains is the phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language, at 866. Thus, “shall be made” means “shall be produced,” etc. And the imperative mood, denoting a duty, see Black’s Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint. 2 So much for the individual terms used in §633a(a). What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, “based on age” is an adjectival phrase that modifies the noun “discrimination.” It does not modify “personnel actions.” The statute does not say that “it is unlawful to take personnel actions that are based on age”; it says that “personnel actions . . . shall be made free from any discrimination based on age.” §633a(a). As a result, age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself. Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made.” Ibid . Thus, “free from any discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination. This is the straightforward meaning of the terms of §633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. To see what this entails in practice, consider a simple example. Suppose that a decision-maker is trying to decide whether to promote employee A, who is 35 years old, or employee B, who is 55. Under the employer’s policy, candidates for promotion are first given numerical scores based on non-discriminatory factors. Candidates over the age of 40 are then docked five points, and the employee with the highest score is promoted. Based on the non-discriminatory factors, employee A (the 35-year-old) is given a score of 90, and employee B (the 55-year-old) gets a score of 85. But employee B is then docked 5 points because of age and thus ends up with a final score of 80. The decision-maker looks at the candidates’ final scores and, seeing that employee A has the higher score, promotes employee A. This decision is not “made” “free from any discrimination” because employee B was treated differently (and less favorably) than employee A (because she was docked five points and A was not). And this discrimination was “based on age” because the five points would not have been taken away were it not for employee B’s age. It is true that this difference in treatment did not affect the outcome, and therefore age was not a but-for cause of the decision to promote employee A. Employee A would have won out even if age had not been considered and employee B had not lost five points, since A’s score of 90 was higher than B’s initial, legitimate score of 85. But under the language of §633a(a), this does not preclude liability. The Government has no answer to this parsing of the statutory text. It makes two correct points: first, that “ ‘discrimination based on age’ ” “requires but-for causation,” and, second, that “ ‘discrimination’ ” means “ ‘ “differential treatment.” ’ ” Brief for Respondent 16–17. But based on these two points, the Government draws the unwarranted conclusion that “[i]t is thus not enough for a federal employer merely to consider age . . . if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger.” Id. , at 17. That conclusion does not follow from the two correct points on which it claims to be based. What follows instead is that, under §633a(a), age must be the but-for cause of differential treatment , not that age must be a but-for cause of the ultimate decision .[ 4 ] B The Government’s primary argument rests not on the text of §633a(a) but on prior cases interpreting different statutes. But contrary to the Government’s argument, nothing in these past decisions undermines our interpretation of §633a(a). 1. In Safeco Ins. Co. of America v. Burr , 551 U. S., at 63, we interpreted a provision of the Fair Credit Reporting Act (FCRA) requiring that notice be provided “[i]f any person takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer [credit] report. ” 15 U. S. C. §1681m(a) (emphasis added). This language is quite different from that of 29 U. S. C. §633a(a). In §1681m(a), the phrase “based . . . on any information contained in a consumer [credit] report” modifies “adverse action,” and thus the information in question must be a but-for cause of the adverse action. By contrast, in §633a(a), “based on” does not modify “personnel actions”; it modifies “discrimination,” i.e. , differential treatment based on age. The Government tries to find support in Safeco ’s discussion of FCRA’s reference to an adverse action that is “based . . . in part ” on a credit report. 15 U. S. C. §1681m(a) (emphasis added). The Safeco Court observed that the phrase “in part” could be read to mean that notice had to be given “whenever the report was considered in the rate-setting process,” but it rejected this reading. 551 U. S., at 63. The Government suggests that the Court reached this conclusion because it thought that Congress would have “said so expressly” if it had meant to require notice in situations where consideration of a credit report was inconsequential. Brief for Respondent 19. Accordingly, the Government argues, because §633a(a) does not say expressly that consideration of age is unlawful, we should conclude that mere consideration is insufficient to trigger liability. See id ., at 19–20. This argument fails for two reasons. First, as explained above, the language of §633a(a) does expressly impose liability if age discrimination plays a part in a federal employment decision. Second, Safeco did not invoke the sort of super-plain-statement rule that the Government now attributes to it. Instead, the Safeco Court rejected the argument on other grounds, including its assessment of the particular statutory scheme at issue. See 551 U. S., at 63–64. That reasoning obviously has no application here. 2. In Gross v. FBL Financial Services , Inc. , 557 U.S. 167 , we interpreted the private-sector provision of the ADEA, 29 U. S. C. §623(a)(1), and held that it requires a plaintiff to prove that “age was the ‘but-for’ cause of the employer’s adverse action.” 557 U. S., at 177. But as we previously recognized, the ADEA’s private- and public-sector provisions are “couched in very different terms.” Gómez-Pérez v. Potter , 553 U.S. 474 , 488 (2008). Section 623(a)(1) makes it “unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” Thus, the but-for causal language in §623(a)(1)––“because of such individual’s age”––is an adverbial phrase modifying the verbs (“to fail or refuse to hire,” etc.) that specify the conduct that the provision regulates. For this reason, the syntax of §623(a)(1) is critically different from that of §633a(a), where, as noted, the but-for language modifies the noun “discrimination.” This is important because all the verbs in §623(a)(1)—failing or refusing to hire, discharging, or otherwise discriminating with respect to “compensation, terms, conditions, or privileges of employment”—refer to end results.[ 5 ] By contrast, the provision in our case, §633a(a), prohibits any age discrimination in the “mak[ing]” of a personnel decision, not just with respect to end results. 3. Finally, in University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , we interpreted Title VII’s anti-retaliation provision, 42 U. S. C. §2000e–3(a), as requiring retaliation to be a but-for cause of the end result of the employment decision. The Court saw no “meaningful textual difference between the text [of that provision] and the one in Gross ,” 570 U. S., at 352, and the Court found support for its interpretation in the rule that recovery for an intentional tort generally requires proof “ ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” 570 U. S., at 346–347 (quoting Restatement of Torts §431, Comment a , pp. 1159–1160 (1934)). That reasoning has no application in the present case. The wording of §633a(a)––which refers expressly to the “mak[ing]” of personnel actions in a way that is “free from any discrimination based on age”––is markedly different from the language of the statutes at issue in Gross and Nassar , and the traditional rule favoring but-for causation does not dictate a contrary result. Section 633a(a) requires proof of but-for causation, but the object of that causation is “discrimination,” i.e. , differential treatment, not the personnel action itself. For these reasons, Safeco , Gross , and Nassar are entirely consistent with our holding in this case. C We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. As first enacted, the ADEA “applied only to actions against private employers.” Lehman v. Nakshian , 453 U.S. 156 , 166 (1981). In 1974, “Congress expanded the scope of the ADEA” to reach both state and local governments and the Federal Government. Ibid. To cover state and local governments, Congress simply added them to the definition of an “employer” in the ADEA’s private-sector provision, see 29 U. S. C. §630(b), and Congress could have easily done the same for the Federal Government. Indeed, the first proposal for expansion of the ADEA to government entities did precisely that. Lehman , 453 U. S., at 166, n. 14. But Congress did not choose this route. Instead, it “deliberately prescribed a distinct statutory scheme applicable only to the federal sector,” id. , at 166, and in doing so, it eschewed the language used in the private-sector provision, §623(a). See Gómez-Pérez , 553 U. S., at 488. We generally ascribe significance to such a decision. See Russello v. United States , 464 U.S. 16 , 23 (1983) (“ ‘[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’ ”). That Congress would want to hold the Federal Government to a higher standard than state and private employers is not unusual. See Supp. Letter Brief for Respond- ent 1 (“The federal government has long adhered to anti- discrimination policies that are more expansive than those required by . . . the ADEA”); e.g. , Exec. Order No. 11478, §1, 3 CFR 446 (1969) (“It is the policy of the Government of the United States to provide equal opportunity in Federal employment for all persons, to prohibit discrimination in employment . . . and to promote the full realization of equal employment opportunity through a continuing affirmative program”); Exec. Order No. 12106, §1–102, 3 CFR 263 (1978) (amending Exec. Order No. 11478 to cover discrimination on the basis of age). And several years after adding §633a(a) to the ADEA, Congress amended the civil service laws to prescribe similar standards. See 5 U. S. C. §2301(b)(2) (“Federal personnel management should be implemented consistent with the . . . merit system principl[e that a]ll employees and applicants for employment should receive fair and equitable treatment in all aspects of personnel management without regard to . . . age”). In any event, “where, as here, the words of [a] statute are unambiguous, the ‘ “judicial inquiry is complete.” ’ ” Desert Palace , Inc. v. Costa , 539 U.S. 90 , 98 (2003) (quoting Connecticut Nat. Bank v. Germain , 503 U.S. 249 , 254 (1992)). D While Babb can establish that the VA violated §633a(a) without proving that age was a but-for cause of the VA’s personnel actions, she acknowledges—and we agree—that but-for causation is important in determining the appropriate remedy. It is bedrock law that “requested relief ” must “redress the alleged injury.” Steel Co. v. Citizens for Better Environment , 523 U.S. 83 , 103 (1998). Thus, §633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome. We have long employed these basic principles. In Texas v. Lesage , 528 U.S. 18 , 21–22 (1999) ( per curiam ), we applied this rule to a plaintiff who sought recovery under Rev. Stat. §1979, 42 U. S. C. §1983, for an alleged violation of the Equal Protection Clause. We explained: “[W]here a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting [damages] relief.” 528 U. S., at 21. Cf. Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 , 285 (1977) (rejecting rule that “would require reinstatement . . . even if the same decision would have been reached had the incident not occurred”). Our conclusion is also supported by traditional principles of tort and remedies law. “Remedies generally seek to place the victim of a legal wrong . . . in the position that person would have occupied if the wrong had not occurred.” R. Weaver, E. Shoben, & M. Kelly, Principles of Remedies Law 5 (3d ed. 2017). Thus, “[a]n actor’s liability is limited to those harms that result from the risks that made the actor’s conduct tortious.” Restatement (Third) of Torts §29, p. 493 (2005). Remedies should not put a plaintiff in a more favorable position than he or she would have enjoyed absent discrimination. But this is precisely what would happen if individuals who cannot show that discrimination was a but-for cause of the end result of a personnel action could receive relief that alters or compensates for the end result. Although unable to obtain such relief, plaintiffs are not without a remedy if they show that age was a but-for cause of differential treatment in an employment decision but not a but-for cause of the decision itself. In that situation, plaintiffs can seek injunctive or other forward-looking relief. Determining what relief, if any, is appropriate in the present case is a matter for the District Court to decide in the first instance if Babb succeeds in showing that §633a(a) was violated. *  *  * The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 *Justice Ginsburg joins all but footnote 3 of this opinion. 2 The General Schedule (GS) is a federal pay scale that is divided into 15 numbered grades. See 5 U. S. C. §5104. “[A]s the number of the grade increases, so do pay and responsibilities.” United States v. Clark , 454 U.S. 555 , 557 (1982). 3 We have repeatedly explained that “ ‘the word “any” has an expansive meaning.’ ” Ali v. Federal Bureau of Prisons , 552 U.S. 214 , 219 (2008) (quoting United States v. Gonzales , 520 U.S. 1 , 5 (1997)). The standard dictionary definition of “any” is “[s]ome, regardless of quantity or number.” American Heritage Dictionary 59 (def. 2) (1969). 4 Beyond this, the Government’s only other textual argument is that the term “made” refers to a particular moment in time, i.e. , the moment when the final employment decision is made. We agree, but this does not mean that age must be a but-for cause of the ultimate outcome. If, at the time when the decision is actually made, age plays a part, then the decision is not made “free from” age discrimination. It is not clear that Babb actually disagrees with the Government on this point, although the many references in her brief to the decision-making process could be read to mean that §633a(a) can be violated even if age played no part whatsoever when the actual decision was made. If that is what Babb wants to suggest, however, we must disagree. It is entirely natural to regard an employment decision as being “made” at the time when the outcome is actually determined and not during events leading up to that decision. See American Heritage Dictionary, at 788 (def. 10) (defining “make” as “[t]o arrive at” a particular conclusion, i.e. , to “make a decision ”). And holding that §633a(a) is violated when the consideration of age plays no role in the final decision would have startling implications. Consider this example: A decision-maker must decide whether to promote employee A, who is under 40, or employee B, who is over 40. A subordinate recommends employee A and says that the recommendation is based in part on employee B’s age. The decision-maker rebukes this subordinate for taking age into account, disregards the recommendation, and makes the decision independently. Under an interpretation that read “made” expansively to encompass a broader personnel process, §633a(a) would be violated even though age played no role whatsoever in the ultimate decision. Indeed, there might be a violation even if the decision-maker decided to promote employee B. We are aware of no other anti-discrimination statute that imposes liability under such circumstances, and we do not think that §633a(a) should be understood as the first. 5 Moreover, even if “discriminating with respect to compensation, terms, conditions, or privileges of employment” could be read more broadly to encompass things that occur before a final decision is made, the ejusdem generis canon would counsel a court to read that final phrase to refer––like the prior terms––to the final decision. See Christopher v. SmithKline Beecham Corp. , 567 U.S. 142 , 163, and n. 19 (2012). SUPREME COURT OF THE UNITED STATES _________________ No. 18–882 _________________ NORIS BABB, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 6, 2020] Justice Sotomayor, with whom Justice Ginsburg joins, concurring. I join the majority opinion because I agree that 29 U. S. C. §633a imposes liability even when age is not a “ ‘but-for cause’ ” of a personnel action. Ante , at 1. I write separately to make two observations. First, the Court does not foreclose §633a claims arising from discriminatory processes. Cf. Comcast Corp. v. National Assn. of African American-Owned Media , ante , p. ___ (Ginsburg, J., concurring in part and concurring in judgment). If, for example, an employer hires a 50-year-old person who passed a computer-aptitude test administered only to applicants above 40, clearly a question could arise as to whether the hiring decision was “made free from” differential treatment. Second, this same example may suggest that §633a permits damages remedies, even when the Government engages in nondispositive “age discrimination in the ‘ma[king]’ of a personnel decision.” Ante , at 10. If an applicant incurs costs to prepare for the discriminatorily administered aptitude test, a damages award compensating for such out-of-pocket expenses could restore the applicant to the “position tha[t] he or she would have enjoyed absent discrimination.” Ante , at 14. SUPREME COURT OF THE UNITED STATES _________________ No. 18–882 _________________ NORIS BABB, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS on writ of certiorari to the united states court of appeals for the eleventh circuit [April 6, 2020] Justice Thomas, dissenting. Until now, the rule for pleading a claim under a federal antidiscrimination statute was clear: A plaintiff had to plausibly allege that discrimination was the but-for cause of an adverse action, unless the statute’s text unequivocally replaced that standard with a different one. Today, however, the Court departs from this rule, concluding that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) imposes liability if an agency’s personnel actions are at all tainted by considerations of age. See ante , at 1. This rule is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant. This novel “any consideration” standard does serious damage to our interpretation of antidiscrimination statutes and disrupts the settled expectations of federal employers and employees. I therefore respectfully dissent. I A In my view, the default rule of but-for causation applies here because it is not clearly displaced by the text of the ADEA’s federal-sector provision. Though the Court engages at length with the provision’s text, it barely acknowledges our default rule, which undergirds our antidiscrimination jurisprudence. Because the interpretation of an antidiscrimination statute must be assessed against the backdrop of this default rule, I begin by describing the rule in detail. We have explained that “[c]ausation in fact— i.e., proof that the defendant’s conduct did in fact cause the plaintiff ’s injury—is a standard requirement of any tort claim,” including claims of discrimination. University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , 346 (2013) (quoting various provisions of the Restatement of Torts (1934)). “In the usual course, this standard requires the plaintiff to show that the harm would not have occurred in the absence of—that is, but for—the defendant’s conduct.” Id. , at 346–347 (internal quotation marks omitted). But-for causation is “the background against which Congress legislate[s],” and it is “the default rul[e Congress] is presumed to have incorporated, absent an indication to the contrary in the statute itself.” Id. , at 347 (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)). We have recognized as much when interpreting 42 U. S. C. §1981’s prohibition against racial discrimination in contracting, Comcast Corp. v. National Assn. of African American-Owned Media , ante , p. ___, Title VII’s retaliation provision, Nassar , 570 U.S. 338 , and the private-sector provision of the ADEA, Gross v. FBL Financial Services , Inc. , 557 U.S. 167 (2009). Given this established backdrop, the question becomes whether the federal-sector provision of the ADEA contains sufficiently clear language to overcome the default rule. The provision states: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U. S. C. §633a(a). I agree with the Court that discrimination means differential treatment, that “based on” connotes a but-for relationship, and that “to make” typically means to produce or to become. Ante , at 5. But I disagree with the Court’s overall interpretation of how these terms fit together. Specifically, the Court believes that “ ‘based on age’ ” modifies only “ ‘discrimination,’ ” not “ ‘personnel actions.’ ” Ante , at 6. From this, the Court concludes that the plain meaning of the text “demands that personnel actions be untainted by any consideration of age.” Ante , at 1. In my view, however, the provision is also susceptible of the Government’s interpretation, i.e., that the entire phrase “discrimination based on age” modifies “personnel actions.” Under this reading, as the Government explains, the provision “prohibits agencies from engaging in ‘discrimination based on age’ in the making of personnel actions.” Brief for Respondent 16. Because the only thing being “made” in the statute is a “personnel action,” it is entirely reasonable to conclude that age must be the but-for cause of that personnel action. At most, the substantive mandate against discrimination in §633a(a) is ambiguous. And it goes without saying that an ambiguous provision does not contain the clear language necessary to displace the default rule. Accordingly, I would hold that the default rule of but-for causation applies here. B The Court attempts to downplay the sweeping nature of its novel “any consideration” rule by discussing the limited remedies available under that rule. Specifically, the Court declares that a plaintiff can obtain compensatory damages, backpay, and reinstatement only if he proves that age was a but-for cause of an adverse personnel action. Otherwise, he can obtain only injunctive or prospective relief. See ante , at 13–14. If the text of the ADEA contained this remedial scheme, it would support the Court’s conclusion regarding causation. But the Court does not cite any remedial statutory provision. Nor can it, as one does not exist. The Court also fails to cite any authority suggesting that its remedial scheme existed, at common law or otherwise, in 1974 when Congress added the federal-sector provision to the ADEA. §28(b)(2), 88Stat. 74–75. Instead, the Court principally relies on Texas v. Lesage , 528 U.S. 18 (1999) ( per curiam ), which applied Mt. Healthy City Bd. of Ed. v. Doyle , 429 U.S. 274 (1977). See Lesage , 528 U. S., at 20–22. But Mt. Healthy and, by extension, Lesage do not assist the Court. In Mt. Healthy , the Court crafted, for the first time, a remedial scheme for constitutional claims brought under 42 U. S. C. §1983. 429 U. S., at 285–287. Significantly, that decision postdates enactment of the federal-sector provision by three years. And Mt. Healthy did not import a remedial scheme from a previously existing statute or common-law rule. Rather, the Court cited other cases in which it had similarly fashioned a novel causation standard for constitutional claims—none of which concerned remedies—as “instructive in formulating the test to be applied.” Id. , at 286–287. It is incongruous to suggest that Congress could have intended to incorporate a remedial scheme that appears not to have existed at the time the statute was passed. Moreover, Mt. Healthy concerned a constitutional injury, and the Court was tasked with creating a remedy for that injury in the face of §1983’s silence. The Court fails to provide any explanation as to why it is appropriate to rely on judicially fashioned remedies for constitutional injuries in this purely statutory context. In sum, the Court implausibly concludes that, in the federal-sector provision of the ADEA, Congress created a novel “any consideration” causation standard but remained completely silent as to what remedies were available under that new rule. Just as implausibly, the Court assumes from this congressional silence that Congress intended for judges to craft a remedial scheme in which the available relief would vary depending on the inflicted injury, using an as-yet- unknown scheme. I would not follow such an unusual course. We have stated in the past that we must “read [the ADEA] the way Congress wrote it.” Meacham v. Knolls Atomic Power Laboratory , 554 U.S. 84 , 102 (2008). The federal-sector provision contains no clear language displacing the default rule, and Congress has demonstrated that it knows how to do so when it wishes. See 42 U. S. C. §2000e–2(m) (providing that an employer is liable if an employee establishes that a protected characteristic was a motivating factor in an employment action); §2000e–5(g)(2)(B) (limiting the remedies available to plaintiffs who establish motivating factor liability).[ 1 ] Rather than supplementing a novel rule with a judicially crafted remedy, I would infer from the textual silence that Congress wrote the ADEA to conform to the default rule of but-for causation. II Perhaps the most striking aspect of the Court’s analysis is its failure to grapple with the sheer unworkability of its rule. The Court contends that a plaintiff may successfully bring a cause of action if age “taint[s]” the making of a personnel action, even if the agency would have reached the same outcome absent any age-based discrimination. Ante , at 6–7. Because §633a(a)’s language also appears in the federal-sector provision of Title VII, 42 U. S. C. §2000e– 16(a), the Court’s rule presumably applies to claims alleging discrimination based on sex, race, religion, color, and national origin as well. The Court’s rule might have some purchase if, as Babb contends, the Federal Government purposely set up a purely merit-based system for its personnel actions. But as anyone with knowledge of the Federal Government’s hiring practices knows, this is hardly the case. Federal hiring is riddled with exceptions and affirmative action programs, which by their very nature are not singularly focused on merit. A few examples suffice to demonstrate this point. The Veterans Preference Act of 1944 entitles certain veterans, their spouses, and their parents to preferences in hiring and in retention during reductions in force. 5 U. S. C. §§2108(3), 3502, 3309; 5 CFR §211.102 (2019). Affirmative action exists for people with disabilities, both in competitive and noncompetitive employment. See 29 U. S. C. §791; 5 CFR §213.3102(u); 29 CFR §1614.203(d) (2019). The Federal Equal Opportunity Recruitment Program requires agencies to implement recruitment plans for women and certain underrepresented minorities. 5 U. S. C. §7201; 5 CFR §720.205. And Exec. Order No. 13171, 3 CFR 299 (2000), requires federal agencies to “provide a plan for recruiting Hispanics that creates a fully diverse work force for the agency in the 21st century.” Whatever the wisdom of these policies, they are not strictly merit-based hiring. The Court’s new rule is irreconcilable with these various programs because affirmative action initiatives always taint personnel actions with consideration of a protected characteristic. Consider Exec. Order No. 13583, 3 CFR 267 (2011), which directs agencies to “develop and implement a more comprehensive, integrated, and strategic focus on diversity and inclusion as a key component of their human resources strategies.” To provide just one example of how agencies are implementing this requirement, Customs and Border Protection’s plan commits the agency to “[i]ncreas[ing the] percentage of applicants from underrepresented groups for internships and fellowships,” “[c]reat[ing] a targeted outreach campaign to underrepresented groups for career development programs at all levels,” “[e]stablish[ing] and maintain[ing] strategic partnerships with diverse professional and affinity organizations,” “[a]nalyz[ing] demographic data for new hires and employee separations to identify and assess potential barriers to workforce diversity,” and “[d]evelop[ing] a diversity recruitment performance dashboard which provides relevant statistics and related performance metrics to evaluate progress towards achievement of recruitment goals.” U. S. Customs and Border Protection, Privacy and Diversity Office, Diversity and Inclusion: Strategic Plan 2016–2020, pp. 11–15 (2015). Programs such as these intentionally inject race, sex, and national origin into agencies’ hiring and promotion decisions at the express direction of the President or Congress. A but-for (or even a motivating-factor[ 2 ]) standard of causation could coexist relatively easily with these affirmative action programs, as it would be difficult for a plaintiff to plausibly plead facts sufficient to establish the requisite causation. The Court’s rule, by contrast, raises the possibility that agencies will be faced with a flood of investigations by the EEOC or litigation from dissatisfied federal employees. So long as those employees can show that their employer’s decision to hire a particular job applicant was “tainted” because that applicant benefited in some way from an affirmative action program, their complaints to enjoin these programs can survive at least the pleadings stage.[ 3 ] *  *  * Today’s decision is inconsistent with the default rule underlying our interpretation of antidiscrimination statutes and our precedents, which have consistently applied that rule. Perhaps just as important, the Court’s holding unnecessarily risks imposing hardship on those tasked with managing thousands of employees within our numerous federal agencies. I respectfully dissent. Notes 1 Courts have followed similar reasoning when determining the standard of causation under the Americans with Disabilities Act. See, e.g., Natofsky v. New York , 921 F.3d 337, 346–348 (CA2 2019); Gentry v. East West Partners Club Mgmt. Co. , 816 F.3d 228, 233–236 (CA4 2016); Serwatka v. Rockwell Automation , Inc. , 591 F.3d 957, 961–964 (CA7 2010). 2 Many Courts of Appeals apply the motivating-factor standard tofederal-sector Title VII claims. See, e.g., Ponce v. Billington , 679 F.3d 840, 844 (CADC 2012); Makky v. Chertoff , 541 F.3d 205, 213–214 (CA3 2008). Even assuming this is a correct interpretation, see 42 U. S. C. §2000e–16(d) (incorporating by reference the private-sector motivating-factor provisions), the Court’s “any consideration” rule imposes an even lower bar. No party submitted briefing on the criteria that courts or the Equal Employment Opportunity Commission (EEOC) use to establish a motivating factor, but the cases from which this standard was derived indicate that it mirrored the tort concept of substantial cause. See, e.g., Price Waterhouse v. Hopkins , 490 U.S. 228 , 249 (1989) (plurality opinion); Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 , 287 (1977). 3 On this score, it is worth mentioning that even the EEOC has not adopted the Court’s low bar but instead employs a motivating-factor standard. See, e.g., Brenton W. v. Chao , 2017 WL 2953878, *9 (June 29, 2017); Arroyo v. Shinseki , 2012 WL 2952078, *4 (July 11, 2012).

The Supreme Court ruled that the federal-sector provision of the Age Discrimination in Employment Act protects individuals aged 40 and older from any discrimination based on age in personnel actions. The Court interpreted the phrase "made free from any discrimination based on age" to mean that personnel actions must be entirely free from age-based considerations. However, to obtain certain forms of relief, such as hiring, reinstatement, backpay, or compensatory damages, a plaintiff must show that age was a "but-for cause" of the employment decision. The Court's ruling raises concerns about the potential burden on federal agencies and the possibility of increased litigation.

LGBTQ+ Rights

Oncale v. Sundowner Offshore Services, Inc.

https://supreme.justia.com/cases/federal/us/523/75/

OCTOBER TERM, 1997 Syllabus ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC., ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 96-568. Argued December 3, 1997-Decided March 4,1998 Petitioner Oncale filed a complaint against his employer, respondent Sundowner Offshore Services, Inc., claiming that sexual harassment directed against him by respondent co-workers in their workplace constituted "discriminat[ion] ... because of ... sex" prohibited by Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e-2(a)(1). Relying on Fifth Circuit precedent, the District Court held that Oncale, a male, had no Title VII cause of action for harassment by male co-workers. The Fifth Circuit affirmed. Held: Sex discrimination consisting of same-sex sexual harassment is actionable under Title VII. Title VII's prohibition of discrimination "because of ... sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 , 682, and in the related context of racial discrimination in the workplace this Court has rejected any conclusive presumption that an employer will not discriminate against members of his own race, Castaneda v. Partida, 430 U. S. 482 , 499. There is no justification in Title VII's language or the Court's precedents for a categorical rule barring a claim of discrimination "because of ... sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Recognizing liability for same-sex harassment will not transform Title VII into a general civility code for the American workplace, since Title VII is directed at discrimination because of sex, not merely conduct tinged with offensive sexual connotations; since the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same, and the opposite, sex; and since the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering all the circumstances. Pp. 78-82. 83 F.3d 118 , reversed and remanded. SCALIA, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion, post, p. 82. 76 Nicholas Canaday III argued the cause for petitioner. With him on the briefs were Andre P. LaPlace and Eric Schnapper. Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging reversal. On the brief were Acting Solicitor General Dellinger, Acting Assistant Attorney General Pinzler, Deputy Solicitor General Waxman, Beth S. Brinkmann, C. Gregory Stewart, J. Ray Terry, Jr., Gwendolyn Young Reams, and Carolyn L. Wheeler. Harry M. Reasoner argued the cause for respondents. With him on the brief were John H. Smither, Marie R. Yeates, Thomas H. Wilson, and Samuel Issacharoff* JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether workplace harassment can violate Title VII's prohibition against "discriminat[ion] ... because of ... sex," 42 U. S. C. § 2000e-2(a)(1), when the harasser and the harassed employee are of the same sex. I The District Court having granted summary judgment for respondents, we must assume the facts to be as alleged by petitioner Joseph Oncale. The precise details are irrelevant *Briefs of amici curiae urging reversal were filed for the Association of Trial Lawyers of America by Ellen Simon Sacks and Christopher P. Thorman; for the Lambda Legal Defense and Education Fund et al. by Beatrice Dohrn, John Davidson, Ruth Harlow, Steven R. Shapiro, Sara L. Mandelbaum, and Minna J. Kotkin; for the National Employment Lawyers Association by Margaret A. Harris and Anne Golden; for the National Organization on Male Sexual Victimization, Inc., by Catharine A. MacKinnon; and for Law Professors by Nan D. Hunter. Briefs of amici curiae urging affirmance were filed for the Equal Employment Advisory Council by Robert E. Williams and Ann Elizabeth Reesman; and for the Texas Association of Business & Chambers of Commerce by Jeffrey C. Londa and Linda Ottinger Headley. 77 to the legal point we must decide, and in the interest of both brevity and dignity we shall describe them only generally. In late October 1991, Oncale was working for respondent Sundowner Offshore Services, Inc., on a Chevron U. S. A., Inc., oil platform in the Gulf of Mexico. He was employed as a roustabout on an eight-man crew which included respondents John Lyons, Danny Pippen, and Brandon Johnson. Lyons, the crane operator, and Pippen, the driller, had supervisory authority, App. 41, 77, 43. On several occasions, Oncale was forcibly subjected to sex-related, humiliating actions against him by Lyons, Pippen, and Johnson in the presence of the rest of the crew. Pippen and Lyons also physically assaulted Oncale in a sexual manner, and Lyons threatened him with rape. Oncale's complaints to supervisory personnel produced no remedial action; in fact, the company's Safety Compliance Clerk, Valent Hohen, told Oncale that Lyons and Pippen "picked [on] him all the time too," and called him a name suggesting homosexuality. Id., at 77. Oncale eventually quit-asking that his pink slip reflect that he "voluntarily left due to sexual harassment and verbal abuse." Id., at 79. When asked at his deposition why he left Sundowner, Oncale stated: "I felt that if I didn't leave my job, that I would be raped or forced to have sex." Id., at 71. Oncale filed a complaint against Sundowner in the United States District Court for the Eastern District of Louisiana, alleging that he was discriminated against in his employment because of his sex. Relying on the Fifth Circuit's decision in Garcia v. Elf Atochem North America, 28 F.3d 446 , 451-452 (1994), the District Court held that "Mr. Oncale, a male, has no cause of action under Title VII for harassment by male co-workers." App. 106. On appeal, a panel of the Fifth Circuit concluded that Garcia was binding Circuit precedent, and affirmed. 83 F.3d 118 (1996). We granted certiorari. 520 U. S. 1263 (1997). 78 II Title VII of the Civil Rights Act of 1964 provides, in relevant part, that "[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 78 Stat. 255, as amended, 42 U. S. C. § 2000e-2(a)(1). We have held that this not only covers "terms" and "conditions" in the narrow contractual sense, but "evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment." Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 , 64 (1986) (citations and internal quotation marks omitted). "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated." Harris v. Forklift Systems, Inc., 510 U. S. 17, 21 (1993) (citations and internal quotation marks omitted). Title VII's prohibition of discrimination "because of ... sex" protects men as well as women, Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U. S. 669 , 682 (1983), and in the related context of racial discrimination in the workplace we have rejected any conclusive presumption that an employer will not discriminate against members of his own race. "Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group." Castaneda v. Partida, 430 U. S. 482 , 499 (1977). See also id., at 515-516, n. 6 (Powell, J., joined by Burger, C. J., and REHNQUIST, J., dissenting). In Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616 (1987), a male employee claimed that his employer discriminated against him because of his sex when it preferred a female employee for promotion. AI- 79 though we ultimately rejected the claim on other grounds, we did not consider it significant that the supervisor who made that decision was also a man. See id., at 624-625. If our precedents leave any doubt on the question, we hold today that nothing in Title VII necessarily bars a claim of discrimination "because of ... sex" merely because the plaintiff and the defendant (or the person charged with acting on behalf of the defendant) are of the same sex. Courts have had little trouble with that principle in cases like Johnson, where an employee claims to have been passed over for a job or promotion. But when the issue arises in the context of a "hostile environment" sexual harassment claim, the state and federal courts have taken a bewildering variety of stances. Some, like the Fifth Circuit in this case, have held that same-sex sexual harassment claims are never cognizable under Title VII. See also, e. g., Goluszek v. H. P. Smith, 697 F. Supp. 1452 (ND Ill. 1988). Other decisions say that such claims are actionable only if the plaintiff can prove that the harasser is homosexual (and thus presumably motivated by sexual desire). Compare McWilliams v. Fairfax County Board of Supervisors, 72 F.3d 1191 (CA4 1996), with Wrightson v. Pizza Hut of America, 99 F.3d 138 (CA4 1996). Still others suggest that workplace harassment that is sexual in content is always actionable, regardless of the harasser's sex, sexual orientation, or motivations. See Doe v. Belleville, 119 F.3d 563 (CA7 1997). We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits "discrimina- 80 t[ion] ... because of ... sex" in the "terms" or "conditions" of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. Respondents and their amici contend that recognizing liability for same-sex harassment will transform Title VII into a general civility code for the American workplace. But that risk is no greater for same-sex than for opposite-sex harassment, and is adequately met by careful attention to the requirements of the statute. Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at "discriminat[ion] ... because of ... sex." We have never held that workplace harassment, even harassment between men and women, is automatically discrimination because of sex merely because the words used have sexual content or connotations. "The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Harris, supra, at 25 (GINSBURG, J., concurring). Courts and juries have found the inference of discrimination easy to draw in most male-female sexual harassment situations, because the challenged conduct typically involves explicit or implicit proposals of sexual activity; it is reasonable to assume those proposals would not have been made to someone of the same sex. The same chain of inference would be available to a plaintiff alleging same-sex harassment, if there were credible evidence that the harasser was homosexual. But harassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex. A trier of fact might reasonably find such discrimination, for example, if a female victim is harassed in such sex-specific and derogatory terms by another woman as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace. A same-sex harassment plaintiff may also, of course, offer di- 81 rect comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace. Whatever evidentiary route the plaintiff chooses to follow, he or she must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted "discrimina[tion] ... because of ... sex." And there is another requirement that prevents Title VII from expanding into a general civility code: As we emphasized in Meritor and Harris, the statute does not reach genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex. The prohibition of harassment on the basis of sex requires neither asexuality nor androgyny in the workplace; it forbids only behavior so objectively offensive as to alter the "conditions" of the victim's employment. "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment-an environment that a reasonable person would find hostile or abusive-is beyond Title VII's purview." Harris, 510 U. S., at 21, citing Meritor, 477 U. S., at 67. We have always regarded that requirement as crucial, and as sufficient to ensure that courts and juries do not mistake ordinary socializing in the workplace-such as male-on-male horseplay or intersexual flirtation-for discriminatory "conditions of employment." We have emphasized, moreover, that the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering "all the circumstances." Harris, supra, at 23. In same-sex (as in all) harassment cases, that inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target. A professional football player's working environment is not severely or pervasively abusive, for example, if the coach smacks him on the buttocks as he heads onto the field-even if the same behavior would reasonably be experienced as abusive by the coach's secretary (male or female) back at the office. The 82 82 ONCALE v. SUNDOWNER OFFSHORE SERVICES, INC. THOMAS, J., concurring real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed. Common sense, and an appropriate sensitivity to social context, will enable courts and juries to distinguish between simple teasing or roughhousing among members of the same sex, and conduct which a reasonable person in the plaintiff's position would find severely hostile or abusive. III Because we conclude that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII, the judgment of the Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS, concurring. I concur because the Court stresses that in every sexual harassment case, the plaintiff must plead and ultimately prove Title VII's statutory requirement that there be discrimination "because of ... sex."

The Supreme Court ruled that same-sex sexual harassment is a form of sex discrimination and is prohibited under Title VII of the Civil Rights Act of 1964. The Court held that Title VII protects both men and women from sexual harassment by members of the same sex, and that the severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position. The Court emphasized that Title VII does not regulate "genuine but innocuous differences in the ways men and women routinely interact" and that the statute is concerned with behavior that is "objectively offensive." The Court also noted the importance of considering the social context in which the behavior occurs.

LGBTQ+ Rights

Lawrence v. Texas

https://supreme.justia.com/cases/federal/us/539/558/

OCTOBER TERM, 2002 LAWRENCE ET AL. v. TEXAS CERTIORARI TO THE COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT JUSTICE KENNEDY delivered the opinion of the Court. Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions. I The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, [563] resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody over night, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is Tex. Penal Code Ann. § 21.06(a) (2003). It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows: "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or "(B) the penetration of the genitals or the anus of another person with an object." § 21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art.1, § 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere , were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. 41 S.W. 3d 349 (Tex. App. 2001). The majority opinion indicates that the Court of Appeals considered our decision in Bowers v. Hardwick , 478 U.S. 186 (1986), to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. [564] We granted certiorari, 537 U.S. 1044 (2002), to consider three questions: "1. Whether Petitioners' criminal convictions under the Texas "Homosexual Conduct" law--which criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couples--violate the Fourteenth Amendment guarantee of equal protection of laws? "2. Whether Petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment? "3. Whether Bowers v. Hardwick , 478 U.S. 186 (1986), should be overruled?" Pet. for Cert. i. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers . There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including Pierce v. Society of Sisters , 268 U.S. 510 (1925), and Meyer v. Nebraska , 262 U.S. 390 (1923); but the most pertinent beginning point is our decision in Griswold v. Connecticut , 381 U.S. 479 (1965). In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and placed [565] emphasis on the marriage relation and the protected space of the marital bedroom. Id. , at 485. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In Eisenstadt v. Baird , 405 U.S. 438 (1972), the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, id. , at 454; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, ibid . It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: "It is true that in Griswold the right of privacy in question inhered in the marital relationship. . . . If the right of privacy means anything, it is the right of the individual , married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." Id. , at 453. The opinions in Griswold and Eisenstadt were part of the background for the decision in Roe v. Wade , 410 U.S. 113 (1973). As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. [566] In Carey v. Population Services Int'l , 431 U.S. 678 (1977), the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey , as well as the holding and rationale in Roe , confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered Bowers v. Hardwick . The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed Hardwick, in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. Hardwick was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. 478 U.S., at 199 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.); id. , at 214 (opinion of Stevens, J., joined by Brennan and Marshall, JJ.). The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so [567] for a very long time." Id. , at 190. That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse. The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." Id. , at 192. In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opin- [568] ions in Bowers . Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union etal. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e.g. , King v. Wiseman , 92 Eng. Rep. 774, 775 (K.B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e.g. , 2 J. Bishop, Criminal Law § 1028 (1858); 2 J. Chitty, Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes § 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e.g. , J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 (2d ed. 1997) ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of [569] homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 Chitty, supra, at 49, addressed the predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e.g. , F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic [570] punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers , 478 U.S., at 192, American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union etal. as Amici Curiae 14-15, and n.18. It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. 828; 1983 Kan. Sess. Laws p.652; 1974 Ky. Acts p.847; 1977 Mo. Laws p.687; 1973 Mont. Laws p.1339; 1977 Nev. Stats. p.1632; 1989 Tenn. Pub. Acts ch.591; 1973 Tex. Gen. Laws ch. 399; see also Post v. State , 715 P.2d 1105 (Okla. Crim. App. 1986) (sodomy law invalidated as applied to different-sex couples). Post- Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e.g., Jegley v. Picado , 349 Ark. 600, 80 S.W.3d 332 (2002); Gryczan v. State , 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist , 926 S.W. 2d 250 (Tenn. App. 1996); Commonwealth v. Wasson , [571] 842 S.W.2d 487 (Ky. 1992); see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. § 201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 , 850 (1992). Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." 478 U.S., at 196. As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e.g. , Eskridge, Hardwick and Historiography, 1999 U. Ill. L.Rev. 631, 656. In all events we think that our laws and traditions in the past half century are of [572] most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of Sacramento v. Lewis , 523 U.S. 833 , 857 (1998) (Kennedy, J., concurring). This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code § 213.2, Comment 2, p.372 (1980). It justified its decision on three grounds: (1)The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16. In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision 24 States and the District of Columbia had sodomy laws. 478 U.S., at 192-193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. Id. , at 197-198, n.2 ("The history of nonenforcement suggests the moribund character today of laws criminalizing this type of private, consensual conduct"). The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws [573] punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, § 1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom , 45 Eur. Ct. H.R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. State v. Morales , 869 S.W.2d 941, 943. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed [574] that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id. , at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Ibid. Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post- Bowers case of principal relevance is Romer v. Evans , 517 U.S. 620 (1996). There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," id. , at 624 (internal quotation marks omitted), and deprived them of protection under state antidiscrimination laws. We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. Id. , at 634. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we con- [575] clude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. Smith v. Doe , 538 U.S. 84 (2003); Connecticut Dept. of Public Safety v. Doe , 538 U.S. 1 (2003). We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of a least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n.12 (citing Idaho Code §§ 18-8301 to 18-8326 (Cum. Supp. 2002); La. Code Crim. Proc. Ann., §§ 15:540-15:549 [576] (West 2003); Miss. Code Ann. §§ 45-33-21 to 45-33-57 (Lexis 2003); S.C. Code Ann. §§ 23-3-400 to 23-3-490 (West 2002)). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in Casey and Romer . When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions. See, e.g. , C.Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992). The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see Jegley v. Picado , 349 Ark. 600, 80 S.W.3d 332 (2002); Powell v. State , 270 Ga. 327, 510 S.E.2d 18, 24 (1998); Gryczan v. State , 283 Mont. 433, 942 P.2d 112 (1997); Campbell v. Sundquist , 926 S.W.2d 250 (Tenn. App. 1996); Commonwealth v. Wasson , 842 S.W.2d 487 (Ky. 1992). To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom . See P.G. & J.H. v. United Kingdom , App. No. 00044787/98, ¶ 56 (Eur. Ct. H.R., Sept. 25, 2001); Modinos v. Cyprus , 259 Eur. Ct. H.R. (1993); Norris v. Ireland , 142 Eur. Ct. H.R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary [577] Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. Payne v. Tennessee , 501 U.S. 808 , 828 (1991) (" Stare decisis is not an inexorable command; rather, it 'is a principle of policy and not a mechanical formula of adherence to the latest decision'") (quoting Helvering v. Hallock , 309 U.S. 106 , 119 (1940))). In Casey we noted that when a Court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing course. 505 U.S., at 855-856; see also id. , at 844 ("Liberty finds no refuge in a jurisprudence of doubt"). The holding in Bowers , however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers JUSTICE STEVENS came to these conclusions: "Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from consti- [578] tutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." 478 U.S., at 216 (footnotes and citations omitted). JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." Casey, supra , at 847. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume [579] to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE O'CONNOR, concurring in the judgment. The Court today overrules Bowers v. Hardwick , 478 U.S. 186 (1986). I joined Bowers , and do not join the Court in overruling it. Nevertheless, I agree with the Court that Texas' statute banning same-sex sodomy is unconstitutional. See Tex. Penal Code Ann. § 21.06 (2003). Rather than relying on the substantive component of the Fourteenth Amendment's Due Process Clause, as the Court does, I base my conclusion on the Fourteenth Amendment's Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment "is essentially a direction that all persons similarly situated should be treated alike." Cleburne v. Cleburne Living Center, Inc. , 473 U.S. 432 , 439 (1985); see also Plyler v. Doe , 457 U.S. 202 , 216 (1982). Under our rational basis standard of review, "legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest." Cleburne v. Cleburne Living Center, supra , at 440; see also Department of Agriculture v. Moreno , 413 U.S. 528 , 534 (1973); Romer v. Evans , 517 U.S. 620 , 632-633 (1996); Nordlinger v. Hahn , 505 U.S. 1 , 11-12 (1992). Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the [580] democratic processes." Cleburne v. Cleburne Living Center, supra , at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. 103; Williamson v. Lee Optical of Okla., Inc. , 348 U.S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular group," are not legitimate state interests. Department of Agriculture v. Moreno , supra , at 534. See also Cleburne v. Cleburne Living Center, supra , at 446-447; Romer v. Evans , supra , at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause. We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno , for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "'discriminate against hippies.'" 413 U.S., at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id. , at 535-538. In Eisenstadt v. Baird , 405 U.S. 438 , 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra , we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences--like fraternity houses and apartment buildings--did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group"--specifically, homosexuals. 517 U.S., at 632. [581] The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post , at 17-18 (opinion of Scalia, J.). The statute at issue here makes sodomy a crime only if a person "engages in deviate sexual intercourse with another individual of the same sex." Tex. Penal Code Ann. § 21.06(a) (2003). Sodomy between opposite-sex partners, however, is not a crime in Texas. That is, Texas treats the same conduct differently based solely on the participants. Those harmed by this law are people who have a same-sex sexual orientation and thus are more likely to engage in behavior prohibited by § 21.06. The Texas statute makes homosexuals unequal in the eyes of the law by making particular conduct--and only that conduct--subject to criminal sanction. It appears that prosecutions under Texas' sodomy law are rare. See State v. Morales , 869 S.W. 2d 941, 943 (Tex. 1994) (noting in 1994 that § 21.06 "has not been, and in all probability will not be, enforced against private consensual conduct between adults"). This case shows, however, that prosecutions under § 21.06 do occur. And while the penalty imposed on petitioners in this case was relatively minor, the consequences of conviction are not. As the Court notes, see ante , at 15, petitioners' convictions, if upheld, would disqualify them from or restrict their ability to engage in a variety of professions, including medicine, athletic training, and interior design. See, e.g. , Tex. Occ. Code Ann. § 164.051(a)(2)(B) (2003 Pamphlet) (physician); § 451.251 (a)(1) (athletic trainer); § 1053.252(2) (interior designer). Indeed, were petitioners to move to one of four States, their convictions would require them to register as sex offenders to local law enforcement. See, e.g. , Idaho Code § 18-8304 (Cum. Supp. 2002); La. Stat. Ann. § 15:542 (West Cum. Supp. 2003); Miss. Code Ann. § 45-33-25 (West 2003); S.C. Code Ann. § 23-3-430 (West Cum. Supp. 2002); cf. ante , at 15. And the effect of Texas' sodomy law is not just limited to the threat of prosecution or consequence of conviction. Texas' sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else. Indeed, Texas [582] itself has previously acknowledged the collateral effects of the law, stipulating in a prior challenge to this action that the law "legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law," including in the areas of "employment, family issues, and housing." State v. Morales , 826 S.W. 2d 201, 203 (Tex. App. 1992). Texas attempts to justify its law, and the effects of the law, by arguing that the statute satisfies rational basis review because it furthers the legitimate governmental interest of the promotion of morality. In Bowers , we held that a state law criminalizing sodomy as applied to homosexual couples did not violate substantive due process. We rejected the argument that no rational basis existed to justify the law, pointing to the government's interest in promoting morality. 478 U.S., at 196. The only question in front of the Court in Bowers was whether the substantive component of the Due Process Clause protected a right to engage in homosexual sodomy. Id. , at 188, n.2. Bowers did not hold that moral disapproval of a group is a rational basis under the Equal Protection Clause to criminalize homosexual sodomy when heterosexual sodomy is not punished. This case raises a different issue than Bowers: whether, under the Equal Protection Clause, moral disapproval is a legitimate state interest to justify by itself a statute that bans homosexual sodomy, but not heterosexual sodomy. It is not. Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause. See, e.g. , Department of Agriculture v. Moreno, supra , at 534; Romer v. Evans , 517 U.S., at 634-635. Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons. [583] Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be "drawn for the purpose of disadvantaging the group burdened by the law." Id. , at 633. Texas' invocation of moral disapproval as a legitimate state interest proves nothing more than Texas' desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating "a classification of persons undertaken for its own sake." Id. , at 635. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law "raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." Id. , at 634. Texas argues, however, that the sodomy law does not discriminate against homosexual persons. Instead, the State maintains that the law discriminates only against homosexual conduct. While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than conduct. It is instead directed toward gay persons as a class. "After all, there can hardly be more palpable discrimination against a class than making the conduct that defines the class criminal." Id. , at 641 (Scalia, J., dissenting) (internal quotation marks omitted). When a State makes homosexual conduct criminal, and not "deviate sexual intercourse" committed by persons of different sexes, "that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante , at 14. Indeed, Texas law confirms that the sodomy statute is directed toward homosexuals as a class. In Texas, calling a person a homosexual is slander per se because the word "ho- [584] mosexual" "impute[s] the commission of a crime." Plumley v. Landmark Chevrolet, Inc. , 122 F.3d 308, 310 (CA5 1997) (applying Texas law); see also Head v. Newton , 596 S.W. 2d 209, 210 (Tex. App. 1980). The State has admitted that because of the sodomy law, being homosexual carries the presumption of being a criminal. See State v. Morales , 826 S.W. 2d, at 202-203 ("[T]he statute brands lesbians and gay men as criminals and thereby legally sanctions discrimination against them in a variety of ways unrelated to the criminal law"). Texas' sodomy law therefore results in discrimination against homosexuals as a class in an array of areas outside the criminal law. See ibid. In Romer v. Evans , we refused to sanction a law that singled out homosexuals "for disfavored legal status." 517 U.S., at 633. The same is true here. The Equal Protection Clause "'neither knows nor tolerates classes among citizens.'" Id. , at 623 (quoting Plessy v. Ferguson , 163 U.S. 537 , 559 (1896) (Harlan, J. dissenting)). A State can of course assign certain consequences to a violation of its criminal law. But the State cannot single out one identifiable class of citizens for punishment that does not apply to everyone else, with moral disapproval as the only asserted state interest for the law. The Texas sodomy statute subjects homosexuals to "a lifelong penalty and stigma. A legislative classification that threatens the creation of an underclass . . . cannot be reconciled with" the Equal Protection Clause. Plyler v. Doe , 457 U.S., at 239 (Powell, J., concurring). Whether a sodomy law that is neutral both in effect and application, see Yick Wo v. Hopkins , 118 U.S. 356 (1886), would violate the substantive component of the Due Process Clause is an issue that need not be decided today. I am confident, however, that so long as the Equal Protection Clause requires a sodomy law to apply equally to the private consensual conduct of homosexuals and heterosexuals alike, such a [585] law would not long stand in our democratic society. In the words of Justice Jackson: "The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York , 336 U.S. 106 , 112-113 (1949) (concurring opinion). That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group. A law branding one class of persons as criminal solely based on the State's moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review. I therefore concur in the Court's judgment that Texas' sodomy law banning "deviate sexual intercourse" between consenting adults of the same sex, but not between consenting adults of different sexes, is unconstitutional. [586] JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, dissenting. "Liberty finds no refuge in a jurisprudence of doubt." Planned Parenthood of Southeastern Pa. v. Casey , 505 U.S. 833 , 844 (1992). That was the Court's sententious response, barely more than a decade ago, to those seeking to overrule Roe v. Wade , 410 U.S. 113 (1973). The Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick , 478 U.S. 186 (1986), is very different. The need for stability and certainty presents no barrier. Most of the rest of today's opinion has no relevance to its actual holding--that the Texas statute "furthers no legitimate state interest which can justify" its application to petitioners under rational-basis review. Ante , at 18 (overruling Bowers to the extent it sustained Georgia's anti-sodomy statute under the rational-basis test). Though there is discussion of "fundamental proposition[s]," ante , at 4, and "fundamental decisions," ibid. nowhere does the Court's opinion declare that homosexual sodomy is a "fundamental right" under the Due Process Clause; nor does it subject the Texas law to the standard of review that would be appropriate (strict scrutiny) if homosexual sodomy were a "fundamental right." Thus, while overruling the outcome of Bowers , the Court leaves strangely untouched its central legal conclusion: "[R]espondent would have us announce . . . a fundamental right to engage in homosexual sodomy. This we are quite unwilling to do." 478 U.S., at 191. Instead the Court simply describes petitioners' conduct as "an exercise of their liberty"--which it undoubtedly is--and proceeds to apply an unheard-of form of rational-basis review that will have far-reaching implications beyond this case. Ante , at 3. I I begin with the Court's surprising readiness to reconsider a decision rendered a mere 17 years ago in Bowers v. Hard [587] wick . I do not myself believe in rigid adherence to stare decisis in constitutional cases; but I do believe that we should be consistent rather than manipulative in invoking the doctrine. Today's opinions in support of reversal do not bother to distinguish--or indeed, even bother to mention--the paean to stare decisis coauthored by three Members of today's majority in Planned Parenthood v. Casey . There, when stare decisis meant preservation of judicially invented abortion rights, the widespread criticism of Roe was strong reason to reaffirm it: "Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe [,] . . . its decision has a dimension that the resolution of the normal case does not carry. . . . [T]o overrule under fire in the absence of the most compelling reason . . . would subvert the Court's legitimacy beyond any serious question." 505 U.S., at 866-867. Today, however, the widespread opposition to Bowers , a decision resolving an issue as "intensely divisive" as the issue in Roe , is offered as a reason in favor of overruling it. See ante , at 15-16. Gone, too, is any "enquiry" (of the sort conducted in Casey ) into whether the decision sought to be overruled has "proven 'unworkable,'" Casey, supra , at 855. Today's approach to stare decisis invites us to overrule an erroneously decided precedent (including an "intensely divisive" decision) if: (1) its foundations have been "eroded" by subsequent decisions, ante , at 15; (2) it has been subject to "substantial and continuing" criticism, ibid. ; and (3) it has not induced "individual or societal reliance" that counsels against overturning, ante , at 16. The problem is that Roe itself--which today's majority surely has no disposition to overrule--satisfies these conditions to at least the same degree as Bowers . [588] (1) A preliminary digressive observation with regard to the first factor: The Court's claim that Planned Parenthood v. Casey, supra , "casts some doubt" upon the holding in Bowers (or any other case, for that matter) does not withstand analysis. Ante , at 10. As far as its holding is concerned, Casey provided a less expansive right to abortion than did Roe, which was already on the books when Bowers was decided . And if the Court is referring not to the holding of Casey , but to the dictum of its famed sweet-mystery-of-life passage, ante , at 13 ("'At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life'"): That "casts some doubt" upon either the totality of our jurisprudence or else (presumably the right answer) nothing at all. I have never heard of a law that attempted to restrict one's "right to define" certain concepts; and if the passage calls into question the government's power to regulate actions based on one's self-defined "concept of existence, etc.," it is the passage that ate the rule of law. I do not quarrel with the Court's claim that Romer v. Evans , 517 U.S. 620 (1996), "eroded" the "foundations" of Bowers ' rational-basis holding. See Romer, supra , at 640-643 (Scalia, J., dissenting).) But Roe and Casey have been equally "eroded" by Washington v. Glucksberg , 521 U.S. 702 , 721 (1997), which held that only fundamental rights which are "'deeply rooted in this Nation's history and tradition'" qualify for anything other than rational basis scrutiny under the doctrine of "substantive due process." Roe and Casey , of course, subjected the restriction of abortion to heightened scrutiny without even attempting to establish that the freedom to abort was rooted in this Nation's tradition. (2) Bowers , the Court says, has been subject to "substantial and continuing [criticism], disapproving of its reasoning in all respects, not just as to its historical assumptions." Ante , at 15. Exactly what those nonhistorical criticisms are, and whether the Court even agrees with them, are left [589] unsaid, although the Court does cite two books. See ibid. (citing C. Fried, Order and Law: Arguing the Reagan Revolution--A Firsthand Account 81-84 (1991); R. Posner, Sex and Reason 341-350 (1992)). [ Footnote 1 ] Of course, Roe too (and by extension Casey ) had been (and still is) subject to unrelenting criticism, including criticism from the two commentators cited by the Court today. See Fried, supra , at 75 ("Roe was a prime example of twisted judging"); Posner, supra , at 337 ("[The Court's] opinion in Roe . . . fails to measure up to professional expectations regarding judicial opinions"); Posner, Judicial Opinion Writing, 62 U. Chi. L.Rev. 1421, 1434 (1995) (describing the opinion in Roe as an "embarrassing performanc[e]"). (3) That leaves, to distinguish the rock-solid, unamendable disposition of Roe from the readily overrulable Bowers , only the third factor. "[T]here has been," the Court says, "no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding . . . ." Ante , at 16. It seems to me that the "societal reliance" on the principles confirmed in Bowers and discarded today has been overwhelming. Countless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's belief that certain sexual behavior is "immoral and unacceptable" constitutes a rational basis for regulation. See, e.g., Williams v. Pryor , 240 F.3d 944, 949 (CA11 2001) (citing Bowers in upholding Alabama's prohibition on the sale of sex toys on the ground that "[t]he crafting and safeguarding of public morality . . . indisputably is a legitimate government interest under rational basis scrutiny"); Milner v. Apfel , 148 F.3d 812, 814 (CA7 1998) (citing Bowers for the proposition that "[l]egislatures are permitted to legislate with regard to morality . . . rather than confined [590] to preventing demonstrable harms"); Holmes v. California Army National Guard 124 F.3d 1126, 1136 (CA9 1997) (relying on Bowers in upholding the federal statute and regulations banning from military service those who engage in homosexual conduct); Owens v. State , 352 Md. 663, 683, 724 A.2d 43, 53 (1999) (relying on Bowers in holding that "a person has no constitutional right to engage in sexual intercourse, at least outside of marriage"); Sherman v. Henry , 928 S.W.2d 464, 469-473 (Tex. 1996) (relying on Bowers in rejecting a claimed constitutional right to commit adultery). We ourselves relied extensively on Bowers when we concluded, in Barnes v. Glen Theatre, Inc. , 501 U.S. 560 , 569 (1991), that Indiana's public indecency statute furthered "a substantial government interest in protecting order and morality," ibid. , (plurality opinion); see also id. , at 575 (Scalia, J., concurring in judgment). State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers ' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding. See ante , at 11 (noting "an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex " (emphasis added)). The impossibility of distinguishing homosexuality from other traditional "morals" offenses is precisely why Bowers rejected the rational-basis challenge. "The law," it said, "is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed." 478 U.S., at 196. [ Footnote 2 ] [591] What a massive disruption of the current social order, therefore, the overruling of Bowers entails. Not so the overruling of Roe , which would simply have restored the regime that existed for centuries before 1973, in which the permissibility of and restrictions upon abortion were determined legislatively State-by-State. Casey , however, chose to base its stare decisis determination on a different "sort" of reliance. "[P]eople," it said, "have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail." 505 U.S., at 856. This falsely assumes that the consequence of overruling Roe would have been to make abortion unlawful. It would not; it would merely have permitted [592] the States to do so. Many States would unquestionably have declined to prohibit abortion, and others would not have prohibited it within six months (after which the most significant reliance interests would have expired). Even for persons in States other than these, the choice would not have been between abortion and childbirth, but between abortion nearby and abortion in a neighboring State. To tell the truth, it does not surprise me, and should surprise no one, that the Court has chosen today to revise the standards of stare decisis set forth in Casey . It has thereby exposed Casey 's extraordinary deference to precedent for the result-oriented expedient that it is. II Having decided that it need not adhere to stare decisis , the Court still must establish that Bowers was wrongly decided and that the Texas statute, as applied to petitioners, is unconstitutional. Texas Penal Code Ann. § 21.06(a) (2003) undoubtedly imposes constraints on liberty. So do laws prohibiting prostitution, recreational use of heroin, and, for that matter, working more than 60 hours per week in a bakery. But there is no right to "liberty" under the Due Process Clause, though today's opinion repeatedly makes that claim. Ante , at 6 ("The liberty protected by the Constitution allows homosexual persons the right to make this choice"); ante , at 13 ("'These matters . . . are central to the liberty protected by the Fourteenth Amendment'"); ante , at 17 ("Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government"). The Fourteenth Amendment expressly allows States to deprive their citizens of "liberty," so long as "due process of law" is provided: "No state shall . . . deprive any person of life, liberty, or property, without due process of law ." Amdt. 14 (emphasis added). [593] Our opinions applying the doctrine known as "substantive due process" hold that the Due Process Clause prohibits States from infringing fundamental liberty interests, unless the infringement is narrowly tailored to serve a compelling state interest. Washington v. Glucksberg , 521 U.S., at 721. We have held repeatedly, in cases the Court today does not overrule, that only fundamental rights qualify for this so-called "heightened scrutiny" protection--that is, rights which are "'deeply rooted in this Nation's history and tradition,'" ibid. See Reno v. Flores , 507 U.S. 292 , 303 (1993) (fundamental liberty interests must be "so rooted in the traditions and conscience of our people as to be ranked as fundamental" (internal quotation marks and citations omitted)); United States v. Salerno , 481 U.S. 739 , 751 (1987) (same). See also Michael H. v. Gerald D. , 491 U.S. 110 , 122 (1989) ("[W]e have insisted not merely that the interest denominated as a 'liberty' be 'fundamental' . . . but also that it be an interest traditionally protected by our society"); Moore v. East Cleveland , 431 U.S. 494 , 503 (1977) (plurality opinion); Meyer v. Nebraska , 262 U.S. 390 , 399 (1923) (Fourteenth Amendment protects "those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men" (emphasis added)). [ Footnote 3 ] All other liberty interests may be abridged or abrogated pursuant to a validly enacted state law if that law is rationally related to a legitimate state interest. [594] Bowers held, first, that criminal prohibitions of homosexual sodomy are not subject to heightened scrutiny because they do not implicate a "fundamental right" under the Due Process Clause, 478 U.S., at 191-194. Noting that "[p]roscriptions against that conduct have ancient roots," id. , at 192, that "[s]odomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights," ibid. , and that many States had retained their bans on sodomy, id. , at 193, Bowers concluded that a right to engage in homosexual sodomy was not "'deeply rooted in this Nation's history and tradition,'" id. , at 192. The Court today does not overrule this holding. Not once does it describe homosexual sodomy as a "fundamental right" or a "fundamental liberty interest," nor does it subject the Texas statute to strict scrutiny. Instead, having failed to establish that the right to homosexual sodomy is "'deeply rooted in this Nation's history and tradition,'" the Court concludes that the application of Texas's statute to petitioners' conduct fails the rational-basis test, and overrules Bowers ' holding to the contrary, see id. , at 196. "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual." Ante , at 18. I shall address that rational-basis holding presently. First, however, I address some aspersions that the Court casts upon Bowers' conclusion that homosexual sodomy is not a "fundamental right"--even though, as I have said, the Court does not have the boldness to reverse that conclusion. III The Court's description of "the state of the law" at the time of Bowers only confirms that Bowers was right. Ante , at 5. The Court points to Griswold v. Connecticut , 381 U.S. 479 , 481-482 (1965). But that case expressly disclaimed any reliance on the doctrine of "substantive due [595] process," and grounded the so-called "right to privacy" in penumbras of constitutional provisions other than the Due Process Clause. Eisenstadt v. Baird , 405 U.S. 438 (1972), likewise had nothing to do with "substantive due process"; it invalidated a Massachusetts law prohibiting the distribution of contraceptives to unmarried persons solely on the basis of the Equal Protection Clause. Of course Eisenstadt contains well known dictum relating to the "right to privacy," but this referred to the right recognized in Griswold --a right penumbral to the specific guarantees in the Bill of Rights, and not a "substantive due process" right. Roe v. Wade recognized that the right to abort an unborn child was a "fundamental right" protected by the Due Process Clause. 410 U.S., at 155. The Roe Court, however, made no attempt to establish that this right was "'deeply rooted in this Nation's history and tradition'"; instead, it based its conclusion that "the Fourteenth Amendment's concept of personal liberty . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy" on its own normative judgment that anti-abortion laws were undesirable. See id. , at 153. We have since rejected Roe 's holding that regulations of abortion must be narrowly tailored to serve a compelling state interest, see Planned Parenthood v. Casey , 505 U.S., at 876 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.); id. , at 951-953 (REHNQUIST, C.J., concurring in judgment in part and dissenting in part)--and thus, by logical implication, Roe 's holding that the right to abort an unborn child is a "fundamental right." See 505 U.S., at 843-912 (joint opinion of O'CONNOR, KENNEDY, and SOUTER, JJ.) (not once describing abortion as a "fundamental right" or a "fundamental liberty interest"). After discussing the history of antisodomy laws, ante , at 7-10, the Court proclaims that, "it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter," ante , [596] at 7. This observation in no way casts into doubt the "definitive [historical] conclusion," id. , on which Bowers relied: that our Nation has a longstanding history of laws prohibiting sodomy in general --regardless of whether it was performed by same-sex or opposite-sex couples: "It is obvious to us that neither of these formulations would extend a fundamental right to homosexuals to engage in acts of consensual sodomy. Proscriptions against that conduct have ancient roots. Sodomy was a criminal offense at common law and was forbidden by the laws of the original 13 States when they ratified the Bill of Rights. In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws . In fact, until 1961, all 50 States outlawed sodomy , and today, 24 States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults. Against this background, to claim that a right to engage in such conduct is 'deeply rooted in this Nation's history and tradition' or 'implicit in the concept of ordered liberty' is, at best, facetious." 478 U.S., at 192-194 (citations and footnotes omitted; emphasis added). It is (as Bowers recognized) entirely irrelevant whether the laws in our long national tradition criminalizing homosexual sodomy were "directed at homosexual conduct as a distinct matter." Ante , at 7. Whether homosexual sodomy was prohibited by a law targeted at same-sex sexual relations or by a more general law prohibiting both homosexual and heterosexual sodomy, the only relevant point is that it was criminalized--which suffices to establish that homosexual sodomy is not a right "deeply rooted in our Nation's history and tradition." The Court today agrees that homosexual sodomy was criminalized and thus does not dispute the facts on which Bowers actually relied. [597] Next the Court makes the claim, again unsupported by any citations, that "[l]aws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private." Ante , at 8. The key qualifier here is "acting in private"--since the Court admits that sodomy laws were enforced against consenting adults (although the Court contends that prosecutions were "infrequent," ante , at 9). I do not know what "acting in private" means; surely consensual sodomy, like heterosexual intercourse, is rarely performed on stage. If all the Court means by "acting in private" is "on private premises, with the doors closed and windows covered," it is entirely unsurprising that evidence of enforcement would be hard to come by. (Imagine the circumstances that would enable a search warrant to be obtained for a residence on the ground that there was probable cause to believe that consensual sodomy was then and there occurring.) Surely that lack of evidence would not sustain the proposition that consensual sodomy on private premises with the doors closed and windows covered was regarded as a "fundamental right," even though all other consensual sodomy was criminalized. There are 203 prosecutions for consensual, adult homosexual sodomy reported in the West Reporting system and official state reporters from the years 1880-1995. See W.Eskridge, Gaylaw: Challenging the Apartheid of the Closet 375 (1999) (hereinafter Gaylaw). There are also records of 20 sodomy prosecutions and 4 executions during the colonial period. J.Katz, Gay/Lesbian Almanac 29, 58, 663 (1983). Bowers ' conclusion that homosexual sodomy is not a fundamental right "deeply rooted in this Nation's history and tradition" is utterly unassailable. Realizing that fact, the Court instead says: "[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex ." Ante , at 11 (emphasis [598] added). Apart from the fact that such an "emerging awareness" does not establish a "fundamental right," the statement is factually false. States continue to prosecute all sorts of crimes by adults "in matters pertaining to sex": prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced "in the past half century," in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy. Gaylaw 375. In relying, for evidence of an "emerging recognition," upon the American Law Institute's 1955 recommendation not to criminalize "'consensual sexual relations conducted in private,'" ante , at 11, the Court ignores the fact that this recommendation was "a point of resistance in most of the states that considered adopting the Model Penal Code." Gaylaw 159. In any event, an "emerging awareness" is by definition not "deeply rooted in this Nation's history and tradition[s]," as we have said "fundamental right" status requires. Constitutional entitlements do not spring into existence because some States choose to lessen or eliminate criminal sanctions on certain behavior. Much less do they spring into existence, as the Court seems to believe, because foreign nations decriminalize conduct. The Bowers majority opinion never relied on "values we share with a wider civilization," ante , at 16, but rather rejected the claimed right to sodomy on the ground that such a right was not "'deeply rooted in this Nation's history and tradition,'" 478 U.S., at 193-194 (emphasis added). Bowers ' rational-basis holding is likewise devoid of any reliance on the views of a "wider civilization," see id. , at 196. The Court's discussion of these foreign views (ignoring, of course, the many countries that have retained criminal prohibitions on sodomy) is therefore meaningless dicta. Dangerous dicta, however, since "this Court . . . should not impose foreign moods, fads, or fashions on Americans." Foster v. Florida , 537 U.S. 990 , n. (2002) (THOMAS, J., concurring in denial of certiorari). [599] IV I turn now to the ground on which the Court squarely rests its holding: the contention that there is no rational basis for the law here under attack. This proposition is so out of accord with our jurisprudence--indeed, with the jurisprudence of any society we know--that it requires little discussion. The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are "immoral and unacceptable," Bowers, supra , at 196--the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, "furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," ante , at 18 (emphasis addded). The Court embraces instead JUSTICE STEVENS' declaration in his Bowers dissent, that "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice," ante , at 17 . This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. V Finally, I turn to petitioners' equal-protection challenge, which no Member of the Court save JUSTICE O'CONNOR, ante , at 1 (opinion concurring in judgment), embraces: On its face § 21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, § 21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual [600] acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex. The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia , 388 U.S. 1 , 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving , however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was "designed to maintain White Supremacy." Id. , at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis , 426 U.S. 229 , 241-242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers --society's belief that certain forms of sexual behavior are "immoral and unacceptable," 478 U.S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner-- for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage. JUSTICE O'CONNOR argues that the discrimination in this law which must be justified is not its discrimination with regard to the sex of the partner but its discrimination with regard to the sexual proclivity of the principal actor. "While it is true that the law applies only to conduct, the conduct targeted by this law is conduct that is closely correlated with being homosexual. Under such circumstances, Texas' sodomy law is targeted at more than con- [601] duct. It is instead directed toward gay persons as a class." Ante , at 5. Of course the same could be said of any law. A law against public nudity targets "the conduct that is closely correlated with being a nudist," and hence "is targeted at more than conduct"; it is "directed toward nudists as a class." But be that as it may. Even if the Texas law does deny equal protection to "homosexuals as a class," that denial still does not need to be justified by anything more than a rational basis, which our cases show is satisfied by the enforcement of traditional notions of sexual morality. JUSTICE O'CONNOR simply decrees application of "a more searching form of rational basis review" to the Texas statute. Ante , at 2. The cases she cites do not recognize such a standard, and reach their conclusions only after finding, as required by conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification at issue. See Romer v. Evans , 517 U.S., at 635; Cleburne v. Cleburne Living Center, Inc. , 473 U.S. 432 , 448-450 (1985); Department of Agriculture v. Moreno , 413 U.S. 528 , 534-538 (1973). Nor does JUSTICE O'CONNOR explain precisely what her "more searching form" of rational-basis review consists of. It must at least mean, however, that laws exhibiting "a desire to harm a politically unpopular group,'" ante , at 2, are invalid even though there may be a conceivable rational basis to support them. This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest. Ante , at 7. But "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples. Texas's interest in § 21.06 could be recast in similarly euphemistic terms: "preserving the traditional sexual mores of our society." In the jurisprudence JUSTICE O'CONNOR [602] has seemingly created, judges can validate laws by characterizing them as "preserving the traditions of society" (good); or invalidate them by characterizing them as "expressing moral disapproval" (bad). * * * Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra , at 653. One of the most revealing statements in today's opinion is the Court's grim warning that the criminalization of homosexual conduct is "an invitation to subject homosexual persons to discrimination both in the public and in the private spheres." Ante , at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children's schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as "discrimination" which it is the function of our judgments to deter. So imbued is the Court with the law profession's anti-anti-homosexual culture, that it is seemingly unaware that the attitudes of that [603] culture are not obviously "mainstream"; that in most States what the Court calls "discrimination" against those who engage in homosexual acts is perfectly legal; that proposals to ban such "discrimination" under Title VII have repeatedly been rejected by Congress, see Employment Non-Discrimination Act of 1994, S. 2238, 103d Cong., 2d Sess. (1994); Civil Rights Amendments, H.R. 5452, 94th Cong., 1st Sess. (1975); that in some cases such "discrimination" is mandated by federal statute, see 10 U.S.C. § 654(b)(1) (mandating discharge from the armed forces of any service member who engages in or intends to engage in homosexual acts); and that in some cases such "discrimination" is a constitutional right, see Boy Scouts of America v. Dale , 530 U.S. 640 (2000). Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best. That homosexuals have achieved some success in that enterprise is attested to by the fact that Texas is one of the few remaining States that criminalize private, consensual homosexual acts. But persuading one's fellow citizens is one thing, and imposing one's views in absence of democratic majority will is something else. I would no more require a State to criminalize homosexual acts--or, for that matter, display any moral disapprobation of them--than I would forbid it to do so. What Texas has chosen to do is well within the range of traditional democratic action, and its hand should not be stayed through the invention of a brand-new "constitutional right" by a Court that is impatient of democratic change. It is indeed true that "later generations can see that laws once thought necessary and proper in fact serve only to oppress," ante , at 18; and when that happens, later generations can repeal those laws. But it is the premise of our system that those judgments are to be made [604] by the people, and not imposed by a governing caste that knows best. One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts--and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada (in a decision that the Canadian Government has chosen not to appeal). See Halpern v. Toronto , 2003 WL 34950 (Ontario Ct.App.); Cohen, Dozens in Canada Follow Gay Couple's Lead, Washington Post, June 12, 2003, p. A25. At the end of its opinion--after having laid waste the foundations of our rational-basis jurisprudence--the Court says that the present case "does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter." Ante , at 17. Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion, which notes the constitutional protections afforded to "personal decisions relating to marriage , procreation, contraception, family relationships, child rearing, and education," and then declares that "[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do." Ante , at 13 (emphasis added) . Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct, ante , at 18; and if, as the Court coos (casting aside all pretense of neutrality), "[w]hen [605] sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring," ante , at 6; what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "[t]he liberty protected by the Constitution," ibid .? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so. The matters appropriate for this Court's resolution are only three: Texas's prohibition of sodomy neither infringes a "fundamental right" (which the Court does not dispute), nor is unsupported by a rational relation to what the Constitution considers a legitimate state interest, nor denies the equal protection of the laws. I dissent. JUSTICE THOMAS, dissenting. I join Justice Scalia's dissenting opinion. I write separately to note that the law before the Court today "is . . . uncommonly silly." Griswold v. Connecticut , 381 U.S. 479 , 527 (1965) (Stewart, J., dissenting). If I were a member of the Texas Legislature, I would vote to repeal it. Punishing someone for expressing his sexual preference through noncommercial consensual conduct with another adult does not appear to be a worthy way to expend valuable law enforcement resources. Notwithstanding this, I recognize that as a member of this Court I am not empowered to help petitioners and others similarly situated. My duty, rather, is to "decide cases 'agreeably to the Constitution and laws of the United States.'" Id. , at 530. And, just like Justice Stewart, I "can find [neither in the Bill of Rights nor any other part of the [606] Constitution a] general right of privacy," ibid. , or as the Court terms it today, the "liberty of the person both in its spatial and more transcendent dimensions," ante , at 562. Notes 1. This last-cited critic of Bowers actually writes: " [Bowers] is correct nevertheless that the right to engage in homosexual acts is not deeply rooted in America's history and tradition." Posner, Sex and Reason, at 343. 2. While the Court does not overrule Bowers ' holding that homosexual sodomy is not a "fundamental right," it is worth noting that the "societal reliance" upon that aspect of the decision has been substantial as well. See 10 U.S.C. § 654(b)(1) ("A member of the armed forces shall be separated from the armed forces . . . if . . . the member has engaged in . . . a homosexual act or acts"); Marcum v. McWhorter , 308 F.3d 635, 640-642 (CA6 2002) (relying on Bowers in rejecting a claimed fundamental right to commit adultery); Mullins v. Oregon , 57 F.3d 789, 793-794 (CA9 1995) (relying on Bowers in rejecting a grandparent's claimed "fundamental liberty interes[t]" in the adoption of her grandchildren); Doe v. Wigginton , 21 F.3d 733, 739-740 (CA6 1994) (relying on Bowers in rejecting a prisoner's claimed "fundamental right" to on-demand HIV testing); Schowengerdt v. United States , 944 F.2d 483, 490 (CA9 1991) (relying on Bowers in upholding a bisexual's discharge from the armed services); Charles v. Baesler , 910 F.2d 1349, 1353 (CA6 1990) (relying on Bowers in rejecting fire department captain's claimed "fundamental" interest in a promotion); Henne v. Wright , 904 F.2d 1208, 1214-1215 (CA8 1990) (relying on Bowers in rejecting a claim that state law restricting surnames that could be given to children at birth implicates a "fundamental right"); Walls v. Petersburg , 895 F.2d 188, 193 (CA4 1990) (relying on Bowers in rejecting substantive-due-process challenge to a police department questionnaire that asked prospective employees about homosexual activity); High Tech Gays v. Defense Industrial Security Clearance Office , 895 F.2d 563, 570-571 (CA9 1988) (relying on Bowers ' holding that homosexual activity is not a fundamental right in rejecting--on the basis of the rational-basis standard--an equal-protection challenge to the Defense Department's policy of conducting expanded investigations into backgrounds of gay and lesbian applicants for secret and top-secret security clearances). 3. The Court is quite right that "history and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry," ante , at 11. An asserted "fundamental liberty interest" must not only be "deeply rooted in this Nation's history and tradition," Washington v. Glucksberg , 521 U.S. 702 , 721 (1997), but it must also be "implicit in the concept of ordered liberty," so that "neither liberty nor justice would exist if [it] were sacrificed," ibid . Moreover, liberty interests unsupported by history and tradition, though not deserving of "heightened scrutiny," are still protected from state laws that are not rationally related to any legitimate state interest. Id. , at 722. As I proceed to discuss, it is this latter principle that the Court applies in the present case.

The Supreme Court ruled that a Texas statute criminalizing same-sex intimate conduct violated the Due Process Clause of the Fourteenth Amendment, which protects liberty and autonomy in both spatial and transcendent dimensions. The Court did not overrule the previous decision in Bowers v. Hardwick, but noted the substantial societal reliance on that decision. The Court affirmed that "history and tradition" are essential in determining substantive due process, but they are not the sole determining factors. Liberty interests, even if unsupported by history and tradition, are protected from irrational state laws.

Labor & Employment

Groff v. DeJoy

https://supreme.justia.com/cases/federal/us/600/22-174/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–174 _________________ GERALD E. GROFF, PETITIONER v. LOUIS DeJOY, POSTMASTER GENERAL on writ of certiorari to the united states court of appeals for the third circuit [June 29, 2023] Justice Alito delivered the opinion of the Court. Title VII of the Civil Rights Act of 1964 requires employers to accommodate the religious practice of their employees unless doing so would impose an “undue hardship on the conduct of the employer’s business.” 78Stat. 253, as amended, 42 U. S. C. §2000e(j). Based on a line in this Court’s decision in Trans World Airlines, Inc. v. Hardison , 432 U.S. 63 , 84 (1977), many lower courts, including the Third Circuit below, have interpreted “undue hardship” to mean any effort or cost that is “more than . . . de minimis .” In this case, however, both parties—the plaintiff-petitioner, Gerald Groff, and the defendant-respondent, the Postmaster General, represented by the Solicitor General—agree that the de minimis reading of Hardison is a mistake. With the benefit of thorough briefing and oral argument, we today clarify what Title VII requires. I Gerald Groff is an Evangelical Christian who believes for religious reasons that Sunday should be devoted to worship and rest, not “secular labor” and the “transport[ation]” of worldly “goods.” App. 294. In 2012, Groff began his employment with the United States Postal Service (USPS), which has more than 600,000 employees. He became a Rural Carrier Associate, a job that required him to assist regular carriers in the delivery of mail. When he took the position, it generally did not involve Sunday work. But within a few years, that changed. In 2013, USPS entered into an agreement with Amazon to begin facilitating Sunday deliveries, and in 2016, USPS signed a memorandum of understanding with the relevant union (the National Rural Letter Carriers’ Association) that set out how Sunday and holiday parcel delivery would be handled. During a 2-month peak season, each post office would use its own staff to deliver packages. At all other times, Sunday and holiday deliveries would be carried out by employees (including Rural Carrier Associates like Groff) working from a “regional hub.” For Quarryville, Pennsylvania, where Groff was originally stationed, the regional hub was the Lancaster Annex. The memorandum specifies the order in which USPS employees are to be called on for Sunday work outside the peak season. First in line are each hub’s “Assistant Rural Carriers”— part-time employees who are assigned to the hub and cover only Sundays and holidays. Second are any volunteers from the geographic area, who are assigned on a rotating basis. And third are all other carriers, who are compelled to do the work on a rotating basis. Groff fell into this third category, and after the memorandum of understanding was adopted, he was told that he would be required to work on Sunday. He then sought and received a transfer to Holtwood, a small rural USPS station that had only seven employees and that, at the time, did not make Sunday deliveries. But in March 2017, Amazon deliveries began there as well. With Groff unwilling to work on Sundays, USPS made other arrangements. During the peak season, Sunday deliveries that would have otherwise been performed by Groff were carried out by the rest of the Holtwood staff, including the postmaster, whose job ordinarily does not involve delivering mail. During other months, Groff ’s Sunday assignments were redistributed to other carriers assigned to the regional hub.[ 1 ] Throughout this time, Groff continued to receive “progressive discipline” for failing to work on Sundays. 35 F. 4th 162, 166 (CA3 2022). Finally, in January 2019, he resigned.[ 2 ] A few months later, Groff sued under Title VII, asserting that USPS could have accommodated his Sunday Sabbath practice “without undue hardship on the conduct of [USPS’s] business.” 42 U. S. C. §2000e(j). The District Court granted summary judgment to USPS, 2021 WL 1264030 (ED Pa., Apr. 6, 2021), and the Third Circuit affirmed. The panel majority felt that it was “bound by [the] ruling” in Hardison , which it construed to mean “that requiring an employer ‘to bear more than a de minimis cost’ to provide a religious accommodation is an undue hardship.” 35 F. 4th, at 174, n. 18 (quoting 432 U. S., at 84). Under Circuit precedent, the panel observed, this was “not a difficult threshold to pass,” 35 F. 4th, at 174 (internal quotation marks omitted), and it held that this low standard was met in this case. Exempting Groff from Sunday work, the panel found, had “imposed on his coworkers, disrupted the workplace and workflow, and diminished employee morale.” Id ., at 175. Judge Hardiman dissented, concluding that adverse “effects on USPS employees in Lancaster or Holtwood” did not alone suffice to show the needed hardship “on the employer’s business .” Id ., at 177 (emphasis in original). We granted Groff ’s ensuing petition for a writ of certiorari. 598 U. S. ___ (2023). II Because this case presents our first opportunity in nearly 50 years to explain the contours of Hardison , we begin by recounting the legal backdrop to that case, including the development of the Title VII provision barring religious discrimination and the Equal Employment Opportunity Commission’s (EEOC’s) regulations and guidance regarding that prohibition. We then summarize how the Hardison case progressed to final decision, and finally, we discuss how courts and the EEOC have understood its significance. This background helps to explain the clarifications we offer today. A Since its passage, Title VII of the Civil Rights Act of 1964 has made it unlawful for covered employers “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges [of] employment, because of such individual’s . . . religion.” 42 U. S. C. §2000e–2(a)(1) (1964 ed.). As originally enacted, Title VII did not spell out what it meant by discrimination “because of . . . religion,” but shortly after the statute’s passage, the EEOC interpreted that provision to mean that employers were sometimes required to “accommodate” the “reasonable religious needs of employees.” 29 CFR § 1605.1(a)(2) (1967). After some tinkering, the EEOC settled on a formulation that obligated employers “to make reasonable accommodations to the religious needs of employees” whenever that would not work an “undue hardship on the conduct of the employer’s business.” 29 CFR § 1605.1 (1968). Between 1968 and 1972, the EEOC elaborated on its understanding of “undue hardship” in a “long line of decisions” addressing a variety of policies . Hardison , 432 U. S., at 85 (Marshall, J., dissenting); see Brief for General Conference of Seventh-day Adventists as Amicus Curiae 10–22 (collecting decisions). Those decisions addressed many accommodation issues that still arise frequently today, including the wearing of religious garb[ 3 ] and time off from work to attend to religious obligations.[ 4 ] EEOC decisions did not settle the question of undue hardship. In 1970, the Sixth Circuit held (in a Sabbath case) that Title VII as then written did not require an employer “to accede to or accommodate” religious practice because that “would raise grave” Establishment Clause questions. Dewey v. Reynolds Metals Co ., 429 F.2d 324, 334. This Court granted certiorari, 400 U.S. 1008, but then affirmed by an evenly divided vote, 402 U.S. 689 (1971). Responding to Dewey and another decision rejecting any duty to accommodate an employee’s observance of the Sabbath, Congress amended Title VII in 1972. Hardison , 432 U. S., at 73–74; id. , at 88–89 (Marshall, J., dissenting). Tracking the EEOC’s regulatory language, Congress provided that “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U. S. C. §2000e(j) (1970 ed., Supp. II). B The Hardison case concerned a dispute that arose during the interval between the issuance of the EEOC’s ”undue hardship” regulation and the 1972 amendment to Title VII. In 1967, Larry Hardison was hired as a clerk at the Stores Department in the Kansas City base of Trans World Airlines (TWA). The Stores Department was responsible for providing parts needed to repair and maintain aircraft. Hardison v. Trans World Airlines , 375 F. Supp. 877 , 889 (WD Mo. 1974). It played an “essential role” and operated “24 hours per day, 365 days per year.” Hardison , 432 U. S., at 66. After taking this job, Hardison underwent a religious conversion. He began to observe the Sabbath by absenting himself from work from sunset on Friday to sunset on Saturday, and this conflicted with his work schedule. The problem was solved for a time when Hardison, who worked in Building 1, switched to the night shift, but it resurfaced when he sought and obtained a transfer to the day shift in Building 2 so that he could spend evenings with his wife. 375 F. Supp., at 889. In that new building, he did not have enough seniority to avoid work during his Sabbath. Attempts at accommodation failed, and he was eventually “discharged on grounds of insubordination.” 432 U. S., at 69. Hardison sued TWA and his union, the International Association of Machinists and Aerospace Workers (IAM).[ 5 ] The Eighth Circuit found that reasonable accommodations were available, and it rejected the defendants’ Establishment Clause arguments. Hardison v. Trans World Airlines, Inc ., 527 F.2d 33, 42–44 (1975). Both TWA and IAM then filed petitions for certiorari, with TWA’s lead petition asking this Court to decide whether the 1972 amendment of Title VII violated the Establishment Clause as applied in the decision below, particularly insofar as that decision had approved an accommodation that allegedly overrode seniority rights granted by the relevant collective bargaining agreement.[ 6 ] The Court granted both petitions. 429 U.S. 958 (1976). When the Court took that action, all counsel had good reason to expect that the Establishment Clause would figure prominently in the Court’s analysis. As noted above, in June 1971, the Court, by an equally divided vote, had affirmed the Sixth Circuit’s decision in Dewey , which had heavily relied on Establishment Clause avoidance to reject the interpretation of Title VII set out in the EEOC’s reasonable-accommodation guidelines. Just over three weeks later, the Court had handed down its (now abrogated)[ 7 ] decision in Lemon v. Kurtzman , 403 U.S. 602 (1971) which adopted a test under which any law whose “principal or primary effect” “was to advance religion” was unconstitutional. Id. , at 612–613. Because it could be argued that granting a special accommodation to a religious practice had just such a purpose and effect, some thought that Lemon posed a serious problem for the 1972 amendment of Title VII. And shortly before review was granted in Hardison , the Court had announced that the Justices were evenly divided in a case that challenged the 1972 amendment as a violation of the Establishment Clause . Parker Seal Co. v. Cummins , 429 U.S. 65 (1976) ( per curiam ). Against this backdrop, both TWA and IAM challenged the constitutionality of requiring any accommodation for religious practice. The Summary of Argument in TWA’s brief began with this categorical assertion: “The religious accommodation requirement of Title VII violates the Establishment Clause of the First Amendment.” Brief for Petitioner TWA in O. T. 1976, No. 75–1126, p. 19. Applying the three-part Lemon test, TWA argued that any such accommodation has the primary purpose and effect of advancing religion and entails “pervasive” government “entanglement . . . in religious issues.” Brief for Petitioner TWA in No. 75–1126, at 20. The union’s brief made a similar argument, Brief for Petitioner IAM, O. T. 1976, No. 75–1126, pp. 21–24, 50–72, but stressed the special status of seniority rights under Title VII, id. , at 24–36. Despite the prominence of the Establishment Clause in the briefs submitted by the parties and their amici ,[ 8 ] constitutional concerns played no on-stage role in the Court’s opinion, which focused instead on seniority rights.[ 9 ] The opinion stated that “the principal issue on which TWA and the union came to this Court” was whether Title VII “require[s] an employer and a union who have agreed on a seniority system to deprive senior employees of their seniority rights in order to accommodate a junior employee’s religious practices.” 432 U. S., at 83, and n. 14. The Court held that Title VII imposed no such requirement. Ibid . This conclusion, the Court found, was “supported by the fact that seniority systems are afforded special treatment under Title VII itself.” Id ., at 81. It noted that Title VII expressly provides special protection for “ ‘bona fide seniority . . . system[s],’ ” id ., at 81–82 (quoting 42 U. S. C. §2000e–2(h)), and it cited precedent reading the statute “ ‘to make clear that the routine application of a bona fide seniority system [is] not . . . unlawful under Title VII.’ ” 432 U. S., at 82 (quoting Teamsters v. United States , 431 U.S. 324 , 352 (1977)). Invoking these authorities, the Court found that the statute did not require an accommodation that involuntarily deprived employees of seniority rights. 432 U. S., at 80.[ 10 ] Applying this interpretation of Title VII and disagreeing with the Eighth Circuit’s evaluation of the factual record, the Court identified no way in which TWA, without violating seniority rights, could have feasibly accommodated Hardison’s request for an exemption from work on his Sabbath. The Court found that not enough co-workers were willing to take Hardison’s shift voluntarily, that compelling them to do so would have violated their seniority rights, and that leaving the Stores Department short-handed would have adversely affected its “essential” mission. Id ., at 68, 80. The Court also rejected two other options offered in Justice Marshall’s dissent: (1) paying other workers overtime wages to induce them to work on Saturdays and making up for that increased cost by requiring Hardison to work overtime for regular wages at other times and (2) forcing TWA to pay overtime for Saturday work for three months, after which, the dissent thought, Hardison could transfer back to the night shift in Building 1. The Court dismissed both of these options as not “feasible,” id. , at 83, n. 14, but it provided no explanation for its evaluation of the first. In dissent, Justice Marshall suggested one possible reason: that the collective bargaining agreement might have disallowed Hardison’s working overtime for regular wages. Id. , at 95 (dissenting opinion). But the majority did not embrace that explanation. As for the second, the Court disputed the dissent’s conclusion that Hardison, if he moved back to Building 1, would have had enough seniority to choose to work the night shift. Id. , at 83, n. 14. That latter disagreement was key. The dissent thought that Hardison could have resumed the night shift in Building 1 after just three months, and it therefore calculated what it would have cost TWA to pay other workers’ overtime wages on Saturdays for that finite period of time. According to that calculation, TWA’s added expense for three months would have been $150 (about $1,250 in 2022 dollars).[ 11 ] Id ., at 92, n. 6. But the Court doubted that Hardison could have regained the seniority rights he had enjoyed in Building 1 prior to his transfer, and if that were true, TWA would have been required to pay other workers overtime for Saturday work indefinitely. Even under Justice Marshall’s math, that would have worked out to $600 per year at the time, or roughly $5,000 per year today. In the briefs and at argument, little space was devoted to the question of determining when increased costs amount to an “undue hardship” under the statute, but a single, but oft-quoted, sentence in the opinion of the Court, if taken literally, suggested that even a pittance might be too much for an employer to be forced to endure. The line read as follows: “To require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Id ., at 84. Although this line would later be viewed by many lower courts as the authoritative interpretation of the statutory term “undue hardship,” it is doubtful that it was meant to take on that large role. In responding to Justice Marshall’s dissent, the Court described the governing standard quite differently, stating three times that an accommodation is not required when it entails “substantial” “costs” or “expenditures.” Id. , at 83, n. 14. This formulation suggests that an employer may be required to bear costs and make expenditures that are not “substantial.” Of course, there is a big difference between costs and expenditures that are not “substantial” and those that are “de minimis,” which is to say, so “very small or trifling” that that they are not even worth noticing. Black’s Law Dictionary 388 (5th ed. 1979). The Court’s response to Justice Marshall’s estimate of the extra costs that TWA would have been required to foot is also telling. The majority did not argue that Justice Marshall’s math produced considerably “more than a de minimis cost” (as it certainly did). Instead, the Court responded that Justice Marshall’s calculation involved assumptions that were not “feasible under the circumstances” and would have produced a different conflict with “the seniority rights of other employees.” 432 U. S., at 83, n. 14; see Brief for United States 29, n. 4 (noting that Hardison “specifically rejected” the dissent’s calculations and that it is “wrong to assert” that Hardison held that a $150 cost was an undue hardship). Ultimately, then, it is not clear that any of the possible accommodations would have actually solved Hardison’s problem without transgressing seniority rights. The Hardison Court was very clear that those rights were off-limits. Its guidance on “undue hardship” in situations not involving seniority rights is much less clear. C Even though Hardison ’s reference to “ de minimis ” was undercut by conflicting language and was fleeting in comparison to its discussion of the “principal issue” of seniority rights, lower courts have latched on to “ de minimis ” as the governing standard. To be sure, as the Solicitor General notes, some lower courts have understood that the protection for religious adherents is greater than “more than . . . de minimis ” might suggest when read in isolation. But a bevy of diverse religious organizations has told this Court that the de minimis test has blessed the denial of even minor accommodation in many cases, making it harder for members of minority faiths to enter the job market. See, e.g. , Brief for The Sikh Coalition et al. as Amici Curiae 15, 19–20 (“the de minimis standard eliminates any meaningful mandate to accommodate Sikh practices in the workplace” and “emboldens employers to deny reasonable accommodation requests”); Brief for Council on American-Islamic Relations as Amicus Curiae 3 (Muslim women wearing religiously mandated attire “have lost employment opportunities” and have been excluded from “critical public institutions like public schools, law enforcement agencies, and youth rehabilitation centers”); Brief for Union of Orthodox Jewish Congregations of America as Amicus Curiae 14–15 (because the “ de minimis cost” test “can be satisfied in nearly any circumstance,” “Orthodox Jews once again [are] left at the mercy of their employers’ good graces”); Brief for Seventh-day Adventist Church in Canada et al. as Amici Curiae 8 (joint brief of Sabbatarian faiths arguing that Sabbath accommodation under the de minimis standard is left to “their employers’ and coworkers’ goodwill”). The EEOC has also accepted Hardison as prescribing a “ ‘more than a de minimis cost’ ” test, 29 CFR §1605.2(e)(1) (2022), but has tried in some ways to soften its impact. It has specifically cautioned (as has the Solicitor General in this case) against extending the phrase to cover such things as the “administrative costs” involved in reworking schedules, the “infrequent” or temporary “payment of premium wages for a substitute,” and “voluntary substitutes and swaps” when they are not contrary to a “bona fide seniority system.” §§1605.2(e)(1), (2). Nevertheless, some courts have rejected even the EEOC’s gloss on “ de minimis .”[ 12 ] And in other cases, courts have rejected accommodations that the EEOC’s guidelines consider to be ordinarily required, such as the relaxation of dress codes and coverage for occasional absences.[ 13 ] Members of this Court have warned that, if the de minimis rule represents the holding of Hardison , the decision might have to be reconsidered. Small v. Memphis Light, Gas & Water , 593 U. S. ___ (2021) (Gorsuch, J., dissenting from denial of certiorari); Patterson v. Walgreen Co. , 589 U. S. ___ (2020) (Alito, J., concurring in denial of certiorari). Four years ago, the Solicitor General—joined on its brief by the EEOC—likewise took that view. Brief for United States as Amicus Curiae in Patterson v. Walgreen Co. , O. T. 2019, No. 18–349, p. 20 (“Contrary to Hardison , therefore, an ‘undue hardship’ is not best interpreted to mean ‘more than a de minimis cost’ ”). Today, the Solicitor General disavows its prior position that Hardison should be overruled—but only on the understanding that Hardison does not compel courts to read the “more than de minimis ” standard “literally” or in a manner that undermines Hardison ’s references to “substantial” cost.[ 14 ] Tr. of Oral Arg. 107. With the benefit of comprehensive briefing and oral argument, we agree.[ 15 ] III We hold that showing “more than a de minimis cost,” as that phrase is used in common parlance, does not suffice to establish “undue hardship” under Title VII. Hardison cannot be reduced to that one phrase. In describing an employer’s “undue hardship” defense, Hardison referred repeatedly to “substantial” burdens, and that formulation better explains the decision. We therefore, like the parties, understand Hardison to mean that “undue hardship” is shown when a burden is substantial in the overall context of an employer’s business. See Tr. of Oral Arg. 61–62 (argument of Solicitor General). This fact-specific inquiry comports with both Hardison and the meaning of “undue hardship” in ordinary speech. A As we have explained, we do not write on a blank slate in determining what an employer must prove to defend a denial of a religious accommodation, but we think it reasonable to begin with Title VII’s text. After all, as we have stressed over and over again in recent years, statutory interpretation must “begi[n] with,” and ultimately heed, what a statute actually says. National Assn. of Mfrs. v. Department of Defense , 583 U.S. 109, ___ (2018) (slip op., at 15) (internal quotation marks omitted); see Bartenwerfer v. Buckley , 598 U.S. 69, 74 (2023); Intel Corp. Investment Policy Comm. v. Sulyma , 589 U. S. ___, ___–___, ___ (2020) (slip op., at 5–6, 9).Here, the key statutory term is “undue hardship.” In common parlance, a “hardship” is, at a minimum, “something hard to bear.” Random House Dictionary of the English Language 646 (1966) (Random House). Other definitions go further. See, e.g. , Webster’s Third New International Dictionary 1033 (1971) (Webster’s Third) (“something that causes or entails suffering or privation”); American Heritage Dictionary 601 (1969) (American Heritage) (“[e]xtreme privation; adversity; suffering”); Black’s Law Dictionary, at 646 (“privation, suffering, adversity”). But under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level. Random House 1547; see, e.g. , Webster’s Third 2492 (“inappropriate,” “unsuited,” or “exceeding or violating propriety or fitness”); American Heritage 1398 (“excessive”). The Government agrees, noting that “ ‘undue hardship means something greater than hardship.’ ” Brief for United States 30; see id. , at 39 (arguing that “accommodations should be assessed while ‘keep[ing] in mind both words in the key phrase of the actual statutory text: “undue” and “hardship” ’ ” (quoting Adeyeye v. Heartland Sweeteners, LLC , 721 F.3d 444, 456 (CA7 2013)). When “undue hardship” is understood in this way, it means something very different from a burden that is merely more than de minimis , i.e. , something that is “very small or trifling.” Black’s Law Dictionary, at 388. So considering ordinary meaning while taking Hardison as a given, we are pointed toward something closer to Hardison ’s references to “substantial additional costs” or “substantial expenditures.” 432 U. S., at 83, n. 14. Similarly, while we do not rely on the pre-1972 EEOC decisions described above to define the term, we do observe that these decisions often found that accommodations that entailed substantial costs were required. See supra , at 5, nn. 3–4. Nothing in this history plausibly suggests that “undue hardship” in Title VII should be read to mean anything less than its meaning in ordinary use. Cf. George v. McDonough , 596 U. S. ___, ___ (2022) (slip op., at 5) (a “robust regulatory backdrop” can “fil[l] in the details” of a statutory scheme’s use of a specific term). In short, no factor discussed by the parties—the ordinary meaning of “undue hardship,” the EEOC guidelines that Hardison concluded that the 1972 amendment “ ‘ratified,’ ” 432 U. S., at 76, n. 11 (internal quotation marks omitted), the use of that term by the EEOC prior to those amendments, and the common use of that term in other statutes—supports reducing Hardison to its “more than a de minimis cost” line. See Brief for United States 39 (arguing that “the Court could emphasize that Hardison ’s language does not displace the statutory standard”). B In this case, both parties agree that the “ de minimis ” test is not right, but they differ slightly in the alternative language they prefer. Groff likes the phrase “significant difficulty or expense.” Brief for Petitioner 15; Reply Brief 2. The Government, disavowing its prior position that Title VII’s text requires overruling Hardison , points us to Hardison ’s repeated references to “substantial expenditures” or “substantial additional costs.” Brief for United States 28–29 (citing 432 U. S., at 83–84, and n. 14); see Brief for United States 39. We think it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. Hardison , 432 U. S., at 83, n. 14. What matters more than a favored synonym for “undue hardship” (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.” Brief for United States 40 (internal quotation marks omitted). C The main difference between the parties lies in the further steps they would ask us to take in elaborating upon their standards. Groff would not simply borrow the phrase “significant difficulty or expense” from the Americans with Disabilities Act (ADA) but would have us instruct lower courts to “draw upon decades of ADA caselaw.” Reply Brief 13. The Government, on the other hand, requests that we opine that the EEOC’s construction of Hardison has been basically correct. Brief for United States 39. Both of these suggestions go too far. We have no reservations in saying that a good deal of the EEOC’s guidance in this area is sensible and will, in all likelihood, be unaffected by our clarifying decision today. After all, as a public advocate for employee rights, much of the EEOC’s guidance has focused on what should be accommodated. Accordingly, today’s clarification may prompt little, if any, change in the agency’s guidance explaining why no undue hardship is imposed by temporary costs, voluntary shift swapping, occasional shift swapping, or administrative costs. See 29 CFR §1605.2(d). But it would not be prudent to ratify in toto a body of EEOC interpretation that has not had the benefit of the clarification we adopt today. What is most important is that “undue hardship” in Title VII means what it says, and courts should resolve whether a hardship would be substantial in the context of an employer’s business in the common-sense manner that it would use in applying any such test. D The erroneous de minimis interpretation of Hardison may have had the effect of leading courts to pay insufficient attention to what the actual text of Title VII means with regard to several recurring issues. Since we are now brushing away that mistaken view of Hardison ’s holding, clarification of some of those issues—in line with the parties’ agreement in this case—is in order. First, on the second question presented, both parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business.” 42 U. S. C. §2000e(j); see 35 F. 4th, at 177–178 (Hardiman, J., dissenting). As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.” Tr. of Oral Arg. 102–104. So an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case. On this point, the Solicitor General took pains to clarify that some evidence that occasionally is used to show “impacts” on coworkers is “off the table” for consideration. Id. , at 102. Specifically, a coworker’s dislike of “religious practice and expression in the workplace” or “the mere fact [of] an accommodation” is not “cognizable to factor into the undue hardship inquiry.” Id. , at 89–90. To the extent that this was not previously clear, we agree. An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation provided a defense to a reasonable accommodation claim, Title VII would be at war with itself. See id. , at 89 (argument of Solicitor General) (such an approach would be “giving effect to religious hostility”); contra, EEOC v. Sambo’s of Georgia, Inc. , 530 F. Supp. 86 , 89 (ND Ga. 1981) (considering as hardship “[a]dverse customer reaction” from “a simple aversion to, or discomfort in dealing with, bearded people”). Second, as the Solicitor General’s authorities underscore, Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. See Adeyeye , 721 F. 3d, at 455; see also Brief for United States 30, 33, 39. This distinction matters. Faced with an accommodation request like Groff ’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary. IV Having clarified the Title VII undue-hardship standard, we think it appropriate to leave the context-specific application of that clarified standard to the lower courts in the first instance. The Third Circuit assumed that Hardison prescribed a “more than a de minimis cost” test, 35 F. 4th, at 175, and this may have led the court to dismiss a number of possible accommodations, including those involving the cost of incentive pay, or the administrative costs of coordination with other nearby stations with a broader set of employees. Without foreclosing the possibility that USPS will prevail, we think it appropriate to leave it to the lower courts to apply our clarified context-specific standard, and to decide whether any further factual development is needed. *  *  * The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 Other employees complained about the consequences of Groff ’s absences. While the parties dispute some of the details, it appears uncontested that at least one employee filed a grievance asserting a conflict with his contractual rights. After disputing any conflict with contract rights, USPS eventually settled that claim, with the settlement reaffirming USPS’s commitment to the Memorandum of Understanding. App. 118, 125–126. 2 Groff represents that his resignation was in light of expected termination, and the District Court found “a genuine issue of material fact” foreclosed summary judgment as to whether Groff suffered an adverse employment action. 2021 WL 1264030,*8 (ED Pa., Apr. 6, 2021). The Government does not dispute the point in this Court. 3 See, e.g. , EEOC Dec. No. 71–779, 1970 WL 3550, *2 (Dec. 21, 1970) (no undue hardship in permitting nurse to wear religious headscarf). 4 See EEOC Dec. No. 71–463, 1970 WL 3544, *1–*2 (Nov. 13, 1970) (no “undue hardship” or “unreasonable burde[n]” for employer to train co-worker to cover two-week religious absence); EEOC Dec. No. 70–580, 1970 WL 3513, *1–*2 (Mar. 2, 1970) (manufacturing employer asked to accommodate sundown-to-sundown Sabbath observance did not carry “burden . . . to demonstrate undue hardship” where it did not address “whether another employee could be trained to substitute for the Charging Party during Sabbath days, or whether already qualified personnel ha[d] been invited to work a double shift”); EEOC Dec. No. 70–670, 1970 WL 3518, *2 (Mar. 30, 1970) (no “undue ‘hardship’ ” in having other employees take on a few more on-call Saturdays per year); see also EEOC Dec. No. 70–110, 1969 WL 2908, *1–*2 (Aug. 27, 1969) (employer could not deny employee all Sunday “overtime opportunities” on basis of employee’s religious inability to work Saturday, where others not working the full weekend had been accommodated, notwithstanding employer’s claim of “considerable expense”); EEOC Dec. No. 70–99, 1969 WL 2905, *1 (Aug. 27, 1969) (no obligation to accommodate seasonal employee unavailable for Saturday work, where employer showed both “no available pool of qualified employees” to substitute and a “practical impossibility of obtaining and training an employee” to cover one day a week for six weeks). 5 “Labor organization[s]” themselves were and are bound by Title VII’s nondiscrimination rules. 42 U. S. C. §2000e–2(c) (1964 ed.). 6 See Pet. for Cert. in Trans World Airlines, Inc. v. Hardison , O. T. 1975, No. 75–1126, pp. 2–3, 17–22. 7 See Kennedy v. Bremerton School Dist. , 597 U. S. ___, ___ (2022) (slip op., at 22). 8 See, e.g. , Brief for Chrysler Corporation as Amicus Curiae 6–20 (arguing an Establishment Clause violation), and Brief for State of Michigan as Amicus Curia e 20–25 (arguing no conflict with the Establishment Clause), in Trans World Airlines, Inc. v. Hardison , O. T. 1976, No. 75–1126 etc. 9 The background summarized above and the patent clash between the ordinary meaning of “undue hardship” and “more than . . . de minimis” led some to interpret the decision to rest on Establishment Clause concerns. Justice Marshall observed in his Hardison dissent that the majority opinion “ha[d] the singular advantage of making consideration of petitioners’ constitutional challenge unnecessary.” 432 U. S., at 89. A few courts assumed that Hardison actually was an Establishment Clause decision. See, e.g. , Gibson v. Missouri Pacific R. Co ., 620 F. Supp. 85 , 88–89 (ED Ark. 1985) (concluding that requiring an employer to “incur greater than de minimis costs” related to accommodating a Sabbath “would therefore violate the establishment clause”); see also Massachusetts Bay Transp. Auth. v. Massachusetts Comm’n Against Discrimination , 450 Mass. 327, 340–341, and n. 15, 879 N.E.2d 36, 46–48, and n.15 (2008) (construing state law narrowly on premise that Hardison might state outer constitutional bounds). Some constitutional scholars also suggested that Hardison must have been based on constitutional avoidance. See, e.g. , P. Karlan & G. Rutherglen, Disabilities, Discrimination, and Reasonable Accommodation, 46 Duke L. J. 1, 6–7 (1996); M. McConnell, Accommodation of Religion: An Update and a Response to the Critics, 60 Geo. Wash. L. Rev. 685, 704 (1992); cf. Small v. Memphis Light, Gas & Water , 952 F.3d 821, 829 (CA6 2020) (Thapar, J., concurring). In doing so, some have pointed to Hardison ’s passing reference to a need to avoid “unequal treatment of employees on the basis of their religion.” 432 U. S., at 84. But the Court later clarified that “Title VII does not demand mere neutrality with regard to religious practices” but instead “gives them favored treatment” in order to ensure religious persons’ full participation in the workforce. EEOC v. Abercrombie & Fitch Stores, Inc. , 575 U.S. 768, 775 (2015). 10 We do not understand Groff to challenge the continued vitality of Hardison ’s core holding on its “principal issue” (bracketing his disputes that the memorandum of understanding set forth a seniority system). 432 U. S., at 83, and n. 14. 11 The dissent appears to have drawn its estimate from Hardison’s daily rate at the time of termination ($3.37/hour) and deposition testimony on typical overtime rates and shift lengths. See App. in No. 75–1126 etc., at pp. 40, 126. 12 For example, two years ago, the Seventh Circuit told the EEOC that it would be an undue hardship on Wal-Mart (the Nation’s largest private employer, with annual profits of over $11 billion) to be required to facilitate voluntary shift-trading to accommodate a prospective assistant manager’s observance of the Sabbath. EEOC v. Walmart Stores East, L. P. , 992 F.3d 656, 659–660 (2021). See Walmart Inc., Wall Street Journal Markets (June 4, 2023). 13 See, e.g. , Wagner v. Saint Joseph’s/Candler Health System, Inc. , 2022 WL 905551, *4–*5 (SD Ga., Mar. 28, 2022) (Orthodox Jew fired for taking off for High Holy Days); Camara v. Epps Air Serv., Inc. , 292 F. Supp. 3d 1314, 1322, 1331–1332 (ND Ga., 2017) (Muslim woman who wore a hijab fired because the sight of her might harm the business in light of “negative stereotypes and perceptions about Muslims”); El-Amin v. First Transit, Inc. , 2005 WL 1118175, *7–*8 (SD Ohio, May 11, 2005) (Muslim employee terminated where religious services conflicted with “two hours” of training a week during a month of daily training); EEOC v. Sambo’s of Ga., Inc. , 530 F. Supp. 86 , 91 (ND Ga., 1981) (hiring a Sikh man as a restaurant manager would be an undue hardship because his beard would have conflicted with “customer preference”). 14 At the certiorari stage, the Government argued against review by noting that Government employees receive “at least as much protection for religious-accommodation claims [under the Religious Freedom Restoration Act (RFRA)] as [under] any interpretation of Title VII.” Brief in Opposition 9. Courts have not always agreed on how RFRA’s cause of action—which does not rely on employment status—interacts with Title VII’s cause of action, and the Third Circuit has treated Title VII as exclusively governing at least some employment-related claims brought by Government employees. Compare Francis v. Mineta , 505 F.3d 266, 271 (CA3 2007), with Tagore v. United States , 735 F.3d 324, 330–331 (CA5 2013) (federal employee’s RFRA claim could proceed even though de minimis standard foreclosed Title VII claim). Because Groff did not bring a RFRA claim, we need not resolve today whether the Government is correct that RFRA claims arising out of federal employment are not displaced by Title VII. 15 In addition to suggesting that Hardison be revisited, some Justices have questioned whether Hardison (which addresses the pre-1972 EEOC Guidelines) binds courts interpreting the current version of Title VII. See Abercrombie , 575 U. S., at 787, n. (Thomas, J., concurring in part and dissenting in part). As explained below, because we—like the Solicitor General—construe Hardison as consistent with the ordinary meaning of “undue hardship,” we need not reconcile any divergence between Hardison and the statutory text. SUPREME COURT OF THE UNITED STATES _________________ No. 22–174 _________________ GERALD E. GROFF, PETITIONER v. LOUIS DeJOY, POSTMASTER GENERAL on writ of certiorari to the united states court of appeals for the third circuit [June 29, 2023] Justice Sotomayor, with whom Justice Jackson joins, concurring. As both parties here agree, the phrase “more than a de minimis cost” from Trans World Airlines, Inc. v. Hardison , 432 U.S. 63 , 84 (1977), was loose language. An employer violates Title VII if it fails “to reasonably accommodate” an employee’s religious observance or practice, unless the employer demonstrates that accommodation would result in “undue hardship on the conduct of the employer’s business.” 42 U. S. C. §2000e(j). The statutory standard is “undue hardship,” not trivial cost. Hardison , however, cannot be reduced to its “ de minimis ” language. Instead, that case must be understood in light of its facts and the Court’s reasoning. The Hardison Court concluded that the plaintiff ’s proposed accommodation would have imposed an undue hardship on the conduct of the employer’s business because the accommodation would have required the employer either to deprive other employees of their seniority rights under a collective-bargaining agreement, or to incur substantial additional costs in the form of lost efficiency or higher wages. 432 U. S., at 79–81, 83–84, and n. 14. The Equal Employment Opportunity Commission has interpreted Title VII’s undue-hardship standard in this way for seven consecutive Presidential administrations, from President Reagan to President Biden. See 29 CFR §1605.2(e) (2022) (citing Hardison , 432 U. S., at 80, 84). Petitioner Gerald Groff asks this Court to overrule Hardison and to replace it with a “significant difficulty or expense” standard. Brief for Petitioner 17–38. The Court does not do so. That is a wise choice because stare decisis has “enhanced force” in statutory cases. Kimble v. Marvel Entertainment, LLC , 576 U.S. 446, 456 (2015). Congress is free to revise this Court’s statutory interpretations. The Court’s respect for Congress’s decision not to intervene promotes the separation of powers by requiring interested parties to resort to the legislative rather than the judicial process to achieve their policy goals. This justification for statutory stare decisis is especially strong here because “Congress has spurned multiple opportunities to reverse [ Hardison ]—openings as frequent and clear as this Court ever sees.” Id. , at 456–457.[ 1 ] Moreover, in the decades since Hardison was decided, Congress has revised Title VII multiple times in response to other decisions of this Court,[ 2 ] yet never in response to Hardison . See Kimble , 576 U. S., at 457. Groff also asks the Court to decide that Title VII requires the United States Postal Service to show “undue hardship to [its] business ,” not to Groff ’s co-workers. Brief for Petitioner 42 (emphasis added); see 35 F. 4th 162, 176 (CA3 2022) (Hardiman, J., dissenting). The Court, however, recognizes that Title VII requires “undue hardship on the conduct of the employer’s business.” 42 U. S. C. §2000e(j) (emphasis added). Because the “conduct of [a] business” plainly includes the management and performance of the business’s employees, undue hardship on the conduct of a business may include undue hardship on the business’s employees. See, e.g. , Hardison , 432 U. S., at 79–81 (deprivation of employees’ bargained-for seniority rights constitutes undue hardship). There is no basis in the text of the statute, let alone in economics or common sense, to conclude otherwise. Indeed, for many businesses, labor is more important to the conduct of the business than any other factor. To be sure, some effects on co-workers will not constitute “undue hardship” under Title VII. For example, animus toward a protected group is not a cognizable “hardship” under any antidiscrimination statute. Cf. ante , at 20. In addition, some hardships, such as the labor costs of coordinating voluntary shift swaps, are not “undue” because they are too insubstantial. See 29 CFR §§1605.2(d)(1)(i), (e)(1). Nevertheless, if there is an undue hardship on “the conduct of the employer’s business,” 42 U. S. C. §2000e(j), then such hardship is sufficient, even if it consists of hardship on employees. With these observations, I join the opinion of the Court. Notes 1 See, e.g. , H. R. 1440, 117th Cong., 1st Sess., §4(a)(4) (2021); H. R. 5331, 116th Cong., 1st Sess., §4(a)(4) (2019); S. 3686, 112th Cong., 2d Sess., §4(a)(3) (2012); S. 4046, 111th Cong., 2d Sess., §4(a)(3) (2010); S. 3628, 110th Cong., 2d Sess., §2(a)(1)(B) (2008); H. R. 1431, 110th Cong., 1st Sess., §2(a)(4) (2007); H. R. 1445, 109th Cong., 1st Sess., §2(a)(4) (2005); S. 677, 109th Cong., 1st Sess., §2(a)(4) (2005); S. 893, 108th Cong., 1st Sess., §2(a)(4) (2003); S. 2572, 107th Cong., 2d Sess., §2(a)(4) (2002); H. R. 4237, 106th Cong., 2d Sess., §2(a)(4) (2000); S. 1668, 106th Cong., 1st Sess., §2(a)(4) (1999); H. R. 2948, 105th Cong., 1st Sess., §2(a)(4) (1997); S. 1124, 105th Cong., 1st Sess., §2(a)(4) (1997); S. 92, 105th Cong., 1st Sess., §2(a)(3) (1997); H. R. 4117, 104th Cong., 2d Sess., §2(a)(3) (1996). 2 See Civil Rights Act of 1991, 105Stat. 1071 (overruling Wards Cove Packing Co. v. Atonio , 490 U.S. 642 (1989)); Lilly Ledbetter Fair Pay Act of 2009, 123Stat. 5 (overruling Ledbetter v. Goodyear Tire & Rubber Co. , 550 U.S. 618 (2007)).

Here is a summary of the Supreme Court case Groff v. DeJoy: The Supreme Court clarified that Title VII of the Civil Rights Act of 1964 requires employers to accommodate employees' religious practices unless doing so would impose an "undue hardship" on the conduct of the employer's business. The Court rejected the lower courts' interpretation of "undue hardship" as any effort or cost greater than a "de minimis" burden. In this case, Gerald Groff, an Evangelical Christian, requested a religious accommodation from the United States Postal Service (USPS) to avoid working on Sundays. The USPS denied his request, and Groff sued, arguing that the USPS had not shown an "undue hardship." The Court agreed with Groff, stating that "undue hardship" means more than a minor inconvenience or cost. The Court also clarified that "undue hardship" can include hardships on co-workers, such as depriving them of their bargained-for seniority rights, but it does not include animus toward a protected group or minor inconveniences like coordinating shift swaps. The Court ultimately ruled in favor of Groff, holding that the USPS had not shown an "undue hardship" and was therefore required to accommodate his religious practice.

Labor & Employment

Gobeille v. Liberty Mutual Ins. Co.

https://supreme.justia.com/cases/federal/us/577/14-181/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–181 _________________ ALFRED GOBEILLE, in his official capacity as chair of the vermont green mountaincare board, PETITIONER v. LIBERTYMUTUAL INSURANCE COMPANY on writ of certiorari to the united states court of appeals for the second circuit [March 1, 2016] Justice Kennedy delivered the opinion of the Court. This case presents a challenge to the applicability of a state law requiring disclosure of payments relating to health care claims and other information relating to health care services. Vermont enacted the statute so it could maintain an all-inclusive health care database.Vt. Stat. Ann., Tit. 18, §9410(a)(1) (2015 Cum. Supp.) ( V. S. A.). The state law, by its terms, applies to health plans established by employers and regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829, as amended, 29 U. S. C. §1001 et seq. The question before the Court is whether ERISA pre-empts the Vermont statute as it applies to ERISA plans. I A Vermont requires certain public and private entities that provide and pay for health care services to report information to a state agency. The reported information is compiled into a database reflecting “all health care utilization, costs, and resources in [ Vermont], and health care utilization and costs for services provided to Vermont residents in another state.” 18 V. S. A. §9410(b). A database of this kind is sometimes called an all-payer claims database, for it requires submission of data from all health insurers and other entities that pay for health care services. Almost 20 States have or are implementing similar databases. See Brief for State of New York et al. as Amici Curiae 1, and n. 1. Vermont’s law requires health insurers, health care providers, health care facilities, and governmental agencies to report any “information relating to health care costs, prices, quality, utilization, or resources required” by the state agency, including data relating to health insurance claims and enrollment. §9410(c)(3). Health insurers must submit claims data on members, subscribers, and policyholders. §9410(h). The Vermont law defines health insurer to include a “self-insured . . . health care benefit plan,” §9402(8), as well as “any third party administrator” and any “similar entity with claims data, eligibility data, provider files, and other information relating to health care provided to a Vermont resident.” §9410( j)(1)(B). The database must be made “available as a resource for insurers, employers, providers, purchasers of health care, and State agencies to continuously review health care utili-zation, expenditures, and performance in Vermont.” §9410(h)(3)(B). Vermont law leaves to a state agency the responsibility to “establish the types of information to be filed under this section, and the time and place and the manner in which such information shall be filed.” §9410(d). The law has been implemented by a regulation creating the Vermont Healthcare Claims Uniform Reporting and Evaluation System. The regulation requires the submission of “medical claims data, pharmacy claims data, member eligibility data, provider data, and other information,” Reg. H–2008–01, Code of Vt. Rules 21–040–021, §4(D) (2016) (CVR),in accordance with specific formatting, coding, and other requirements, §5. Under the regulation, health insurers must report data about the health care services provided to Vermonters regardless of whether they are treated in Vermont or out-of-state and about non-Vermonters who are treated in Vermont. §4(D); see also §1. The agency at present does not collect data on denied claims, §5(A)(8), but the statute would allow it to do so. Covered entities (reporters) must register with the State and must submit data monthly, quarterly, or annually, depending on the number of individuals that an entity serves. The more people served, the more frequently the reports must be filed. §§4, 6(I). Entities with fewer than 200 members need not report at all, ibid. , and are termed “voluntary” reporters as distinct from “mandated” reporters, §3. Reporters can be fined for not complying with the statute or the regulation. §10; 18 V. S. A. §9410(g). B Respondent Liberty Mutual Insurance Company maintains a health plan (Plan) that provides benefits in all 50 States to over 80,000 individuals, comprising respondent’s employees, their families, and former employees. The Plan is self-insured and self-funded, which means that Plan benefits are paid by respondent. The Plan, which qualifies as an “employee welfare benefit plan” under ERISA, 29 U. S. C. §1002(1), is subject to “ERISA’s comprehensive regulation,” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U. S. 645, 650 (1995) . Respondent, as the Plan sponsor, is both a fiduciary and plan administrator. The Plan uses Blue Cross Blue Shield of Massachusetts, Inc. (Blue Cross) as a third-party administrator. Blue Cross manages the “processing, review, and payment” of claims for respondent. Liberty Mut. Ins. Co. v. Donegan , 746 F. 3d 497, 502 (CA2 2014) (case below). In its contract with Blue Cross, respondent agreed to “hold [Blue Cross] harmless for any charges, including legal fees, judgments, administrative expenses and benefit payment requirements, . . . arising from or in connection with [the Plan] or due to [respondent’s] failure to comply with any laws or regulations.” App. 82. The Plan is a voluntary reporter under the Vermont regulation because it covers some 137 Vermonters, which is fewer than the 200-person cutoff for mandated reporting. Blue Cross, however, serves several thousand Vermonters, and so it is a mandated reporter. Blue Cross, therefore, must report the information it possesses about the Plan’s members in Vermont. In August 2011, Vermont issued a subpoena ordering Blue Cross to transmit to a state-appointed contractor all the files it possessed on member eligibility, medical claims, and pharmacy claims for Vermont members. Id., at 33. (For clarity, the Court uses “Vermont” to refer not only to the State but also to state officials acting in their official capacity.) The penalty for noncompliance, Vermont threatened, would be a fine of up to $2,000 a day and a suspension of Blue Cross’ authorization to operate in Vermont for as long as six months. Id., at 31. Respondent, concerned in part that the disclosure of confidential information regarding its members might violate its fiduciary duties under the Plan, instructed Blue Cross not to comply. Respondent then filed this action in the United States District Court for the District of Vermont. It sought a declaration that ERISA pre-empts application of Vermont’s statute and regulation to the Plan and an injunction forbidding Vermont from trying to acquire data about the Plan or its members. Vermont filed a motion to dismiss, which the District Court treated as one for summary judgment, see Fed. Rule Civ. Proc. 12(d), and respondent filed a cross-motion for summary judgment. The District Court granted summary judgment to Vermont. It first held that respondent, despite being a mere voluntary reporter, had standing to sue because it was faced with either allegedly violating its “fiduciary and administrative responsibilities to the Plan” or assuming liability for Blue Cross’ withholding of the data from Vermont. Liberty Mut. Ins. Co. v. Kimbell , No. 2:11–cv–204 (D Vt., Nov. 9, 2012), p. 12. The District Court then concluded that the State’s reporting scheme was not pre-empted. Although that scheme “may have some indirect effect on health benefit plans,” the court reasoned that the “effect is so peripheral that the regulation cannot be considered an attempt to interfere with the administration or structure of a welfare benefit plan.” Id. , at 31–32. The Court of Appeals for the Second Circuit reversed. The panel was unanimous in concluding that respondent had standing, but it divided on the merits of the pre-emption challenge. The panel majority explained that “one of ERISA’s core functions—reporting—[cannot] be laden with burdens, subject to incompatible, multiple and variable demands, and freighted with risk of fines, breach of duty, and legal expense.” 746 F. 3d, at 510. The Vermont regime, the court held, does just that. Id., at 508–510. This Court granted certiorari to address the important issue of ERISA pre-emption. 576 U. S. ___ (2015). II The text of ERISA’s express pre-emption clause is the necessary starting point. It is terse but comprehensive. ERISA pre-empts “any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). The Court has addressed the potential reach of this clause before. In Travelers, the Court observed that “[i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course.” 514 U. S., at 655. That is a result “no sensible person could have intended.” California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc. , 519 U. S. 316, 336 (1997) (Scalia, J., concurring). So the need for workable standards has led the Court to reject “uncritical literalism” in applying the clause. Travelers , 514 U. S., at 656. Implementing these principles, the Court’s case law to date has described two categories of state laws that ERISA pre-empts. First, ERISA pre-empts a state law if it has a “ ‘reference to’ ” ERISA plans. Ibid. To be more precise, “[w]here a State’s law acts immediately and exclusively upon ERISA plans . . . or where the existence of ERISA plans is essential to the law’s operation . . . , that ‘reference’ will result in pre-emption.” Dillingham , supra, at 325. Second, ERISA pre-empts a state law that has an impermissible “connection with” ERISA plans, meaning a state law that “governs . . . a central matter of plan administration” or “interferes with nationally uniform plan administration.” Egelhoff v. Egelhoff , 532 U. S. 141, 148 (2001) . A state law also might have an impermissible connection with ERISA plans if “acute, albeit indirect, economic effects” of the state law “force an ERISA plan to adopt a certain scheme of substantive coverage or effectively restrict its choice of insurers.” Travelers , supra , at 668. When considered together, these formulations ensure that ERISA’s express pre-emption clause receives the broad scope Congress intended while avoiding the clause’s susceptibility to limitless application. III Respondent contends that Vermont’s law falls in the second category of state laws that are pre-empted by ERISA: laws that govern, or interfere with the uniformity of, plan administration and so have an impermissible “ ‘connection with’ ” ERISA plans. Egelhoff , supra , at 148; Travelers , 514 U. S., at 656. When presented with these contentions in earlier cases, the Court has considered “the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive,” ibid ., and “the nature of the effect of the state law on ERISA plans,” Dillingham , supra , at 325. Here, those considerations lead the Court to conclude that Vermont’s regime, as applied to ERISA plans, is pre-empted. A ERISA does not guarantee substantive benefits. The statute, instead, seeks to make the benefits promised by an employer more secure by mandating certain oversight systems and other standard procedures. Travelers , 514 U. S., at 651. Those systems and procedures are intended to be uniform. Id. , at 656 (ERISA’s pre-emption clause “indicates Congress’s intent to establish the regulation of employee welfare benefit plans ‘as exclusively a federal concern’ ” (quoting Alessi v. Raybestos-Manhattan, Inc. , 451 U. S. 504, 523 (1981) )). “Requiring ERISA administrators to master the relevant laws of 50 States and to contend with litigation would undermine the congressional goal of ‘minimiz[ing] the administrative and financial burden[s]’ on plan administrators—burdens ultimately borne by the beneficiaries.” Egelhoff , supra , at 149–150 (quoting Ingersoll-Rand Co. v. McClendon , 498 U. S. 133, 142 (1990) ); see also Fort Halifax Packing Co. v. Coyne , 482 U. S. 1, 9 (1987) . ERISA’s reporting, disclosure, and recordkeeping requirements for welfare benefit plans are extensive. ERISA plans must present participants with a plan description explaining, among other things, the plan’s eligibility requirements and claims-processing procedures. §§1021(a)(1), 1022, 1024(b)(1). Plans must notify participants when a claim is denied and state the basis for the denial. §1133(1). Most important for the pre-emption question presented here, welfare benefit plans governed by ERISA must file an annual report with the Secretary of Labor. The report must include a financial statement listing assets and liabilities for the previous year and, further, receipts and disbursements of funds. §§1021(b), 1023(b)(1), 1023(b)(3)(A)–(B), 1024(a). The information on assets and liabilities as well as receipts and disbursements must be provided to plan participants on an annual basis as well. §§1021(a)(2), 1023(b)(3)(A)–(B), 1024(b)(3). Because welfare benefit plans are in the business of providing benefits to plan participants, a plan’s reporting of data on disbursements by definition incorporates paid claims. See Dept. of Labor, Schedule H (Form 5500)Financial Information (2015) (requiring reporting of “[b]enefit claims payable” and “[b]enefit payment and payments to provide benefits”), online at http://www.dol.gov/ebsa/pdf/2015-5500-Schedule-H.pdf (as last visited Feb. 26, 2016). The Secretary of Labor has authority to establish additional reporting and disclosure requirements for ERISA plans. ERISA permits the Secretary to use the data disclosed by plans “for statistical and research purposes, and [to] compile and publish such studies, analyses, reports, and surveys based thereon as he may deem appropriate.” §1026(a). The Secretary also may, “in connection” with any research, “collect, compile, analyze, and publish data, information, and statistics relating to” plans. §1143(a)(1); see also §1143(a)(3) (approving “other studies relating to employee benefit plans, the matters regulated by this subchapter, and the enforcement procedures provided for under this subchapter”). ERISA further permits the Secretary of Labor to “requir[e] any information or data from any [plan] where he finds such data or information is necessary to carry out the purposes of” the statute, §1024(a)(2)(B), and, when investigating a possible statutory violation, “to require the submission of reports, books, and records, and the filing of data” related to other requisite filings, §1134(a)(1). The Secretary has the general power to promulgate regulations “necessary or appropriate” to administer the statute, §1135, and to provide exemptions from any reporting obligations, §1024(a)(3). It should come as no surprise, then, that plans must keep detailed records so compliance with ERISA’s reporting and disclosure requirements may be “verified, explained, or clarified, and checked for accuracy and completeness.” §1027. The records to be retained must “include vouchers, worksheets, receipts, and applicable resolutions.” Ibid. ; see also §1135 (allowing the Secretary to “provide for the keeping of books and records, and for the inspection of such books and records”). These various requirements are not mere formalities. Violation of any one of them may result in both civil and criminal liability. See §§1131–1132. As all this makes plain, reporting, disclosure, and recordkeeping are central to, and an essential part of, the uniform system of plan administration contemplated by ERISA. The Court, in fact, has noted often that these requirements are integral aspects of ERISA. See, e.g. , Dillingham , 519 U. S., at 327; Travelers , supra, at 651; Ingersoll-Rand, supra, at 137; Massachusetts v. Morash , 490 U. S. 107, 113, 115 (1989) ; Fort Halifax , supra , at 9; Metropolitan Life Ins. Co. v. Massachusetts , 471 U. S. 724, 732 (1985) . Vermont’s reporting regime, which compels plans to report detailed information about claims and plan members, both intrudes upon “a central matter of plan administration” and “interferes with nationally uniform plan administration.” Egelhoff , 532 U. S., at 148 . The State’s law and regulation govern plan reporting, disclosure, and—by necessary implication—recordkeeping. These matters are fundamental components of ERISA’s regulation of plan administration. Differing, or even parallel, regulations from multiple jurisdictions could create wasteful administrative costs and threaten to subject plans to wide-ranging liability. See, e.g., 18 V. S. A. §9410(g) (supplying penalties for violation of Vermont’s reporting rules); CVR §10 (same). Pre-emption is necessary to prevent the States from imposing novel, inconsistent, and burdensome reporting requirements on plans. The Secretary of Labor, not the States, is authorized to administer the reporting requirements of plans governed by ERISA. He may exempt plans from ERISA report-ing requirements altogether. See §1024(a)(3); 29 CFR §2520.104–44 (2005) (exempting self-insured health plans from the annual financial reporting requirement). And, he may be authorized to require ERISA plans to report data similar to that which Vermont seeks, though that question is not presented here. Either way, the uniform rule design of ERISA makes it clear that these decisions are for federal authorities, not for the separate States. B Vermont disputes the pre-emption of its reporting regime on several fronts. The State argues that respondent has not demonstrated that the reporting regime in fact has caused it to suffer economic costs. Brief for Petitioner 52–54. But respondent’s challenge is not based on the theory that the State’s law must be pre-empted solely because of economic burdens caused by the state law. See Travelers , 514 U. S., at 668. Respondent argues, rather, that Vermont’s scheme regulates a central aspect of plan administration and, if the scheme is not pre-empted, plans will face the possibility of a body of disuniform state reporting laws and, even if uniform, the necessity to accommodate multiple governmental agencies. A plan need not wait to bring a pre-emption claim until confronted with numerous inconsistent obligations and encumbered with any ensuing costs. Vermont contends, furthermore, that ERISA does not pre-empt the state statute and regulation because the state reporting scheme has different objectives. This Court has recognized that “[t]he principal object of [ERISA] is to protect plan participants and beneficiaries.” Boggs v. Boggs , 520 U. S. 833, 845 (1997) . And “[i]n enacting ERISA, Congress’ primary concern was with the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees benefits from accumulated funds.” Morash , supra , at 115. The State maintains that its program has nothing to do with the financial solvency of plans or the prudent behavior of fiduciaries. See Brief for Petitioner 29. This does not suffice to avoid federal pre-emption. “[P]re-emption claims turn on Congress’s intent.” Travelers , 514 U. S., at 655. The purpose of a state law, then, is relevant only as it may relate to the “scope of the state law that Congress understood would survive,” id. , at 656, or “the nature of the effect of the state law on ERISA plans,” Dillingham , supra , at 325. In Travelers , for example, the Court noted that “[b]oth the purpose and the effects of” the state law at issue “distinguish[ed] it from” laws that “function as a regulation of an ERISA plan itself.” 514 U. S., at 658–659. The perceived difference here in the objectives of the Vermont law and ERISA does not shield Vermont’s reporting regime from pre-emption. Vermont orders health insurers, including ERISA plans, to report detailed information about the administration of benefits in a systematic manner. This is a direct regulation of a fundamental ERISA function. Any difference in purpose does not transform this direct regulation of “a central matter of plan administration,” Egelhoff , supra , at 148, into an innocuous and peripheral set of additional rules. The Vermont regime cannot be saved by invoking the State’s traditional power to regulate in the area of public health. The Court in the past has “addressed claims of pre-emption with the starting presumption that Congress does not intend to supplant state law,” in particular state laws regulating a subject of traditional state power. Travelers , supra , at 654–655. ERISA, however, “certainly contemplated the pre-emption of substantial areas of traditional state regulation.” Dillingham , 519 U. S., at 330. ERISA pre-empts a state law that regulates a key facet of plan administration even if the state law exercises a traditional state power. See Egelhoff , 532 U. S., at 151–152. The fact that reporting is a principal and essential feature of ERISA demonstrates that Congress intended to pre-empt state reporting laws like Vermont’s, including those that operate with the purpose of furthering public health. The analysis may be different when applied to a state law, such as a tax on hospitals, see De Buono v. NYSA–ILA Medical and Clinical Services Fund , 520 U. S. 806 (1997) , the enforcement of which necessitates incidental reporting by ERISA plans; but that is not the law before the Court. Any presumption against pre-emption, whatever its force in other instances, cannot validate a state law that enters a fundamental area of ERISA regulation and thereby counters the federal purpose in the way this state law does. IV Respondent suggests that the Patient Protection and Affordable Care Act (ACA), which created new reporting obligations for employer-sponsored health plans and incorporated those requirements into the body of ERISA, further demonstrates that ERISA pre-empts Vermont’s reporting regime. See 29 U. S. C. §1185d; 42 U. S. C. §§300gg–15a, 17; §18031(e)(3). The ACA, however, specified that it shall not “be construed to preempt any State law that does not prevent the application of the provisions” of the ACA. 42 U. S. C. §18041(d). This anti-pre-emption provision might prevent any new ACA-created reporting obligations from pre-empting state reporting regimes like Vermont’s, notwithstanding the incorporation of these requirements in the heart of ERISA. But see 29 U. S. C. §1191(a)(2) (providing that the new ACA provisions shall not be construed to affect or modify the ERISA pre-emption clause as applied to group health plans); 42 U. S. C. §300gg–23(a)(2) (same). The Court has no need to resolve this issue. ERISA’s pre-existing reporting, disclosure, and recordkeeping provisions—upon which the Court’s conclusion rests—maintain their pre-emptive force whether or not the new ACA reporting obligations also pre-empt state law. *  *  * ERISA’s express pre-emption clause requires invalidation of the Vermont reporting statute as applied to ERISA plans. The state statute imposes duties that are inconsistent with the central design of ERISA, which is to provide a single uniform national scheme for the administration of ERISA plans without interference from laws of the several States even when those laws, to a large extent, impose parallel requirements. The judgment of the Court of Appeals for the Second Circuit is Affirmed . SUPREME COURT OF THE UNITED STATES _________________ No. 14–181 _________________ ALFRED GOBEILLE, in his official capacity as chair of the vermont green mountaincare board, PETITIONER v. LIBERTYMUTUAL INSURANCE COMPANY on writ of certiorari to the united states court of appeals for the second circuit [March 1, 2016] Justice Thomas, concurring. I join the Court’s opinion because it faithfully applies our precedents interpreting 29 U. S. C. §1144, the express pre-emption provision of the Employee Retirement Income Security Act of 1974 (ERISA). I write separately because I have come to doubt whether §1144 is a valid exercise of congressional power and whether our approach to ERISA pre-emption is consistent with our broader pre-emption jurisprudence. I Section 1144 contains what may be the most expansive express pre-emption provision in any federal statute. Section 1144(a) states: “Except as provided” in §1144(b) ERISA “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” Under the ordinary meaning of the phrase “relate to,” §1144(a) pre-empts all state laws that “ ‘stand in some relation’ ” to, “ ‘have bearing or concern’ ” on, “ ‘pertain’ ” to, “ ‘refer’ ” to, or ‘ “bring into association with or connection with’ ” an ERISA plan. Shaw v. Delta Air Lines, Inc. , 463 U. S. 85 , n. 16 (1983) (quoting Black’s Law Dictionary 1158 (5th ed. 1979)). And §1144(b) seemingly acknowledges how broadly §1144(a) extends by excepting “gener-ally applicable criminal law[s]” and state laws “regulat[ing] insurance, banking, or securities”—but not generally applicable civil laws—from pre-emption. §§1144(b)(2)(A), (b)(4). Section 1144, in sum, “is clearly expansive”—so much so that “one might be excused for wondering, at first blush, whether the words of limitation (‘insofar as they . . . relate’) do much limiting.” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U. S. 645, 655 (1995) . Read according to its plain terms, §1144 raises constitutional concerns. “[T]he Supremacy Clause gives ‘supreme’ status only to those [federal laws] that are ‘made in Pursuance’ ” of the Constitution. Wyeth v. Levine , 555 U. S. 555, 585 (2009) (Thomas, J., concurring in judgment) (quoting Art. VI, cl. 2). But I question whether any provision of Article I authorizes Congress to prohibit States from applying a host of generally applicable civil laws to ERISA plans. “The Constitution requires a distinction between what is truly national and what is truly local.” United States v. Morrison , 529 U. S. 598 –618 (2000). If the Federal Government were “to take over the regulation of entire areas of traditional state concern,” including “areas having nothing to do with the regulation of commercial activities,” then “the boundaries between the spheres of federal and state authority would blur and political responsibility would become illusory.” United States v. Lopez , 514 U. S. 549, 577 (1995) (Kennedy, J., concurring). Just because Congress can regulate some aspects of ERISA plans pursuant to the Commerce Clause does not mean that Congress can exempt ERISA plans from state regulations that have nothing to do with interstate commerce. See Gonzales v. Raich , 545 U. S. 1 –60 (2005) (Thomas, J., dissenting). II This Court used to interpret §1144 according to its text. But we became uncomfortable with how much state law §1144 would pre-empt if read literally. “If ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy,” we explained, “then for all practical purposes pre-emption would never run its course.” Travelers , supra , at 655. Rather than addressing the constitutionality of §1144, we abandoned efforts to give its text its ordinary meaning. In Travelers , we adopted atextual but what we thought to be “workable” standards to construe §1144. Ante, at 6. Thus, to determine whether a state law impermissibly “relates to” an ERISA plan due to some “connection with” that plan, we now “look both to the objectives of the ERISA statute . . . as well as to the nature of the effect of the state law on ERISA plans.” Egelhoff v. Egelhoff , 532 U. S. 141, 147 (2001) (citing Travelers ; internal quotation marks omitted). We decided Travelers in 1995. I joined that opinion and have joined others applying the approach we adopted in Travelers . But our interpretation of ERISA’s express pre-emption provision has become increasingly difficult to reconcile with our pre-emption jurisprudence. Travelers departed from the statutory text, deeming it “unhelpful.” 514 U. S., at 656. But, in other cases involving express pre-emption provisions, the text has been the beginning and often the end of our analysis. E.g., Chamber of Commerce of United States of America v. Whiting , 563 U. S. 582, 594 (2011) (“ ‘focus[ing] on the plain wording’ ” to define the scope of the Immigration Reform and Control Act’s express pre-emption clause); see also National Meat Assn . v. Harris , 565 U. S. ___, ___, ___–___ (2012) (slip op., at 4, 6–10) (parsing the text to determine the scope of the Federal Meat Inspection Act’s express pre-emption clause). We have likewise refused to look to policy limits that are not “remotely discernible in the statutory text.” Whiting , supra, at 599. We have not given a sound basis for departing from these principles and treating §1144 differently from other express pre-emption provisions. Travelers’ approach to ERISA pre-emption also does not avoid constitutional concerns. We have continued to interpret §1144 as pre-empting “substantial areas of traditional state regulation” and “pre-empt[ing] a state law . . . even if the state law exercises a traditional state power.” Ante , at 13 (internal quotation marks omitted). Until we confront whether Congress had the constitutional authority to pre-empt such a wide array of state laws in the first place, the Court—and lower courts—will continue to struggle to apply §1144. It behooves us to address whether Article I gives Congress such power and whether §1144 may permissibly be read to avoid unconstitutional results. SUPREME COURT OF THE UNITED STATES _________________ No. 14–181 _________________ ALFRED GOBEILLE, in his official capacity as chair of the vermont green mountaincare board, PETITIONER v. LIBERTYMUTUAL INSURANCE COMPANY on writ of certiorari to the united states court of appeals for the second circuit [March 1, 2016] Justice Breyer, concurring. I write separately to emphasize that a failure to find pre-emption here would subject self-insured health plans under the Employee Retirement Income Security Act of 1974 (ERISA), 88Stat. 829, as amended, 29 U. S. C. §1001 et seq. , to 50 or more potentially conflicting information reporting requirements. Doing so is likely to create serious administrative problems. The Court points out that the respondent’s plan provides benefits to over 80,000 individuals living in 50 different States. See ante, at 3. In addition, amici curiae tell us that self-insured, ERISA-based health plans provide benefits to 93 million Americans. Brief for American Benefits Council et al. as Amici Curiae 8. If each State is free to go its own way, each independently determining what information each plan must provide about benefits, the result could well be unnecessary, duplicative, and conflicting reporting requirements, any of which can mean increased confusion and increased cost. Private standard setting can of course help alleviate these problems, but given the large number of different possible regulations, I do not believe that is sufficient. Cf. A. Costello & M. Taylor, APCD Council & NAHDO, Standardization of Data Collection in All-Payer Claims Databases 3–4 (Jan. 2011), online at https://www.apcdcouncil.org / publication/standardization-data-collection-all-payer-claims-databases (as last visited Feb. 26, 2016). I would also emphasize that pre-emption does not necessarily prevent Vermont or other States from obtaining the self-insured, ERISA-based health-plan information that they need. States wishing to obtain information can ask the Federal Government for appropriate approval. As the majority points out, the “Secretary of Labor has authority to establish additional reporting and disclosure requirements for ERISA plans.” Ante, at 8; see 29 U. S. C. §1135. Moreover, the Secretary “is authorized to undertake research and surveys and in connection therewith to collect, compile, analyze and publish data, information, and statistics relating to employee benefit plans, including retirement, deferred compensation, and welfare plans.” §1143(a)(1). At least one other important statute provides the Secretary of Health and Human Services with similar authority. See 42 U. S. C. §300gg–17(a) (part of the Patient Protection and Affordable Care Act that is applicable to group health insurance plans including ERISA plans); Brief for United States as Amicus Curiae 4 (the Department of Labor, the Department of Health and Human Services, and the Department of Treasury are “currently considering a rulemaking to require health plans to report more detailed information about various aspects of plan administration, such as enrollment, claims processing, and benefit offerings”). I see no reason why the Secretary of Labor could not develop reporting requirements that satisfy the States’ needs, including some State-specific requirements, as appropriate. Nor do I see why the Department could not delegate to a particular State the authority to obtain data related to that State, while also providing the data to the Federal Secretary for use by other States or at the federal level. Although the need for federal approval or authorization limits to some degree the States’ power to obtain information, requiring that approval has considerable advantages. The federal agencies are more likely to be informed about, and to understand, ERISA-related consequences and health-care needs from a national perspective. Their involvement may consequently secure for the States necessary information without unnecessarily creating costly conflicts—particularly when compared with such alternatives as giving each State free rein to go its own way or asking nonexpert federal courts to try to iron out, regulation by regulation, such conflicts. Cf. Med-tronic, Inc. v. Lohr , 518 U. S. 470, 506 (1996) (Breyer, J., concurring in part and concurring in judgment) (reading a complex, ambiguous regulatory statute to permit “informed agency involvement” is more likely to achieve Congress’ general objectives). For these reasons, and others that the majority sets forth, I agree that Vermont’s statute is pre-empted because it “interferes with nationally uniform plan administration.” Egelhoff v. Egelhoff , 532 U. S. 141, 148 (2001) . SUPREME COURT OF THE UNITED STATES _________________ No. 14–181 _________________ ALFRED GOBEILLE, in his official capacity as chair of the vermont green mountaincare board, PETITIONER v. LIBERTYMUTUAL INSURANCE COMPANY on writ of certiorari to the united states court of appeals for the second circuit [March 1, 2016] Justice Ginsburg, with whom Justice Sotomayor joins, dissenting. To better control health care outcomes and costs, Vermont requires all public and private entities that pay for health care services provided to Vermont residents to supply data to the State’s all-payer claims database. Many States have similar databases in place or in development. The question presented in this case is whether Vermont’s health care data-collection law is preempted by the Employer Retirement Income Security Act of 1974 (ERISA), 88Stat. 832, 29 U. S. C. §1001 et seq. , the federal law regulating employee benefit plans. I would hold that Vermont’s effort to track health care services provided to its residents and the cost of those services does not impermissibly intrude on ERISA’s dominion over employee benefit plans. I In 2005, the Vermont Legislature established the Vermont Health Care Uniform Reporting and Evaluation System, a database populated by information on health care claims paid by insurers and other coverage providers. See Vt. Stat. Ann., Tit. 18, §9410 (2015 Cum. Supp.); Reg. H–2008–01, Code Vt. Rules 21–040–021, §4(D) (2016) (directing insurers and other coverage providers to “submit medical claims data, pharmacy claims data, member eligibility data, provider data, and other information related to health care provided to Vermont residents and health care provided by Vermont health care providers and facilities”). Health insurers and other coverage providers must report the required data if they cover at least 200 Vermont residents. §3(Ab). Seventeen other States have enacted similar database systems, called “all-payer claims databases.”[ 1 ] These States, like Vermont, collect health-claims data to serve compelling interests, including identification of reforms effective to drive down health care costs, evaluation of relative utility of different treatment options, and detection of instances of discrimination in the provision of care. See Brief for National Governors Association et al. as Amici Curiae 11–14; Brief for Harvard Law School Center for Health Law and Policy Innovation et al. as Amici Curiae 11–18; Brief for State of New York et al. as Amici Curiae 12–20. See also Vt. Stat. Ann., Tit. 18, §9410(a)(1) (Vermont’s data-collection law is designed to help “identif[y] health care needs and infor[m] health care policy,” “evaluat[e] the effectiveness of intervention programs on improving patient outcomes,” “compar[e] costs between various treatment settings and approaches,” “determin[e] the capacity and distribution of existing resources,” and “provid[e] information to . . . purchasers of health care”).[ 2 ] Respondent Liberty Mutual Insurance Company (Lib-erty), in common with legions of employers, provides health care to its employees through a self-insured plan, administered by Blue Cross/Blue Shield (Blue Cross).[ 3 ] Because Blue Cross administers thousands of health care policies in Vermont, the State requires it to report data for all of the plans it administers, and Blue Cross has complied with this mandate. In 2010, for example, Blue Cross reported data on over 7,000 Vermont health care-plan beneficiaries. Roughly half of the beneficiaries received coverage through self-insured employer policies. App. 205. In 2011, at Liberty’s request, Blue Cross did not submit data on Vermont residents who received coverage through Liberty’s plan. Id ., at 21–23. Vermont ordered Blue Cross to provide the claims data. Id., at 23, 31–33. Lib-erty instructed Blue Cross not to comply and, shortly thereafter, filed the instant suit, seeking to block Vermont from obtaining the data. In defense of its resistance to Vermont’s data-collection law, Liberty relies on its plan’s status as an ERISA-covered “employee welfare benefit plan,” defined as “any plan, fund, or program . . . established or maintained by an employer . . . for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, . . . medical, surgical, or hospital care or benefits, or benefits in the event of sickness.” 29 U. S. C. §1002(1). Because ERISA directs plan fiduciaries to conserve plan assets for the purpose of “providing benefits to participants,” §1104(a)(1)(A)(ii), Liberty maintains that ERISA preempts diverse state health-claims reporting laws. If there is to be mandatory health-claims reporting by ERISA plans, Liberty urges, the source of the mandate should be a uniform national reporting regime. See Brief for Respondent 26–29; Tr. of Oral Arg. 32–33. Opposing ERISA-grounded preemption of its data-collection law, Vermont points out that the efficacy of the State’s law depends on comprehensive reporting, i.e., collecting data on numerous beneficiaries from each of several major segments of the health care market. See Brief for Petitioner 12; Brief for Harvard Law School Center for Health Law and Policy Innovation et al. as Amici Curiae 18–19.[ 4 ] About half of Americans with health insurance receive coverage from their employers, Dept. of Commerce, Bureau of Census, J. Smith & C. Medalia, Health Insurance Coverage in the United States: 2013, p. 2 (2014), and 61% of such persons are covered by an employer’s self-insured plan. Brief for Harvard Law School Center for Health Law and Policy Innovation et al. as Amici Curiae 20. In Vermont, about 20% of the database’s total content originates from employer self-insured plans. Brief for Petitioner 12, and n. 10. Stopping States from collecting claims data from self-insured employer health care plans would thus hugely undermine the reporting regimes on which Vermont and other States depend to maintain and improve the quality, and hold down the cost, of health care services. The United States District Court for the District of Vermont rejected Liberty’s plea for preemption. Vermont’s data-collection law, that court determined, served the State’s undoubted interest in regulating health care markets, and did not substantially interfere with the operation of Liberty’s ERISA plans. See App. to Pet. for Cert. 64–66, 78–79. The Court of Appeals for the Second Circuit reversed, two to one. Liberty Mut. Ins. Co. v. Donegan , 746 F. 3d 497 (2014). The majority acknowledged that the Supreme Court’s ERISA-preemption decisions of the 1990’s “marked something of a pivot” in starting with a presumption “ ‘that Congress does not intend to supplant state law,’ especially if the ‘state action [occurs] in fields of traditional state regulation,’ like health care.” Id., at 506 (quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U. S. 645 –655 (1995)). Nonetheless, the majority con-cluded that ERISA preempted the application of Vermont’s data-collection law to Liberty’s plan. 746 F. 3d , at 506, 508. The reporting of information about plan benefits, the majority reasoned, qualifies as a “core ERISA functio[n]” and, therefore, must be “subject to a uniform federal standard.” Id., at 505, 508. Judge Straub dissented, offering a concise critique of the majority’s opinion: “The majority finds that the burden imposed by the Vermont reporting requirement warrants preemption of the [data-collection] statute. This conclusion falters for two primary reasons. First, the reporting requirement imposed by the Vermont statute differs in kind from the ‘reporting’ that is required by ERISA and therefore was not the kind of state law Congress intended to preempt. Second, Liberty Mutual has failed to show any actual burden, much less a burden that triggers ERISA preemption. Rather, the Vermont statute . . . does not interfere with an ERISA plan’s administration of benefits.” Id., at 511. II Essentially for the reasons Judge Straub identified, I would hold that ERISA does not preempt Vermont’s data-collection statute. That law and ERISA serve different purposes. ERISA’s domain is the design and administration of employee benefit plans: notably, prescriptions on the vesting of benefits, claims processing, and the designation of beneficiaries. See Travelers , 514 U. S., at 656 (“Congress intended to ensure that plans and plan sponsors would be subject to a uniform body of benefits law. . . .” (internal quotation marks omitted)). Its reporting requirements, geared to those functions, ensure that the plans in fact provide covered benefits. Vermont’s data-collection statute, in contrast, aims to improve the quality and utilization, and reduce the cost, of health care in Vermont by providing consumers, government officials, and researchers with comprehensive data about the health care delivery system. Nor does Vermont’s law impose burdens on ERISA plans of the kind this Court has found sufficient to warrant preemption. ERISA’s preemption clause provides that the Act “shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U. S. C. §1144(a). Lacking clear direction from the clause’s “opaque” text, De Buono v. NYSA–ILA Medical and Clinical Services Fund , 520 U. S. 806, 809 (1997) , the Court has sought to honor Congress’ evident call for an expansive preemption principle without invalidating state regulations falling outside ERISA’s domain. See Travelers , 514 U. S., at 655–656 (“The governing text of [the] ERISA [preemption clause] is clearly expansive. . . . [But] [i]f ‘relate to’ were taken to extend to the furthest stretch of its indeterminacy, then for all practical purposes pre-emption would never run its course, for really, universally, relations stop nowhere.” (some internal quotation marks omitted)).[ 5 ] Seeking to bring some measure of determinacy to ERISA preemption, the Court has stated: “[A] law ‘relates to’ an employee benefit plan . . . if it has a connection with or reference to such a plan.” Id., at 656 (some internal quotation marks omitted). In this case, the Court of Appeals found, and the parties do not here contest, that Vermont’s data-collection law lacks “reference to” ERISA plans because the law applies to all health care payers and does not home in on ERISA plans. See 746 F. 3d, at 508, n. 9. The question, therefore, is whether the law has an impermissible “connection with” ERISA plans. Because the term “ ‘connection with’ is scarcely more restrictive than ‘relate to,’ ” the Court has “cautioned against . . . uncritical literalism,” Egelhoff v. Egelhoff , 532 U. S. 141, 147 (2001) (internal quotation marks omitted), and has set out this further formulation: “[T]o determine whether a state law has the forbidden connection, we look both to the objectives of the ERISA statute as a guide to the scope of the state law that Congress understood would survive, as well as to the nature of the effect of the state law on ERISA plans.” Ibid. (internal quotation marks omitted). In framing preemption doctrine, the Court does not “assum[e] lightly that Congress has derogated state regulation, but instead . . . addresse[s] claims of pre-emption with the starting presumption that Congress does not intend to supplant state law,” Travelers , 514 U. S., at 654, especially where the State’s regulation deals with “matters of health and safety,” De Buono , 520 U. S., at 814 (internal quotation marks omitted). In Travelers and subsequent decisions upholding state laws against preemption challenges, this Court made clear that this presumption plays an important role in ERISA cases. Travelers , 514 U. S., at 654, 661; California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc. , 519 U. S. 316 –331 (1997); De Buono , 520 U. S., at 814. Vermont’s data-collection law is a vital part of the State’s control of its own health care market. See supra, at 1–2, 4; 746 F. 3d, at 513 (Straub, J., dissenting). The presumption against preemption should thus apply full strength, and Liberty has not rebutted it, i.e., it has not shown that ERISA demands the preemption of Vermont’s data-collection law. To the contrary, the Court’s ERISA preemption precedent points against preemption in this case. A To determine whether Vermont’s data-collection law, as applied to Liberty’s plan, has an impermissible “connection with” ERISA plans, I look first to the “objectives of the ERISA statute as a guide.” Egelhoff , 532 U. S., at 147; Oneok, Inc. v. Learjet, Inc. , 575 U. S. ___, ___ (2015) (slip op., at 11) (emphasizing “the importance of considering the target at which the state law aims ” in applying ordinary field-preemption principles). Because ERISA’s reporting requirements and the Vermont law elicit different information and serve distinct purposes, there is no sensible reason to find the Vermont data-collection law preempted. ERISA-covered benefit plans must, absent exemption, file annual reports containing financial and actuarial data to enable the Secretary of Labor to evaluate plans’ management and solvency. See 29 U. S. C. §§1023, 1024(a)(2)(B); Dillingham , 519 U. S., at 326–327 (Congress “established extensive reporting . . . requirements” to protect against “the mismanagement of funds accumulated to finance employee benefits and the failure to pay employees’ benefits from accumulated funds.” (internal quotation marks omitted)).[ 6 ] Beyond debate, Vermont’s data-collection law does not seek to regulate the management and solvency of ERISA-covered welfare plans. See supra, at 2 (reciting objectives of the Vermont data-collection law). Vermont requests no information on plan finances. See Reg. H–2008–01, Code of Vt. Rules 21–040–021, §4(D); supra, at 2 (detailing the types of data collected by Vermont). The State collects data on paid health care claims, not denied claims. See §5(A)(8). Vermont seeks a better understanding of how its residents obtain health care and how effective that care is. Unlike ERISA superintendence, Vermont’s interest does not lie in reviewing whether a self-insured provider is keeping its bargain to covered employees. Nor does Vermont’s statute even arguably regulate relationships among the prime ERISA entities: beneficiaries, participants, administrators, employees, trustees and other fiduciaries, and the plan itself. Despite these significant differences between ERISA’s reporting requirements and Vermont’s data-collection regime, Liberty contends that Congress intended to spare ERISA plans from benefit-related reporting requirements unless those requirements are nationally uniform. In support of this contention, Liberty points to dicta from this Court’s opinions and selections from ERISA’s legislative history. See, e.g., Travelers , 514 U. S., at 661 (“ ‘[S]ubject matters covered by ERISA [include] reporting, disclosure, fiduciary responsibility, and the like.’ ” (quoting Shaw v. Delta Air Lines, Inc. , 463 U. S. 85, 98 (1983) )); Ingersoll-Rand Co. v. McClendon , 498 U. S. 133, 137 (1990) (ERISA “sets various uniform standards, including rules concerning reporting, disclosure, and fiduciary responsibility, for both pension and welfare plans.”); 120 Cong. Rec. 29942 (1974) (remarks of Sen. Javits) (“State laws compelling disclosure from . . . plans . . . will be superseded.”). Far from unambiguously endorsing Liberty’s sweeping view of ERISA’s preemptive scope, these statements can be read at least as reasonably for the unremarkable principle that ERISA preempts state reporting rules designed to serve the same purposes as ERISA’s reporting requirements. This more limited understanding is consistent with the Court’s admonition to pay close attention to the “objectives of the ERISA statute as a guide.” Egelhoff , 532 U. S., at 147. B Satisfied that ERISA’s objectives do not require preemption of Vermont’s data-collection law, I turn to the “nature of the effect of the state law on ERISA plans.” Ibid . The imposition of some burdens on the administration of ERISA plans, the Court has held, does not suffice to require preemption. See De Buono , 520 U. S., at 815. While a law imposing costs so acute as to effectively dictate how a plan is designed or administered could trigger preemption, see id., at 816, n. 16, no such extreme effects are present here. Moreover, no “central matter of plan administration,” Egelhoff, 532 U. S., at 148, is touched by Vermont’s data-collection law. That law prescribes no vesting requirements, benefit levels, beneficiary designations, or rules on how claims should be processed or paid. Indeed, Vermont’s law does not require Liberty to do anything. The burden of compliance falls on Blue Cross, which apparently provides the data without protest on behalf of other self-funded plans. See supra, at 3. Reporting and disclosure are no doubt required of ERISA plans, but those requirements are ancillary to the areas ERISA governs. Reporting and recordkeeping incident to state laws of general applicability have been upheld as they bear on ERISA plans. In De Buono , 520 U. S., at 809–810, 816, for example, the Court held that a gross-receipts tax on patient services provided by a hospital operated by an ERISA plan was not preempted, even though administration of the tax required filing quarterly reports. And in Dillingham , 519 U. S., at 319, the Court held that California’s prevailing-wage law was not preempted as applied to apprenticeship programs established by ERISA plans. Prevailing-wage laws typically require employees to keep records of the wages paid to employees and make them available for review by state authorities. See, e.g., Cal. Lab. Code Ann. §1776 (West 1989) (prevailing-wage law in Dillingham ). The Second Circuit erred, then, in holding that ERISA preempts any state-law reporting obligation that is more than “slight.” See 746 F. 3d, at 508–509. The Vermont data-collection statute keeps company with the laws considered in De Buono and Dillingham : It is generally applicable and does not involve “a central matter of plan administration.” Egelhoff , 532 U. S., at 148. And, as Judge Straub emphasized in his dissent, Liberty “failed to provide any details or showing of the alleged burden,” instead “arguing only that ‘all regulations have their costs.’ ” 746 F. 3d, at 515 (quoting Liberty’s appellate brief). As the United States explains, the supposition indulged by the Second Circuit that Vermont’s law imposed a substantial burden “is not obvious, or even particularly plausible, without any factual support.” Brief for United States as Amicus Curiae 28. The data-collection law “essentially requires Blue Cross [Liberty’s third-party administrator] to take information generated in the ordinary course of its claims-payment operations and report that information in a prescribed format to the [State].” Ibid. The Court of Appeals majority accentuated the sheer number of data entries that must be reported to Vermont. See 746 F. 3d, at 509–510, and n. 13. Accord ante, at 1 (opinion of Breyer, J.) Entirely overlooked in that enumeration is the technological capacity for efficient computer-based data storage, formatting, and submission. See Brief for National Association of Health Data Organizations et al. as Amici Curiae 7–9, 13 (describing three-step electronic path data take from health provider, to insurer or health care plan, and ultimately to the State’s database).[ 7 ] Where regulatory compliance depends upon the use of evolving technologies, it should be incumbent on the objector to show concretely what the alleged regulatory burden in fact entails.[ 8 ] Because data-collection laws like Vermont’s are not uniform from State to State, compliance is inevitably burdensome, Liberty successfully argued in the Court of Appeals. The Court replays this reasoning in today’s opinion. See ante, at 7, 10. But state-law diversity is a hallmark of our political system and has been lauded in this Court’s opinions. See, e.g., Arizona State Legislature v. Arizona Independent Redistricting Comm’n , 576 U. S. ___, ___ (2015) (slip op., at 28) (“This Court has long recognized the role of States as laboratories for devising solutions to difficult legal problems.” (citing New State Ice Co. v. Liebmann , 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting); internal quotation marks omitted)). Something more than an inherent characteristic of our federal system, therefore, must underpin the ERISA-grounded preemption Liberty urges.[ 9 ] Liberty points to Egelhoff as exemplary. In Egelhoff , 532 U. S., at 143–144, a deceased ERISA-plan participant’s ex-spouse challenged a state law that revoked her beneficiary status automatically upon her divorce, even though the ERISA plan’s terms did not. The Court held that ERISA preempted the law because it “binds ERISA plan administrators to a particular choice of rules for determining beneficiary status.” Id., at 147. In that context, the Court said: “Requiring ERISA administrators to master the relevant laws of 50 States . . . would undermine the congressional goal of minimizing the administrative and financial burdens on plan administrators—burdens ultimately borne by the beneficiaries.” Id., at 149–150 (internal quotation marks and brackets omitted). The Court took care, however, to confine Egelhoff to issues implicating “a central matter of plan administration,” in other words, “a core ERISA concern.” Id., at 147–148. What does that category comprise? As earlier described, see supra, at 6, 11, prescriptions on benefit levels, beneficiary designations, vesting requirements, and rules on processing and payment of claims would rank under the central or core ERISA subject-matter rubric.[ 10 ] So, too, would reporting and disclosure obligations, but of what kind? Those that further regulation of the design and administration of employee benefit plans, i.e., reporting and disclosures tied to the areas ERISA governs. ERISA’s reporting and disclosure requirements are thus concerned with mismanagement of funds, failure to pay employee benefits, plan assets or allocations, all information bearing on the financial integrity of the plan. See supra, at 8–9. Vermont’s data-collection law, eliciting information on medical claims, services provided to beneficiaries, charges and payment for those services, and demographic makeup of those receiving benefits, does not fit the bill any more than reporting relating to a plan’s taxes or wage payments does. Numerous States have informed the Court of their urgent need for information yielded by their health care data-collection laws. See Brief for National Governors Association et al. as Amici Curiae ; Brief for State of New York et al. as Amici Curiae ; Brief for Connecticut Health Insurance Exchange as Amicus Curiae ; Brief for State of New Hampshire as Amicus Curiae . Wait until the Federal Government acts is the Court’s response. The Department of Labor’s capacious grant of statutory authority, the Court observes, might allow it to collect the same data Vermont and other States seek about ERISA plan health-benefit payments. See ante, at 10; ante, at 2–3 (opinion of Breyer, J.). Once the information is collected, the Court conjectures, the Department could pass the data on to the States. Cf. ante, at 2–3 (opinion of Breyer, J.) (suggesting that States could seek the Department’s permission to enforce reporting requirements like Vermont’s). It is unsettling, however, to leave the States dependent on a federal agency’s grace, i.e., the Department of Labor’s willingness to take on a chore divorced from ERISA’s objectives.[ 11 ] *  *  * Declaring “reporting,” unmodified, a central or core ERISA function, as the Second Circuit did, 746 F. 3d, at 508, passes the line this Court drew in Travelers , De Buono , and Dillingham when it reined in §1144(a) so that it would no longer operate as a “super-preemption” provision. Bogan, Protecting Patient Rights Despite ERISA, 74 Tulane L. Rev. 951, 959 (2000); see supra, at 8. I dissent from the Court’s retrieval of preemption doctrine that belongs in the discard bin. Notes 1 States, in addition to Vermont, so far maintaining all-payer claims databases are: Arkansas, Colorado, Connecticut, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and West Virginia. Brief for National Governors Association et al. as Amici Curiae 8, and n. 9. 2 Illustrative of the utility of all-payer claims databases, Minnesota evaluated data on emergency-room visits and concluded that the condition causing two of every three visits could have been treated more efficiently, and as effectively, in a nonhospital setting. Brief for State of New York et al. as Amici Curiae 12–13. 3 Liberty’s plan would not, on its own, trigger Vermont’s reporting requirements. As of 2011, only 137 plan participants resided in the State, out of the total 84,711 individuals covered by Liberty’s plan. App. to Pet. for Cert. 50. 4 The Federal Government supplies Medicare claims data to Vermont and other States that maintain similar databases. See 42 U. S. C. §1395kk(e) (requiring the Department of Health and Human Services (HHS) to make Medicare data available to state health-claims databases). And HHS has authorized the States to include Medicaid claims data in their databases. See Brief for United States as Amicus Curiae 7. 5 I have joined opinions proposing that the Court acknowledge that the “ ‘relate to’ clause of the pre-emption provision is meant, not to set forth a test for pre-emption, but rather to identify the field in which ordinary field pre-emption applies—namely, the field of laws regulating” employee-benefit plans. California Div. of Labor Standards Enforcement v. Dillingham Constr., N. A., Inc. , 519 U. S. 316, 336 (1997) (Scalia, J., concurring); Egelhoff v. Egelhoff , 532 U. S. 141, 153 (2001) (Scalia, J., concurring). Whether measured against ordinary preemption principles or this Court’s ERISA-specific precedent, Vermont’s data-collection law should survive inspection. 6 The Court suggests that the Department of Labor collects, pursuant to ERISA’s reporting rules, similar information to the data that Vermont’s regime elicits. See ante, at 8. But these reporting obligations are not remotely similar. As one of Liberty’s amici curiae explains, the Department of Labor reporting form cited by the Court requires reporting of the “total amount of claims paid annually by the plan,” not the “granular claim-by-claim” information (including data about the “location of services rendered”) that Vermont collects. Brief for National Coordinating Committee for Multiemployer Plans as Amicus Curiae 15, n. 4. See also Reply Brief 13, and n. 6. The data entries cited by the Court require a plan to enter, in merely a handful of boxes on a four-page form, the aggregate sums of all claims paid annually. See Dept. of Labor, Schedule H (Form 5500) Financial Information (2015), online at http://www.dol.gov/ebsa/pdf/2015-5500-Schedule-H.pdf (all Internet materials as last visited Feb. 24, 2016). 7 Amici supporting Liberty point to several allegedly burdensome features of compliance with Vermont’s law, but they appear to be no more than everyday facets of modern regulatory compliance: installing and maintaining a software system to collect and remit data to the State, seeking variances from state regulators when health providers do not submit required information to the plan or its administrator, and reformatting data to comply with state-database formatting and encryption standards. See Brief for Blue Cross and Blue Shield Association as Amicus Curiae 30–32, and nn. 7–8; Brief for National Coordinating Committee for Multiemployer Plans as Amicus Curiae 11–13, 16–18. 8 Liberty contends that it need not quantify the precise cost of compliance with Vermont’s law to prove that the law is burdensome. But Liberty should at least introduce concrete evidence of the alleged burdens. A finder of fact would reasonably ask, for example: Do Blue Cross’s existing technologies for data storage already have capacity to store and report the data sought by Vermont? And is compliance with Vermont’s reporting rules any more burdensome than compliance with other state reporting laws with which the plan already complies? 9 Concurring in the Court’s opinion, Justice Breyer worries that “[i]f each State is free to go its own way, . . . the result could well be unnecessary, duplicative, and conflicting reporting requirements.” Ante, at 1. In support, Justice Breyer cites a 2011 report. A. Costello & M. Taylor, APCD Council & NAHDO, Standardization of Data Collec-tion in All-Payer Claims Databases 1 (Jan. 1 online 2011), at https:// www.apcdcouncil.org / publication / standardization-data-collection-all-payer-claims-databases. In fact, the organizations that published this report inform us, in a brief supporting Vermont, that “submitting claims data to [all-payer claims databases] . . . is a routine, straightforward process” and that States and private organizations have worked in recent years to standardize data-reporting requirements. Brief for National Association of Health Data Organizations et al. as Amici Curiae 13. 10 The “core ERISA concern” (or “central matter of plan administration”) inquiry is not meaningfully different from the examination whether a state law is inconsistent with the “objectives of the ERISA statute.” Egelhoff , 532 U. S., at 147; see supra, at 8–10. The Court appears to disagree, stating that “[a]ny difference in purpose” between ERISA and Vermont’s reporting requirements “does not transform [Vermont’s] direct regulation of a ‘central matter of plan administration’ into an innocuous and peripheral set of additional rules.” Ante, at 11–12 (quoting Egelhoff , 532 U. S., at 148). In other words, the Court assumes that a state law that is not inconsistent with ERISA’s purposes can nonetheless burden a “central matter of plan administration” or implicate a “core ERISA concern.” Missing from the Court’s opinion is any definition of these terms. What meaning can “central matter of plan administration” and “core ERISA concern” have if they are divorced from ERISA’s purposes? 11 The Court’s analysis may hamper States’ abilities to require reporting, not just of plan benefits, but of plan assets as well. For example, the Department of Labor collects information about real property held in trust by a pension plan so that it can assess the plan’s financial well-being. See Tr. of Oral Arg. 19. States may need to collect the same information for a very different purpose, such as assessing a property tax.

The Supreme Court ruled that a Vermont state law requiring health insurers to report certain data, including claims and enrollment information, to a state agency for an all-inclusive health care database is not pre-empted by the Employee Retirement Income Security Act of 1974 (ERISA) as it applies to ERISA plans. The Court found that the Vermont law does not implicate core ERISA concerns or impose burdens on plan administrators and is therefore not pre-empted.

LGBTQ+ Rights

Boy Scouts of America v. Dale

https://supreme.justia.com/cases/federal/us/530/640/

OCTOBER TERM, 1999 Syllabus BOY SCOUTS OF AMERICA ET AL. v. DALE CERTIORARI TO THE SUPREME COURT OF NEW JERSEY No. 99-699. Argued April 26, 2000-Decided June 28, 2000 Petitioners are the Boy Scouts of America and its Monmouth Council (collectively, Boy Scouts). The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Respondent Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. He filed suit in the New Jersey Superior Court, alleging, inter alia, that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation. That court's Chancery Division granted summary judgment for the Boy Scouts, but its Appellate Division reversed in pertinent part and remanded. The State Supreme Court affirmed, holding, inter alia, that the Boy Scouts violated the State's public accommodations law by revoking Dale's membership based on his avowed homosexuality. Among other rulings, the court held that application of that law did not violate the Boy Scouts' First Amendment right of expressive association because Dale's inclusion would not significantly affect members' ability to carry out their purposes; determined that New Jersey has a compelling interest in eliminating the destructive consequences of discrimination from society, and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose; and distinguished Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 , on the ground that Dale's reinstatement did not compel the Boy Scouts to express any message. Held: Applying New Jersey's public accommodations law to require the Boy Scouts to readmit Dale violates the Boy Scouts' First Amendment right of expressive association. Government actions that unconstitutionally burden that right may take many forms, one of which is intrusion into a group's internal affairs by forcing it to accept a member it does not desire. Roberts v. United States Jaycees, 468 U. S. 609 , 623. Such forced membership is unconstitutional if the person's presence affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13. However, the freedom of expressive association is not absolute; it can be overridden by regulations adopted to serve compelling 641 state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Roberts, 468 U. S., at 623. To determine whether a group is protected, this Court must determine whether the group engages in "expressive association." The record clearly reveals that the Boy Scouts does so when its adult leaders inculcate its youth members with its value system. See id., at 636. Thus, the Court must determine whether the forced inclusion of Dale would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. The Court first must inquire, to a limited extent, into the nature of the Boy Scouts' viewpoints. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly those represented by the terms "morally straight" and "clean," and that the organization does not want to promote homosexual conduct as a legitimate form of behavior. The Court gives deference to the Boy Scouts' assertions regarding the nature of its expression, see Demo cratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107 , 123-124. The Court then inquires whether Dale's presence as an assistant scoutmaster would significantly burden the expression of those viewpoints. Dale, by his own admission, is one of a group of gay Scouts who have become community leaders and are open and honest about their sexual orientation. His presence as an assistant scoutmaster would interfere with the Scouts' choice not to propound a point of view contrary to its beliefs. See Hurley, 515 U. S., at 576-577. This Court disagrees with the New Jersey Supreme Court's determination that the Boy Scouts' ability to disseminate its message would not be significantly affected by the forced inclusion of Dale. First, contrary to the state court's view, an association need not associate for the purpose of disseminating a certain message in order to be protected, but must merely engage in expressive activity that could be impaired. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues, its method of expression is protected. Third, the First Amendment does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." Given that the Boy Scouts' expression would be burdened, the Court must inquire whether the application of New Jersey's public accommodations law here runs afoul of the Scouts' freedom of expressive association, and concludes that it does. Such a law is within a State's power to enact when the legislature has reason to believe that a given group is the target of discrimination and the law does not violate the First Amendment. See, e. g., id., at 572. The Court rejects Dale's contention that the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367 , should be applied here to evaluate the 642 Syllabus competing interests of the Boy Scouts and the State. Rather, the Court applies an analysis similar to the traditional First Amendment analysis it applied in Hurley. A state requirement that the Boy Scouts retain Dale would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the freedom of expressive association. In so ruling, the Court is not guided by its view of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of an organization's expression does not justify the State's effort to compel the organization to accept members in derogation of the organization's expressive message. While the law may promote all sorts of conduct in place of harmful behavior, it may not interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may seem. Hurley, supra, at 579. Pp. 647-661. 160 N. J. 562, 734 A. 2d 1196, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined, post, p. 663. SOUTER, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, post, p. 700. George A. Davidson argued the cause for petitioners. With him on the briefs were Carla A. Kerr, David K. Park, Michael W McConnell, and Sanford D. Brown. Evan Wolfson argued the cause for respondent. With him on the brief were Ruth E. Harlow, David Buckel, Jon W Davidson, Beatrice Dohrn, Patricia M. Logue, Thomas J. Moloney, Allyson W Haynes, and Lewis H. Robertson.* *Briefs of amici curiae urging reversal were filed for Agudath Israel of America by David Zwiebel; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Vincent McCarthy, John P. Tuskey, and Laura B. Hernandez; for the American Civil Rights Union by Peter J. Ferrara; for the Becket Fund for Religious Liberty by Kevin J. Hasson and Eric W Treene; for the California State Club Association et al. by William I. Edlund; for the Center for the Original Intent of the Constitution by Michael P. Farris; for the Christian Legal Society et al. by Kimberlee Wood Colby and Carl H. Esbeck; for the Claremont Institute Center 643 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of America (col- for Constitutional Jurisprudence by Edwin Meese III; for the Eagle Forum Education & Legal Defense Fund et al. by Erik S. Jaffe; for the Family Defense Council et al. by William E. Fay III; for the Family Research Council by Janet M. LaRue; for Gays and Lesbians for Individual Liberty by William H. Mellor, Clint Bolick, and Scott G. Bullock; for the Individual Rights Foundation by Paul A. Hoffman and Patrick J. Manshardt; for the Institute for Public Mfairs of the Union of Orthodox Jewish Congregations of America by Nathan J. Diament; for the Liberty Legal Institute by Kelly Shackelford and George B. Flint; for the National Catholic Committee on Scouting et al. by Von G. Keetch; for the National Legal Foundation by Barry C. Hodge; for the Pacific Legal Foundation by John H. Findley; for Public Advocate of the United States et al. by William J. Olson and John S. Miles; for the United States Catholic Conference et al. by Mark E. Chopko and Jeffrey Hunter Moon; and for John J. Hurley et al. by Chester Darling, Michael Williams, and Dwight G. Duncan. Briefs of amici curiae urging affirmance were filed for the State of New Jersey by John J. Farmer, Jr., Attorney General, Jeffrey Burstein, Senior Deputy Attorney General, and Charles S. Cohen, Deputy Attorney General; for the State of New York et al. by Eliot Spitzer, Attorney General of New York, Preeta D. Bansal, Solicitor General, and Adam L. Aronson, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Bill Lockyer of California, Earl I. Anzai of Hawaii, J. Joseph Curran, Jr., of Maryland, Thomas F. Reilly of Massachusetts, Philip T. McLaughlin of New Hampshire, W A. Drew Edmondson of Oklahoma; Hardy Myers of Oregon, William H. Sorrell of Vermont, and Christine O. Gregoire of Washington; for the city of Atlanta et al. by Peter T. Barbur, Sara M. Darehshori, James K. Hahn, David I. Schulman, Jeffrey L. Rogers, Madelyn F. Wessel, Thomas J. Berning, Lawrence E. Rosenthal, Benna Ruth Solomon, Michael D. Hess, Leonard J. Koerner, Florence A. Hutner, and Louise Renne; for the American Association of School Administrators et al. by Mitchell A. Karlan; for the American Bar Association by William G. Paul and Robert H. Murphy; for the American Civil Liberties Union et al. by Matthew A. Coles, Steven R. Shapiro, Sara L. Mandelbaum, and Lenora M. Lapidus; for the American Jewish Congress by Marc D. Stern; for the American Psychological Association by Paul M. Smith, Nory Miller, James L. McHugh, and Nathalie F. P. Gil- 644 lectively, Boy Scouts). The Boy Scouts is a private, not-forprofit organization engaged in instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey's public accommodations law requires that the Boy Scouts readmit Dale. This case presents the question whether applying New Jersey's public accommodations law in this way violates the Boy Scouts' First Amendment right of expressive association. We hold that it does. I James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council's Cub Scout Pack 142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18. By all accounts, Dale was an exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting's highest honors. Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his application for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself and foyle; for the American Public Health Association et al. by Marvin E. Frankel, Jeffrey S. Trachtman, and Kerri Ann Law; for Bay Area Lawyers for Individual Freedom et al. by Edward W Swanson and Paula A. Brantner; for Deans of Divinity Schools and Rabbinical Institutions by David A. Schulz; for the National Association for the Advancement of Colored People by Dennis C. Hayes and David T. Goldberg; for Parents, Families, and Friends of Lesbians and Gays, Inc., et al. by John H. Pickering, Daniel H. Squire, and Carol J. Banta; for the Society of American Law Teachers by Nan D. Hunter and David Cole; and for Roland Pool et al. by David M. Gische and Merril Hirsh. Michael D. Silverman filed a brief for the General Board of Church and Society of the United Methodist Church et al. 645 others that he is gay. He quickly became involved with, and eventually became the copresident of, the Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the psychological and health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers' need for gay role models. In early July 1990, the newspaper published the interview and Dale's photograph over a caption identifying him as the copresident of the Lesbian/ Gay Alliance. Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his adult membership. Dale wrote to Kay requesting the reason for Monmouth Council's decision. Kay responded by letter that the Boy Scouts "specifically forbid membership to homosexuals." App. 137. In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The complaint alleged that the Boy Scouts had violated New Jersey's public accommodations statute and its common law by revoking Dale's membership based solely on his sexual orientation. New Jersey's public accommodations statute prohibits, among other things, discrimination on the basis of sexual orientation in places of public accommodation. N. J. Stat. Ann. §§ 10:5-4 and 10:5-5 (West Supp. 2000); see Appendix, infra, at 661-663. The New Jersey Superior Court's Chancery Division granted summary judgment in favor of the Boy Scouts. The court held that New Jersey's public accommodations law was inapplicable because the Boy Scouts was not a place of public accommodation, and that, alternatively, the Boy Scouts is a distinctly private group exempted from coverage under New Jersey's law. The court rejected Dale's common-law claim, holding that New Jersey's policy is embodied in the public accommodations law. The court also concluded that the Boy Scouts' position in respect of active homosexuality was clear 646 and held that the First Amendment freedom of expressive association prevented the government from forcing the Boy Scouts to accept Dale as an adult leader. The New Jersey Superior Court's Appellate Division affirmed the dismissal of Dale's common-law claim, but otherwise reversed and remanded for further proceedings. 308 N. J. Super. 516, 706 A. 2d 270 (1998). It held that New Jersey's public accommodations law applied to the Boy Scouts and that the Boy Scouts violated it. The Appellate Division rejected the Boy Scouts' federal constitutional claims. The New Jersey Supreme Court affirmed the judgment of the Appellate Division. It held that the Boy Scouts was a place of public accommodation subject to the public accommodations law, that the organization was not exempt from the law under any of its express exceptions, and that the Boy Scouts violated the law by revoking Dale's membership based on his avowed homosexuality. After considering the state-law issues, the court addressed the Boy Scouts' claims that application of the public accommodations law in this case violated its federal constitutional rights "'to enter into and maintain ... intimate or private relationships ... [and] to associate for the purpose of engaging in protected speech.'" 160 N. J. 562, 605, 734 A. 2d 1196, 1219 (1999) (quoting Board of Directors of Rotary lnt'l v. Rotary Club of Duarte, 481 U. S. 537, 544 (1987)). With respect to the right to intimate association, the court concluded that the Boy Scouts' "large size, nonselectivity, inclusive rather than exclusive purpose, and practice of inviting or allowing nonmembers to attend meetings, establish that the organization is not 'sufficiently personal or private to warrant constitutional protection' under the freedom of intimate association." 160 N. J., at 608-609, 734 A. 2d, at 1221 (quoting Duarte, supra, at 546). With respect to the right of expressive association, the court "agree[d] that Boy Scouts expresses a belief in moral values and uses its activities to encourage the moral development 647 of its members." 160 N. J., at 613, 734 A. 2d, at 1223. But the court concluded that it was "not persuaded ... that a shared goal of Boy Scout members is to associate in order to preserve the view that homosexuality is immoral." Ibid., 734 A. 2d, at 1223-1224 (internal quotation marks omitted). Accordingly, the court held "that Dale's membership does not violate the Boy Scouts' right of expressive association because his inclusion would not 'affect in any significant way [the Boy Scouts'] existing members' ability to carry out their various purposes.'" Id., at 615, 734 A. 2d, at 1225 (quoting Duarte, supra, at 548). The court also determined that New Jersey has a compelling interest in eliminating "the destructive consequences of discrimination from our society," and that its public accommodations law abridges no more speech than is necessary to accomplish its purpose. 160 N. J., at 619-620,734 A. 2d, at 1227-1228. Finally, the court addressed the Boy Scouts' reliance on Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995), in support of its claimed First Amendment right to exclude Dale. The court determined that Hurley did not require deciding the case in favor of the Boy Scouts because "the reinstatement of Dale does not compel Boy Scouts to express any message." 160 N. J., at 624, 734 A. 2d, at 1229. We granted the Boy Scouts' petition for certiorari to determine whether the application of New Jersey's public accommodations law violated the First Amendment. 528 U. S. 1109 (2000). II In Roberts v. United States Jaycees, 468 U. S. 609 , 622 (1984), we observed that "implicit in the right to engage in activities protected by the First Amendment" is "a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends." This right is crucial in preventing the majority from imposing its views on groups that would 648 rather express other, perhaps unpopular, ideas. See ibid. (stating that protection of the right to expressive association is "especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority"). Government actions that may unconstitutionally burden this freedom may take many forms, one of which is "intrusion into the internal structure or affairs of an association" like a "regulation that forces the group to accept members it does not desire." Id., at 623. Forcing a group to accept certain members may impair the ability of the group to express those views, and only those views, that it intends to express. Thus, "[f]reedom of association ... plainly presupposes a freedom not to associate." Ibid. The forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints. New York State Club Assn., Inc. v. City of New York, 487 U. S. 1, 13 (1988). But the freedom of expressive association, like many freedoms, is not absolute. We have held that the freedom could be overridden "by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." Roberts, supra, at 623. To determine whether a group is protected by the First Amendment's expressive associational right, we must determine whether the group engages in "expressive association." The First Amendment's protection of expressive association is not reserved for advocacy groups. But to come within its ambit, a group must engage in some form of expression, whether it be public or private. Because this is a First Amendment case where the ultimate conclusions of law are virtually inseparable from findings of fact, we are obligated to independently review the 649 factual record to ensure that the state court's judgment does not unlawfully intrude on free expression. See Hurley, supra, at 567-568. The record reveals the following. The Boy Scouts is a private, nonprofit organization. According to its mission statement: "It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential. "The values we strive to instill are based on those found in the Scout Oath and Law: "Scout Oath "On my honor I will do my best "To do my duty to God and my country "and to obey the Scout Law; "To help other people at all times; "To keep myself physically strong, "mentally awake, and morally straight. "Scout Law "A Scout is: "Trustworthy         Obedient "Loyal         Cheerful "Helpful         Thrifty "Friendly         Brave "Courteous         Clean "Kind         Reverent." App. 184. Thus, the general mission of the Boy Scouts is clear: "[T]o instill values in young people." Ibid. The Boy Scouts seeks to instill these values by having its adult leaders spend time with the youth members, instructing and engaging them in activities like camping, archery, and fishing. During the time spent with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy 650 Scouts' values-both expressly and by example. It seems indisputable that an association that seeks to transmit such a system of values engages in expressive activity. See Rob erts, supra, at 636 (O'CONNOR, J., concurring) ("Even the training of outdoor survival skills or participation in community service might become expressive when the activity is intended to develop good morals, reverence, patriotism, and a desire for self-improvement"). Given that the Boy Scouts engages in expressive activity, we must determine whether the forced inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts' ability to advocate public or private viewpoints. This inquiry necessarily requires us first to explore, to a limited extent, the nature of the Boy Scouts' view of homosexuality. The values the Boy Scouts seeks to instill are "based on" those listed in the Scout Oath and Law. App. 184. The Boy Scouts explains that the Scout Oath and Law provide "a positive moral code for living; they are a list of 'do's' rather than 'don'ts.'" Brief for Petitioners 3. The Boy Scouts asserts that homosexual conduct is inconsistent with the values embodied in the Scout Oath and Law, particularly with the values represented by the terms "morally straight" and "clean." Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. See supra, at 649. And the terms "morally straight" and "clean" are by no means self-defining. Different people would attribute to those terms very different meanings. For example, some people may believe that engaging in homosexual conduct is not at odds with being "morally straight" and "clean." And others may believe that engaging in homosexual conduct is contrary to being "morally straight" and "clean." The Boy Scouts says it falls within the latter category. The New Jersey Supreme Court analyzed the Boy Scouts' beliefs and found that the "exclusion of members solely on the basis of their sexual orientation is inconsistent with Boy 651 Scouts' commitment to a diverse and 'representative' membership ... [and] contradicts Boy Scouts' overarching objective to reach 'all eligible youth.'" 160 N. J., at 618, 734 A. 2d, at 1226. The court concluded that the exclusion of members like Dale "appears antithetical to the organization's goals and philosophy." Ibid. But our cases reject this sort of inquiry; it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent. See Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U. S. 107 , 124 (1981) ("[A]s is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational"); see also Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707 , 714 (1981) ("[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection"). The Boy Scouts asserts that it "teach[es] that homosexual conduct is not morally straight," Brief for Petitioners 39, and that it does "not want to promote homosexual conduct as a legitimate form of behavior," Reply Brief for Petitioners 5. We accept the Boy Scouts' assertion. We need not inquire further to determine the nature of the Boy Scouts' expression with respect to homosexuality. But because the record before us contains written evidence of the Boy Scouts' viewpoint, we look to it as instructive, if only on the question of the sincerity of the professed beliefs. A 1978 position statement to the Boy Scouts' Executive Committee, signed by Downing B. Jenks, the President of the Boy Scouts, and Harvey L. Price, the Chief Scout Executive, expresses the Boy Scouts' "official position" with regard to "homosexuality and Scouting": "Q. Mayan individual who openly declares himself to be a homosexual be a volunteer Scout leader? 652 "A. No. The Boy Scouts of America is a private, membership organization and leadership therein is a privilege and not a right. We do not believe that homosexuality and leadership in Scouting are appropriate. We will continue to select only those who in our judgment meet our standards and qualifications for leadership." App.453-454. Thus, at least as of 1978-the year James Dale entered Scouting-the official position of the Boy Scouts was that avowed homosexuals were not to be Scout leaders. A position statement promulgated by the Boy Scouts in 1991 (after Dale's membership was revoked but before this litigation was filed) also supports its current view: "We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts." Id., at 457. This position statement was redrafted numerous times but its core message remained consistent. For example, a 1993 position statement, the most recent in the record, reads, in part: "The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. We do not believe that homosexuals provide a role model consistent with these expectations. Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA." Id., at 461. The Boy Scouts publicly expressed its views with respect to homosexual conduct by its assertions in prior litigation. For example, throughout a California case with similar facts filed in the early 1980's, the Boy Scouts consistently asserted the same position with respect to homosexuality that it asserts today. See Curran v. Mount Diablo Council of Boy 653 Scouts of America, No. C-365529 (Cal. Super. Ct., July 25, 1991); 48 Cal. App. 4th 670, 29 Cal. Rptr. 2d 580 (1994); 17 Cal. 4th 670, 952 P. 2d 218 (1998). We cannot doubt that the Boy Scouts sincerely holds this view. We must then determine whether Dale's presence as an assistant scoutmaster would significantly burden the Boy Scouts' desire to not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As we give deference to an association's assertions regarding the nature of its expression, we must also give deference to an association's view of what would impair its expression. See, e. g., La Follette, supra, at 123-124 (considering whether a Wisconsin law burdened the National Party's associational rights and stating that "a State, or a court, may not constitutionally substitute its own judgment for that of the Party"). That is not to say that an expressive association can erect a shield against antidiscrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message. But here Dale, by his own admission, is one of a group of gay Scouts who have "become leaders in their community and are open and honest about their sexual orientation." App. 11. Dale was the copresident of a gay and lesbian organization at college and remains a gay rights activist. Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior. Hurley is illustrative on this point. There we considered whether the application of Massachusetts' public accommodations law to require the organizers of a private St. Patrick's Day parade to include among the marchers an IrishAmerican gay, lesbian, and bisexual group, GLIB, violated the parade organizers' First Amendment rights. We noted that the parade organizers did not wish to exclude the GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB banner. We observed: 654 "[A] contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals .... The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control." 515 U. S., at 574-575. Here, we have found that the Boy Scouts believes that homosexual conduct is inconsistent with the values it seeks to instill in its youth members; it will not "promote homosexual conduct as a legitimate form of behavior." Reply Brief for Petitioners 5. As the presence of GLIB in Boston's St. Patrick's Day parade would have interfered with the parade organizers' choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout's choice not to propound a point of view contrary to its beliefs. The New Jersey Supreme Court determined that the Boy Scouts' ability to disseminate its message was not significantly affected by the forced inclusion of Dale as an assistant scoutmaster because of the following findings: "Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy Scouts includes sponsors and members who subscribe to different views 655 in respect of homosexuality." 160 N. J., at 612, 734 A. 2d, at 1223. We disagree with the New Jersey Supreme Court's conclusion drawn from these findings. First, associations do not have to associate for the "purpose" of disseminating a certain message in order to be entitled to the protections of the First Amendment. An association must merely engage in expressive activity that could be impaired in order to be entitled to protection. For example, the purpose of the St. Patrick's Day parade in Hurley was not to espouse any views about sexual orientation, but we held that the parade organizers had a right to exclude certain participants nonetheless. Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual issues-a fact that the Boy Scouts disputes with contrary evidence-the First Amendment protects the Boy Scouts' method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed above. Third, the First Amendment simply does not require that every member of a group agree on every issue in order for the group's policy to be "expressive association." The Boy Scouts takes an official position with respect to homosexual conduct, and that is sufficient for First Amendment purposes. In this same vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of heterosexual Scout leaders that openly disagree with the Boy Scouts' policy on sexual orientation. But if this is true, it is irrelevant.1 The presence of an avowed homosexual and gay 1 The record evidence sheds doubt on Dale's assertion. For example, the National Director of the Boy Scouts certified that "any persons who advocate to Scouting youth that homosexual conduct is" consistent with Scouting values will not be registered as adult leaders. App. 746 (emphasis added). And the Monmouth Council Scout Executive testified that the 656 rights activist in an assistant scoutmaster's uniform sends a distinctly different message from the presence of a heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy Scouts has a First Amendment right to choose to send one message but not the other. The fact that the organization does not trumpet its views from the housetops, or that it tolerates dissent within its ranks, does not mean that its views receive no First Amendment protection. Having determined that the Boy Scouts is an expressive association and that the forced inclusion of Dale would significantly affect its expression, we inquire whether the application of New Jersey's public accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster runs afoul of the Scouts' freedom of expressive association. We conclude that it does. State public accommodations laws were originally enacted to prevent discrimination in traditional places of public accommodation-like inns and trains. See, e. g., Hurley, supra, at 571-572 (explaining the history of Massachusetts' public accommodations law); Romer v. Evans, 517 U. S. 620 , 627-629 (1996) (describing the evolution of public accommodations laws). Over time, the public accommodations laws have expanded to cover more places.2 New Jersey's statu- advocacy of the morality of homosexuality to youth members by any adult member is grounds for revocation of the adult's membership. Id., at 761. 2 Public accommodations laws have also broadened in scope to cover more groups; they have expanded beyond those groups that have been given heightened equal protection scrutiny under our cases. See Romer, 517 U. S., at 629. Some municipal ordinances have even expanded to cover criteria such as prior criminal record, prior psychiatric treatment, military status, personal appearance, source of income, place of residence, and political ideology. See 1 Boston, Mass., Ordinance No. § 12-9.7 (1999) (ex-offender, prior psychiatric treatment, and military status); D. C. Code Ann. § 1-2519 (1999) (personal appearance, source of income, place of residence); Seattle, Wash., Municipal Code § 14.08.090 (1999) (political ideology). 657 tory definition of" '[a] place of public accommodation'" is extremely broad. The term is said to "include, but not be limited to," a list of over 50 types of places. N. J. Stat. Ann. § 10:5-5(l) (West Supp. 2000); see Appendix, infra, at 661663. Many on the list are what one would expect to be places where the public is invited. For example, the statute includes as places of public accommodation taverns, restaurants, retail shops, and public libraries. But the statute also includes places that often may not carry with them open invitations to the public, like summer camps and roof gardens. In this case, the New Jersey Supreme Court went a step further and applied its public accommodations law to a private entity without even attempting to tie the term "place" to a physical location.3 As the definition of "public accommodation" has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased. We recognized in cases such as Roberts and Duarte that States have a compelling interest in eliminating discrimination against women in public accommodations. But in each of these cases we went on to conclude that the enforcement of these statutes would not materially interfere with the ideas that the organization sought to express. In Roberts, we said "[i]ndeed, the Jaycees has failed to demonstrate ... 3 Four State Supreme Courts and one United States Court of Appeals have ruled that the Boy Scouts is not a place of public accommodation. Welsh v. Boy Scouts of America, 993 F.2d 1267 (CA7), cert. denied, 510 U. S. 1012 (1993); Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal. 4th 670, 952 P. 2d 218 (1998); Seabourn v. Coronado Area Council, Boy Scouts of America, 257 Kan. 178, 891 P. 2d 385 (1995); Quinnipiac Council, Boy Scouts of America, Inc. v. Comm'n on Human Rights & Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987); Schwenk v. Boy Scouts of America, 275 Ore. 327, 551 P. 2d 465 (1976). No federal appellate court or state supreme court-except the New Jersey Supreme Court in this case-has reached a contrary result. 658 any serious burdens on the male members' freedom of expressive association." 468 U. S., at 626. In Duarte, we said: "[I]mpediments to the exercise of one's right to choose one's associates can violate the right of association protected by the First Amendment. In this case, however, the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes." 481 U. S., at 548 (internal quotation marks and citations omitted). We thereupon concluded in each of these cases that the organizations' First Amendment rights were not violated by the application of the States' public accommodations laws. In Hurley, we said that public accommodations laws "are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments." 515 U. S., at 572. But we went on to note that in that case "the Massachusetts [public accommodations] law has been applied in a peculiar way" because "any contingent of protected individuals with a message would have the right to participate in petitioners' speech, so that the communication produced by the private organizers would be shaped by all those protected by the law who wished to join in with some expressive demonstration of their own." Id., at 572-573. And in the associational freedom cases such as Roberts, Duarte, and New York State Club Assn., after finding a compelling state interest, the Court went on to examine whether or not the application of the state law would impose any "serious burden" on the organization's rights of expressive association. So in these cases, the associational interest in freedom of expression has 659 been set on one side of the scale, and the State's interest on the other. Dale contends that we should apply the intermediate standard of review enunciated in United States v. O'Brien, 391 U. S. 367 (1968), to evaluate the competing interests. There the Court enunciated a four-part test for review of a governmental regulation that has only an incidental effect on protected speech-in that case the symbolic burning of a draft card. A law prohibiting the destruction of draft cards only incidentally affects the free speech rights of those who happen to use a violation of that law as a symbol of protest. But New Jersey's public accommodations law directly and immediately affects associational rights, in this case associational rights that enjoy First Amendment protection. Thus, O'Brien is inapplicable. In Hurley, we applied traditional First Amendment analysis to hold that the application of the Massachusetts public accommodations law to a parade violated the First Amendment rights of the parade organizers. Although we did not explicitly deem the parade in Hurley an expressive association, the analysis we applied there is similar to the analysis we apply here. We have already concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would significantly burden the organization's right to oppose or disfavor homosexual conduct. The state interests embodied in New Jersey's public accommodations law do not justify such a severe intrusion on the Boy Scouts' rights to freedom of expressive association. That being the case, we hold that the First Amendment prohibits the State from imposing such a requirement through the application of its public accommodations law.4 4 We anticipated this result in Hurley when we illustrated the reasons for our holding in that case by likening the parade to a private membership organization. 515 U. S., at 580. We stated: "Assuming the parade 660 JUSTICE STEVENS' dissent makes much of its observation that the public perception of homosexuality in this country has changed. See post, at 699-700. Indeed, it appears that homosexuality has gained greater societal acceptance. See ibid. But this is scarcely an argument for denying First Amendment protection to those who refuse to accept these views. The First Amendment protects expression, be it of the popular variety or not. See, e. g., Texas v. Johnson, 491 U. S. 397 (1989) (holding that Johnson's conviction for burning the American flag violates the First Amendment); Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam) (holding that a Ku Klux Klan leader's conviction for advocating unlawfulness as a means of political reform violates the First Amendment). And the fact that an idea may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view. JUSTICE STEVENS' extolling of Justice Brandeis' comments in New State Ice Co. v. Liebmann, 285 U. S. 262 , 311 (1932) (dissenting opinion); see post, at 664, 700, confuses two entirely different principles. In New State Ice, the Court struck down an Oklahoma regulation prohibiting the manufacture, sale, and distribution of ice without a license. Justice Brandeis, a champion of state experimentation in the economic realm, dissented. But Justice Brandeis was never a champion of state experimentation in the suppression of free speech. To the contrary, his First Amendment commentary provides compelling support for the Court's opinion in this case. In speaking of the Founders of this Nation, Justice Brandeis emphasized that they "believed that free- to be large enough and a source of benefits (apart from its expression) that would generally justify a mandated access provision, GLIB could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members." Id., at 580-581. 661 dom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth." Whitney v. California, 274 U. S. 357 , 375 (1927) (concurring opinion). He continued: "Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed." Id., at 375-376. We are not, as we must not be, guided by our views of whether the Boy Scouts' teachings with respect to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an organization's expression does not justify the State's effort to compel the organization to accept members where such acceptance would derogate from the organization's expressive message. "While the law is free to promote all sorts of conduct in place of harmful behavior, it is not free to interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government." Hurley, 515 U. S., at 579. The judgment of the New Jersey Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. APPENDIX TO OPINION OF THE COURT N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). "Obtaining employment, accommodations and privileges without discrimination; civil right "All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommoda- 662 Appendix to opinion of the Court tion, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right." N. J. Stat. Ann. § 10:5-5 (West Supp. 2000). "Definitions "As used in this act, unless a different meaning clearly appears from the context: "l. 'A place of public accommodation' shall include, but not be limited to: any tavern, roadhouse, hotel, motel, trailer camp, summer camp, day camp, or resort camp, whether for entertainment of transient guests or accommodation of those seeking health, recreation or rest; any producer, manufacturer, wholesaler, distributor, retail shop, store, establishment, or concession dealing with goods or services of any kind; any restaurant, eating house, or place where food is sold for consumption on the premises; any place maintained for the sale of ice cream, ice and fruit preparations or their derivatives, soda water or confections, or where any beverages of any kind are retailed for consumption on the premises; any garage, any public conveyance operated on land or water, or in the air, any stations and terminals thereof; any bathhouse, boardwalk, or seashore accommodation; any auditorium, meeting place, or hall; any theatre, motion-picture house, music hall, roof garden, skating rink, swimming pool, amusement and recreation park, fair, bowling alley, gymnasium, shooting gallery, billiard and pool parlor, or other place of amusement; any comfort station; any dispensary, clinic or hospital; any public library; any kindergarten, primary and secondary school, trade or business school, high school, academy, college and university, or any educational institution under the supervision of the State Board of Education, or the Commissioner of Education of the State of New Jersey. 663 Nothing herein contained shall be construed to include or to apply to any institution, bona fide club, or place of accommodation, which is in its nature distinctly private; nor shall anything herein contained apply to any educational facility operated or maintained by a bona fide religious or sectarian institution, and the right of a natural parent or one in loco parentis to direct the education and upbringing of a child under his control is hereby affirmed; nor shall anything herein contained be construed to bar any private secondary or post secondary school from using in good faith criteria other than race, creed, color, national origin, ancestry or affectional or sexual orientation in the admission of students." JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and JUSTICE BREYER join, dissenting. New Jersey "prides itself on judging each individual by his or her merits" and on being "in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society." Peper v. Princeton Univ. Bd. of Trustees, 77 N. J. 55, 80, 389 A. 2d 465,478 (1978). Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges "of any place of public accommodation." N. J. Stat. Ann. § 10:5-4 (West Supp. 2000). The New Jersey Supreme Court's construction of the statutory definition of a "place of public accommodation" has given its statute a more expansive coverage than most similar state statutes. And as amended in 1991, the law prohibits discrimination on the basis of nine different traits including an individual's "sexual orientation." 1 The question in this case is whether that ex- 1 In 1992, the statute was again amended to add "familial status" as a tenth protected class. It now provides: "10:5-4 Obtaining employment, accommodations and privileges without discrimination; civil right "All persons shall have the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any 664 pansive construction trenches on the federal constitutional rights of the Boy Scouts of America (BSA). Because every state law prohibiting discrimination is designed to replace prejudice with principle, Justice Brandeis' comment on the States' right to experiment with "things social" is directly applicable to this case. "To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the Nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country. This Court has the power to prevent an experiment. We may strike down the statute which embodies it on the ground that, in our opinion, the measure is arbitrary, capricious or unreasonable. We have power to do this, because the due process clause has been held by the Court applicable to matters of substantive law as well as to matters of procedure. But in the exercise of this high power, we must be ever on our guard, lest we erect our prejudices into legal principles. If we would guide by the light of reason, we must let our minds be bold." New State Ice Co. v. Liebmann, 285 U. S. 262 , 311 (1932) (dissenting opinion). In its "exercise of this high power" today, the Court does not accord this "courageous State" the respect that is its due. The majority holds that New Jersey's law violates BSA's right to associate and its right to free speech. But that law place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, or sex, subject only to conditions and limitations applicable alike to all persons. This opportunity is recognized as and declared to be a civil right." 665 does not "impos[e] any serious burdens" on BSA's "collective effort on behalf of [its] shared goals," Roberts v. United States Jaycees, 468 U. S. 609 , 622, 626-627 (1984), nor does it force BSA to communicate any message that it does not wish to endorse. New Jersey's law, therefore, abridges no constitutional right of BSA. I James Dale joined BSA as a Cub Scout in 1978, when he was eight years old. Three years later he became a Boy Scout, and he remained a member until his 18th birthday. Along the way, he earned 25 merit badges, was admitted into the prestigious Order of the Arrow, and was awarded the rank of Eagle Scout-an honor given to only three percent of all Scouts. In 1989, BSA approved his application to be an Assistant Scoutmaster. On July 19, 1990, after more than 12 years of active and honored participation, the BSA sent Dale a letter advising him of the revocation of his membership. The letter stated that membership in BSA "is a privilege" that may be denied "whenever there is a concern that an individual may not meet the high standards of membership which the BSA seeks to provide for American youth." App. 135. Expressing surprise at his sudden expulsion, Dale sent a letter requesting an explanation of the decision. Id., at 136. In response, BSA sent him a second letter stating that the grounds for the decision "are the standards for leadership established by the Boy Scouts of America, which specifically forbid membership to homosexuals." Id., at 137. At that time, no such standard had been publicly expressed by BSA. In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality is immoral. Consequently, it argues, it would violate its right to associate to force it to admit homosexuals as members, as doing so would be at odds with its own shared goals and values. This contention, quite plainly, requires us to look at what, exactly, are the values that BSA actually teaches. 666 BSA's mission statement reads as follows: "It is the mission of the Boy Scouts of America to serve others by helping to instill values in young people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their full potential." Id., at 184. Its federal charter declares its purpose is "to promote, through organization, and cooperation with other agencies, the ability of boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism, courage, self-reliance, and kindred values, using the methods which were in common use by Boy Scouts on June 15, 1916." 36 U. S. C. § 23; see also App. 315-316. BSA describes itself as having a "representative membership," which it defines as "boy membership [that] reflects proportionately the characteristics of the boy population of its service area." Id., at 65. In particular, the group emphasizes that "[n]either the charter nor the bylaws of the Boy Scouts of America permits the exclusion of any boy .... To meet these responsibilities we have made a commitment that our membership shall be representative of all the population in every community, district, and council." Id., at 66-67 (emphasis in original). To instill its shared values, BSA has adopted a "Scout Oath" and a "Scout Law" setting forth its central tenets. For example, the Scout Law requires a member to promise, among other things, that he will be "obedient." Accompanying definitions for the terms found in the Oath and Law are provided in the Boy Scout Handbook and the Scoutmaster Handbook. For instance, the Boy Scout Handbook defines "obedient" as follows: "A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of his community and country. If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them." Id., at 188 (emphasis deleted). 667 To bolster its claim that its shared goals include teaching that homosexuality is wrong, BSA directs our attention to two terms appearing in the Scout Oath and Law. The first is the phrase "morally straight," which appears in the Oath ("On my honor I will do my best ... To keep myself ... morally straight"); the second term is the word "clean," which appears in a list of 12 characteristics together constituting the Scout Law. The Boy Scout Handbook defines "morally straight," as such: "To be a person of strong character, guide your life with honesty, purity, and justice. Respect and defend the rights of all people. Your relationships with others should be honest and open. Be clean in your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help you become virtuous and self-reliant." Id., at 218 (emphasis deleted). The Scoutmaster Handbook emphasizes these points about being "morally straight": "In any consideration of moral fitness, a key word has to be 'courage.' A boy's courage to do what his head and his heart tell him is right. And the courage to refuse to do what his heart and his head say is wrong. Moral fitness, like emotional fitness, will clearly present opportunities for wise guidance by an alert Scoutmaster." Id., at 239-240. As for the term "clean," the Boy Scout Handbook offers the following: "A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who live by these same ideals. He helps keep his home and community clean. "You never need to be ashamed of dirt that will wash off. If you play hard and work hard you can't help get- 668 ting dirty. But when the game is over or the work is done, that kind of dirt disappears with soap and water. "There's another kind of dirt that won't come off by washing. It is the kind that shows up in foul language and harmful thoughts. "Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He avoids it in his own words and deeds. He defends those who are targets of insults." Id., at 225-226 (emphasis in original); see also id., at 189.2 It is plain as the light of day that neither one of these principles-"morally straight" and "clean"-says the slightest thing about homosexuality. Indeed, neither term in the Boy 2 Scoutmasters are instructed to teach what it means to be "clean" using the following lesson: "(Hold up two cooking pots, one shiny bright on the inside but sooty outside, the other shiny outside but dirty inside.) Scouts, which of these pots would you rather have your food cooked in? Did I hear somebody say, 'Neither one?' "That's not a bad answer. We wouldn't have much confidence in a patrol cook who didn't have his pots shiny both inside and out. "But if we had to make a choice, we would tell the cook to use the pot that's clean inside. The same idea applies to people. "Most people keep themselves clean outside. But how about the inside? Do we try to keep our minds and our language clean? I think that's even more important than keeping the outside clean. "A Scout, of course, should be clean inside and out. Water, soap, and a toothbrush tak[e] care of the outside. Only your determination will keep the inside clean. You can do it by following the Scout Law and the example of people you respect-your parents, your teachers, your clergyman, or a good buddy who is trying to do the same thing." App.289-290. 669 Scouts' Law and Oath expresses any position whatsoever on sexual matters. BSA's published guidance on that topic underscores this point. Scouts, for example, are directed to receive their sex education at home or in school, but not from the organization: "Your parents or guardian or a sex education teacher should give you the facts about sex that you must know." Boy Scout Handbook (1992) (reprinted in App. 211). To be sure, Scouts are not forbidden from asking their Scoutmaster about issues of a sexual nature, but Scoutmasters are, literally, the last person Scouts are encouraged to ask: "If you have questions about growing up, about relationships, sex, or making good decisions, ask. Talk with your parents, religious leaders, teachers, or Scoutmaster." Ibid. Moreover, Scoutmasters are specifically directed to steer curious adolescents to other sources of information: "If Scouts ask for information regarding ... sexual activity, answer honestly and factually, but stay within your realm of expertise and comfort. If a Scout has serious concerns that you cannot answer, refer him to his family, religious leader, doctor, or other professional." Scoutmaster Handbook (1990) (reprinted in App. 264). More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues come up: "You may have boys asking you for information or advice about sexual matters .... "How should you handle such matters? "Rule number 1: You do not undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life. The reasons are that it is not construed to be Scouting's proper area, and that you are probably not well qualified to do this. "Rule number 2: If Scouts come to you to ask questions or to seek advice, you would give it within your compe- 670 tence. A boy who appears to be asking about sexual intercourse, however, may really only be worried about his pimples, so it is well to find out just what information is needed. "Rule number 3: You should refer boys with sexual problems to persons better qualified than you [are] to handle them. If the boy has a spiritual leader or a doctor who can deal with them, he should go there. If such persons are not available, you may just have to do the best you can. But don't try to play a highly professional role. And at the other extreme, avoid passing the buck." Scoutmaster Handbook (1972) (reprinted in App. 546547) (emphasis added). In light of BSA's self-proclaimed ecumenism, furthermore, it is even more difficult to discern any shared goals or common moral stance on homosexuality. Insofar as religious matters are concerned, BSA's bylaws state that it is "absolutely nonsectarian in its attitude toward ... religious training." Id., at 362. "The BSA does not define what constitutes duty to God or the practice of religion. This is the responsibility of parents and religious leaders." Id., at 76. In fact, many diverse religious organizations sponsor local Boy Scout troops. Brief for Petitioners 3. Because a number of religious groups do not view homosexuality as immoral or wrong and reject discrimination against homosexuals,3 it is exceedingly difficult to believe that BSA none- 3 See, e. g., Brief for Deans of Divinity Schools and Rabbinical Institutions as Amicus Curiae 8 ("The diverse religi[ous] traditions of this country present no coherent moral message that excludes gays and lesbians from participating as full and equal members of those institutions. Indeed, the movement among a number of the nation's major religious institutions for many decades has been toward public recognition of gays and lesbians as full members of moral communities, and acceptance of gays and lesbians as religious leaders, elders and clergy"); Brief for General Board of Church and Society of the United Methodist Church et al. as 671 theless adopts a single particular religious or moral philosophy when it comes to sexual orientation. This is especially so in light of the fact that Scouts are advised to seek guidance on sexual matters from their religious leaders (and Scoutmasters are told to refer Scouts to them); 4 BSA surely is aware that some religions do not teach that homosexuality is wrong. II The Court seeks to fill the void by pointing to a statement of "policies and procedures relating to homosexuality and Scouting," App. 453, signed by BSA's President and Chief Scout Executive in 1978 and addressed to the members of the Executive Committee of the national organization. Ante, at 651-652. The letter says that the BSA does "not believe that homosexuality and leadership in Scouting are appropriate." App. 454. But when the entire 1978 letter is read, BSA's position is far more equivocal: "4. Q. Mayan individual who openly declares himself to be a homosexual be employed by the Boy Scouts of America as a professional or non-professional? "A. Boy Scouts of America does not knowingly employ homosexuals as professionals or non-professionals. We are unaware of any present laws which would prohibit this policy. Amicus Curiae 3 (describing views of the United Methodist Church, the Episcopal Church, the Religious Action Center of Reform Judaism, the United Church Board for Homeland Ministries, and the Unitarian Universalist Association, all of whom reject discrimination on the basis of sexual orientation). 4 See supra, at 667 ("Be ... faithful in your religious beliefs"); supra, at 668, n. 2 ("by following ... the example of ... your clergyman"); supra, at 669 ("If you have questions about ... sex, ... [t]alk with your ... religious leade[r]"); ibid. ("If Scouts ask for information regarding ... sexual activity ... refer him to his ... religious leader"); supra, at 670 ("You should refer boys with sexual problems to [their] spiritual leader"). 672 "5. Q. Should a professional or non-professional individual who openly declares himself to be a homosexual be terminated? "A. Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or ordinance in the United States which prohibits discrimination against individual's employment upon the basis of homosexuality. In the event that such a law was applicable, it would be necessary for the Boy Scouts of America to obey it, in this case as in Paragraph J, above. It is our position, however, that homosexuality and professional or non-professional employment in Scouting are not appropriate." Id., at 454-455 (emphasis added). Four aspects of the 1978 policy statement are relevant to the proper disposition of this case. First, at most this letter simply adopts an exclusionary membership policy. But simply adopting such a policy has never been considered sufficient, by itself, to prevail on a right to associate claim. See infra, at 678-685. Second, the 1978 policy was never publicly expressed-unlike, for example, the Scout's duty to be "obedient." It was an internal memorandum, never circulated beyond the few members of BSA's Executive Committee. It remained, in effect, a secret Boy Scouts policy. Far from claiming any intent to express an idea that would be burdened by the presence of homosexuals, BSA's public posture-to the world and to the Scouts themselves-remained what it had always been: one of tolerance, welcoming all classes of boys and young men. In this respect, BSA's claim is even weaker than those we have rejected in the past. See ibid. Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that laws against discrimination might one day be amended to protect homosexuals from employment discrimination. Their statement clearly provided that, in the event such a law conflicted with their policy, a Scout's duty to be "obedient" and "obe[y] the laws," even if "he thinks [the laws] are unfair," would prevail in such a 673 contingency. See supra, at 666. In 1978, however, BSA apparently did not consider it to be a serious possibility that a State might one day characterize the Scouts as a "place of public accommodation" with a duty to open its membership to all qualified individuals. The portions of the statement dealing with membership simply assume that membership in the Scouts is a "privilege" that BSA is free to grant or to withhold. The statement does not address the question whether the publicly proclaimed duty to obey the law should prevail over the private discriminatory policy if, and when, a conflict between the two should arise-as it now has in New Jersey. At the very least, then, the statement reflects no unequivocal view on homosexuality. Indeed, the statement suggests that an appropriate way for BSA to preserve its unpublished exclusionary policy would include an open and forthright attempt to seek an amendment of New Jersey's statute. ("If he thinks these rules and laws are unfair, he tries to have them changed in an orderly manner rather than disobey them.") Fourth, the 1978 statement simply says that homosexuality is not "appropriate." It makes no effort to connect that statement to a shared goal or expressive activity of the Boy Scouts. Whatever values BSA seeks to instill in Scouts, the idea that homosexuality is not "appropriate" appears entirely unconnected to, and is mentioned nowhere in, the myriad of publicly declared values and creeds of the BSA. That idea does not appear to be among any of the principles actually taught to Scouts. Rather, the 1978 policy appears to be no more than a private statement of a few BSA executives that the organization wishes to exclude gays-and that wish has nothing to do with any expression BSA actually engages in. The majority also relies on four other policy statements that were issued between 1991 and 1993.5 All of them were 5 The authorship and distribution of these statements remain obscure. Unlike the 1978 policy-which clearly identifies the authors as the President and the Chief Scout Executive of BSA-these later policies are unsigned. Two of them are initialed (one is labeled "JCK"; the other says 674 written and issued after BSA revoked Dale's membership. Accordingly, they have little, if any, relevance to the legal question before this Court.6 In any event, they do not bolster BSA's claim. In 1991, BSA issued two statements both stating: "We believe that homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed, and that homosexuals do not provide a desirable role model for Scouts." App. 457-458. A third statement issued in 1992 was substantially the same. Id., at 459. By 1993, however, the policy had changed: "BSA Position "The Boy Scouts of America has always reflected the expectations that Scouting families have had for the organization. "We do not believe that homosexuals provide a role model consistent with these expectations. "Accordingly, we do not allow for the registration of avowed homosexuals as members or as leaders of the BSA." Id., at 461. Aside from the fact that these statements were all issued after Dale's membership was revoked, there are four important points relevant to them. First, while the 1991 and 1992 "js"), but BSA never tells us to whom these initials belong. Nor do we know how widely these statements were distributed. From the record evidence we have, it appears that they were not as readily available as the Boy Scout and Scoutmaster Handbooks; indeed, they appear to be quite difficult to get a hold of. See App. 662, 668-669. 6 Dale's complaint requested three forms of relief: (1) a declaration that his rights under the New Jersey statute had been violated when his membership was revoked; (2) an order reinstating his membership; and (3) compensatory and punitive damages. Id., at 27. Nothing that BSA could have done after the revocation of his membership could affect Dale's first request for relief, though perhaps some possible postrevocation action could have influenced the other two requests for relief. 675 statements tried to tie BSA's exclusionary policy to the meaning of the Scout Oath and Law, the 1993 statement abandoned that effort. Rather, BSA's 1993 homosexual exclusion policy was based on its view that including gays would be contrary to "the expectations that Scouting families have had for the organization." Ibid. Instead of linking its policy to its central tenets or shared goals-to teach certain definitions of what it means to be "morally straight" and "clean"-BSA chose instead to justify its policy on the "expectatio[n]" that its members preferred to exclude homosexuals. The 1993 policy statement, in other words, was not based on any expressive activity or on any moral view about homosexuality. It was simply an exclusionary membership policy, similar to those we have held insufficient in the past. See infra, at 678-685. Second, even during the brief period in 1991 and 1992, when BSA tried to connect its exclusion of homosexuals to its definition of terms found in the Oath and Law, there is no evidence that Scouts were actually taught anything about homosexuality's alleged inconsistency with those principles. Beyond the single sentence in these policy statements, there is no indication of any shared goal of teaching that homosexuality is incompatible with being "morally straight" and "clean." Neither BSA's mission statement nor its official membership policy was altered; no Boy Scout or Scoutmaster Handbook was amended to reflect the policy statement; no lessons were imparted to Scouts; no change was made to BSA's policy on limiting discussion of sexual matters; and no effort was made to restrict acceptable religious affiliations to those that condemn homosexuality. In short, there is no evidence that this view was part of any collective effort to foster beliefs about homosexuality.7 7 Indeed, the record evidence is to the contrary. See, e. g., App. 666-669 (affidavit of former Boy Scout whose young children were Scouts, and was himself an assistant scoutmaster and Merit Badge counselor) ("I never heard and am not aware of any discussion about homosexuality that oc- 676 Third, BSA never took any clear and unequivocal position on homosexuality. Though the 1991 and 1992 policies state one interpretation of "morally straight" and "clean," the group's published definitions appearing in the Boy Scout and Scoutmaster Handbooks take quite another view. And BSA's broad religious tolerance combined with its declaration that sexual matters are not its "proper area" render its views on the issue equivocal at best and incoherent at worst. We have never held, however, that a group can throw together any mixture of contradictory positions and then invoke the right to associate to defend anyone of those views. At a minimum, a group seeking to prevail over an antidiscrimination law must adhere to a clear and unequivocal view. Fourth, at most the 1991 and 1992 statements declare only that BSA believed "homosexual conduct is inconsistent with the requirement in the Scout Oath that a Scout be morally straight and in the Scout Law that a Scout be clean in word and deed." App. 457 (emphasis added). But New Jersey's law prohibits discrimination on the basis of sexual orientation. And when Dale was expelled from the Boy Scouts, BSA said it did so because of his sexual orientation, not because of his sexual conduct.8 It is clear, then, that nothing in these policy statements supports BSA's claim. The only policy written before the revocation of Dale's membership was an equivocal, undisclosed statement that evidences no connection between the group's discriminatory intentions and its expressive interests. The later policies demonstrate a brief-though ulti- cUlTed during any Scouting meeting or function .... Prior to September 1991, I never heard any mention whatsoever of homosexuality during any Scouting function"). 8 At oral argument, BSA's counsel was asked: "[W]hat if someone is homosexual in the sense of having a sexual orientation in that direction but does not engage in any homosexual conduct?" Counsel answered: "[I]f that person also were to take the view that the reason they didn't engage in that conduct [was because] it would be morally wrong ... that person would not be excluded." Tr. of Oral Arg. 8. 677 mately abandoned-attempt to tie BSA's exclusion to its expression, but other than a single sentence, BSA fails to show that it ever taught Scouts that homosexuality is not "morally straight" or "clean," or that such a view was part of the group's collective efforts to foster a belief. Furthermore, BSA's policy statements fail to establish any clear, consistent, and unequivocal position on homosexuality. Nor did BSA have any reason to think Dale's sexual conduct, as opposed to his orientation, was contrary to the group's values. BSA's inability to make its position clear and its failure to connect its alleged policy to its expressive activities is highly significant. By the time Dale was expelled from the Boy Scouts in 1990, BSA had already been engaged in several suits under a variety of state antidiscrimination public accommodation laws challenging various aspects of its membership policy.9 Indeed, BSA had filed amicus briefs before this Court in two earlier right to associate cases (Roberts v. United States Jaycees, 468 U. S. 609 (1984), and Board of Directors of Rotary lnt'l v. Rotary Club of Duarte, 481 U. S. 537 (1987)) pointing to these very cases; it was clearly on notice by 1990 that it might well be subjected to state public accommodation antidiscrimination laws, and that a court might one day reject its claimed right to associate. Yet it took no steps prior to Dale's expulsion to clarify how its exclusivity was connected to its expression. It speaks volumes about the credibility of BSA's claim to a shared goal that homosexuality is incompatible with Scouting that since at least 1984 it had been aware of this issue-indeed, concerned enough to twice file amicus briefs before this 9 See, e. g., Quinnipiac Council, Boy Scouts of America v. Commission on Human Rights and Opportunities, 204 Conn. 287, 528 A. 2d 352 (1987) (challenge to BSA's exclusion of girls); Curran v. Mount Diablo Council of the Boy Scouts of America, 147 Cal. App. 3d 712, 195 Cal. Rptr. 325 (1983) (challenge to BSA's denial of membership to homosexuals; rejecting BSA's claimed right of association), overruled on other grounds, 17 Cal. 4th 670, 952 P. 2d 218 (1998). 678 Court-yet it did nothing in the intervening six years (or even in the years after Dale's explusion) to explain clearly and openly why the presence of homosexuals would affect its expressive activities, or to make the view of "morally straight" and "clean" taken in its 1991 and 1992 policies a part of the values actually instilled in Scouts through the Handbook, lessons, or otherwise. III BSA's claim finds no support in our cases. We have recognized "a right to associate for the purpose of engaging in those activities protected by the First Amendmentspeech, assembly, petition for the redress of grievances, and the exercise of religion." Roberts, 468 U. S., at 618. And we have acknowledged that "when the State interferes with individuals' selection of those with whom they wish to join in a common endeavor, freedom of association ... may be implicated." Ibid. But "[t]he right to associate for expressive purposes is not ... absolute"; rather, "the nature and degree of constitutional protection afforded freedom of association may vary depending on the extent to which ... the constitutionally protected liberty is at stake in a given case." Id., at 623, 618. Indeed, the right to associate does not mean "that in every setting in which individuals exercise some discrimination in choosing associates, their selective process of inclusion and exclusion is protected by the Constitution." New York State Club Assn., Inc. v. City of New York, 487 U. S. 1 , 13 (1988). For example, we have routinely and easily rejected assertions of this right by expressive organizations with discriminatory membership policies, such as private schools,lO law 10 Runyon v. McCrary, 427 U. S. 160 , 175-176 (1976) ("[T]he Court has recognized a First Amendment right 'to engage in association for the advancement of beliefs and ideas ... .' From this principle it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, and that the children have an equal right to attend such insti- 679 firms,l1 and labor organizations.12 In fact, until today, we have never once found a claimed right to associate in the selection of members to prevail in the face of a State's antidiscrimination law. To the contrary, we have squarely held that a State's antidiscrimination law does not violate a group's right to associate simply because the law conflicts with that group's exclusionary membership policy. In Roberts v. United States Jaycees, 468 U. S. 609 (1984), we addressed just such a conflict. The Jaycees was a nonprofit membership organization "'designed to inculcate in the individual membership ... a spirit of genuine Americanism and civic interest, and ... to provide ... an avenue for intelligent participation by young men in the affairs of their community.'" Id., at 612-613. The organization was divided into local chapters, described as "'young men's organization[s],'" in which regular membership was restricted to males between the ages of 18 and 35. Id., at 613. But Minnesota's Human Rights Act, which applied to the Jaycees, made it unlawful to "'deny any person the full and equal tutions. But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle" (citation omitted)). 11 Hishon v. King & Spalding, 467 U. S. 69 , 78 (1984) ("[R]espondent argues that application of Title VII in this case would infringe constitutional rights of ... association. Although we have recognized that the activities of lawyers may make a 'distinctive contribution ... to the ideas and beliefs of our society,' respondent has not shown how its ability to fulfill such a function would be inhibited by a requirement that it consider petitioner for partnership on her merits. Moreover, as we have held in another context, '[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections'" (citations omitted)). 12 Railway Mail Assn. v. Corsi, 326 U. S. 88 , 93-94 (1945) ("Appellant first contends that [the law prohibiting racial discrimination by labor organizations] interfere[s] with its right of selection to membership .... We see no constitutional basis for the contention that a state cannot protect workers from exclusion solely on the basis of race"). 680 enjoyment of ... a place of public accommodation because of ... sex.'" Id., at 615. The Jaycees, however, claimed that applying the law to it violated its right to associate-in particular its right to maintain its selective membership policy. We rejected that claim. Cautioning that the right to associate is not "absolute," we held that "[i]nfringements on that right may be justified by regulations adopted to serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms." Id., at 623. We found the State's purpose of eliminating discrimination is a compelling state interest that is unrelated to the suppression of ideas. Id., at 623-626. We also held that Minnesota's law is the least restrictive means of achieving that interest. The Jaycees had "failed to demonstrate that the Act imposes any serious burdens on the male members' freedom of expressive association." Id., at 626. Though the Jaycees had "taken public positions on a number of diverse issues, [and] ... regularly engage in a variety of ... activities worthy of constitutional protection under the First Amendment," there was "no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views." Id., at 626-627. "The Act," we held, "requires no change in the Jaycees' creed of promoting the interest of young men, and it imposes no restrictions on the organization's ability to exclude individuals with ideologies or philosophies different from those of its existing members." Id., at 627. We took a similar approach in Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537 (1987). Rotary International, a nonprofit corporation, was founded as "'an organization of business and professional men united worldwide who provide humanitarian service, encourage high ethical standards in all vocations, and help build good- 681 will and peace in the world.'" Id., at 539. It admitted a cross section of worthy business and community leaders, id., at 540, but refused membership to women. "[T]he exclusion of women," explained the group's General Secretary, "results in an 'aspect of fellowship ... that is enjoyed by the present male membership.'" Id., at 541. That policy also allowed the organization "to operate effectively in foreign countries with varied cultures and social mores." Ibid. Though California's Civil Rights Act, which applied to Rotary International, prohibited discrimination on the basis of sex, id., at 541-542, n. 2, the organization claimed a right to associate, including the right to select its members. As in Jaycees, we rejected the claim, holding that "the evidence fails to demonstrate that admitting women to Rotary Clubs will affect in any significant way the existing members' ability to carry out their various purposes." 481 U. S., at 548. "To be sure," we continued, "Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment. But [California's Civil Rights Act] does not require the clubs to abandon or alter any of these activities. It does not require them to abandon their basic goals of humanitarian service, high ethical standards in all vocations, good will, and peace. Nor does it require them to abandon their classification system or admit members who do not reflect a cross section of the community." Ibid. Finally, even if California's law worked a "slight infringement on Rotary members' right of expressive association, that infringement is justified because it serves the State's compelling interest in eliminating discrimination against women." Id., at 549.13 13 BSA urged on brief that under the New Jersey Supreme Court's reading of the State's antidiscrimination law, "Boy Scout Troops would be forced to admit girls as members" and "Girl Scout Troops would be forced to admit boys." Brief for Petitioners 37. The New Jersey Supreme Court had no occasion to address that question, and no such issue is tendered for our decision. I note, however, the State of New Jersey's obser- 682 Several principles are made perfectly clear by Jaycees and Rotary Club. First, to prevail on a claim of expressive association in the face of a State's antidiscrimination law, it is not enough simply to engage in some kind of expressive activity. Both the Jaycees and the Rotary Club engaged in expressive activity protected by the First Amendment,14 yet that fact was not dispositive. Second, it is not enough to adopt an openly avowed exclusionary membership policy. Both the Jaycees and the Rotary Club did that as wel1.15 Third, it is not sufficient merely to articulate some connection between the group's expressive activities and its exclusionary policy. The Rotary Club, for example, justified its male-only membership policy by pointing to the "'aspect of fellowship ... that is enjoyed by the [exclusively] male membership'" and by claiming that only with an exclusively male membership vation that BSA ignores the exemption contained in New Jersey's law for" 'any place of public accommodation which is in its nature reasonably restricted exclusively to one sex,'" including, but not limited to, "'any summer camp, day camp, or resort camp, bathhouse, dressing room, swimming pool, gymnasium, comfort station, dispensary, clinic or hospital, or school or educational institution which is restricted exclusively to individuals of one sex.''' See Brief for State of New Jersey as Amicus Curiae 12-13, n. 2 (citing N. J. Stat. Ann. § 10:5-12(f) (West 1993)). 14 See Roberts v. United States Jaycees, 468 U. S. 609 , 626-627 (1984) ("[T]he organization [has] taken public positions on a number of diverse issues ... worthy of constitutional protection under the First Amendment" (citations omitted)); Board of Directors of Rotary Int'l v. Rotary Club of Duarte, 481 U. S. 537 , 548 (1987) ("To be sure, Rotary Clubs engage in a variety of commendable service activities that are protected by the First Amendment"). 15The Jaycees openly stated that it was an organization designed to serve the interests of "young men"; its local chapters were described as "'young men's organization[s]"'; and its membership policy contained an express provision reserving regular membership to young men. Jaycees, 468 U. S., at 612-613. Likewise, Rotary International expressed its preference for male-only membership: It proclaimed that it was" 'an organization of business and professional men'" and its membership policy expressly excluded women. Rotary Club, 481 U. S., at 539, 541 (emphasis added). 683 could it "operate effectively" in foreign countries. Rotary Club, 481 U. S., at 541. Rather, in Jaycees, we asked whether Minnesota's Human Rights Law requiring the admission of women "impose[d] any serious burdens" on the group's "collective effort on behalf of [its] shared goals." 468 U. S., at 622,626-627 (emphases added). Notwithstanding the group's obvious publicly stated exclusionary policy, we did not view the inclusion of women as a "serious burden" on the Jaycees' ability to engage in the protected speech of its choice. Similarly, in Ro tary Club, we asked whether California's law would "affect in any significant way the existing members' ability" to engage in their protected speech, or whether the law would require the clubs "to abandon their basic goals." 481 U. S., at 548 (emphases added); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 , 581 (1995) ("[A] private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members"); New York State Club Assn., 487 U. S., at 13 (to prevail on a right to associate claim, the group must "be able to show that it is organized for specific expressive purposes and that it will not be able to advocate its desired viewpoints nearly as effectively if it cannot confine its membership to those who share the same sex, for example, or the same religion"); NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 , 462-463 (1958) (asking whether law "entail[ed] the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association" and whether law is "likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs"). The relevant question is whether the mere inclusion of the person at issue would "impose any serious burden," "affect in any significant way," or be "a substantial restraint upon" the organization's "shared goals," "basic goals," or "collective effort to foster beliefs." Accordingly, it is necessary to examine what, exactly, are 684 BSA's shared goals and the degree to which its expressive activities would be burdened, affected, or restrained by including homosexuals. The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an exclusionary membership policy and has no shared goal of disapproving of homosexuality. BSA's mission statement and federal charter say nothing on the matter; its official membership policy is silent; its Scout Oath and Law-and accompanying definitions-are devoid of any view on the topic; its guidance for Scouts and Scoutmasters on sexuality declare that such matters are "not construed to be Scouting's proper area," but are the province of a Scout's parents and pastor; and BSA's posture respecting religion tolerates a wide variety of views on the issue of homosexuality. Moreover, there is simply no evidence that BSA otherwise teaches anything in this area, or that it instructs Scouts on matters involving homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks. In short, Boy Scouts of America is simply silent on homosexuality. There is no shared goal or collective effort to foster a belief about homosexuality at all-let alone one that is significantly burdened by admitting homosexuals. As in Jaycees, there is "no basis in the record for concluding that admission of [homosexuals] will impede the [Boy Scouts'] ability to engage in [its] protected activities or to disseminate its preferred views" and New Jersey's law "requires no change in [BSA's] creed." 468 U. S., at 626-627. And like Rotary Club, New Jersey's law "does not require [BSA] to abandon or alter any of" its activities. 481 U. S., at 548. The evidence relied on by the Court is not to the contrary. The undisclosed 1978 policy certainly adds nothing to the actual views disseminated to the Scouts. It simply says that homosexuality is not "appropriate." There is no reason to give that policy statement more weight than Rotary International's assertion that all-male membership 685 fosters the group's "fellowship" and was the only way it could "operate effectively." As for BSA's postrevocation statements, at most they simply adopt a policy of discrimination, which is no more dispositive than the openly discriminatory policies held insufficient in Jaycees and Rotary Club; there is no evidence here that BSA's policy was necessary toor even a part of-BSA's expressive activities or was ever taught to Scouts. Equally important is BSA's failure to adopt any clear position on homosexuality. BSA's temporary, though ultimately abandoned, view that homosexuality is incompatible with being "morally straight" and "clean" is a far cry from the clear, unequivocal statement necessary to prevail on its claim. Despite the solitary sentences in the 1991 and 1992 policies, the group continued to disclaim any single religious or moral position as a general matter and actively eschewed teaching any lesson on sexuality. It also continued to define "morally straight" and "clean" in the Boy Scout and Scoutmaster Handbooks without any reference to homosexuality. As noted earlier, nothing in our cases suggests that a group can prevail on a right to expressive association if it, effectively, speaks out of both sides of its mouth. A State's antidiscrimination law does not impose a "serious burden" or a "substantial restraint" upon the group's "shared goals" if the group itself is unable to identify its own stance with any clarity. IV The majority pretermits this entire analysis. It finds that BSA in fact" 'teach[es] that homosexual conduct is not morally straight.'" Ante, at 651. This conclusion, remarkably, rests entirely on statements in BSA's briefs. See ibid. (citing Brief for Petitioners 39; Reply Brief for Petitioners 5). Moreover, the majority insists that we must "give deference to an association's assertions regarding the nature of its expression" and "we must also give deference to an association's view of what would impair its expression." Ante, at 686 653. So long as the record "contains written evidence" to support a group's bare assertion, "[w]e need not inquire further." Ante, at 651. Once the organization "asserts" that it engages in particular expression, ibid., "[w]e cannot doubt" the truth of that assertion, ante, at 653. This is an astounding view of the law. I am unaware of any previous instance in which our analysis of the scope of a constitutional right was determined by looking at what a litigant asserts in his or her brief and inquiring no further. It is even more astonishing in the First Amendment area, because, as the majority itself acknowledges, "we are obligated to independently review the factual record." Ante, at 648649. It is an odd form of independent review that consists of deferring entirely to whatever a litigant claims. But the majority insists that our inquiry must be "limited," ante, at 650, because "it is not the role of the courts to reject a group's expressed values because they disagree with those values or find them internally inconsistent," ante, at 651. See also Brief for Petitioners 25 ("[T]he Constitution protects [BSA's] ability to control its own message"). But nothing in our cases calls for this Court to do any such thing. An organization can adopt the message of its choice, and it is not this Court's place to disagree with it. But we must inquire whether the group is, in fact, expressing a message (whatever it may be) and whether that message (if one is expressed) is significantly affected by a State's antidiscrimination law. More critically, that inquiry requires our independent analysis, rather than deference to a group's litigating posture. Reflection on the subject dictates that such an inquiry is required. Surely there are instances in which an organization that truly aims to foster a belief at odds with the purposes of a State's antidiscrimination laws will have a First Amendment right to association that precludes forced compliance with those laws. But that right is not a freedom to discriminate at will, nor is it a right to maintain an exclusionary member- 687 ship policy simply out of fear of what the public reaction would be if the group's membership were opened up. It is an implicit right designed to protect the enumerated rights of the First Amendment, not a license to act on any discriminatory impulse. To prevail in asserting a right of expressive association as a defense to a charge of violating an antidiscrimination law, the organization must at least show it has adopted and advocated an unequivocal position inconsistent with a position advocated or epitomized by the person whom the organization seeks to exclude. If this Court were to defer to whatever position an organization is prepared to assert in its briefs, there would be no way to mark the proper boundary between genuine exercises of the right to associate, on the one hand, and sham claims that are simply attempts to insulate nonexpressive private discrimination, on the other hand. Shielding a litigant's claim from judicial scrutiny would, in turn, render civil rights legislation a nullity, and turn this important constitutional right into a farce. Accordingly, the Court's prescription of total deference will not do. In this respect, Justice Frankfurter's words seem particularly apt: "Elaborately to argue against this contention is to dignify a claim devoid of constitutional substance. Of course a State may leave abstention from such discriminations to the conscience of individuals. On the other hand, a State may choose to put its authority behind one of the cherished aims of American feeling by forbidding indulgence in racial or religious prejudice to another's hurt. To use the Fourteenth Amendment as a sword against such State power would stultify that Amendment. Certainly the insistence by individuals on their private prejudices as to race, color or creed, in relations like those now before us, ought not to have a higher constitutional sanction than the determination of a State to extend the area of nondiscrimination beyond that which the Constitution itself exacts." Railway 688 Mail Assn. v. Corsi, 326 U. S. 88 , 98 (1945) (concurring opinion). There is, of course, a valid concern that a court's independent review may run the risk of paying too little heed to an organization's sincerely held views. But unless one is prepared to turn the right to associate into a free pass out of antidiscrimination laws, an independent inquiry is a necessity. Though the group must show that its expressive activities will be substantially burdened by the State's law, if that law truly has a significant effect on a group's speech, even the subtle speaker will be able to identify that impact. In this case, no such concern is warranted. It is entirely clear that BSA in fact expresses no clear, unequivocal message burdened by New Jersey's law. V Even if BSA's right to associate argument fails, it nonetheless might have a First Amendment right to refrain from including debate and dialogue about homosexuality as part of its mission to instill values in Scouts. It can, for example, advise Scouts who are entering adulthood and have questions about sex to talk "with your parents, religious leaders, teachers, or Scoutmaster," and, in turn, it can direct Scoutmasters who are asked such questions "not undertake to instruct Scouts, in any formalized manner, in the subject of sex and family life" because "it is not construed to be Scouting's proper area." See supra, at 669-670. Dale's right to advocate certain beliefs in a public forum or in a private debate does not include a right to advocate these ideas when he is working as a Scoutmaster. And BSA cannot be compelled to include a message about homosexuality among the values it actually chooses to teach its Scouts, if it would prefer to remain silent on that subject. In West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943), we recognized that the government may not "requir[e] affirmation of a belief and an attitude of mind," nor 689 "force an American citizen publicly to profess any statement of belief," even if doing so does not require the person to "forego any contrary convictions of their own." Id., at 633634. "[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say.'" Hurley, 515 U. S., at 573. Though the majority mistakenly treats this statement as going to the right to associate, it actually refers to a free speech claim. See id., at 564-565, 580-581 (noting distinction between free speech and right to associate claims). As with the right to associate claim, though, the court is obligated to engage in an independent inquiry into whether the mere inclusion of homosexuals would actually force BSA to proclaim a message it does not want to send. Id., at 567. In its briefs, BSA implies, even if it does not directly argue, that Dale would use his Scoutmaster position as a "bully pulpit" to convey immoral messages to his troop, and therefore his inclusion in the group would compel BSA to include a message it does not want to impart. Brief for Petitioners 21-22. Even though the majority does not endorse that argument, I think it is important to explain why it lacks merit, before considering the argument the majority does accept. BSA has not contended, nor does the record support, that Dale had ever advocated a view on homosexuality to his troop before his membership was revoked. Accordingly, BSA's revocation could only have been based on an assumption that he would do so in the future. But the only information BSA had at the time it revoked Dale's membership was a newspaper article describing a seminar at Rutgers University on the topic of homosexual teenagers that Dale attended. The relevant passage reads: "James Dale, 19, co-president of the Rutgers University Lesbian Gay Alliance with Sharice Richardson, also 19, said he lived a double life while in high school, pretending to be straight while attending a military academy. 690 "He remembers dating girls and even laughing at homophobic jokes while at school, only admitting his homosexuality during his second year at Rutgers. "'I was looking for a role model, someone who was gay and accepting of me,' Dale said, adding he wasn't just seeking sexual experiences, but a community that would take him in and provide him with a support network and friends." App. 517. Nothing in that article, however, even remotely suggests that Dale would advocate any views on homosexuality to his troop. The Scoutmaster Handbook instructs Dale, like all Scoutmasters, that sexual issues are not their "proper area," and there is no evidence that Dale had any intention of violating this rule. Indeed, from all accounts Dale was a model Boy Scout and Assistant Scoutmaster up until the day his membership was revoked, and there is no reason to believe that he would suddenly disobey the directives of BSA because of anything he said in the newspaper article. To be sure, the article did say that Dale was co-president of the Lesbian/Gay Alliance at Rutgers University, and that group presumably engages in advocacy regarding homosexual issues. But surely many members of BSA engage in expressive activities outside of their troop, and surely BSA does not want all of that expression to be carried on inside the troop. For example, a Scoutmaster may be a member of a religious group that encourages its followers to convert others to its faith. Or a Scoutmaster may belong to a political party that encourages its members to advance its views among family and friends.16 Yet BSA does not think it is appropriate for Scoutmasters to proselytize a particular faith to unwilling Scouts or to attempt to convert them from one 16 Scoutmaster Handbook (1990) (reprinted in App. 273) ("Scouts and Scouters are encouraged to take active part in political matters as individuals" (emphasis added)). 691 religion to anotherP Nor does BSA think it appropriate for Scouts or Scoutmasters to bring politics into the troop.18 From all accounts, then, BSA does not discourage or forbid outside expressive activity, but relies on compliance with its policies and trusts Scouts and Scoutmasters alike not to bring unwanted views into the organization. Of course, a disobedient member who flouts BSA's policy may be expelled. But there is no basis for BSA to presume that a homosexual will be unable to comply with BSA's policy not to discuss sexual matters any more than it would presume that politically or religiously active members could not resist the urge to proselytize or politicize during troop meetings.19 As BSA itself puts it, its rights are "not implicated unless a prospective leader presents himself as a role model incon- 17Bylaws of the Boy Scouts of America, Art. IX, § 1, cl. 3 (reprinted in App. 363) ("In no case where a unit is connected with a church or other distinctively religious organization shall members of other denominations or faith be required, because of their membership in the unit, to take part in or observe a religious ceremony distinctly unique to that organization or church"). 18 Rules and Regulations of the Boy Scouts of America, Art. IX, § 2, cl. 6 (reprinted in App. 407) ("The Boy Scouts of America shall not, through its governing body or through any of its officers, its chartered councils, or members, involve the Scouting movement in any question of a political character"). 19 Consider, in this regard, that a heterosexual, as well as a homosexual, could advocate to the Scouts the view that homosexuality is not immoral. BSA acknowledges as much by stating that a heterosexual who advocates that view to Scouts would be expelled as well. Id., at 746 ("[Ainy persons who advocate to Scouting youth that homosexual conduct is 'morally straight' under the Scout Oath, or 'clean' under the Scout Law will not be registered as adult leaders" (emphasis added)) (certification of BSA's National Director of Program). But BSA does not expel heterosexual members who take that view outside of their participation in Scouting, as long as they do not advocate that position to the Scouts. Tr. of Oral Arg. 6. And if there is no reason to presume that such a heterosexual will openly violate BSA's desire to express no view on the subject, what reasonother than blatant stereotyping-could justify a contrary presumption for homosexuals? 692 sistent with Boy Scouting's understanding of the Scout Oath and Law." Brief for Petitioners 6 (emphases added).20 The majority, though, does not rest its conclusion on the claim that Dale will use his position as a bully pulpit. Rather, it contends that Dale's mere presence among the Boy Scouts will itself force the group to convey a message about homosexuality-even if Dale has no intention of doing so. The majority holds that "[t]he presence of an avowed homosexual and gay rights activist in an assistant scoutmaster's uniform sends a distinc[t] ... message," and, accordingly, BSA is entitled to exclude that message. Ante, at 655-656. In particular, "Dale's presence in the Boy Scouts would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of be- 20 BSA cites three media interviews and Dale's affidavit to argue that he will openly advance a pro-gay agenda while being a Scoutmaster. None of those statements even remotely supports that conclusion. And all of them were made after Dale's membership was revoked and after this litigation commenced; therefore, they could not have affected BSA's revocation decision. In a New York Times interview, Dale said '''I owe it to the organization to point out to them how bad and wrong this policy is.''' App. 513 (emphases added). This statement merely demonstrates that Dale wants to use this litigation-not his Assistant Scoutmaster position-to make a point, and that he wants to make the point to the BSA organization, not to the boys in his troop. At oral argument, BSA conceded that would not be grounds for membership revocation. Tr. of Oral Arg. 13. In a Seattle Times interview, Dale said Scouting is "'about giving adolescent boys a role model.''' App. 549. He did not say it was about giving them a role model who advocated a position on homosexuality. In a television interview, Dale also said "I am gay, and I'm very proud of who I am .... I stand up for what I believe in .... I'm not hiding anything." Id., at 470. Nothing in that statement says anything about an intention to stand up for homosexual rights in any context other than in this litigation. Lastly, Dale said in his affidavit that he is "open and honest about [his] sexual orientation." Id., at 133. Once again, like someone who is open and honest about his political affiliation, there is no evidence in that statement that Dale will not comply with BSA's policy when acting as a Scoutmaster. 693 havior." Ante, at 653; see also Brief for Petitioners 24 ("By donning the uniform of an adult leader in Scouting, he would 'celebrate [his] identity' as an openly gay Scout leader"). The majority's argument relies exclusively on Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995). In that case, petitioners John Hurley and the South Boston Allied War Veterans Council ran a privately operated St. Patrick's Day parade. Respondent, an organization known as "GLIB," represented a contingent of gays, lesbians, and bisexuals who sought to march in the petitioners' parade "as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual individuals." Id., at 561. When the parade organizers refused GLIB's admission, GLIB brought suit under Massachusetts' antidiscrimination law. That statute, like New Jersey's law, prohibited discrimination on account of sexual orientation in any place of public accommodation, which the state courts interpreted to include the parade. Petitioners argued that forcing them to include GLIB in their parade would violate their free speech rights. We agreed. We first pointed out that the St. Patrick's Day parade-like most every parade-is an inherently expressive undertaking. Id., at 568-570. Next, we reaffirmed that the government may not compel anyone to proclaim a belief with which he or she disagrees. Id., at 573-574. We then found that GLIB's marching in the parade would be an expressive act suggesting the view "that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals." Id., at 574. Finally, we held that GLIB's participation in the parade "would likely be perceived" as the parade organizers' own speech-or at least as a view which they approved-because of a parade organizer's customary control over who marches in the parade. Id., at 575. Though Hurley has a superficial similarity to the present case, a close inspection reveals a wide gulf between that case and the one before us today. 694 First, it was critical to our analysis that GLIB was actually conveying a message by participating in the parade-otherwise, the parade organizers could hardly claim that they were being forced to include any unwanted message at all. Our conclusion that GLIB was conveying a message was inextricably tied to the fact that GLIB wanted to march in a parade, as well as the manner in which it intended to march. We noted the "inherent expressiveness of marching [in a parade] to make a point," id., at 568, and in particular that GLIB was formed for the purpose of making a particular point about gay pride, id., at 561, 570. More specifically, GLIB "distributed a fact sheet describing the members' intentions" and, in a previous parade, had "marched behind a shamrock-strewn banner with the simple inscription 'Irish American Gay, Lesbian and Bisexual Group of Boston.'" Id., at 570. "[A] contingent marching behind the organization's banner," we said, would clearly convey a message. Id., at 574. Indeed, we expressly distinguished between the members of GLIB, who marched as a unit to express their views about their own sexual orientation, on the one hand, and homosexuals who might participate as individuals in the parade without intending to express anything about their sexuality by doing so. Id., at 572-573. Second, we found it relevant that GLIB's message "would likely be perceived" as the parade organizers' own speech. Id., at 575. That was so because "[p]arades and demonstrations ... are not understood to be so neutrally presented or selectively viewed" as, say, a broadcast by a cable operator, who is usually considered to be "merely 'a conduit' for the speech" produced by others. Id., at 575-576. Rather, parade organizers are usually understood to make the "customary determination about a unit admitted to the parade." Id., at 575. Dale's inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no cognizable message to the Scouts or to the world. Unlike GLIB, Dale did not 695 carry a banner or a sign; he did not distribute any factsheet; and he expressed no intent to send any message. If there is any kind of message being sent, then, it is by the mere act of joining the Boy Scouts. Such an act does not constitute an instance of symbolic speech under the First Amendment.21 It is true, of course, that some acts are so imbued with symbolic meaning that they qualify as "speech" under the First Amendment. See United States v. O'Brien, 391 U. S. 367 , 376 (1968). At the same time, however, "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Ibid. Though participating in the Scouts could itself conceivably send a message on some level, it is not the kind of act that we have recognized as speech. See Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989).22 Indeed, if merely joining a group did constitute symbolic speech; and such speech were attributable to the group being joined; and that group has the right to exclude that speech (and hence, the right to exclude that person from joining), then the right of free speech effectively becomes a limitless right to exclude for every organization, whether or not it engages in any expressive activities. That cannot be, and never has been, the law. 21 The majority might have argued (but it did not) that Dale had become so publicly and pervasively identified with a position advocating the moral legitimacy of homosexuality (as opposed to just being an individual who openly stated he is gay) that his leadership position in BSA would necessarily amount to using the organization as a conduit for publicizing his position. But as already noted, when BSA expelled Dale, it had nothing to go on beyond the one newspaper article quoted above, and one newspaper article does not convert Dale into a public symbol for a message. BSA simply has not provided a record that establishes the factual premise for this argument. 22 This is not to say that Scouts do not engage in expressive activity. It is only to say that the simple act of joining the Scouts-unlike joining a parade-is not inherently expressive. 696 The only apparent explanation for the majority's holding, then, is that homosexuals are simply so different from the rest of society that their presence alone-unlike any other individual's-should be singled out for special First Amendment treatment. Under the majority's reasoning, an openly gay male is irreversibly affixed with the label "homosexual." That label, even though unseen, communicates a message that permits his exclusion wherever he goes. His openness is the sole and sufficient justification for his ostracism. Though unintended, reliance on such a justification is tantamount to a constitutionally prescribed symbol of inferiority.23 As counsel for BSA remarked, Dale "put a banner around his neck when he ... got himself into the newspaper .... He created a reputation ... He can't take that banner off. He put it on himself and, indeed, he has continued to put it on himself." See Tr. of Oral Arg. 25. Another difference between this case and Hurley lies in the fact that Hurley involved the parade organizers' claim to determine the content of the message they wish to give at a particular time and place. The standards governing such a claim are simply different from the standards that govern BSA's claim of a right of expressive association. Generally, a private person or a private organization has a right to refuse to broadcast a message with which it disagrees, and a right to refuse to contradict or garble its own specific statement at any given place or time by including the messages of others. An expressive association claim, however, normally involves the avowal and advocacy of a consistent position on some issue over time. This is why a different kind of scrutiny must be given to an expressive association claim, lest the right of expressive association simply turn into a right to discriminate whenever some group can think of an expressive object that would seem to be inconsistent with the ad- 23 See Yoshino, Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays, 96 Colum. L. Rev. 1753,1781-1783 (1996). 697 mission of some person as a member or at odds with the appointment of a person to a leadership position in the group. Furthermore, it is not likely that BSA would be understood to send any message, either to Scouts or to the world, simply by admitting someone as a member. Over the years, BSA has generously welcomed over 87 million young Americans into its ranks. In 1992 over one million adults were active BSA members. 160 N. J. 562, 571, 734 A. 2d 1196, 1200 (1999). The notion that an organization of that size and enormous prestige implicitly endorses the views that each of those adults may express in a non-Scouting context is simply mind boggling. Indeed, in this case there is no evidence that the young Scouts in Dale's troop, or members of their families, were even aware of his sexual orientation, either before or after his public statements at Rutgers University.24 It is equally farfetched to assert that Dale's open declaration of his homosexuality, reported in a local newspaper, will effectively force BSA to send a message to anyone simply because it allows Dale to be an Assistant Scoutmaster. For an Olympic gold medal winner or a Wimbledon tennis champion, being "openly gay" perhaps communicates a message-for example, that openness about one's sexual orientation is more virtuous than concealment; that a homosexual person can be a capable and virtuous person who should be judged like anyone else; and that homosexuality is not immoralbut it certainly does not follow that they necessarily send a message on behalf of the organizations that sponsor the activities in which they excel. The fact that such persons participate in these organizations is not usually construed to convey a message on behalf of those organizations any more than does the inclusion of women, African-Americans, reli- 24 For John Doe to make a public statement of his sexual orientation to the newspapers may, of course, be a matter of great importance to John Doe. Richard Roe, however, may be much more interested in the weekend weather forecast. Before Dale made his statement at Rutgers, the Scoutmaster of his troop did not know that he was gay. App. 465. 698 gious minorities, or any other discrete groUp.25 Surely the organizations are not forced by antidiscrimination laws to take any position on the legitimacy of any individual's private beliefs or private conduct. The State of New Jersey has decided that people who are open and frank about their sexual orientation are entitled to equal access to employment as schoolteachers, police officers, librarians, athletic coaches, and a host of other jobs filled by citizens who serve as role models for children and adults alike. Dozens of Scout units throughout the State are sponsored by public agencies, such as schools and fire departments, that employ such role models. BSA's affiliation with numerous public agencies that comply with New Jersey's law against discrimination cannot be understood to convey any particular message endorsing or condoning the activities of all these people.26 25 The majority simply announces, without analysis, that Dale's participation alone would "force the organization to send a message." Ante, at 653. "But ... these are merely conclusory words, barren of analysis .... For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually 'asserting as true' the message." Wooley v. Maynard, 430 U. S. 705 , 721 (1977) (REHNQUIST, J., dissenting). 26BSA also argues that New Jersey's law violates its right to "intimate association." Brief for Petitioners 39-47. Our cases recognize a substantive due process right "to enter into and carryon certain intimate or private relationships." Rotary Club, 481 U. S., at 545. As with the First Amendment right to associate, the State may not interfere with the selection of individuals in such relationships. Jaycees, 468 U. S., at 618. Though the precise scope of the right to intimate association is unclear, "we consider factors such as size, purpose, selectivity, and whether others are excluded from critical aspects of the relationship" to determine whether a group is sufficiently personal to warrant this type of constitutional protection. Rotary Club, 481 U. S., at 546. Considering BSA's size, see supra, at 697, its broad purposes, and its non selectivity, see supra, at 666, it is impossible to conclude that being a member of the Boy Scouts ranks among those intimate relationships falling within this right, such as marriage, bearing children, rearing children, and cohabitation with relatives. Rotary Club, 481 U. S., at 545. 699 VI Unfavorable OpInIOnS about homosexuals "have ancient roots." Bowers v. Hardwick, 478 U. S. 186 , 192 (1986). Like equally atavistic opinions about certain racial groups, those roots have been nourished by sectarian doctrine. Id., at 196-197 (Burger, C. J., concurring); Loving v. Virginia, 388 U. S. 1 ,3 (1967).27 See also Mathews v. Lucas, 427 U. S. 495 , 520 (1976) (STEVENS, J., dissenting) ("Habit, rather than analysis, makes it seem acceptable and natural to distinguish between male and female, alien and citizen, legitimate and illegitimate; for too much of our history there was the same inertia in distinguishing between black and white"). Over the years, however, interaction with real people, rather than mere adherence to traditional ways of thinking about members of unfamiliar classes, have modified those opinions. A few examples: The American Psychiatric Association's and the American Psychological Association's removal of "homosexuality" from their lists of mental disorders; 28 a move toward greater understanding within some religious communities;29 Justice Blackmun's classic opinion in Bowers;3o 27 In Loving, the trial judge gave this explanation of the rationale for Virginia's antimiscegenation statute: "'Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.''' 388 U. S., at 3. 28 Brief for American Psychological Association as Amicus Curiae 8. 29 See n. 3, supra. 30 The significance of that opinion is magnified by comparing it with Justice Blackmun's vote 10 years earlier in Doe v. Commonwealth's Attorney for City of Richmond, 425 U. S. 901 (1976). In that case, six Justicesincluding Justice Blackmun-voted to summarily affirm the District Court's rejection of the same due process argument that was later rejected in Bowers. Two years later, furthermore, Justice Blackmun joined in a dissent in University of Missouri v. Gay Lib, 434 U. S. 1080 (1978). In that case, the university had denied recognition to a student gay rights organization. The student group argued that in doing so, the university had violated its free speech and free association rights. The Court of 700 Georgia's invalidation of the statute upheld in Bowers; 31 and New Jersey's enactment of the provision at issue in this case. Indeed, the past month alone has witnessed some remarkable changes in attitudes about homosexuals.32 That such prejudices are still prevalent and that they have caused serious and tangible harm to countless members of the class New Jersey seeks to protect are established matters of fact that neither the Boy Scouts nor the Court disputes. That harm can only be aggravated by the creation of a constitutional shield for a policy that is itself the product of a habitual way of thinking about strangers. As Justice Brandeis so wisely advised, "we must be ever on our guard, lest we erect our prejudices into legal principles." If we would guide by the light of reason, we must let our minds be bold. I respectfully dissent. JUSTICE SOUTER, with whom JUSTICE GINSBURG and JUSTICE BREYER join, dissenting. I join JUSTICE STEVENS'S dissent but add this further word on the significance of Part VI of his opinion. There, JUSTICE STEVENS describes the changing attitudes toward gay people and notes a parallel with the decline of stereotypical thinking about race and gender. The legitimacy of New Appeals agreed with that argument. A dissent from denial of certiorari, citing the university's argument, suggested that the proper analysis might well be as follows: "[T]he question is more akin to whether those suffering from measles have a constitutional right, in violation of quarantine regulations, to associate together and with others who do not presently have measles, in order to urge repeal of a state law providing that measle sufferers be quarantined." Id., at 1084 (REHNQUIST, J., dissenting). 31 Powell v. State, 270 Ga. 327, 510 S. E. 2d 18 (1998). 32 See, e. g., Bradsher, Big Carmakers Extend Benefits to Gay Couples, New York Times, June 9, 2000, p. C1; Marquis, Gay Pride Day is Observed by About 60 C. 1. A. Workers, New York Times, June 9, 2000, p. A26; Zernike, Gay Couples are Accepted as Role Models at Exeter, New York Times, June 12, 2000, p. A18. 701 Jersey's interest in forbidding discrimination on all these bases by those furnishing public accommodations is, as JUSTICE STEVENS indicates, acknowledged by many to be beyond question. The fact that we are cognizant of this laudable decline in stereotypical thinking on homosexuality should not, however, be taken to control the resolution of this case. Boy Scouts of America (BSA) is entitled, consistently with its own tenets and the open doors of American courts, to raise a federal constitutional basis for resisting the application of New Jersey's law. BSA has done that and has chosen to defend against enforcement of the state public accommodations law on the ground that the First Amendment protects expressive association: individuals have a right to join together to advocate opinions free from government interference. See Roberts v. United States Jaycees, 468 U. S. 609 , 622 (1984). BSA has disclaimed any argument that Dale's past or future actions, as distinct from his unapologetic declaration of sexual orientation, would justify his exclusion from BSA. See Tr. of Oral Arg. 12-13. The right of expressive association does not, of course, turn on the popularity of the views advanced by a group that claims protection. Whether the group appears to this Court to be in the vanguard or rearguard of social thinking is irrelevant to the group's rights. I conclude that BSA has not made out an expressive association claim, therefore, not because of what BSA may espouse, but because of its failure to make sexual orientation the subject of any unequivocal advocacy, using the channels it customarily employs to state its message. As JUSTICE STEVENS explains, no group can claim a right of expressive association without identifying a clear position to be advocated over time in an unequivocal way. To require less, and to allow exemption from a public accommodations statute based on any individual's difference from an alleged group ideal, however expressed and however inconsistently claimed, would convert the right of expres- 702 sive association into an easy trump of any antidiscrimination law.* If, on the other hand, an expressive association claim has met the conditions JUSTICE STEVENS describes as necessary, there may well be circumstances in which the antidiscrimination law must yield, as he says. It is certainly possible for an individual to become so identified with a position as to epitomize it publicly. When that position is at odds with a group's advocated position, applying an antidiscrimination statute to require the group's acceptance of the individual in a position of group leadership could so modify or muddle or frustrate the group's advocacy as to violate the expressive associational right. While it is not our business here to rule on any such hypothetical, it is at least clear that our estimate of the progressive character of the group's position will be irrelevant to the First Amendment analysis if such a case comes to us for decision. * An expressive association claim is in this respect unlike a basic free speech claim, as JUSTICE STEVENS points out; the latter claim, i. e., the right to convey an individual's or group's position, if bona fide, may be taken at face value in applying the First Amendment. This case is thus unlike Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557 (1995).

The Boy Scouts of America revoked an assistant scoutmaster's membership due to his homosexuality and gay rights activism. The New Jersey Supreme Court ruled that this violated the state's public accommodations law, which prohibits discrimination based on sexual orientation. The US Supreme Court, however, ruled that forcing the Boy Scouts to readmit the assistant scoutmaster violated their First Amendment right to expressive association, as his inclusion would significantly affect their ability to advocate their values and viewpoints. This right can be overridden in certain cases, but New Jersey's interest in eliminating discrimination was not considered compelling enough to do so in this instance.

Property Rights & Land Use

Johnson & Graham's Lessee v. McIntosh

https://supreme.justia.com/cases/federal/us/21/543/

U.S. Supreme Court Johnson & Graham's Lessee v. McIntosh, 21 U.S. 8 Wheat. 543 543 (1823) Johnson & Graham's Lessee v. McIntosh 21 U.S. (8 Wheat.) 543 ERROR TO THE DISTRICT COURT OF ILLINOIS Syllabus A title to lands under grants to private individuals made by Indian tribes or nations northwest of the River Ohio in 1773 and 1775 cannot be recognized in the courts of the United States. Discovery the original foundation of titles to land on the American continent as between the different European nations by whom conquests and settlements were made here. Recognition of the same principle in the wars, negotiations, and treaties between the different European powers. Adoption of the same principle by the United States. The exclusive right of the British government to the lands occupied by the Indians has passed to that of the United States. Foundation and limitation of the right of conquest. Application of the principle of the right of conquest to the case of the Indian savages. Nature of the Indian title, as subordinate to the absolute ultimate title of the government. Effect of the proclamation of 1763. Titles in New England under Indian grants. This was an action of ejectment for lands in the State and District of Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians and by the defendant under a grant from the United States. It came up on a case stated upon which there was a judgment below for the defendant. The case stated set out the following facts: 1st. That on 23 May, 1609, James I, King of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named and their successors into a body corporate and politic by the name and style of "The Treasurer and Company of Adventurers and Planters of the City of London for the first Colony in Virginia," with perpetual succession and power to make, have, and use a common seal, and did give, grant, and confirm unto this company, and their successors, Page 21 U. S. 544 under certain reservations and limitations in the letters patent expressed, "All the lands, countries, and territories situate, lying, and being in that part of North America called Virginia, from the point of land called Cape or Point Comfort all along the seacoast to the northward two hundred miles, and from the said Cape or Point Comfort all along the seacoast to the southward two hundred miles, and all that space and circuit of land lying from the seacoast of the precinct aforesaid up into the land throughout from the sea, west and northwest, and also all the islands lying within one hundred miles along the coast of both seas of the precinct aforesaid, with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging and in the letters patent particularly enumerated," and did grant to this corporation and their successors various powers of government in the letters patent particularly expressed. 2d. That the place called in these letters patent Cape or Point Comfort is the place now called and known by the name of Old Point Comfort, on the Chesapeake Bay and Hampton Roads, and that immediately after the granting of the letters patent, the corporation proceeded under and by virtue of them to take possession of parts of the territory which they describe and to form settlements, plant a colony, and exercise the powers of government therein, which colony was called and known by the name of the Colony of Virginia. 3d. That at the time of granting these letters patent and of the discovery of the continent of Page 21 U. S. 545 North America by the Europeans, and during the whole intermediate time, the whole of the territory in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed in full sovereignty by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory and the absolute owners and proprietors of the soil and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever, and that in making settlements within this territory and in all the other parts of North America where settlements were made under the authority of the English government or by its subjects, the right of soil was previously obtained by purchase or conquest from the particular Indian tribe or nation by which the soil was claimed and held, or the consent of such tribe or nation was secured. 4th. That in the year 1624, this corporation was dissolved by due course of law and all its powers, together with its rights of soil and jurisdiction under the letters patent in question were revested in the Crown of England, whereupon the colony became a royal government with the same territorial limits and extent which had been established by the letters patent, and so continued until it became a free and independent state, except so far as its limits and extent were altered and curtailed by the Treaty of February 10, 1763, between Great Britain and France and by the letters patent granted by the King of England Page 21 U. S. 546 for establishing the Colonies of Carolina, Maryland, and Pennsylvania. 5th. That sometime previous to the year 1756, the French government, laying a claim to the country west of the Alleghany or Appalachian Mountains on the Ohio and Mississippi Rivers and their branches, took possession of certain parts of it with the consent of the several tribes or nations of Indians possessing and owning them, and with the like consent established several military posts and settlements therein, particularly at Kaskaskias, on the River Kaskaskias, and at Vincennes, on the River Wabash, within the limits of the Colony of Virginia, as described and established in and by the letters patent of May 23, 1609, and that the government of Great Britain, after complaining of these establishments as encroachments and remonstrating against them, at length, in the year 1756, took up arms to resist and repel them, which produced a war between those two nations wherein the Indian tribes inhabiting and holding the countries northwest of the Ohio and on the Mississippi above the mouth of the Ohio were the allies of France, and the Indians known by the name of the Six Nations or the Iroquois and their tributaries and allies were the allies of Great Britain, and that on 10 February, 1763, this war was terminated by a definitive treaty of peace between Great Britain and France and their allies by which it was stipulated and agreed that the River Mississippi, from its source to the Iberville, should forever after form the boundary between the dominions of Page 21 U. S. 547 Great Britain and those of France in that part of North America and between their respective allies there. 6th. That the government of Virginia, at and before the commencement of this war and at all times after it became a royal government, claimed and exercised jurisdiction, with the knowledge and assent of the government of Great Britain, in and over the country northwest of the River Ohio and east of the Mississippi as being included within the bounds and limits described and established for that colony, by the letters patent of May 23, 1609, and that in the year 1749, a grant of six hundred thousand acres of land within the country northwest of the Ohio and as part of Virginia was made by the government of Great Britain to some of its subjects by the name and style of the Ohio Company. 7th. That at and before the commencement of the war in 1756 and during its whole continuance and at the time of the Treaty of February 10, 1763, the Indian tribes or nations inhabiting the country north and northwest of the Ohio and east of the Mississippi as far east as the river falling into the Ohio called the Great Miami were called and known by the name of the Western Confederacy of Indians, and were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty as independent nations, both as to the right of jurisdiction and sovereignty and the right of soil, except a few military posts and a small territory around each, Page 21 U. S. 548 which they had ceded to France, and she held under them, and among which were the aforesaid posts of Kaskaskias and Vincennes, and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever and holding their lands in absolute property, the territories of the respective tribes being separated from each other and distinguished by certain natural marks and boundaries to the Indians well known, and each tribe claiming and exercising separate and absolute ownership in and over its own territory, both as to the right of sovereignty and jurisdiction and the right of soil. 8th. That among the tribes of Indians thus holding and inhabiting the territory north and northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia, as described in the letters patent of May 23, 1609, were certain independent tribes or nations called the Illinois or Kaskaskias and the Piankeshaw or Wabash Indians, the first of which consisted of three several tribes united into one and called the Kaskasias, the Pewarias, and the Cahoquias; that the Illinois owned, held, and inhabited, as their absolute and separate property, a large tract of country within the last mentioned limits and situated on the Mississippi, Illinois, and Kaskaskias Rivers and on the Ohio below the mouth of the Wabash, and the Piankeshaws another large tract of country within the same Page 21 U. S. 549 limits, and as their absolute and separate property, on the Wabash and Ohio Rivers, and that these Indians remained in the sole and absolute ownership and possession of the country in question until the sales made by them in the manner herein after set forth. 9th. That on the termination of the war between Great Britain and France, the Illinois Indians, by the name of the Kaskaskias tribes of Indians, as fully representing all the Illinois tribes then remaining, made a treaty of peace with Great Britain and a treaty of peace, limits, and amity, under her mediation, with the Six Nations, or Iroquois, and their allies, then known and distinguished by the name of the Northern Confederacy of Indians, the Illinois being a part of the confederacy then known and distinguished by the name of the Southern Confederacy, and sometimes by that of the Western Confederacy. 10th. That on 7 October, 1763, the King of Great Britain made and published a proclamation for the better regulation of the countries ceded to Great Britain by that treaty, which proclamation is referred to and made part of the case. 11th. That from time immemorial and always up to the present time, all the Indian tribes or nations of North America, and especially the Illinois and Piankeshaws and other tribes holding, possessing, and inhabiting the said countries north and northeast of the Ohio east of the Mississippi and west of the Great Miami held their respective lands and territories each in common, the individuals Page 21 U. S. 550 of each tribe or nation holding the lands and territories of such tribe in common with each other, and there being among them no separate property in the soil, and that their sole method of selling, granting, and conveying their lands, whether to governments or individuals, always has been from time immemorial and now is for certain chiefs of the tribe selling to represent the whole tribe in every part of the transaction, to make the contract, and execute the deed, on behalf of the whole tribe, to receive for it the consideration, whether in money or commodities, or both, and finally to divide such consideration among the individuals of the tribe, and that the authority of the chiefs so acting for the whole tribe is attested by the presence and assent of the individuals composing the tribe, or some of them, and by the receipt by the individuals composing the tribe of their respective shares of the price, and in no other manner. 12th. That on 5 July, 1773, certain chiefs of the Illinois Indians, then jointly representing, acting for, and being duly authorized by that tribe in the manner explained above, did by their deed poll, duly executed and delivered and bearing date on that day, at the post of Kaskaskias, then being a British military post, and at a public council there held by them for and on behalf of the said Illinois nation of Indians with William Murray, of the Illinois country, merchant, acting for himself and for Moses Franks and Jacob Franks, of London, in Great Britain, David Franks, John Inglis, Bernard Gratz, Michael Page 21 U. S. 551 Gratz, Alexander Ross, David Sproat, and James Milligan, all of Philadelphia, in the p\Province of Pennsylvania; Moses Franks, Andrew Hamilton, William Hamilton, and Edmund Milne of the same place; Joseph Simons otherwise called Joseph Simon and Levi Andrew Levi of the Town of Lancaster in Pennsylvania; Thomas Minshall of York County in the same province; Robert Callender and William Thompson, of Cumberland County in the same province; John Campbell of Pittsburgh in the same province; and George Castles and James Ramsay of the Illinois country, and for a good and valuable consideration in the said deed stated grant, bargain, sell, alien, lease, enfeoff, and confirm to the said William Murray, Moses Franks, Jacob Franks, David Franks, John Inglis, Bernard Gratz, Michael Gratz, Alexander Ross, David Sproat, James Milligan, Andrew Hamilton, William Hamilton, Edmund Milne Joseph Simons, otherwise called Joseph Simon Levi Andrew Levi, Thomas Minshall, Robert Callender, William Thompson, John Campbell, George Castles, and James Ramsay, their heirs and assigns forever, in severalty, or to George the Third, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts or parcels of land situated, lying, and being within the limits of Virginia on the east of the Mississippi, northwest of the Ohio, and west of the Great Miami, and thus butted Page 21 U. S. 552 and bounded: Beginning for one of the said tracts on the east side of the Mississippi at the mouth of the Heron Creek, called by the French the River of Mary, being about a league below the mouth of the Kaskaskias River, and running thence a northward of east course in a direct line back to the Hilly Plains, about eight leagues more or less; thence the same course in a direct line to the Crab Tree Plains, about seventeen leagues more or less; thence the same course in a direct line to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick Creek, about seven leagues more or less; then crossing the Salt Lick Creek, about one league below the ancient Shawanese town in an easterly or a little to the north of east course in a direct line to the River Ohio, about four leagues more or less; then down the Ohio by its several courses until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of beginning, about thirty-three leagues more or less; and beginning for the other tract on the Mississippi at a point directly opposite to the mouth of the Missouri and running up the Mississippi by its several courses to the mouth of the Illinois, about six leagues more or less; and thence up the Illinois, by its several courses, to Chicagou or Garlic Creek, about ninety leagues, more or less; thence nearly a northerly course, in a direct line, to a certain remarkable place, being the ground on which a Page 21 U. S. 553 battle was fought about forty or fifty years before that time between the Pewaria and Renard Indians, about fifty leagues more or less; thence by the same course in a direct line to two remarkable hills close together in the middle of a large prairie or plain, about fourteen leagues more or less; thence a north of east course, in a direct line, to a remarkable spring known by the Indians by the name of "Foggy Spring," about fourteen leagues more or less; thence the same course in a direct line to a great mountain, to the northwest of the White Buffalo Plain, about fifteen leagues more or less; and thence nearly a southwest course to the place of beginning, about forty leagues more or less: To have and to hold the said two tracts of land, with all and singular their appurtenances, to the grantees, their heirs and assigns, forever in severalty or to the King, his heirs and successors, to and for the use, benefit, or behoof of the grantees, their heirs and assigns, forever in severalty, as will more fully appear by the said deed poll, duly executed under the hands and seals of the grantors and duly recorded at Kaskaskias on 2 September, 1773, in the office of Vicerault Lemerance, a notary public, duly appointed and authorized. This deed, with the several certificates annexed to or endorsed on it, was set out at length in the case. 13th. That the consideration in this deed expressed, was of the value of $24,000 current money of the United States and upwards, and was paid and delivered, at the time of the execution of the deed, by William Murray, one Page 21 U. S. 554 of the grantees, in behalf of himself and the other grantees, to the Illinois Indians, who freely accepted it and divided it among themselves; that the conferences in which the sale of these lands was agreed on and made and in which it was agreed that the deed should be executed were publicly held for the space of a month at the post of Kaskaskias, and were attended by many individuals of all the tribes of Illinois Indians, besides the chiefs, named as grantors in the deed; that the whole transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians by the sworn interpreters of the government and fully understood by the grantors and other Indians before it was executed; that the several witnesses to the deed and the grantees named in it were such persons and of such quality and stations, respectively, as they are described to be in the deed, the attestation, and the other endorsements on it; that the grantees did duly authorize William Murray to act for and represent them in the purchase of the lands and the acceptance of the deed, and that the two tracts or parcels of land which it describes and purports to grant were then part of the lands held, possessed, and inhabited by the Illinois Indians from time immemorial in the manner already stated. 14th. That all the persons named as grantees in this deed were, at the time of its execution and long before, subjects of the Crown of Great Britain and residents of the several places named in the deed as their places of residence, and that Page 21 U. S. 555 they entered into the land under and by virtue of the deed and became seized as the law requires. 15th. That on 18 October, 1775, Tabac and certain other Indians, all being chiefs of the Piankeshaws and jointly representing, acting for, and duly authorized by that nation in the manner stated above, did, by their deed poll, duly executed and bearing date on the day last mentioned at the post of Vincennes, otherwise called post St. Vincent, then being a British military post, and at a public council there held by them for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, acting for himself and for the Right Honorable John, Earl of Dunmore, then Governor of Virginia, the Honorable John Murray, son of the said Earl, Moses Franks and Jacob Franks, of London, in Great Britain, Thomas Johnson, Jr., and John Davidson, both of Annapolis, in Maryland, William Russel, Matthew Ridley, Robert Christie, Sr., and Robert Christie, Jr., of Baltimore Town, in the same province, Peter Compbell, of Piscataway in the same province, William Geddes, of Newtown Chester in the same province, collector of his Majesty's customs, David Franks and Moses Franks, both of Philadelphia in Pennsylvania, William Murray and Daniel Murray, of the Illinois country, Nicholas St. Martin and Joseph Page, of the same place, Francis Perthuis, late of Quebec, in Canada, but then of post St. Vincent, and for good and valuable consideration, in the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and Page 21 U. S. 556 confirm to the said Louis Viviat and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III, then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by whichever of those tenures they might most legally hold, all those two several tracts of land in the deed particularly described situate, lying, brk: and being northwest of the Ohio, east of the Mississippi, and west of the Great Miami, within the limits of Virginia and on both sides of the Ouabache, otherwise called the Wabash, which two tracts of land are contained respectively within the following metes and bounds, courses and distances, that is to say, beginning for one of the said tracts at the mouth of a rivulet called Riviere du Chat, or Cat River, where it empties itself into the Ouabache or Wabash, by its several courses, to a place called Point Coupee, about twelve leagues above post St. Vincent, being forty leagues, or thereabouts, in length, on the said river Ouabache, from the place of beginning, with forty leagues in width or breadth on the east side, and thirty leagues in breadth or width on the west side of that river, to be continued along from the place of beginning to Point Coupee. And beginning for the other tract at the mouth of White River where it empties into the Ouabache, about twelve leagues below post St. Vincent, and running thence down the Ouabache by its several courses until it empties into the Ohio, being from White River to the Ohio, about fifty-three leagues in length, more or less, with forty Page 21 U. S. 557 leagues in width or breadth on the east side and thirty in width or breadth on the west side of the Ouabache, to be continued along from the White River to the Ohio, with all the rights, liberties, privileges, hereditaments, and appurtenances to the said tract belonging, to have and to hold to the grantees, their heirs and assigns, forever in severalty or to the King, his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns, as will more fully appear by the deed itself, duly executed under the hands and seals of the grantors, and duly recorded at Kaskaskias, on 5 December, 1775, in the office of Louis Bomer, a notary public, duly appointed and authorized. This deed, with the several certificates annexed to or endorsed on it, was set out at length. 16th. That the consideration in this deed expressed was of the value of $31,000 current money of the United States and upwards, and was paid and delivered at the time of the execution of the deed by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it and divided it among themselves; that the conferences in which the sale of these two tracts of land was agreed on and made, and in which it was agreed that the deed should be executed were publicly held for the space of a month at the post of Vincennes or post St. Vincent, and were attended by many individuals of the Piankeshaw nation of Indians besides the chiefs named as grantors in the deed; that the whole Page 21 U. S. 558 transaction was open, public, and fair, and the deed fully explained to the grantors and other Indians by skillful interpreters, and fully understood by them before it was executed; that it was executed in the presence of the several witnesses by whom it purports to have been attested, and was attested by them; that the grantees were all subjects of the Crown of Great Britain, and were of such quality, station, and residence, respectively, as they are described in the deed to be; that the grantees did duly authorize Lewis Viviat to act for and represent them in the purchase of these two tracts of land and in the acceptance of the deed; that these tracts of land were then part of the lands held, possessed, and inhabited by the Piankeshaw Indians from time immemorial, as is stated above; and that the several grantees under this deed entered into the land which it purports to grant and became seized as the law requires. 17th. That on 6 May, 1776, the Colony of Virginia threw off its dependence on the Crown and government of Great Britain and declared itself an independent state and government with the limits prescribed and established by the letters patent of May 23, 1609, as curtailed and restricted by the letters patent establishing the Colonies of Pennsylvania, Maryland, and Carolina and by the Treaty of February 10, 1763, between Great Britain and France, which limits, so curtailed and restricted, the State of Virginia, by its Constitution and form of government, declared should be and remain the limits of the state and should bound its western and northwestern extent. Page 21 U. S. 559 18th. That on 5 October, 1778, the General Assembly of Virginia, having taken by arms the posts of Kaskaskias and Vincennes, or St. Vincent, from the British forces, by whom they were then held, and driven those forces from the country northwest of the Ohio, east of the Mississippi, and west of the Great Miami, did, by an act of assembly of that date, entitled "An act for establishing the County of Illinois and for the more effectual protection and defense thereof," erect that country, with certain other portions of territory within the limits of the state and northwest of the Ohio into a county, by the name of the County of Illinois. 19th. That on 29 December, 1783, the State of Virginia, by an act of assembly of that date, authorized their delegates in the Congress of the United States, or such of them, to the number of three at least, as should be assembled in Congress on behalf of the state and by proper deeds or instruments in writing under their hands and seals, to convey, transfer, assign, and make over to the United States, in Congress assembled, for the benefit of the said states, all right, title, and claim, as well of soil as jurisdiction, which Virginia had to the territory or tract of country within her limits, as defined and prescribed by the letters patent of May 23, 1609, and lying to the northwest of the Ohio; subject to certain limitations and conditions in the act prescribed and specified, and that on 1 March, 1784, Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Monroe, then being four of the delegates Page 21 U. S. 560 of Virginia to the Congress of the United States, did, by their deed poll, under their hands and seals, in pursuance and execution of the authority to them given by this act of assembly, convey, transfer, assign, and make over to the United States, in Congress assembled, for the benefit of the said states, all right, title, and claim, as well of soil as jurisdiction which that state had to the territory northwest of the Ohio, with the reservations, limitations, and conditions in the act of assembly prescribed, which cession the United States accepted. 20th. That on 20 July, 1818, the United States, by their officers duly authorized for that purpose did sell, grant, and convey to the defendant in this action, William McIntosh, all those several tracts or parcels of land, containing 11,560 acres, and butted, bounded, and described, as will fully appear in and by the patent for the said lands, duly executed, which was set out at length. 21st. That the lands described and granted in and by this patent are situated within the State of Illinois and are contained within the lines of the last or second of the two tracts described and purporting to be granted and conveyed to Louis Viviat and others by the deed of October 18, 1775, and that William McIntosh, the defendant, entered upon these lands under and by virtue of his patent and became possessed thereof before the institution of this suit. 22d. That Thomas Johnson, one of the grantees Page 21 U. S. 561 in and under the deed of October 18, 1775, departed this life on or about 1 October, 1819, seized of all his undivided part or share of and in the two several tracts of land described and purporting to be granted and conveyed to him and others by that deed, having first duly made and published his last will and testament in writing, attested by three credible witnesses, which he left in full force and by which he devised all his undivided share and part of those two tracts of land to his son, Joshua Johnson and his heirs, and his grandson, Thomas J. Graham, and his heirs, the lessors of the plaintiff in this action, as tenants in common. 23d. That Joshua Johnson and Thomas J. Graham, the devisees, entered into the two tracts of land last above mentioned under and by virtue of the will, and became thereof seized as the law requires. That Thomas Johnson, the grantee and devisor, during his whole life and at the time of his death, was an inhabitant and citizen of the State of Maryland; that Joshua Johnson and Thomas J. Graham, the lessors of the plaintiff, now are and always have been citizens of the same state; that the defendant, William McIntosh, now is and at and before the time of bringing this action was a citizen of the State of Illinois, and that the matter in dispute in this action is of the value of $2,000 current money of the United States and upwards. 24th. And that neither William Murray nor any other of the grantees under the deed of July 5, 1773, nor Louis Viviat nor any other of the Page 21 U. S. 562 grantees under the deed of October 8, 1775, nor any person for them or any of them ever obtained or had the actual possession under and by virtue of those deeds or either of them of any part of the lands in them or either of them described and purporting to be granted, but were prevented by the war of the American Revolution, which soon after commenced, and by the disputes and troubles which preceded it, from obtaining such possession, and that since the termination of the war and before it, they have repeatedly and at various times from the year 1781 till the year 1816 petitioned the Congress of the United States to acknowledge and confirm their title to those lands under the purchases and deeds in question, but without success. Judgment being given for the defendant on the case stated, the plaintiffs brought this writ of error. Page 21 U. S. 571 MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court. The plaintiffs in this cause claim the land in their declaration mentioned under two grants purporting to be made, the first in 1773 and the last in 1775, by the chiefs of certain Page 21 U. S. 572 Indian tribes constituting the Illinois and the Piankeshaw nations, and the question is whether this title can be recognized in the courts of the United States? The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance so far as it could be given by their own people, and likewise show that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is in a great measure confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the courts of this country. As the right of society to prescribe those rules by which property may be acquired and preserved is not and cannot be drawn into question, as the title to lands especially is and must be admitted to depend entirely on the law of the nation in which they lie, it will be necessary in pursuing this inquiry to examine not singly those principles of abstract justice which the Creator of all things has impressed on the mind of his creature man and which are admitted to regulate in a great degree the rights of civilized nations, whose perfect independence is acknowledged, but those principles also which our own government has adopted in the particular case and given us as the rule for our decision. On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an Page 21 U. S. 573 ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity in exchange for unlimited independence. But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements and consequent war with each other, to establish a principle which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which by others all assented. Those relations which were to exist between the discoverer and the natives were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them. Page 21 U. S. 574 In the establishment of these relations, the rights of the original inhabitants were in no instance entirely disregarded, but were necessarily to a considerable extent impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty as independent nations were necessarily diminished, and their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives as occupants, they asserted the ultimate dominion to be in themselves, and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy. The history of America from its discovery to the present day proves, we think, the universal recognition of these principles. Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States all show that she placed in on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title. France also founded her title to the vast territories she claimed in America on discovery. However Page 21 U. S. 575 conciliatory her conduct to the natives may have been, she still asserted her right of dominion over a great extent of country not actually settled by Frenchmen and her exclusive right to acquire and dispose of the soil which remained in the occupation of Indians. Her monarch claimed all Canada and Acadie as colonies of France at a time when the French population was very inconsiderable and the Indians occupied almost the whole country. He also claimed Louisiana, comprehending the immense territories watered by the Mississippi and the rivers which empty into it, by the title of discovery. The letters patent granted to the Sieur Demonts in 1603, constitute him Lieutenant General, and the representative of the King in Acadie, which is described as stretching from the 40th to the 46th degree of north latitude, with authority to extend the power of the French over that country and its inhabitants, to give laws to the people, to treat with the natives and enforce the observance of treaties, and to parcel out and give title to lands according to his own judgment. The states of Holland also made acquisitions in America and sustained their right on the common principle adopted by all Europe. They allege, as we are told by Smith in his History of New York, that Henry Hudson, who sailed, as they say, under the orders of their East India Company, discovered the country from the Delaware to the Hudson, up which he sailed to the 43d degree of north latitude, and this country they claimed under the title acquired by this voyage. Page 21 U. S. 576 Their first object was commercial, as appears by a grant made to a company of merchants in 1614, but in 1621 the States General made, as we are told by Mr. Smith, a grant of the country to the West India Company by the name of New Netherlands. The claim of the Dutch was always contested by the English -- not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword. No one of the powers of Europe gave its full assent to this principle more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots to discover countries then unknown to Christian people and to take possession of them in the name of the King of England. Two years afterwards, Cabot proceeded on this voyage and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title. In this first effort made by the English government to acquire territory on this continent we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission is confined to countries "then unknown to all Christian people," and of these countries Cabot was empowered to take possession in the name of the King of England. Thus asserting a right to take possession Page 21 U. S. 577 notwithstanding the occupancy of the natives, who were heathens, and at the same time admitting the prior title of any Christian people who may have made a previous discovery. The same principle continued to be recognized. The charter granted to Sir Humphrey Gilbert in 1578 authorizes him to discover and take possession of such remote, heathen, and barbarous lands as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh in nearly the same terms. By the charter of 1606, under which the first permanent English settlement on this continent was made, James I granted to Sir Thomas Gates and others those territories in America lying on the seacoast between the 34th and 45th degrees of north latitude and which either belonged to that monarch or were not then possessed by any other Christian prince or people. The grantees were divided into two companies at their own request. The first or southern colony was directed to settle between the 34th and 41st degrees of north latitude, and the second or northern colony between the 38th and 45th degrees. In 1609, after some expensive and not very successful attempts at settlement had been made, a new and more enlarged charter was given by the Crown to the first colony, in which the King granted to the "Treasurer and Company of Adventurers of the City of London for the first colony in Virginia," in absolute property, the lands extending along the seacoast four hundred miles, and Page 21 U. S. 578 into the land throughout from sea to sea. This charter, which is a part of the special verdict in this cause, was annulled, so far as respected the rights of the company, by the judgment of the Court of King's Bench on a writ of quo warranto, but the whole effect allowed to this judgment was to revest in the Crown the powers of government and the title to the lands within its limits. At the solicitation of those who held under the grant to the second or northern colony, a new and more enlarged charter was granted to the Duke of Lenox and others in 1620, who were denominated the Plymouth Company, conveying to them in absolute property all the lands between the 40th and 48th degrees of north latitude. Under this patent New England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts, and in 1628 a charter of incorporation comprehending the powers of government was granted to the purchasers. Great part of New England was granted by this company, which at length divided their remaining lands among themselves, and in 1635 surrendered their charter to the Crown. A patent was granted to Gorges for Maine, which was allotted to him in the division of property. All the grants made by the Plymouth Company, so far as we can learn, have been respected. In pursuance of the same principle, the King, in 1664, granted to the Duke of York the country of New England as far south as the Delaware Page 21 U. S. 579 Bay. His Royal Highness transferred New Jersey to Lord Berkeley and Sir George Carteret. In 1663, the Crown granted to Lord Clarendon and others the country lying between the 36th degree of north latitude and the River St. Mathes, and in 1666 the proprietors obtained from the Crown a new charter granting to them that province in the King's dominions in North America which lies from 36 degrees 30 minutes north latitude to the 29th degree, and from the Atlantic ocean to the South sea. Thus has our whole country been granted by the Crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the Crown or was vested in the colonial government, the King claimed and exercised the right of granting lands and of dismembering the government at his will. The grants made out of the two original colonies, after the resumption of their charters by the Crown, are examples of this. The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. In some instances, the soil was conveyed by the Crown unaccompanied by the powers of government, as in the case of the northern neck of Virginia. It has never Page 21 U. S. 580 been objected to this or to any other similar grant that the title as well as possession was in the Indians when it was made and that it passed nothing on that account. These various patents cannot be considered as nullities, nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only would never contain words expressly granting the land, the soil, and the waters. Some of them purport to convey the soil alone, and in those cases in which the powers of government as well as the soil are conveyed to individuals, the Crown has always acknowledged itself to be bound by the grant. Though the power to dismember regal governments was asserted and exercised, the power to dismember proprietary governments was not claimed, and in some instances, even after the powers of government were revested in the Crown, the title of the proprietors to the soil was respected. Charles II was extremely anxious to acquire the property of Maine, but the grantees sold it to Massachusetts, and he did not venture to contest the right of that colony to the soil. The Carolinas were originally proprietary governments. In 1721, a revolution was effected by the people, who shook off their obedience to the proprietors and declared their dependence immediately on the Crown. The King, however, purchased the title of those who were disposed to sell. One of them, Lord Carteret, surrendered his interest in the government but retained his title to the soil. That Page 21 U. S. 581 title was respected till the revolution, when it was forfeited by the laws of war. Further proofs of the extent to which this principle has been recognized will be found in the history of the wars, negotiations, and treaties which the different nations claiming territory in America have carried on and held with each other. The contests between the cabinets of Versailles and Madrid respecting the territory on the northern coast of the Gulf of Mexico were fierce and bloody, and continued until the establishment of a Bourbon on the throne of Spain produced such amicable dispositions in the two Crowns as to suspend or terminate them. Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests for the country actually covered by the Indians began as soon as their settlements approached each other, and were continued until finally settled in the year 1763 by the Treaty of Paris. Each nation had granted and partially settled the country, denominated by the French Acadie, and by the English Nova Scotia. By the 12th article of the Treaty of Utrecht, made in 1703, his most Christian Majesty ceded to the Queen of Great Britain "all Nova Scotia or Acadie, with its ancient boundaries." A great part of the ceded territory was in the possession of the Indians, and the extent of the cession could not be adjusted by the commissioners to whom it was to be referred. The Treaty of Aix la Chapelle, which was made Page 21 U. S. 582 on the principle of the status ante bellum, did not remove this subject of controversy. Commissioners for its adjustment were appointed whose very able and elaborate, though unsuccessful, arguments in favor of the title of their respective sovereigns show how entirely each relied on the title given by discovery to lands remaining in the possession of Indians. After the termination of this fruitless discussion, the subject was transferred to Europe and taken up by the cabinets of Versailles and London. This controversy embraced not only the boundaries of New England, Nova Scotia, and that part of Canada which adjoined those colonies, but embraced our whole western country also. France contended not only that the St. Lawrence was to be considered as the center of Canada, but that the Ohio was within that colony. She founded this claim on discovery and on having used that river for the transportation of troops in a war with some southern Indians. This river was comprehended in the chartered limits of Virginia, but though the right of England to a reasonable extent of country in virtue of her discovery of the seacoast and of the settlements she made on it, was not to be questioned, her claim of all the lands to the Pacific Ocean because she had discovered the country washed by the Atlantic, might, without derogating from the principle recognized by all, be deemed extravagant. It interfered, too, with the claims of France founded on the same principle. She therefore sought to strengthen her original title to Page 21 U. S. 583 the lands in controversy by insisting that it had been acknowledged by France in the 15th article of the Treaty of Utrecht. The dispute respecting the construction of that article has no tendency to impair the principle, that discovery gave a title to lands still remaining in the possession of the Indians. Whichever title prevailed, it was still a title to lands occupied by the Indians, whose right of occupancy neither controverted and neither had then extinguished. These conflicting claims produced a long and bloody war which was terminated by the conquest of the whole country east of the Mississippi. In the treaty of 1763, France ceded and guaranteed to Great Britain all Nova Scotia, or Acadie, and Canada, with their dependencies, and it was agreed that the boundaries between the territories of the two nations in America should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood to cede, the whole country on the English side of the dividing line between the two nations, although a great and valuable part of it was occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to the country west of the Mississippi. It has never been supposed that she surrendered nothing, although she was not in actual possession of a foot of land. She surrendered all right to acquired the country, and any after attempt to purchase it from the Indians would have been considered Page 21 U. S. 584 and treated as an invasion of the territories of France. By the 20th article of the same treaty, Spain ceded Florida, with its dependencies and all the country she claimed east or southeast of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians. By a secret treaty which was executed about the same time, France ceded Louisiana to Spain, and Spain has since retroceded the same country to France. At the time both of its cession and retrocession, it was occupied chiefly by the Indians. Thus all the nations of Europe who have acquired territory on this continent have asserted in themselves and have recognized in others the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American states rejected or adopted this principle? By the treaty which concluded the war of our revolution, Great Britain relinquished all claim not only to the government, but to the "propriety and territorial rights of the United States" whose boundaries were fixed in the second article. By this treaty the powers of government and the right to soil which had previously been in Great Britain passed definitively to these states. We had before taken possession of them by declaring independence, but neither the declaration of independence nor the treaty confirming it could give us more than that which we before possessed or to which Great Britain was before entitled. It Page 21 U. S. 585 has never been doubted that either the United States or the several states had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right was vested in that government which might constitutionally exercise it. Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act in the year 1779 declaring her "exclusive right of preemption from the Indians of all the lands within the limits of her own chartered territory, and that no person or persons whatsoever have or ever had a right to purchase any lands within the same from any Indian nation except only persons duly authorized to make such purchase, formerly for the use and benefit of the colony and lately for the Commonwealth." The act then proceeds to annul all deeds made by Indians to individuals for the private use of the purchasers. Without ascribing to this act the power of annulling vested rights or admitting it to countervail the testimony furnished by the marginal note opposite to the title of the law forbidding purchases from the Indians in the revisals of the Virginia statutes stating that law to be repealed, it may safely be considered as an unequivocal affirmance on the part of Virginia of the broad principle which had always been maintained that the exclusive right to purchase from the Indians resided in the government. In pursuance of the same idea, Virginia proceeded at the same session to open her Page 21 U. S. 586 land office for the sale of that country which now constitutes Kentucky, a country every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people. The states, having within their chartered limits different portions of territory covered by Indians, ceded that territory generally to the United States on conditions expressed in their deeds of cession, which demonstrate the opinion that they ceded the soil as well as jurisdiction, and that in doing so they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country northwest of the River Ohio. This grant contained reservations and stipulations which could only be made by the owners of the soil, and concluded with a stipulation that "all the lands in the ceded territory not reserved should be considered as a common fund for the use and benefit of such of the United States as have become or shall become members of the confederation, . . . according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever." The ceded territory was occupied by numerous and warlike tribes of Indians, but the exclusive right of the United States to extinguish their title and to grant the soil has never, we believe, been doubted. Page 21 U. S. 587 After these states became independent, a controversy subsisted between them and Spain respecting boundary. By the treaty of 1795, this controversy was adjusted and Spain ceded to the United States the territory in question. This territory, though claimed by both nations, was chiefly in the actual occupation of Indians. The magnificent purchase of Louisiana was the purchase from France of a country almost entirely occupied by numerous tribes of Indians who are in fact independent. Yet any attempt of others to intrude into that country would be considered as an aggression which would justify war. Our late acquisitions from Spain are of the same character, and the negotiations which preceded those acquisitions recognize and elucidate the principle which has been received as the foundation of all European title in America. The United States, then, has unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy either by purchase or by conquest, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise. The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the Crown, or its grantees. The validity of the titles given by either has never Page 21 U. S. 588 been questioned in our courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. An absolute title to lands cannot exist at the same time in different persons or in different governments. An absolute must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the Crown, subject only to the Indian right of occupancy, and recognize the absolute title of the Crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians. We will not enter into the controversy whether agriculturists, merchants, and manufacturers have a right on abstract principles to expel hunters from the territory they possess or to contract their limits. Conquest gives a title which the courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government and whose rights have passed to the United States, asserted title to all the lands occupied by Indians within the chartered limits of the British colonies. It asserted also a limited sovereignty over them and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the River Mississippi by the sword. The title Page 21 U. S. 589 to a vast portion of the lands we now hold originates in them. It is not for the courts of this country to question the validity of this title or to sustain one which is incompatible with it. Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands and a wise policy requires that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers. When the conquest is complete and the conquered inhabitants can be blended with the conquerors Page 21 U. S. 590 or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him, and he cannot neglect them without injury to his fame and hazard to his power. But the tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country and relinquishing their pompous claims to it or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred. Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhood of agriculturists became unfit for them. The game fled Page 21 U. S. 591 into thicker and more unbroken forests, and the Indians followed. The soil to which the Crown originally claimed title, being no longer occupied by its ancient inhabitants, was parceled out according to the will of the sovereign power and taken possession of by persons who claimed immediately from the Crown or mediately through its grantees or deputies. That law which regulates and ought to regulate in general the relations between the conqueror and conquered was incapable of application to a people under such circumstances. The resort to some new and different rule better adapted to the actual state of things was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty. However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned. So, too, with respect to the concomitant principle that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet if it be indispensable to that system under which the country has been settled, and be Page 21 U. S. 592 adapted to the actual condition of the two people, it may perhaps be supported by reason, and certainly cannot be rejected by courts of justice. This question is not entirely new in this Court. The case of Fletcher v. Peck grew out of a sale made by the State of Georgia of a large tract of country within the limits of that state, the grant of which was afterwards resumed. The action was brought by a subpurchaser on the contract of sale, and one of the covenants in the deed was that the State of Georgia was, at the time of sale, seized in fee of the premises. The real question presented by the issue was whether the seizin in fee was in the State of Georgia or in the United States. After stating that this controversy between the several states and the United States had been compromised, the court thought in necessary to notice the Indian title, which, although entitled to the respect of all courts until it should be legitimately extinguished, was declared not to be such as to be absolutely repugnant to a seizin in fee on the part of the state. This opinion conforms precisely to the principle which has been supposed to be recognized by all European governments from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seizin in fee than a lease for years, and might as effectually bar an ejectment. Another view has been taken of this question Page 21 U. S. 593 which deserves to be considered. The title of the Crown, whatever it might be, could be acquired only by a conveyance from the Crown. If an individual might extinguish the Indian title for his own benefit, or in other words might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages so far as to allow an individual to separate a portion of their lands from the common stock and hold it in severalty, still it is a part of their territory and is held under them by a title dependent on their laws. The grant derives its efficacy from their will, and if they choose to resume it and make a different disposition of the land, the courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians within their territory incorporates himself with them so far as respects the property purchased; holds their title under their protection and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty. As such a grant could not separate the Indian from his nation, nor give a title which our courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a court to say that different consequences are attached to this purchase because it was made by a stranger. By the treaties concluded Page 21 U. S. 594 between the United States and the Indian nations whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country without a reservation of this land affords a fair presumption that they considered it as of no validity. They ceded to the United States this very property, after having used it in common with other lands as their own, from the date of their deeds to the time of cession, and the attempt now made, is to set up their title against that of the United States. The proclamation issued by the King of Great Britain in 1763 has been considered, and we think with reason, as constituting an additional objection to the title of the plaintiffs. By that proclamation, the Crown reserved under its own dominion and protection, for the use of the Indians, "all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest," and strictly forbade all British subjects from making any purchases or settlements whatever or taking possession of the reserved lands. It has been contended that in this proclamation, the King transcended his constitutional powers, and the case of Campbell v. Hall, reported by Cowper, is relied on to support this position. Page 21 U. S. 595 It is supposed to be a principle of universal law that if an uninhabited country be discovered by a number of individuals who acknowledge no connection with and owe no allegiance to any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parceled out according to the will of the society, expressed by the whole body or by that organ which is authorized by the whole to express it. If the discovery be made and possession of the country be taken under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law. According to the theory of the British Constitution, all vacant lands are vested in the Crown, as representing the nation, and the exclusive power to grant them is admitted to reside in the Crown as a branch of the royal prerogative. It has been already shown that this principle was as fully recognized in America as in the Island of Great Britain. All the lands we hold were originally granted by the Crown, and the establishment of a regal government has never been considered as Page 21 U. S. 596 impairing its right to grant lands within the chartered limits of such colony. In addition to the proof of this principle, furnished by the immense grants already mentioned of lands lying within the chartered limits of Virginia, the continuing right of the Crown to grant lands lying within that colony was always admitted. A title might be obtained either by making an entry with the surveyor of a county in pursuance of law or by an order of the governor in council, who was the deputy of the King, or by an immediate grant from the Crown. In Virginia, therefore, as well as elsewhere in the British dominions, the complete title of the Crown to vacant lands was acknowledged. So far as respected the authority of the Crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the King, as was his right to grant that title. The lands, then, to which this proclamation referred were lands which the King had a right to grant, or to reserve for the Indians. According to the theory of the British Constitution, the royal prerogative is very extensive so far as respects the political relations between Great Britain and foreign nations. The peculiar situation of the Indians, necessarily considered in some respects as a dependent and in some respects as a distinct people occupying a country claimed by Great Britain, and yet too powerful and brave not to be dreaded as formidable enemies, required that means should be adopted for Page 21 U. S. 597 the preservation of peace, and that their friendship should be secured by quieting their alarms for their property. This was to be effected by restraining the encroachments of the whites, and the power to do this was never, we believe, denied by the colonies to the Crown. In the case of Campbell v. Hall, that part of the proclamation was determined to be illegal, which imposed a tax on a conquered province, after a government had been bestowed upon it. The correctness of this decision cannot be questioned, but its application to the case at bar cannot be admitted. Since the expulsion of the Stuart family, the power of imposing taxes by proclamation has never been claimed as a branch of regal prerogative, but the powers of granting, or refusing to grant, vacant lands, and of restraining encroachments on the Indians have always been asserted and admitted. The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to lands have always been sustained in our courts. In the argument of this cause, the counsel for the plaintiffs have relied very much on the opinions expressed by men holding offices of trust, and on various proceedings in America to sustain titles to land derived from the Indians. The collection of claims to lands lying in the western country made in the 1st volume of the Laws of the United States has been referred to, but we find nothing in that collection to support the argument. Most of the titles were derived Page 21 U. S. 598 from persons professing to act under the authority of the government existing at the time, and the two grants under which the plaintiffs claim are supposed by the person under whose inspection the collection was made to be void, because forbidden by the royal proclamation of 1763. It is not unworthy of remark that the usual mode adopted by the Indians for granting lands to individuals has been to reserve them in a treaty or to grant them under the sanction of the commissioners with whom the treaty was negotiated. The practice in such case to grant to the Crown for the use of the individual is some evidence of a general understanding that the validity even of such a grant depended on its receiving the royal sanction. The controversy between the Colony of Connecticut and the Mohegan Indians depended on the nature and extent of a grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their several deeds and treaties, which were alleged to be recognized by the legitimate authority; and on the violation by the colony of rights thus reserved and secured. We do not perceive in that case any assertion of the principle that individuals might obtain a complete and valid title from the Indians. It has been stated that in the memorial transmitted from the Cabinet of London to that of Versailles, during the controversy between the two nations respecting boundary which took place in 1755, the Indian right to the soil is recognized. Page 21 U. S. 599 But this recognition was made with reference to their character as Indians and for the purpose of showing that they were fixed to a particular territory. It was made for the purpose of sustaining the claim of His Britannic Majesty to dominion over them. The opinion of the Attorney and Solicitor General, Pratt and Yorke, have been adduced to prove that in the opinion of those great law officers, the Indian grant could convey a title to the soil without a patent emanating from the Crown. The opinion of those persons would certainly be of great authority on such a question, and we were not a little surprised when it was read, at the doctrine it seemed to advance. An opinion so contrary to the whole practice of the Crown and to the uniform opinions given on all other occasions by its great law officers ought to be very explicit and accompanied by the circumstances under which it was given, and to which it was applied before we can be assured that it is properly understood. In a pamphlet written for the purpose of asserting the Indian title, styled "Plain Facts," the same opinion is quoted, and is said to relate to purchases made in the East Indies. It is, of course, entirely inapplicable to purchases made in America. Chalmers, in whose collection this opinion is found, does not say to whom it applies, but there is reason to believe that the author of Plain Facts is, in this respect, correct. The opinion commences thus: "In respect to such places as have been or shall be acquired by treaty or grant from any of the Indian princes or governments, Page 21 U. S. 600 your Majesty's letters patent are not necessary." The words "princes or governments" are usually applied to the East Indians, but not to those of North America. We speak of their sachems, their warriors, their chiefmen, their nations or tribes, not of their "princes or governments." The question on which the opinion was given, too, and to which it relates, was whether the King's subjects carry with them the common law wherever they may form settlements. The opinion is given with a view to this point, and its object must be kept in mind while construing its expressions. Much reliance is also placed on the fact, that many tracts are now held in the United States under the Indian title, the validity of which is not questioned. Before the importance attached to this fact is conceded, the circumstances under which such grants were obtained, and such titles are supported, ought to be considered. These lands lie chiefly in the eastern states. It is known that the Plymouth Company made many extensive grants which, from their ignorance of the country, interfered with each other. It is also known that Mason to whom New Hampshire, and Gorges, to whom Maine was granted, found great difficulty in managing such unwieldy property. The country was settled by emigrants, some from Europe, but chiefly from Massachusetts, who took possession of lands they found unoccupied, and secured themselves in that possession by the best means in their power. The disturbances in Page 21 U. S. 601 England, and the civil war and revolution which followed those disturbances, prevented any interference on the part of the mother country, and the proprietors were unable to maintain their title. In the meantime, Massachusetts claimed the country and governed it. As her claim was adversary to that of the proprietors, she encouraged the settlement of persons made under her authority, and encouraged likewise their securing themselves in possession, by purchasing the acquiescence and forbearance of the Indians. After the restoration of Charles II, Gorges and Mason, when they attempted to establish their title, found themselves opposed by men who held under Massachusetts and under the Indians. The title of the proprietors was resisted, and though in some cases compromises were made and in some, the opinion of a court was given ultimately in their favor, the juries found uniformly against them. They became wearied with the struggle, and sold their property. The titles held under the Indians were sanctioned by length of possession, but there is no case, so far as we are informed, of a judicial decision in their favor. Much reliance has also been placed on a recital contained in the charter of Rhode Island, and on a letter addressed to the governors of the neighboring colonies, by the King's command, in which some expressions are inserted, indicating the royal approbation of titles acquired from the Indians. The charter to Rhode Island recites "That the said John Clark and others had transplanted Page 21 U. S. 602 themselves into the midst of the Indian nations, and were seized and possessed, by purchase and consent of the said natives, to their full content, of such lands," &c. And the letter recites, that "Thomas Chifflinch and others, having, in the right of Major Asperton, a just propriety in the Narraghanset Country, in New England, by grants from the native princes of that country, and being desirous to improve it into an English colony, . . . are yet daily disturbed." The impression this language might make, if viewed apart from the circumstances under which it was employed, will be effaced, when considered in connection with those circumstances. In the year 1635, the Plymouth Company surrendered their charter to the Crown. About the same time, the religious dissentions of Massachusetts expelled from that colony several societies of individuals, one of which settled in Rhode Island, on lands purchased from the Indians. They were not within the chartered limits of Massachusetts, and the English government was too much occupied at home to bestow its attention on this subject. There existed no authority to arrest their settlement of the country. If they obtained the Indian title, there were none to assert the title of the Crown. Under these circumstances, the settlement became considerable. Individuals acquired separate property in lands which they cultivated and improved; a government was established among themselves, and no power existed in America which could rightfully interfere with it. On the restoration of Charles II, this small society Page 21 U. S. 603 hastened to acknowledge his authority, and to solicit his confirmation of their title to the soil, and to jurisdiction over the country. Their solicitations were successful, and a charter was granted to them, containing the recital which has been mentioned. It is obvious that this transaction can amount to no acknowledgment that the Indian grant could convey a title paramount to that of the Crown, or could in itself constitute a complete title. On the contrary, the charter of the Crown was considered as indispensable to its completion. It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession and to the exclusive power of acquiring that right. The object of the Crown was to settle the seacoast of America, and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations, because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the Crown, and its words convey the same idea. The country granted is said to be "our island called Rhode Island," and the charter contains an actual grant of the soil as well as of the powers of government. Page 21 U. S. 604 The letter was written a few months before the charter was issued, apparently at the request of the agents of the intended colony, for the sole purpose of preventing the trespasses of neighbors, who were disposed to claim some authority over them. The King, being willing himself to ratify and confirm their title was, of course, inclined to quiet them in their possession. This charter and this letter certainly sanction a previous unauthorized purchase from Indians under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the Crown, or without the confirmation of the Crown. The acts of the several colonial assemblies prohibiting purchases from the Indians have also been relied on as proving that, independent of such prohibitions, Indian deeds would be valid. But we think this fact, at most, equivocal. While the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy. After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the court is decidedly of opinion, that the plaintiffs do not exhibit a title which can Page 21 U. S. 605 be sustained in the courts of the United States, and that there is no error in the judgment which was rendered against them in the District Court of Illinois. Judgment affirmed with costs.

In Johnson & Graham's Lessee v. McIntosh, the United States Supreme Court ruled that private land grants made by Indian tribes or nations to individuals northwest of the Ohio River in 1773 and 1775 are not valid in US courts. The Court recognized the principle of discovery as the original foundation of land titles in the American continent among European nations. This principle was adopted by the United States, giving the government the exclusive right to acquire land from the Indians and the ultimate title to the land. The Indian title was considered subordinate to the government's absolute title. The Court affirmed the lower court's judgment, holding that the plaintiffs' title based on Indian grants was invalid.

Property Rights & Land Use

Lessee of Ewing v. Burnet

https://supreme.justia.com/cases/federal/us/36/41/

U.S. Supreme Court Lessee of Ewing v. Burnet, 36 U.S. 11 Pet. 41 41 (1837) Lessee of Ewing v. Burnet 36 U.S. (11 Pet.) 41 ERROR TO THE CIRCUIT COURT OF THE DISTRICT OF OHIO Syllabus Ejectment. Ohio. It is the exclusive province of the jury to decide what facts are proved by competent evidence. It is its province to judge of the weight of testimony as tending, in a greater or less degree, to prove the facts relied upon. An elder legal title to a lot of ground gives a right of possession, as well as the legal seizure and possession thereof, coextensive with the right, which continues until there shall be an ouster by actual adverse possession or the right of possession becomes in some other way barred. An entry by one on the land of another is or is not an ouster of the legal possession arising from the title according to the intention with which it is done. If made under claim or color of right, it is an ouster; otherwise it is a mere trespass. In legal language, the intention guides the entry, and fixes its character. It is well settled that to constitute an adverse possession, there need not be a fence, a building, or other improvement made; it suffices for this purpose that visible notorious acts are exercised over the premises in controversy for twenty-one years after an entry under a claim and color of title. Where acts of ownership have been done upon land which from their nature indicate a notorious claim of property in it, and are continued for twenty-one years with the knowledge of an adverse claimant without interruption or an adverse entry by him for twenty-one years, such acts are evidence of an ouster of the former owner and of an actual adverse possession against him if the jury shall think that the property was not susceptible of a more strict and definite possession than had been so taken and held. Neither actual occupation or cultivation is necessary to constitute actual possession when the property is so situated as not to admit of any permanent useful improvement and the continued claim of the party has been evidenced by public acts of ownership, such as he would exercise over property which he claimed in his own right, and could not exercise over property which he did not claim. Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail, but the court will first take the instrument by its four corners in order to ascertain its true meaning. If that is apparent on judicially inspecting it, the punctuation will not be suffered to change it. An adverse possession far twenty-one years under claim or color of title merely void is a bar to a recovery under an elder title by deed, although the adverse holder may have had notice of the deed. The plaintiff in error instituted an action of ejectment in the Circuit Court of Ohio at December term, 1834, against the defendant to recover a lot of ground in the City of Cincinnati. Both the plaintiff and the defendant claimed title under deeds from John Cleves Page 36 U. S. 42 Symmes, the original grantee of the United States, for all the land on which the City of Cincinnati is erected. The deed from Symmes, under which the plaintiff asserted his title, was executed June 11, 1798, to Samuel Forman; the deed from Symmes to the defendant for the same lot was dated May 21, 1803. An adverse possession for twenty-one years and upwards was relied on as constituting a sufficient legal title under the statute of limitations of Ohio. The case and the evidence are fully stated in the opinion of the Court. The cause was tried at July term 1835, and a verdict, under the instructions of the court, was found for the defendant, on which a judgment was rendered. The plaintiff tendered a bill of exceptions. The charge of the court was as follows: "The plaintiff having shown a deed for the premises in controversy older in date than that which was given in evidence by the defendant, on the prayer of the defendant, the court instructed the jury that his actual possession of the lot, to protect his title, under the statute of limitations, must have been twenty-one years before the commencement of this suit. That suing for trespass on the lot, paying the taxes, and speaking publicly of his claim were not sufficient to constitute an adverse possession. That any possession short of an exclusive appropriation of the property by an actual occupancy of it so as to give notice to the public and all concerned that he not only claimed the lot, but enjoyed the profits arising out of it, was such an adverse possession as the statute requires. That to constitute an adverse possession, it is not essential that the property should be enclosed by a fence, or have a dwelling house upon it. If it were so situated as to admit of cultivation as a garden or for any other purpose without an enclosure, and it was so cultivated by the defendant during the above period, it would be sufficient, or if the lot contained a coal mine or marble or stone quarry and it was worked the above period by the defendant, he having entered under a deed for the whole lot, such an occupancy would be an adverse possession, though the lot had no dwelling house upon it and was not enclosed by a fence. And also if the lot contained a valuable sand bank which was exclusively possessed and used by the defendant for his own benefit by using the sand himself and selling it to others, and his occupancy of the lot in this manner was notorious to the public and all concerned, and if the defendant paid the taxes for the same, ejected and prosecuted trespasses on the lot, it being Page 36 U. S. 43 situated adjoining to the lots on which the defendant actually resided, except the intervention of a street which had not been graduated and opened so as to be used by she public, and said lot preserved the view of the defendant from his residence unobstructed, and such possession was continued the time required by the statute, it would constitute an adverse possession for the whole lot, the defendant having entered under a deed as aforesaid. The court also said to the jury the law had been settled in Kentucky that if a person residing on a tract of land should purchase by deed another tract adjoining to it, his possession would be extended over the tract thus purchased, and that this seemed to be reasonable and was sustained by the doctrine of possession as generally recognized. That had the lot in controversy adjoined the premises on which the defendant resided, the case would come within the rule, but that a street intervened between the residence of the defendant and the lot in controversy, which would prevent an application of the rule. " Page 36 U. S. 49 MR. JUSTICE BALDWIN delivered the opinion of the Court. In the court below, this was an action of ejectment brought in November 1834, by the lessor of the plaintiff to recover possession of lot No. 209 in the City of Cincinnati, the legal title to which is admitted to have been in John Cleves Symmes, under whom both parties claimed, the plaintiff by a deed dated 11 June 1798, to Samuel Foreman, who on the next day conveyed to Samuel Williams, whose right after his death became vested in the plaintiff; the defendant claimed by a deed to himself dated 21 May, 1803, and an adverse possession of twenty-one years before the bringing of the suit. It was in evidence that the lot in controversy is situated on the corner of Third and Vine Streets, fronting on the former 198, on the latter 98, feet; the part on Third Street is level for a short distance, but descends towards the south along a steep bank from forty to fifty feet to its south line; the side of it was washed in gullies over and around which the people of the place passed and repassed at pleasure. The bed of the lot was principally sand and gravel, with but little loam or soil; the lot was not fenced, nor had any building or improvement been erected or made upon it until within a few years before suit brought; a fence could have been kept up on the level ground on the top of the hill on Third Street, but not on its declivity, on account of the deep gullies washed in the bank, and its principal use and value was in the convenience of digging sand and gravel for the inhabitants. Third Street separated this lot from the one on which the defendant resided from 1804, for many years, his mansion fronting on that street; he paid the taxes upon this lot from 1810 until 1834, inclusive, and from the date of the deed from Symmes until the trial claimed it as his own. During this time he also claimed the exclusive right of digging and removing sand and gravel from the lot, giving permission to some, refusing it to others; he brought actions of trespass against those who had done it, and at different times made leases to different persons for the purpose of taking sand and gravel therefrom, besides taking it for his own use as he pleased. This had been done by others without his permission, but there was no evidence of his acquiescence in the claim of any person to take or remove the sand or gravel or that he had ever intermitted his claim to the exclusive right of doing so; on the contrary, several witnesses testified to his continued assertion of right to the lot, their knowledge of his exclusive claim, and their ignorance of any adverse claim for more than twenty-one years Page 36 U. S. 50 before the present suit was brought. They further stated as their conclusion from these facts that the defendant had, from 1806, or 1807, in the words of one witness, "had possession of the lot;" of another that since 1804, "he was as perfectly and exclusively in possession as any person could possibly be of a lot not built on or enclosed;" and of a third "that since 1811, he had always been in the most rigid possession of the lot in dispute; a similar possession to other possessions on the hill lot." It was further in evidence that Samuel Williams, under whom the plaintiff claimed, lived in Cincinnati from 1803, until his death in 1824; was informed of defendant's having obtained a deed from Symmes in 1803, soon after it was obtained, and knew of his claim to the lot; but there was no evidence that he ever made an entry upon it, demanded possession, or exercised or assumed any exercise of ownership over it, though he declared to one witness, produced by plaintiff, that the lot was his and he intended to claim and improve it when he was able. This declaration was repeated often from 1803 till the time of his death, and on his death bed, and it appeared that he was during all this time very poor; it also appeared in evidence by the plaintiff's witness that the defendant was informed that Williams owned the lot before the deed from Symmes in 1803 and after he had made the purchase. This is the substance of the evidence given at the trial and returned with the record and a bill of exceptions, stating that it contains all the evidence offered in the cause; whereupon the plaintiff's counsel moved the court to instruct the jury that on this evidence the plaintiff was entitled to a verdict; also that the evidence offered by the plaintiff and defendant was not sufficient in law to establish an adverse possession by the defendant, which motions the court overruled. This forms the first ground of exception by the plaintiff to the overruling his motions: 1. the refusal of the court to instruct the jury that he was entitled to recover; 2. that the defendant had made out an adverse possession. Before the court could have granted the first motion, it must have been satisfied that there was nothing in the evidence or any fact which the jury could lawfully infer therefrom which could in any way prevent the plaintiff's recovery; if there was any evidence which conduced to prove any fact that could produce such effect, the court must assume such fact to have been proved, for it is the exclusive province of the jury to decide what facts are proved by Page 36 U. S. 51 competent evidence. It was also its province to judge of the credibility of the witnesses and the weight of their testimony as tending, in a greater or less degree, to prove the facts relied on; as these were matters with which the court could not interfere, the plaintiff's right to the instruction asked must depend upon the opinion of the court, on a finding by the jury in favor of the defendant, on every matter which the evidence conducted to prove, giving full credence to the witnesses produced by him and discrediting the witness for the plaintiff. Now as the jury might have refused credence to the only witness who testifies to the notice given to the defendant of Williams' ownership of the lot in 1803 and of his subsequent assertion of claim and intention to improve it, the testimony of this witness must be thrown out of the case in testing the correctness of the court in overruling this motion; otherwise we should hold the court below to have erred in not instructing the jury on a matter exclusively for its consideration -- the credibility of a witness or how far his evidence tended to prove a fact if it deemed him credible. This view of the case throws the plaintiff back to his deed as the only evidence of title, on the legal effect of which the court was bound to instruct the jury as a matter of law, which is the only question to be considered on this exception. It is clear that the plaintiff had the elder legal title to the lot in dispute, and that it gave him a right of possession, as well as the legal seizin and possession thereof, coextensively with his right, which continued till he was ousted by an actual adverse possession, 31 U. S. 6 Pet. 743, or his right of possession had been in some other way barred. It cannot be doubted that from the evidence adduced by the defendant it was competent for the jury to infer these facts -- that he had claimed this lot under color and claim of title from 1804 until 1834; had exercised acts of ownership on and over it during this whole period; that his claim was known to Williams and to the plaintiff; was visible, of public notoriety, for twenty years previous to the death of Williams. And if the jury did not credit the plaintiff's witness, they might also find that the defendant had no actual notice of Williams' claim; that it was unknown to the inhabitants of the place, while that of the defendants was known, and that Williams never did claim the lot, to assert a right to it from 1803 until his death in 1824. The jury might also draw the same conclusion from these facts as the witnesses did; that the Page 36 U. S. 52 defendant was during the whole time in possession of the lot as strictly, perfectly, and exclusively as any person could be of a lot not enclosed or built upon or as the situation of the lot would admit of. The plaintiff must therefore rely on a deed of which he had given no notice, and in opposition to all the evidence of the defendant, and every fact which a jury could find, that would show a right of possession in him, either by the presumption of a release or conveyance of the elder legal title or by an adverse possession. On the evidence in the cause, the jury might have presumed a release, a conveyance, or abandonment of the claim or right of Williams under a deed in virtue of which he had made no assertion of right from 1798 in favor of a possession, such as the defendant held from 1804, though it may not have been strictly such an adverse possession, as would have been a legal bar, under the act of limitations. There may be circumstances which would justify such a presumption in less than twenty-one years, 31 U. S. 6 Pet. 513, and we think that the evidence in this case was in law sufficient to authorize the jury to have made the presumption, to protect a possession, of the nature testified, for thirty years, and if the jury could so presume, there is no error in overruling the first motion of the plaintiff. On the next motion the only question presented is on the legal sufficiency of the evidence to make out an ouster of the legal seizin and possession of Williams by the defendant, and a continued adverse possession for twenty-one years before suit brought. An entry by one man on the land of another is an ouster of the legal possession arising from the title or not according to the intention with which it is done; if made under claim and color of right, it is an ouster, otherwise it is a mere trespass; in legal language, the intention guides the entry and fixes its character. That the evidence in this case justified the jury in finding an entry by the defendant on this lot as early as 1804 cannot be doubted, nor that he claimed the exclusive right to it under color of title from that time until suit brought. There was abundant evidence of the intention with which the first entry was made, as well as of the subsequent acts related by the witnesses, to justify a finding that they were in assertion of a right in himself, so that the only inquiry is as to the nature of the possession kept up. It is well settled that to constitute an adverse possession, there need not be a fence, building, or other improvement made, 35 U. S. 10 Pet. 442; it suffices for this purpose that visible and notorious acts of ownership are exercised over the premises in Page 36 U. S. 53 controversy for twenty-one years after an entry under claim and color of title. So much depends on the nature and situation of the property, the uses to which it can be applied or to which the owner or claimant may choose to apply it, that it is difficult to lay down any precise rule adapted to all cases. But it may with safety be said that where acts of ownership have been done upon land which from their nature indicate a notorious claim of property in it and are continued for twenty-one years with the knowledge of an adverse claimant, without interruption, or an adverse entry by him for twenty-one years, such acts are evidence of an ouster of a former owner and an actual adverse possession against him if the jury shall think that the property was not susceptible of a more strict or definite possession than had been so taken and held. Neither actual occupation, cultivation, nor residence is necessary to constitute actual possession, 31 U. S. 6 Pet. 513, when the property is so situated as not to admit of any permanent useful improvement and the continued claim of the party has been evidenced by public acts of ownership such as he would exercise over property which he claimed in his own right and would not exercise over property which he did not claim. Whether this was the situation of the lot in question or such was the nature of the acts done was the peculiar province of the jury; the evidence, in our opinion, was legally sufficient to draw the inference that such were the facts of the case, and if found specially, would have entitled the defendant to the judgment of the court in his favor; it of course did not err in refusing to instruct the jury that the evidence was not sufficient to make out an adverse possession. The remaining exceptions are to the charge of the court, in which we can receive no departure from established principles. The learned judge was very explicit in stating the requisites of an adverse possession; the plaintiff had no cause of complaint to a charge stating that exclusive appropriation, by an actual occupancy, notice to the public and all concerned of the claim, and enjoyment of profits by defendant were all necessary. No adjudication of this Court has established stricter rules than these, and if any doubts could arise as to their entire correctness, it would be on an exception by the defendant. In applying them in the subsequent part of the charge to the evidence, there seems to have been no relaxation of these rules. The case put by the court as one of adverse possession is of a valuable sand bank, exclusively possessed and used by the defendant for his Page 36 U. S. 54 own benefit by using and selling the sand, and this occupancy, notorious to the public and all concerned, which fully meets all the requisites before stated to constitute adverse possession. If we take the residue of the charge literally, it would seem to superadd other requisites, as the payment of taxes, ejecting and prosecuting trespassers on the lot, its contiguity to the defendant's residence, &c., but such is not the fair construction of the charge nor the apparent meaning of the court. These circumstances would seem to have been alluded to to show the intention with which the acts previously referred to were done, in which view they were important, especially the uninterrupted payment of taxes on the lot for twenty-four successive years, which is powerful evidence of a claim of right to the whole lot. The plaintiff's counsel has considered these circumstances making a distinct case, in the opinion of the court, for the operation of the statute, and has referred to the punctuation of the sentence in support of this view of the charge. Its obvious meaning is, however, to state these as matters additional or cumulative to the preceding facts, not as another distinct case, made out by the evidence, on which alone the jury could find an adverse possession. Punctuation is a most fallible standard by which to interpret a writing; it may be resorted to when all other means fail, but the court will first take the instrument by its four corners in order to ascertain its true meaning; if that is apparent, on judicially inspecting the whole, the punctuation will not be suffered to change it. It has also been urged in argument that as the defendant had notice of the claim of Williams, his possession was not fair and honest, and so not protected by the statute. This admits of two answers: 1. the jury were authorized to negative any notice; 2. though there was such notice of a prior deed, as would make a subsequent one inoperative to pass any title, yet an adverse possession for twenty-one years, under claim and color of title, merely void, is a bar; the statutory protection being necessary only where the defendant has no other title but possession during the period prescribed. The judgment of the circuit court is therefore affirmed. Judgment affirmed.

In the case of Lessee of Ewing v. Burnet (1837), the U.S. Supreme Court ruled on a dispute over land possession in Ohio. The Court affirmed that it is the jury's role to decide what facts are proven by competent evidence and to judge the weight of the testimony. Regarding land possession, the Court held that an elder legal title to a lot of ground gives the right of possession, which continues until there is an ouster by actual adverse possession or until the right of possession becomes barred in some other way. An entry onto someone else's land is considered an ouster of legal possession if it is made under a claim of right; otherwise, it is merely a trespass. The Court clarified that adverse possession does not require physical improvements like fences or buildings. Instead, visible and notorious acts of ownership exercised over the land for 21 years after entering under a claim of right are sufficient to establish adverse possession. The Court also discussed the interpretation of writings, noting that punctuation is an unreliable standard and that the true meaning of a writing should be ascertained by considering the document as a whole. Finally, the Court addressed the argument that the defendant's possession was not fair and honest due to notice of the plaintiff's claim. The Court provided two responses: first, the jury could decide that the defendant had no notice; second, even with notice of a prior deed, adverse possession for 21 years under a claim of right is still a valid defense. As a result, the Circuit Court's judgment was affirmed.

Property Rights & Land Use

Barron v. Baltimore

https://supreme.justia.com/cases/federal/us/32/243/

U.S. Supreme Court Barron v. Mayor & City Council of Baltimore, 32 U.S. 7 Pet. 243 243 (1833) Barron v. Mayor & City Council of Baltimore 32 U.S. (7 Pet.) 243 ON WRIT OF ERROR TO THE COURT OF APPEALS FOR THE WESTERN SHORE OF THE STATE OF MARYLAND Syllabus The provision in the Fifth Amendment to the Constitution of the United States declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Government of the United States, and is not applicable to the legislation of the States. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally and necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. This case was instituted by the plaintiff in error, against the City of Baltimore, under its corporate title of "The Mayor and City Council of Baltimore," to recover damages for injuries to the wharf property of the plaintiff, arising from the acts of the corporation. Craig & Barron, of whom the plaintiff was survivor, were owners of an extensive and highly productive wharf in the eastern section of Baltimore, enjoying, at the period of their purchase of it, the deepest water in the harbor. The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the health of Baltimore, diverted from their accustomed and natural course certain streams of water which flow from the range of hills bordering the city, and diverted them, partly by adopting new grades of streets, and partly by the necessary results of paving, and partly by mounds, Page 32 U. S. 244 embankments and other artificial means purposely adapted to bend the course of the water to the wharf in question. These streams becoming very full and violent in rains, carried down with them from the hills and the soil over which they ran large masses of sand and earth, which they deposited along, and widely in front of the wharf of the plaintiff. The alleged consequence was that the water was rendered so shallow that it ceased to be useful for vessels of an important burden, lost its income, and became of little or no value as a wharf. This injury was asserted to have been inflicted by a series of ordinances of the corporation, between the years 1815 and 1821; and that the evil was progressive; and that it was active and increasing even at the institution of this suit in 1822. At the trial of the cause in the Baltimore county court, the plaintiff gave evidence tending to prove the original and natural course of the streams, the various works of the corporation from time to time to turn them in the direction of this wharf, and the ruinous consequences of these measures to the interests of the plaintiff. It was not asserted by the defendants, that any compensation for the injury was ever made or proffered, but they justified under the authority they deduced from the charter of the city, granted by the legislature of Maryland, and under several acts of the legislature conferring powers on the corporation in regard to the grading and paving of streets, the regulation of the harbor and its waters, and to the health of the city. They also denied, that the plaintiff had shown any cause of action in the declaration, asserting that the injury complained of was a matter of public nuisance, and not of special or individual grievance in the eye of the law. This latter ground was taken on exception, and was also urged as a reason for a motion in arrest of judgment. On all points, the decision of Baltimore county court was against the defendants, and a verdict for $4,500 was rendered for the plaintiff. An appeal was taken to the court of appeals, which reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment, the defendant in the court of appeals prosecuted a writ of error to this court. Page 32 U. S. 245 The counsel for the plaintiff presented the following points: the plaintiff in error will contend that apart from the legislative sanctions of the state of Maryland, and the acts of the corporation of Baltimore, holding out special encouragement and protection to interests in wharves constructed on the shores of the Patapsco river, and particularly of the wharf erected by Craig and the plaintiff, Barron; the right and profit of wharfage, and use of the water at the wharf, for the objects of navigation, was a vested interest and incorporeal hereditament, inviolable even by the state except on just compensation for the privation; but the act of assembly and the ordinance of the City are relied on as enforcing the claim to the undisturbed enjoyment of the right. This right was interfered with, and the benefit of this property taken away from the plaintiff by the corporation avowedly, as the defence showed, for public use, for an object of public interest -- the benefit more immediately of the community of Baltimore, the individuals, part of the population of Maryland, known by the corporate title of the Mayor and City Council of Baltimore. The "inhabitants" of Baltimore are thus incorporated by the Acts of 1796, ch. 68. As a corporation, they are made liable to be sued, and authorized to sue, to acquire and hold and dispose of property and, within the scope of the powers conferred by the charter, are allowed to pass ordinance and legislative acts, which it is declared by the charter shall have the same effect as acts of assembly, and be operative, provided they be not repugnant to the laws of the state, or the constitution of the state, or of the United States. The plaintiff will contend accordingly: 1. That the Mayor and City Council of Baltimore, though viewed even as a municipal corporation, is liable for tort and actual misfeasance, and that it is a tort, and would be so even in the state, acting in her immediate sovereignty to deprive a citizen of his property, though for public uses, without indemnification; that, regarding the corporation as acting with the delegated power of the state, the act complained of is not the less an actionable tort. 2. That this is the case of an authority exercised under a Page 32 U. S. 246 State, the corporation appealing to the legislative acts of Maryland for the discretional power which it has exercised. 3. That this exercise of authority was repugnant to the constitution of the United States, contravening the fifth article of the amendments to the constitution, which declares that "private property shall not be taken for public use, without just compensation," the plaintiff contending, that this article declares principles which regulate the legislation of the states for the protection of the people in each and all the states, regarded as citizens of the United States or as inhabitants subject to the laws of the Union. 4. That under the evidence, prayers, and pleadings in the case, the constitutionality of this authority exercised under the state must have been drawn in question, and that this court has appellate jurisdiction of the point, from the judgment of the Court of Appeals of Maryland, the highest court of that state, that point being the essential ground of the plaintiff's pretention in opposition to the power and discussion of the corporation. 5. That this court, in such appellate cognisance, is not confined to the establishment of an abstract point of construction, but is empowered to pass upon the right or title of either party, and may therefore determine all points incidental or preliminary to the question of title and necessary in the course to that inquiry; that consequently, the question is for this court's determination whether the declaration avers actionable matter, or whether the complaint is only of a public nuisance, and on that head, the plaintiff will contend, that special damage is fully shown here, within the principle of the cases where an individual injury resulting from a public nuisance is deemed actionable, the wrong being merely public only so long as the law suffered in the particular case is no more than all members of the community suffer. Upon these views, the plaintiff contends that the judgment of the court of appeals ought to be reversed. Page 32 U. S. 247 Mr. Chief Justice MARSHALL delivered the opinion of the court. The judgment brought up by this writ of error having been rendered by the court of a State, this tribunal can exercise no jurisdiction over it unless it be shown to come within the provisions of the 25th section of the Judiciary Act. The plaintiff in error contends that it comes within that clause in the Fifth Amendment to the Constitution which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state, as well as that of the United States. If this proposition be untrue, the court can take no jurisdiction of the cause. The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself, and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments framed by different persons and for different purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the General Government, not as applicable to the States. In their several Constitutions, they have imposed such restrictions on their respective Page 32 U. S. 248 governments, as their own wisdom suggested, such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest. The counsel for the plaintiff in error insists that the Constitution was intended to secure the people of the several States against the undue exercise of power by their respective State governments, as well as against that which might be attempted by their General Government. It support of this argument he relies on the inhibitions contained in the tenth section of the first article. We think that section affords a strong, if not a conclusive, argument in support of the opinion already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the General Government. Some of them use language applicable only to Congress, others are expressed in general terms. The third clause, for example, declares, that "no bill of attainder or ex post facto law shall be passed." No language can be more general, yet the demonstration is complete that it applies solely to the Government of the United States. In addition to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding section, the avowed purpose of which is to restrain State legislation, contains in terms the very prohibition. It declares, that "no State shall pass any bill of attainder or ex post facto law." This provision, then, of the ninth section, however comprehensive its language, contains no restriction on State legislation. The ninth section having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures. These restrictions are brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," &c. Perceiving, that in a constitution framed by the people of the United States, for the government of all, no limitation of the action of government on Page 32 U. S. 249 the people would apply to the State government, unless expressed in terms, the restrictions contained in the tenth section are in direct words so applied to the States. It is worthy of remark, too, that these inhibitions generally restrain State legislation on subjects intrusted to the General Government, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance or confederation. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the General Government; if with each other, for political purposes, they can scarcely fail to interfere with the general purpose and intent of the Constitution. To grant letters of marque and reprisal, would lead directly to war, the power of declaring which is expressly given to Congress. To coin money is also the exercise of a power conferred on Congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found generally to restrain State legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words. If the original Constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the General Government and on those of the State; if, in every inhibition intended to act on State power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments before that departure can be assumed. We search in vain for that reason. Had the people of the several States, or any of them, required changes in their Constitutions, had they required additional safeguards to liberty from the apprehended encroachments of their particular governments, the remedy was in their own hands, and could have been applied by themselves. A Page 32 U. S. 250 convention could have been assembled by the discontented State, and the required improvements could have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two-thirds of Congress and the assent of three-fourths of their sister States could never have occurred to any human being as a mode of doing that which might be effected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution, and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language. But it is universally understood, it is a part of the history of the day, that the great revolution which established the Constitution of the United States was not effected without immense opposition. Serious fears were extensively entertained that those powers which the patriot statesmen who then watched over the interests of our country deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the Constitution was adopted, amendments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended encroachments of the General Government -- not against those of the local governments. In compliance with a sentiment thus generally expressed, to quiet fears thus extensively entertained, amendments were proposed by the required majority in Congress and adopted by the States. These amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them. We are of opinion that the provision in the Fifth Amendment to the Constitution declaring that private property shall not be taken for public use without just compensation is intended solely as a limitation on the exercise of power by the Page 32 U. S. 251 Government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion that there is no repugnancy between the several acts of the general assembly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the Constitution of the United States. This court, therefore, has no jurisdiction of the cause, and it is dismissed. This cause came on to be heard on the transcript of the record from the Court of Appeals for the Western Shore of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this Court that there is no repugnancy between the several acts of the General Assembly of Maryland given in evidence by the defendants at the trial of this cause in the court of that State and the Constitution of the United States; whereupon it is ordered and adjudged by this court that this writ of error be, and the same is hereby, dismissed for the want of jurisdiction.

The Supreme Court case of Barron v. Mayor & City Council of Baltimore (1833) dealt with the question of whether the Fifth Amendment's guarantee that private property cannot be taken for public use without just compensation applied to state governments in addition to the federal government. The Court, in a unanimous decision, ruled that the Fifth Amendment's limitation on the taking of private property was solely directed at the federal government and did not apply to the states. The Court reasoned that the Constitution was established by the people of the United States for their own government, not for the governments of individual states. Each state has its own constitution with limitations on its powers. The Court also noted that the amendments to the Constitution were intended to guard against the abuse of power by the General (federal) Government, not the local governments. As a result, the Court found no repugnancy between the acts of the Maryland General Assembly and the Constitution of the United States, and the case was dismissed for lack of jurisdiction.

LGBTQ+ Rights

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

https://supreme.justia.com/cases/federal/us/584/16-111/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., et al., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, et al. on writ of certiorari to the court of appeals of colorado [June 4, 2018] Justice Kennedy delivered the opinion of the Court. In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple that he would not create a cake for their wedding because of his religious opposition to same-sex marriages—marriages the State of Colorado itself did not recognize at that time. The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act. The Commission determined that the shop’s actions violated the Act and ruled in the couple’s favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court now must decide whether the Commission’s order violated the Constitution. The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment, as applied to the States through the Fourteenth Amendment. The freedoms asserted here are both the freedom of speech and the free exercise of religion. The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning. One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker’s creation can be protected, these details might make a difference. The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of possibilities that seem all but endless. Whatever the confluence of speech and free exercise principles might be in some cases, the Colorado Civil Rights Commission’s consideration of this case was inconsistent with the State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were based on his sincere religious beliefs and convictions. The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside. I A Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The shop offers a variety of baked goods, ranging from everyday cookies and brownies to elaborate custom-designed cakes for birthday parties, weddings, and other events. Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God through his work at Masterpiece Cakeshop.” Ibid. One of Phillips’ religious beliefs is that “God’s intention for marriage from the beginning of history is that it is and should be the union of one man and one woman.” Id. , at 149. To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs. Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of 2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards to host a reception for their family and friends in Denver. To prepare for their celebration, Craig and Mullins visited the shop and told Phillips that they were interested in ordering a cake for “our wedding.” Id. , at 152 (emphasis de- leted). They did not mention the design of the cake they envisioned. Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. Ibid. He explained, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” Ibid . The couple left the shop without further discussion. The following day, Craig’s mother, who had accompanied the couple to the cakeshop and been present for their interaction with Phillips, telephoned to ask Phillips why he had declined to serve her son. Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages. Id. , at 153. He later explained his belief that “to create a wedding cake for an event that celebrates something that directly goes against the teachings of the Bible, would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.” Ibid . (emphasis deleted). B For most of its history, Colorado has prohibited discrimination in places of public accommodation. In 1885, less than a decade after Colorado achieved statehood, the General Assembly passed “An Act to Protect All Citizens in Their Civil Rights,” which guaranteed “full and equal enjoyment” of certain public facilities to “all citizens,” “regardless of race, color or previous condition of servitude.” 1885 Colo. Sess. Laws pp. 132–133. A decade later, the General Assembly expanded the requirement to apply to “all other places of public accommodation.” 1895 Colo. Sess. Laws ch. 61, p. 139. Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to prohibit discrimination on the basis of sexual orientation as well as other protected characteristics, CADA in relevant part provides as follows: “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017). The Act defines “public accommodation” broadly to include any “place of business engaged in any sales to the public and any place offering services . . . to the public,” but excludes “a church, synagogue, mosque, or other place that is principally used for religious purposes.” §24–34–601(1). CADA establishes an administrative system for the resolution of discrimination claims. Complaints of discrimination in violation of CADA are addressed in the first instance by the Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights Commission. The Commission, in turn, decides whether to initiate a formal hearing before a state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a written decision. See §§24–34–306, 24–4–105(14). The decision of the ALJ may be appealed to the full Commission, a seven-member appointed body. The Commission holds a public hearing and deliberative session before voting on the case. If the Commission determines that the evidence proves a CADA violation, it may impose remedial measures as provided by statute. See §24–34–306(9). Available remedies include, among other things, orders to cease-and-desist a discriminatory policy, to file regular compliance reports with the Commission, and “to take affirmative action, including the posting of notices setting forth the substantive rights of the public.” §24–34–605. Colorado law does not permit the Commission to assess money damages or fines. §§24–34–306(9), 24–34–605. C Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips in August 2012, shortly after the couple’s visit to the shop. App. 31. The complaint alleged that Craig and Mullins had been denied “full and equal service” at the bakery because of their sexual orientation, id. , at 35, 48, and that it was Phillips’ “standard business practice” not to provide cakes for same-sex weddings, id. , at 43. The Civil Rights Division opened an investigation. The investigator found that “on multiple occasions,” Phillips “turned away potential customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception” because his religious beliefs prohibited it and because the potential customers “were doing something illegal” at that time. Id. , at 76. The investigation found that Phillips had declined to sell custom wedding cakes to about six other same-sex couples on this basis. Id. , at 72. The investigator also recounted that, according to affidavits submitted by Craig and Mullins, Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment celebration because the shop “had a policy of not selling baked goods to same-sex couples for this type of event.” Id. , at 73. Based on these findings, the Division found probable cause that Phillips violated CADA and referred the case to the Civil Rights Commission. Id. , at 69. The Commission found it proper to conduct a formal hearing, and it sent the case to a State ALJ. Finding no dispute as to material facts, the ALJ entertained cross-motions for summary judgment and ruled in the couple’s favor. The ALJ first rejected Phillips’ argument that declining to make or create a wedding cake for Craig and Mullins did not violate Colorado law. It was undisputed that the shop is subject to state public accommodations laws. And the ALJ determined that Phillips’ actions constituted prohibited discrimination on the basis of sex- ual orientation, not simply opposition to same-sex marriage as Phillips contended. App. to Pet. for Cert. 68a–72a. Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA in a way that would require him to create a cake for a same-sex wedding would violate his First Amendment right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed. The ALJ rejected the contention that preparing a wedding cake is a form of protected speech and did not agree that creating Craig and Mullins’ cake would force Phillips to adhere to “an ideological point of view.” Id. , at 75a. Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom of speech. Phillips also contended that requiring him to create cakes for same-sex weddings would violate his right to the free exercise of religion, also protected by the First Amendment. Citing this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872 (1990), the ALJ determined that CADA is a “valid and neutral law of general applicability” and therefore that applying it to Phillips in this case did not violate the Free Exercise Clause. Id ., at 879; App. to Pet. for Cert. 82a–83a. The ALJ thus ruled against Phillips and the cakeshop and in favor of Craig and Mullins on both constitutional claims. The Commission affirmed the ALJ’s decision in full. Id. , at 57a. The Commission ordered Phillips to “cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.” Ibid. It also ordered additional remedial measures, including “comprehensive staff training on the Public Accommodations section” of CADA “and changes to any and all company policies to comply with . . . this Order.” Id. , at 58a. The Commission additionally required Phillips to prepare “quarterly compliance reports” for a period of two years documenting “the number of patrons denied service” and why, along with “a statement describing the remedial actions taken.” Ibid. Phillips appealed to the Colorado Court of Appeals, which affirmed the Commission’s legal determinations and remedial order. The court rejected the argument that the “Commission’s order unconstitutionally compels” Phillips and the shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc. , 370 P. 3d 272, 283 (2015). The court also rejected the argument that the Commission’s order violated the Free Exercise Clause. Relying on this Court’s precedent in Smith , supra , at 879, the court stated that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability” on the ground that following the law would interfere with religious practice or belief. 370 P. 3d, at 289. The court concluded that requiring Phillips to comply with the statute did not violate his free exercise rights. The Colorado Supreme Court declined to hear the case. Phillips sought review here, and this Court granted certiorari. 582 U. S. ___ (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment. II A Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. As this Court observed in Obergefell v. Hodges , 576 U. S. ___ (2015), “[t]he First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Id. , at ___ (slip op., at 27). Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law. See Newman v. Piggy Park Enterprises, Inc. , 390 U. S. 400, 402, n. 5 (1968) ( per curiam ); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557, 572 (1995) (“Provisions like these are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments”). When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion. This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations. It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public. And there are no doubt innumerable goods and services that no one could argue implicate the First Amendment. Petitioners conceded, moreover, that if a baker refused to sell any goods or any cakes for gay weddings, that would be a different matter and the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law. See Tr. of Oral Arg. 4–7, 10. Phillips claims, however, that a narrower issue is presented. He argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation. As Phillips would see the case, this contention has a significant First Amendment speech component and implicates his deep and sincere religious beliefs. In this context the baker likely found it difficult to find a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression for their message, a message he could not express in a way consistent with his religious beliefs. Phillips’ dilemma was particularly understandable given the background of legal principles and administration of the law in Colorado at that time. His decision and his actions leading to the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize the validity of gay marriages performed in its own State. See Colo. Const., Art. II, §31 (2012); 370 P. 3d, at 277. At the time of the events in question, this Court had not issued its decisions either in United States v. Windsor , 570 U. S. 744 (2013), or Obergefell . Since the State itself did not allow those marriages to be performed in Colorado, there is some force to the argument that the baker was not unreasonable in deeming it lawful to decline to take an action that he understood to be an expression of support for their validity when that expression was contrary to his sincerely held religious beliefs, at least insofar as his refusal was limited to refusing to create and express a message in support of gay marriage, even one planned to take place in another State. At the time, state law also afforded storekeepers some latitude to decline to create specific messages the storekeeper considered offensive. Indeed, while enforcement proceedings against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this proposition in cases involving other bakers’ creation of cakes, concluding on at least three occasions that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd. , Charge No. P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc. , Charge No. P20140070X (Mar. 24, 2015); Jack v. Azucar Bakery , Charge No. P20140069X (Mar. 24, 2015). There were, to be sure, responses to these arguments that the State could make when it contended for a different result in seeking the enforcement of its generally applicable state regulations of businesses that serve the public. And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons. But, nonetheless, Phillips was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case. B The neutral and respectful consideration to which Phillips was entitled was compromised here, however. The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection. That hostility surfaced at the Commission’s formal, public hearings, as shown by the record. On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’ case. At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the—the law’s impacting his personal belief system, he needs to look at being able to compromise.” Id ., at 30. Standing alone, these statements are susceptible of different interpretations. On the one hand, they might mean simply that a business cannot refuse to provide services based on sexual orientation, regardless of the proprietor’s personal views. On the other hand, they might be seen as inappropriate and dismissive comments showing lack of due consideration for Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed, the latter seems the more likely. On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and on the record. On this occasion another commissioner made specific reference to the previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The commissioner stated: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Tr. 11–12. To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation. The record shows no objection to these comments from other commissioners. And the later state-court ruling reviewing the Commission’s decision did not mention those comments, much less express concern with their content. Nor were the comments by the commissioners disavowed in the briefs filed in this Court. For these reasons, the Court cannot avoid the conclusion that these statements cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case. Members of the Court have disagreed on the question whether statements made by lawmakers may properly be taken into account in determining whether a law intentionally discriminates on the basis of religion. See Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 540–542 (1993); id., at 558 (Scalia, J., concurring in part and concurring in judgment). In this case, however, the remarks were made in a very different context—by an adjudicatory body deciding a particular case. Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission. As noted above, on at least three other occasions the Civil Rights Division considered the refusal of bakers to create cakes with images that conveyed disapproval of same-sex marriage, along with religious text. Each time, the Division found that the baker acted lawfully in refusing service. It made these determinations because, in the words of the Division, the requested cake included “wording and images [the baker] deemed derogatory,” Jack v. Gateaux, Ltd. , Charge No. P20140071X, at 4; featured “language and images [the baker] deemed hateful,” Jack v. Le Bakery Sensual, Inc. , Charge No. P20140070X, at 4; or displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery , Charge No. P20140069X, at 4. The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished. In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections. Before the Colorado Court of Appeals, Phillips protested that this disparity in treatment reflected hostility on the part of the Commission toward his beliefs. He argued that the Commission had treated the other bakers’ conscience-based objections as legitimate, but treated his as illegitimate—thus sitting in judgment of his religious beliefs themselves. The Court of Appeals addressed the disparity only in passing and relegated its complete analysis of the issue to a footnote. There, the court stated that “[t]his case is distinguishable from the Colorado Civil Rights Division’s recent findings that [the other bakeries] in Denver did not discriminate against a Christian patron on the basis of his creed” when they refused to create the requested cakes. 370 P. 3d, at 282, n. 8. In those cases, the court continued, there was no impermissible discrimination because “the Division found that the bakeries . . . refuse[d] the patron’s request . . . because of the offensive nature of the requested message.” Ibid. A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. See Matal v. Tam , 582 U. S. ___, ___–___ (2017) (opinion of Alito, J.) (slip op., at 22–23). The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs. The court’s footnote does not, therefore, answer the baker’s concern that the State’s practice was to disfavor the religious basis of his objection. C For the reasons just described, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. In Church of Lukumi Babalu Aye, supra , the Court made clear that the government, if it is to respect the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Id. , at 534. Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.” Id ., at 547. Factors relevant to the assessment of governmental neutrality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body.” Id ., at 540. In view of these factors the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs. The Commission gave “every appearance,” id ., at 545, of adjudicating Phillips’ religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it. Id ., at 537. It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. On these facts, the Court must draw the inference that Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires. While the issues here are difficult to resolve, it must be concluded that the State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. The official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires. The Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same. For these reasons, the order must be set aside. III The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market. The judgment of the Colorado Court of Appeals is reversed. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., et al., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, et al. on writ of certiorari to the court of appeals of colorado [June 4, 2018] Justice Kagan, with whom Justice Breyer joins, concurring. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante , at 9. But in upholding that principle, state actors cannot show hostility to religious views; rather, they must give those views “neutral and respectful consideration.” Ante , at 12. I join the Court’s opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one of the bases for the Court’s holding. The Court partly relies on the “disparate consideration of Phillips’ case compared to the cases of [three] other bakers” who “objected to a requested cake on the basis of conscience.” Ante , at 14, 18. In the latter cases, a customer named William Jack sought “cakes with images that conveyed disapproval of same-sex marriage, along with religious text”; the bakers whom he approached refused to make them. Ante , at 15; see post , at 3 (Ginsburg, J., dissenting) (further describing the requested cakes). Those bakers prevailed before the Colorado Civil Rights Division and Commission, while Phillips—who objected for religious reasons to baking a wedding cake for a same-sex couple—did not. The Court finds that the legal reasoning of the state agencies differed in significant ways as between the Jack cases and the Phillips case. See ante, at 15. And the Court takes especial note of the suggestion made by the Colorado Court of Appeals, in comparing those cases, that the state agencies found the message Jack requested “offensive [in] nature.” Ante , at 16 (internal quotation marks omitted). As the Court states, a “principled rationale for the difference in treatment” cannot be “based on the government’s own assessment of offensiveness.” Ibid. What makes the state agencies’ consideration yet more disquieting is that a proper basis for distinguishing the cases was available—in fact, was obvious. The Colorado Anti-Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the full and equal enjoyment” of goods and services to individuals based on certain characteristics, including sexual orientation and creed. Colo. Rev. Stat. §24–34–601(2)(a) (2017). The three bakers in the Jack cases did not violate that law. Jack requested them to make a cake (one denigrating gay people and same-sex marriage) that they would not have made for any customer. In refusing that request, the bakers did not single out Jack because of his religion, but instead treated him in the same way they would have treated anyone else—just as CADA requires. By contrast, the same-sex couple in this case requested a wedding cake that Phillips would have made for an opposite-sex couple. In refusing that request, Phillips contravened CADA’s demand that customers receive “the full and equal enjoyment” of public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in the Jack cases and the Phillips case could thus have been justified by a plain reading and neutral application of Colorado law—untainted by any bias against a religious belief.[ 1 ]* I read the Court’s opinion as fully consistent with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of Appeals)—“quite apart from whether the [Phillips and Jack] cases should ultimately be distinguished.” Ante , at 15. And the Court itself recognizes the principle that would properly account for a difference in result between those cases. Colorado law, the Court says, “can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante , at 10. For that reason, Colorado can treat a baker who discriminates based on sexual orientation differently from a baker who does not discriminate on that or any other prohibited ground. But only, as the Court rightly says, if the State’s decisions are not infected by religious hostility or bias. I accordingly concur. Notes 1 * Justice Gorsuch disagrees. In his view, the Jack cases and the Phillips case must be treated the same because the bakers in all those cases “would not sell the requested cakes to anyone.” Post , at 4. That description perfectly fits the Jack cases—and explains why the bakers there did not engage in unlawful discrimination. But it is a surprising characterization of the Phillips case, given that Phillips routinely sells wedding cakes to opposite-sex couples. Justice Gorsuch can make the claim only because he does not think a “wedding cake” is the relevant product. As Justice Gorsuch sees it, the product that Phillips refused to sell here—and would refuse to sell to anyone—was a “cake celebrating same-sex marriage.” Ibid. ; see post , at 3, 6, 8–9. But that is wrong. The cake requested was not a special “cake celebrating same-sex marriage.” It was simply a wedding cake—one that (like other standard wedding cakes) is suitable for use at same-sex and opposite-sex weddings alike. See ante , at 4 (majority opinion) (recounting that Phillips did not so much as discuss the cake’s design before he refused to make it). And contrary to Justice Gorsuch’s view, a wedding cake does not become something different whenever a vendor like Phillips invests its sale to particular customers with “religious significance.” Post , at 11. As this Court has long held, and reaffirms today, a vendor cannot escape a public accommodations law because his religion disapproves selling a product to a group of customers, whether defined by sexual orientation, race, sex, or other protected trait. See Newman v. Piggie Park Enterprises, Inc. , 390 U. S. 400, 402, n. 5 (1968) ( per curiam ) (holding that a barbeque vendor must serve black customers even if he perceives such service as vindicating racial equality, in violation of his religious beliefs); ante , at 9. A vendor can choose the products he sells, but not the customers he serves—no matter the reason. Phillips sells wedding cakes. As to that product, he unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis—which has nothing to do with Phillips’ religious beliefs—Colorado could have distinguished Phillips from the bakers in the Jack cases, who did not engage in any prohibited discrimination. SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., et al., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, et al. on writ of certiorari to the court of appeals of colorado [June 4, 2018] Justice Gorsuch, with whom Justice Alito joins, concurring. In Employment Div., Dept. of Human Resources of Ore. v. Smith , this Court held that a neutral and generally applicable law will usually survive a constitutional free exercise challenge. 494 U. S. 872, 878–879 (1990). Smith remains controversial in many quarters. Compare McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992). But we know this with certainty: when the government fails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a compelling interest and are narrowly tailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520, 546 (1993). Today’s decision respects these principles. As the Court explains, the Colorado Civil Rights Commission failed to act neutrally toward Jack Phillips’s religious faith. Maybe most notably, the Commission allowed three other bakers to refuse a customer’s request that would have required them to violate their secular commitments. Yet it denied the same accommodation to Mr. Phillips when he refused a customer’s request that would have required him to violate his religious beliefs. Ante, at 14–16. As the Court also explains, the only reason the Commission seemed to supply for its discrimination was that it found Mr. Phillips’s religious beliefs “offensive.” Ibid. That kind of judgmental dismissal of a sincerely held religious belief is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny. The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all. Because the Court documents each of these points carefully and thoroughly, I am pleased to join its opinion in full. The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. See post, at 4–5, and n. 4 (Ginsburg, J., dissenting); ante, at 2–3, and n. (Kagan, J., concurring). But, respectfully, I do not see how we might rescue the Commission from its error. A full view of the facts helps point the way to the problem. Start with William Jack’s case. He approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. App. 233, 243, 252. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions. Id. , at 231, 241, 250. Mr. Jack responded by filing complaints with the Colorado Civil Rights Division. Id. , at 230, 240, 249. He pointed to Colorado’s Anti-Discrimination Act, which prohibits discrimination against customers in public accommodations because of religious creed, sexual orientation, or certain other traits. See ibid. ; Colo. Rev. Stat. §24–34–601(2)(a) (2017). Mr. Jack argued that the cakes he sought reflected his religious beliefs and that the bakers could not refuse to make them just because they happened to disagree with his beliefs. App. 231, 241, 250. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions. Id. , at 237, 247, 255–256. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack as they would have anyone who requested a cake with similar messages, regardless of their religion. Id. , at 230–231, 240, 249 . The Division pointed, as well, to the fact that the bakers said they were happy to provide religious persons with other cakes expressing other ideas. Id. , at 237, 247, 257. Mr. Jack appealed to the Colorado Civil Rights Commission, but the Commission summarily denied relief. App. to Pet. for Cert. 326a–331a. Next, take the undisputed facts of Mr. Phillips’s case. Charlie Craig and Dave Mullins approached Mr. Phillips about creating a cake to celebrate their wedding. App. 168. Mr. Phillips explained that he could not prepare a cake celebrating a same-sex wedding consistent with his religious faith. Id., at 168–169 . But Mr. Phillips offered to make other baked goods for the couple, including cakes celebrating other occasions. Ibid. Later, Mr. Phillips testified without contradiction that he would have refused to create a cake celebrating a same-sex marriage for any customer, regardless of his or her sexual orientation. Id., at 166–167 (“I will not design and create wedding cakes for a same-sex wedding regardless of the sexual orientation of the customer”). And the record reveals that Mr. Phillips apparently refused just such a request from Mr. Craig’s mother. Id., at 38–40, 169. (Any suggestion that Mr. Phillips was willing to make a cake celebrating a same-sex marriage for a heterosexual customer or was not willing to sell other products to a homosexual customer, then, would simply mistake the undisputed factual record. See post, at 4, n. 2 (Ginsburg, J., dissenting); ante, at 2–3, and n. (Kagan, J., concurring)). Nonetheless, the Commission held that Mr. Phillips’s conduct violated the Colorado public accommodations law. App. to Pet. for Cert. 56a–58a. The facts show that the two cases share all legally sa- lient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers. The distinction between intended and knowingly accepted effects is familiar in life and law. Often the purposeful pursuit of worthy commitments requires us to accept unwanted but entirely foreseeable side effects: so, for example, choosing to spend time with family means the foreseeable loss of time for charitable work, just as opting for more time in the office means knowingly forgoing time at home with loved ones. The law, too, sometimes distinguishes between intended and foreseeable effects. See, e.g., ALI, Model Penal Code §§1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave, Substantive Criminal Law §5.2(b), pp. 460–463 (3d ed. 2018). Other times, of course, the law proceeds differently, either conflating intent and knowledge or presuming intent as a matter of law from a showing of knowledge. See, e.g., Restatement (Second) of Torts §8A (1965); Radio Officers v. NLRB , 347 U. S. 17, 45 (1954). The problem here is that the Commission failed to act neutrally by applying a consistent legal rule. In Mr. Jack’s case, the Commission chose to distinguish carefully between intended and knowingly accepted effects. Even though the bakers knowingly denied service to someone in a protected class, the Commission found no violation because the bakers only intended to distance themselves from “the offensive nature of the requested message.” Craig v. Masterpiece Cakeshop, Inc. , 370 P. 3d 272, 282, n. 8 (Colo. App. 2015); App. 237, 247, 256; App. to Pet. for Cert. 326a–331a; see also Brief for Respondent Colorado Civil Rights Commission 52 (“Businesses are entitled to reject orders for any number of reasons, including because they deem a particular product requested by a customer to be ‘offensive’ ”). Yet, in Mr. Phillips’s case, the Commission dismissed this very same argument as resting on a “distinction without a difference.” App. to Pet. for Cert. 69a. It concluded instead that an “intent to disfavor” a protected class of persons should be “readily . . . presumed” from the knowing failure to serve someone who belongs to that class. Id., at 70a. In its judgment, Mr. Phillips’s intentions were “inextricably tied to the sexual orientation of the parties involved” and essentially “irrational.” Ibid. Nothing in the Commission’s opinions suggests any neutral principle to reconcile these holdings. If Mr. Phillips’s objection is “inextricably tied” to a protected class, then the bakers’ objection in Mr. Jack’s case must be “inextricably tied” to one as well. For just as cakes celebrating same-sex weddings are (usually) requested by persons of a particular sexual orientation, so too are cakes expressing religious opposition to same-sex weddings (usually) requested by persons of particular religious faiths. In both cases the bakers’ objection would (usually) result in turning down customers who bear a protected characteristic. In the end, the Commission’s decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent to discriminate against a protected class in light of the foreseeable effects of his conduct, but it declined to presume the same intent in Mr. Jack’s case even though the effects of the bakers’ conduct were just as foreseeable. Underscoring the double standard, a state appellate court said that “no such showing” of actual “animus”—or intent to discriminate against persons in a protected class—was even required in Mr. Phillips’s case. 370 P. 3d, at 282. The Commission cannot have it both ways. The Commission cannot slide up and down the mens rea scale, picking a mental state standard to suit its tastes depending on its sympathies. Either actual proof of intent to discriminate on the basis of membership in a protected class is required (as the Commission held in Mr. Jack’s case), or it is sufficient to “presume” such intent from the knowing failure to serve someone in a protected class (as the Commission held in Mr. Phillips’s case). Perhaps the Commission could have chosen either course as an initial matter. But the one thing it can’t do is apply a more generous legal test to secular objections than religious ones. See Church of Lukumi Babalu Aye, 508 U. S., at 543–544. That is anything but the neutral treatment of religion. The real explanation for the Commission’s discrimination soon comes clear, too—and it does anything but help its cause. This isn’t a case where the Commission self-consciously announced a change in its legal rule in all public accommodation cases. Nor is this a case where the Commission offered some persuasive reason for its discrimination that might survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to condemn Mr. Phillips for expressing just the kind of “irrational” or “offensive . . . message” that the bakers in the first case refused to endorse. Ante, at 16. Many may agree with the Commission and consider Mr. Phillips’s religious beliefs irrational or offensive. Some may believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-sex marriage a matter of constitutional right and various States have enacted laws that preclude discrimination on the basis of sexual orientation. But it is also true that no bureaucratic judgment condemning a sincerely held religious belief as “irrational” or “offensive” will ever survive strict scrutiny under the First Amendment. In this country, the place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence that we protect religious beliefs that we find offensive. See Matal v. Tam , 582 U. S. ___, ___ (2017) (plurality opinion) (slip op., at 25) (citing United States v. Schwimmer , 279 U. S. 644, 655 (1929) (Holmes, J., dissenting)). Popular religious views are easy enough to defend. It is in protecting unpopular religious beliefs that we prove this country’s commitment to serving as a refuge for religious freedom. See Church of Lukumi Babalu Aye, supra , at 547; Thomas v. Review Bd. of Indiana Employment Security Div. , 450 U. S. 707, 715–716 (1981); Wisconsin v. Yoder , 406 U. S. 205, 223–224 (1972); Cantwell v. Connecticut , 310 U. S. 296, 308–310 (1940). Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr. Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its decoration, and then suggest this distinction makes all the difference. See post, at 4–5, and n. 4 (Ginsburg, J., dissenting). It is no answer either simply to slide up a level of generality to redescribe Mr. Phillips’s case as involving only a wedding cake like any other, so the fact that Mr. Phillips would make one for some means he must make them for all. See ante, at 2–3, and n. (Kagan, J., concurring). These arguments, too, fail to afford Mr. Phillips’s faith neutral respect. Take the first suggestion first. To suggest that cakes with words convey a message but cakes without words do not—all in order to excuse the bakers in Mr. Jack’s case while penalizing Mr. Phillips—is irrational. Not even the Commission or court of appeals purported to rely on that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against same-sex marriage rather than a cake bearing words conveying the same idea. Surely the Commission would have approved the bakers’ intentional wish to avoid participating in that message too. Nor can anyone reasonably doubt that a wedding cake without words conveys a message. Words or not and whatever the exact design, it celebrates a wedding, and if the wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370 P. 3d, at 276 (stating that Mr. Craig and Mr. Mullins “requested that Phillips design and create a cake to celebrate their same-sex wedding ”) (emphasis added). Like “an emblem or flag,” a cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,” signifying approval of a specific “system, idea, [or] institution.” West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 632 (1943). It is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith. The Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack’s case the choice to refuse to advance a message they deemed offensive to their secular commitments. That is not neutral. Nor would it be proper for this or any court to suggest that a person must be forced to write words rather than create a symbol before his religious faith is implicated. Civil authorities, whether “high or petty,” bear no license to declare what is or should be “orthodox” when it comes to religious beliefs, id., at 642, or whether an adherent has “correctly perceived” the commands of his religion, Thomas, supra, at 716. Instead, it is our job to look beyond the formality of written words and afford legal protection to any sincere act of faith. See generally Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557, 569 (1995) (“[T]he Constitution looks beyond written or spoken words as mediums of ex- pression,” which are “not a condition of constitutional protection”). The second suggestion fares no better. Suggesting that this case is only about “wedding cakes”—and not a wedding cake celebrating a same-sex wedding—actually points up the problem. At its most general level, the cake at issue in Mr. Phillips’s case was just a mixture of flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule: describing the cake by its ingredients is too general ; understanding it as celebrating a same-sex wedding is too specific ; but regarding it as a generic wedding cake is just right . The problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just cakes about weddings generally, and all such cakes were the same, the bakers had to produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr. Jack requested conveyed a message offensive to their convictions and allowed them to refuse service. Having done that there, it must do the same here. Any other conclusion would invite civil authorities to gerrymander their inquiries based on the parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes” more generally or “cakes that convey a message regarding same-sex marriage” more specifically? If “cakes” were the relevant level of generality, the Commission would have to order the bakers to make Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if “cakes that convey a message regarding same-sex marriage” were the relevant level of generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short, when the same level of generality is applied to both cases, it is no surprise that the bakers have to be treated the same. Only by adjusting the dials just right —fine-tuning the level of generality up or down for each case based solely on the identity of the parties and the substance of their views—can you engineer the Commission’s outcome, handing a win to Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is improper. Neither the Commission nor this Court may apply a more specific level of generality in Mr. Jack’s case (a cake that conveys a message regarding same-sex marriage) while applying a higher level of generality in Mr. Phillips’s case (a cake that conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law just because his religion frowns on it. But for any law to comply with the First Amendment and Smith , it must be applied in a manner that treats religion with neutral respect. That means the government must apply the same level of generality across cases—and that did not happen here. There is another problem with sliding up the generality scale: it risks denying constitutional protection to religious beliefs that draw distinctions more specific than the government’s preferred level of description. To some, all wedding cakes may appear indistinguishable. But to Mr. Phillips that is not the case—his faith teaches him otherwise. And his religious beliefs are entitled to no less respectful treatment than the bakers’ secular beliefs in Mr. Jack’s case. This Court has explained these same points “[r]epeatedly and in many different contexts” over many years. Smith , 494 U. S. at 887. For example, in Thomas a faithful Jehovah’s Witness and steel mill worker agreed to help manufacture sheet steel he knew might find its way into armaments, but he was unwilling to work on a fabrication line producing tank turrets. 450 U. S., at 711. Of course, the line Mr. Thomas drew wasn’t the same many others would draw and it wasn’t even the same line many other members of the same faith would draw. Even so, the Court didn’t try to suggest that making steel is just making steel. Or that to offend his religion the steel needed to be of a particular kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature of his religious commitments—and that those commitments, as defined by the faithful adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id., at 714–716; see also United States v. Lee , 455 U. S. 252, 254–255 (1982); Smith , supra, at 887 (collecting authorities). It is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding cake is just like any other—without regard to the religious significance his faith may attach to it—than it would be for the Court to suggest that for all persons sacramental bread is just bread or a kippah is just a cap. Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case. The Court recognizes this by reversing the judgment below and holding that the Commission’s order “must be set aside.” Ante, at 18. Maybe in some future rulemaking or case the Commission could adopt a new “knowing” standard for all refusals of service and offer neutral reasons for doing so. But, as the Court observes, “[h]owever later cases raising these or similar concerns are resolved in the future, . . . the rulings of the Commission and of the state court that enforced the Commission’s order” in this case “must be invalidated.” Ibid . Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment. SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., et al., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, et al. on writ of certiorari to the court of appeals of colorado [June 4, 2018] Justice Thomas, with whom Justice Gorsuch joins, concurring in part and concurring in the judgment. I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips’ right to freely exercise his religion. As Justice Gorsuch explains, the Commission treated Phillips’ case differently from a similar case involving three other bakers, for reasons that can only be explained by hostility toward Phillips’ religion. See ante, at 2–7 (concurring opinion). The Court agrees that the Commission treated Phillips differently, and it points out that some of the Commissioners made comments disparaging Phillips’ religion. See ante, at 12–16. Although the Commissioners’ comments are certainly disturbing, the discriminatory application of Colorado’s public-accommodations law is enough on its own to violate Phillips’ rights. To the extent the Court agrees, I join its opinion. While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. The Court does not address this claim because it has some uncertainties about the record. See ante, at 2. Specifically, the parties dispute whether Phillips refused to create a custom wedding cake for the individual respondents, or whether he refused to sell them any wedding cake (including a premade one). But the Colorado Court of Appeals resolved this factual dispute in Phillips’ favor. The court described his conduct as a refusal to “design and create a cake to celebrate [a] same-sex wedding.” Craig v. Masterpiece Cakeshop, Inc. , 370 P.3d 272, 276 (2015); see also id., at 286 (“designing and selling a wedding cake”); id., at 283 (“refusing to create a wedding cake”). And it noted that the Commission’s order required Phillips to sell “ ‘ any product [he] would sell to heterosexual couples,’ ” including custom wedding cakes. Id., at 286 (emphasis added). Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment. I The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits state laws that abridge the “freedom of speech.” When interpreting this command, this Court has distinguished between regulations of speech and regulations of conduct. The latter generally do not abridge the freedom of speech, even if they impose “incidental burdens” on expression. Sorrell v. IMS Health Inc. , 564 U. S. 552, 567 (2011). As the Court explains today, public-accommodations laws usually regulate conduct. Ante, at 9–10 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557, 572 (1995)). “[A]s a general matter,” public-accommodations laws do not “target speech” but instead prohibit “the act of discriminating against individuals in the provision of publicly available goods, privileges, and services.” Id., at 572 (emphasis added). Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law “ha[s] the effect of declaring . . . speech itself to be the public accommodation,” the First Amendment applies with full force. Id. , at 573; accord, Boy Scouts of America v. Dale , 530 U. S. 640, 657–659 (2000). In Hurley , for example, a Massachusetts public-accommodations law prohib- ited “ ‘any distinction, discrimination or restriction on ac- count of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any place of public accommodation.’ ” 515 U. S. , at 561 (quoting Mass. Gen. Laws §272:98 (1992); ellipsis in original). When this law required the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor’s right to free speech. Parades are “a form of expression,” this Court explained, and the application of the public-accommodations law “alter[ed] the expressive content” of the parade by forcing the sponsor to add a new unit. 515 U. S., at 568, 572–573. The addition of that unit compelled the organizer to “bear witness to the fact that some Irish are gay, lesbian, or bisexual”; “suggest . . . that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals”; and imply that their participation “merits celebration.” Id., at 574. While this Court acknowledged that the unit’s exclusion might have been “misguided, or even hurtful,” ibid. , it rejected the notion that governments can mandate “thoughts and statements acceptable to some groups or, indeed, all people” as the “antithesis” of free speech, id., at 579; accord, Dale , supra, at 660–661. The parade in Hurley was an example of what this Court has termed “expressive conduct.” See 515 U. S., at 568–569. This Court has long held that “the Constitution looks beyond written or spoken words as mediums of expression,” id. , at 569, and that “[s]ymbolism is a primitive but effective way of communicating ideas,” West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 632 (1943). Thus, a person’s “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’ ” Texas v. Johnson , 491 U. S. 397, 404 (1989). Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.[ 1 ] Of course, conduct does not qualify as protected speech simply because “the person engaging in [it] intends thereby to express an idea.” United States v. O’Brien , 391 U. S. 367, 376 (1968). To determine whether conduct is sufficiently expressive, the Court asks whether it was “intended to be communicative” and, “in context, would reasona- bly be understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence , 468 U. S. 288, 294 (1984). But a “ ‘particularized message’ ” is not required, or else the freedom of speech “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley , 515 U. S., at 569. Once a court concludes that conduct is expressive, the Constitution limits the government’s authority to restrict or compel it. “[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide ‘what not to say’ ” and “tailor” the content of his message as he sees fit. Id., at 573 (quoting Pacific Gas & Elec. Co. v. Public Util. Comm’n of Cal. , 475 U. S. 1, 16 (1986) (plurality opinion)). This rule “applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid.” Hurley , supra , at 573. And it “makes no difference” whether the government is regulating the “creati[on], distributi[on], or consum[ption]” of the speech. Brown v. Entertainment Merchants Assn. , 564 U. S. 786, 792, n. 1 (2011). II A The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist’s paint palate with a paintbrush and baker’s whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece’s website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018). Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that “a wedding has occurred, a marriage has begun, and the couple should be celebrated.” App. 162. Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, “[w]edding cakes are so packed with symbolism that it is hard to know where to begin.” M. Krondl, Sweet Invention: A History of Dessert 321 (2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and cutting of the cake). If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is “so standardised and inevitable a part of getting married that few ever think to question it.” Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. “A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards.” Ibid. Although the cake is eventually eaten, that is not its primary purpose. See id., at 95 (“It is not unusual to hear people declaring that they do not like wedding cake, meaning that they do not like to eat it. This includes people who are, without question, having such cakes for their weddings”); id., at 97 (“Nothing is made of the eating itself”); Krondl 320–321 (explaining that wedding cakes have long been described as “inedible”). The cake’s purpose is to mark the beginning of a new marriage and to celebrate the couple.[ 2 ] Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, Barnes v. Glen Theatre, Inc. , 501 U. S. 560, 565–566 (1991), or flying a plain red flag, Stromberg v. California , 283 U. S. 359, 369 (1931).[ 3 ] By forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado’s public-accommodations law “alter[s] the expressive content” of his message. Hurley , 515 U. S., at 572. The meaning of expressive conduct, this Court has explained, depends on “the context in which it occur[s].” Johnson , 491 U. S., at 405. Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” Hurley , 515 U. S., at 574, or to “affir[m] . . . a belief with which [he] disagrees,” id., at 573. B The Colorado Court of Appeals nevertheless concluded that Phillips’ conduct was “not sufficiently expressive” to be protected from state compulsion. 370 P. 3d, at 283. It noted that a reasonable observer would not view Phillips’ conduct as “an endorsement of same-sex marriage,” but rather as mere “compliance” with Colorado’s public-accommodations law. Id., at 286–287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc. , 547 U. S. 47, 64–65 (2006) ( FAIR ); Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819, 841–842 (1995); PruneYard Shopping Center v. Robins , 447 U. S. 74, 76–78 (1980)). It also emphasized that Masterpiece could “disassociat[e]” itself from same-sex marriage by posting a “disclaimer” stating that Colorado law “requires it not to discriminate” or that “the provision of its services does not constitute an endorsement.” 370 P. 3d, at 288. This reasoning is badly misguided. 1 The Colorado Court of Appeals was wrong to conclude that Phillips’ conduct was not expressive because a reasonable observer would think he is merely complying with Colorado’s public-accommodations law. This argument would justify any law that compelled protected speech. And, this Court has never accepted it. From the beginning, this Court’s compelled-speech precedents have rejected arguments that “would resolve every issue of power in favor of those in authority.” Barnette , 319 U. S., at 636. Hurley , for example, held that the application of Massachusetts’ public-accommodations law “requir[ed] [the organizers] to alter the expressive content of their parade.” 515 U. S., at 572–573. It did not hold that reasonable observers would view the organizers as merely complying with Massachusetts’ public-accommodations law. The decisions that the Colorado Court of Appeals cited for this proposition are far afield. It cited three decisions where groups objected to being forced to provide a forum for a third party’s speech. See FAIR , supra , at 51 (law school refused to allow military recruiters on campus); Rosenberger , supra , at 822–823 (public university refused to provide funds to a religious student paper); PruneYard , supra , at 77 (shopping center refused to allow individuals to collect signatures on its property). In those decisions, this Court rejected the argument that requiring the groups to provide a forum for third-party speech also required them to endorse that speech. See FAIR , supra , at 63–65; Rosenberger , supra , at 841–842; PruneYard , supra , at 85–88. But these decisions do not suggest that the government can force speakers to alter their own message. See Pacific Gas & Elec. , 475 U. S., at 12 (“Notably absent from PruneYard was any concern that access . . . might affect the shopping center owner’s exercise of his own right to speak”); Hurley , supra , at 580 (similar). The Colorado Court of Appeals also noted that Masterpiece is a “for-profit bakery” that “charges its customers.” 370 P. 3d, at 287. But this Court has repeatedly rejected the notion that a speaker’s profit motive gives the government a freer hand in compelling speech. See Pacific Gas & Elec. , supra , at 8, 16 (collecting cases); Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. , 425 U. S. 748, 761 (1976) (deeming it “beyond serious dispute” that “[s]peech . . . is protected even though it is carried in a form that is ‘sold’ for profit”). Further, even assuming that most for-profit companies prioritize maximizing profits over communicating a message, that is not true for Masterpiece Cakeshop. Phillips routinely sacri- fices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween—even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Masterpiece sends are still more evidence that Phillips’ conduct is expressive. See Miami Herald Publishing Co. v. Tornillo , 418 U. S. 241, 256–258 (1974); Walker v. Texas Div., Sons of Confederate Veterans, Inc. , 576 U. S. ___, ___ (2015) (slip op., at 15). 2 The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage. Again, this argument would justify any law compelling speech. And again, this Court has rejected it. We have described similar arguments as “beg[ging] the core question.” Tornillo , supra , at 256. Because the government cannot compel speech, it also cannot “require speakers to affirm in one breath that which they deny in the next.” Pacific Gas & Elec. , 475 U. S., at 16; see also id., at 15, n. 11 (citing PruneYard , 447 U. S., at 99 (Powell, J., concurring in part and concurring in judgment)). States cannot put individuals to the choice of “be[ing] compelled to affirm someone else’s belief” or “be[ing] forced to speak when [they] would prefer to remain silent.” Id., at 99. III Because Phillips’ conduct (as described by the Colorado Court of Appeals) was expressive, Colorado’s public-accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O’Brien ,[ 4 ] that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g., Barnes , 501 U. S., at 566–572 (applying O’Brien to evaluate the application of a general nudity ban to nude dancing); Clark , 468 U. S., at 293 (applying O’Brien to evaluate the application of a general camping ban to a demonstration in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand “ ‘the most exacting scrutiny.’ ” Johnson , 491 U. S., at 412; accord, Holder v. Humanitarian Law Project , 561 U. S. 1, 28 (2010). The Court of Appeals did not address whether Colo- rado’s law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado’s law. According to the individual respondents, Colorado can compel Phillips’ speech to prevent him from “ ‘denigrat[ing] the dignity’ ” of same-sex couples, “ ‘assert[ing] [their] inferior- ity,’ ” and subjecting them to “ ‘humiliation, frustration, and embarrassment.’ ” Brief for Respondents Craig et al. 39 (quoting J. E. B. v. Alabama ex rel. T. B. , 511 U. S. 127, 142 (1994); Heart of Atlanta Motel, Inc. v. United States , 379 U. S. 241, 292 (1964) (Goldberg, J., concurring)). These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Johnson , supra , at 414. A contrary rule would allow the government to stamp out virtually any speech at will. See Morse v. Frederick , 551 U. S. 393, 409 (2007) (“After all, much political and religious speech might be perceived as offensive to some”). As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Ante, at 16. “ ‘Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.’ ” Hustler Magazine, Inc. v. Falwell , 485 U. S. 46, 55 (1988); accord, Johnson , supra , at 408–409. If the only reason a public-accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.” Hurley , 515 U. S., at 578–579; see also United States v. Playboy Entertainment Group, Inc. , 529 U. S. 803, 813 (2000) (“Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails”). “[A] speech burden based on audience reactions is simply government hostility . . . in a different guise.” Matal v. Tam , 582 U. S. ___, ___ (2017) (Kennedy, J., concurring in part and concurring in judgment) (slip op., at 4). Consider what Phillips actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “ ‘I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.’ ” App. 168. It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. See Hurley , supra , at 574–575; Dale , 530 U. S., at 644; Snyder v. Phelps , 562 U. S. 443, 448 (2011). Moreover, it is also hard to see how Phillips’ statement is worse than the racist, demeaning, and even threatening speech toward blacks that this Court has tolerated in previous decisions. Concerns about “dignity” and “stigma” did not carry the day when this Court affirmed the right of white supremacists to burn a 25-foot cross, Virginia v. Black , 538 U. S. 343 (2003); conduct a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement , 505 U. S. 123 (1992); or circulate a film featuring hooded Klan members who were brandishing weapons and threatening to “ ‘Bury the niggers,’ ” Brandenburg v. Ohio , 395 U. S. 444, 446, n. 1 (1969) ( per curiam ). Nor does the fact that this Court has now decided Obergefell v. Hodges , 576 U. S. ___ (2015), somehow diminish Phillips’ right to free speech. “It is one thing . . . to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted” and unentitled to express a different view. Id. , at ___ (Roberts, C. J., dissenting) (slip op., at 29). This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” Id ., at ___ (majority opinion) (slip op., at 4). If Phillips’ continued adherence to that understanding makes him a minority after Obergefell , that is all the more reason to insist that his speech be protected. See Dale , supra , at 660 (“[T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view”). *  *  * In Obergefell , I warned that the Court’s decision would “inevitabl[y] . . . come into conflict” with religious liberty, “as individuals . . . are confronted with demands to participate in and endorse civil marriages between same-sex couples.” 576 U. S., at ___ (dissenting opinion) (slip op., at 15). This case proves that the conflict has already emerged. Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day. But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.” Id., at ___ (Alito, J., dissenting) (slip op., at 6). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals’ must be rejected. Notes 1 Barnes v. Glen Theatre, Inc. , 501 U. S. 560, 565–566 (1991); Texas v. Johnson , 491 U. S. 397, 405–406 (1989); Spence v. Washington , 418 U. S. 405, 406, 409–411 (1974) ( per curiam ); Schacht v. United States , 398 U. S. 58, 62–63 (1970); Tinker v. Des Moines Independent Community School Dist. , 393 U. S. 503, 505–506 (1969); Brown v. Louisiana , 383 U. S. 131, 141–142 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 633–634 (1943); Stromberg v. California , 283 U. S. 359, 361, 369 (1931). 2 The Colorado Court of Appeals acknowledged that “a wedding cake, in some circumstances, may convey a particularized message celebrating same-sex marriage,” depending on its “design” and whether it has “written inscriptions.” Craig v. Masterpiece Cakeshop, Inc. , 370 P. 3d 272, 288 (2015). But a wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 96 (1987). And regardless, the Commission’s order does not distinguish between plain wedding cakes and wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a same-sex wedding that he would make for an opposite-sex wedding. 3 The dissent faults Phillips for not “submitting . . . evidence” that wedding cakes communicate a message. Post, at 2, n. 1 (opinion of Ginsburg, J.). But this requirement finds no support in our precedents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. , 515 U. S. 557, 568–570 (1995); Spence , 418 U. S., at 410–411; Barnes , 501 U. S., at 565–566. And we do not need extensive evidence here to conclude that Phillips’ artistry is expressive, see Hurley , 515 U. S., at 569, or that wedding cakes at least communicate the basic fact that “this is a wedding,” see id., at 573–575. Nor does it matter that the couple also communicates a message through the cake. More than one person can be engaged in protected speech at the same time. See id. , at 569–570. And by forcing him to provide the cake, Colorado is requiring Phillips to be “intimately connected” with the couple’s speech, which is enough to implicate his First Amendment rights. See id., at 576. 4 “[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v. O’Brien , 391 U. S. 367, 377 (1968). SUPREME COURT OF THE UNITED STATES _________________ No. 16–111 _________________ MASTERPIECE CAKESHOP, LTD., et al., PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION, et al. on writ of certiorari to the court of appeals of colorado [June 4, 2018] Justice Ginsburg, with whom Justice Sotomayor joins, dissenting. There is much in the Court’s opinion with which I agree. “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ante, at 9. “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. “[P]urveyors of goods and services who object to gay marriages for moral and religious reasons [may not] put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’ ” Ante, at 12. Gay persons may be spared from “indignities when they seek goods and services in an open market.” Ante, at 18.[ 1 ] I strongly disagree, however, with the Court’s conclusion that Craig and Mullins should lose this case. All of the above-quoted statements point in the opposite direction. The Court concludes that “Phillips’ religious objection was not considered with the neutrality that the Free Exercise Clause requires.” Ante, at 17. This conclusion rests on evidence said to show the Colorado Civil Rights Commission’s (Commission) hostility to religion. Hostility is discernible, the Court maintains, from the asserted “disparate consideration of Phillips’ case compared to the cases of” three other bakers who refused to make cakes requested by William Jack, an amicus here. Ante, at 18. The Court also finds hostility in statements made at two public hearings on Phillips’ appeal to the Commission. Ante, at 12–14. The different outcomes the Court features do not evidence hostility to religion of the kind we have previously held to signal a free-exercise violation, nor do the comments by one or two members of one of the four decisionmaking entities considering this case justify reversing the judgment below. I On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal from that decision—William Jack visited three Colorado bakeries. His visits followed a similar pattern. He requested two cakes “made to resemble an open Bible. He also requested that each cake be decorated with Biblical verses. [He] requested that one of the cakes include an image of two groomsmen, holding hands, with a red ‘X’ over the image. On one cake, he requested [on] one side[,] . . .  ‘God hates sin. Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is a detestable sin. Leviticus 18:2.’ On the second cake, [the one] with the image of the two groomsmen covered by a red ‘X’ [Jack] requested [these words]: ‘God loves sinners’ and on the other side ‘While we were yet sinners Christ died for us. Romans 5:8.’ ” App. to Pet. for Cert. 319a; see id., at 300a, 310a. In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no message or anything else distinguishing the cake they wanted to buy from any other wedding cake Phillips would have sold. One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate them with the requested messages; the owner told Jack her bakery “does not discriminate” and “accept[s] all humans.” Id. , at 301a (internal quotation marks omitted). The second bakery owner told Jack he “had done open Bibles and books many times and that they look amazing,” but declined to make the specific cakes Jack described because the baker regarded the messages as “hateful.” Id. , at 310a (internal quotation marks omitted). The third bakery, according to Jack, said it would bake the cakes, but would not include the requested message. Id. , at 319a.[ 2 ] Jack filed charges against each bakery with the Colo- rado Civil Rights Division (Division). The Division found no probable cause to support Jack’s claims of unequal treatment and denial of goods or services based on his Christian religious beliefs. Id. , at 297a, 307a, 316a. In this regard, the Division observed that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customer requests for designs demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. See id. , at 305a, 314a, 324a. The Commission summarily affirmed the Division’s no-probable-cause finding. See id., at 326a–331a. The Court concludes that “the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of [the other bakers’] objections.” Ante, at 15. See also ante, at 5–7 (Gorsuch, J., concurring). But the cases the Court aligns are hardly comparable. The bakers would have refused to make a cake with Jack’s requested message for any customer, regardless of his or her religion. And the bakers visited by Jack would have sold him any baked goods they would have sold anyone else. The bakeries’ refusal to make Jack cakes of a kind they would not make for any customer scarcely resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell to Craig and Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold to others. When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied. Cf. ante, at 3–4, 9–10 (Gorsuch, J., concurring). Colorado, the Court does not gainsay, prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1. Jack, on the other hand, suffered no service refusal on the basis of his religion or any other protected characteristic. He was treated as any other customer would have been treated—no better, no worse.[ 3 ] The fact that Phillips might sell other cakes and cookies to gay and lesbian customers[ 4 ] was irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would not provide a good or service to a same-sex couple that he would provide to a heterosexual couple. In contrast, the other bakeries’ sale of other goods to Christian customers was relevant: It shows that there were no goods the bakeries would sell to a non-Christian customer that they would refuse to sell to a Christian customer. Cf. ante, at 15. Nor was the Colorado Court of Appeals’ “difference in treatment of these two instances . . . based on the government’s own assessment of offensiveness.” Ante, at 16. Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display. As the Court recognizes, a refusal “to design a special cake with words or images . . . might be different from a refusal to sell any cake at all.” Ante, at 2.[ 5 ] The Colorado Court of Appeals did not distinguish Phillips and the other three bakeries based simply on its or the Division’s finding that messages in the cakes Jack requested were offensive while any message in a cake for Craig and Mullins was not. The Colorado court distinguished the cases on the ground that Craig and Mullins were denied service based on an aspect of their identity that the State chose to grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 (“The Division found that the bakeries did not refuse [Jack’s] request because of his creed, but rather because of the offensive nature of the requested message. . . . [T]here was no evidence that the bakeries based their decisions on [Jack’s] religion . . . [whereas Phillips] discriminat[ed] on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado Legislature’s decision to include certain protected characteristics in CADA is an impermissible government prescription of what is and is not offensive. Cf. ante, at 9–10. To repeat, the Court affirms that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” Ante, at 10. II Statements made at the Commission’s public hearings on Phillips’ case provide no firmer support for the Court’s holding today. Whatever one may think of the statements in historical context, I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one. See App. to Pet. for Cert. 5a–6a. First, the Division had to find probable cause that Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s ruling, the Colorado Court of Appeals considered the case de novo . What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say. Phillips’ case is thus far removed from the only precedent upon which the Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520 (1993), where the government action that violated a principle of religious neutrality implicated a sole decisionmaking body, the city council, see id., at 526–528. *  *  * For the reasons stated, sensible application of CADA to a refusal to sell any wedding cake to a gay couple should occasion affirmance of the Colorado Court of Appeals’ judgment. I would so rule. Notes 1 As Justice Thomas observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor could it, consistent with our First Amendment precedents. Justice Thomas acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative. Ante, at 4 (citing Clark v. Community for Creative Non-Violence , 468 U. S. 288, 294 (1984)). The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. See ante, at 5–6 (Thomas, J., concurring in part and concurring in judgment) (describing how Phillips “considers” and “sees” his work). But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation of wedding cakes’ symbolism was forthcoming “even amongst those who might be expected to be the experts”); id., at 104–105 (the cake cutting tradition might signify “the bride and groom . . . as appropriating the cake” from the bride’s parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct. Cf. ante, at 7, n. 2 (Thomas, J., concurring in part and concurring in judgment); Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, Inc. , 515 U. S. 557, 568–579 (1995) (citing previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc. , 501 U. S. 560, 565 (1991) (noting precedents suggesting nude dancing is expressive conduct); Spence v. Washington , 418 U. S. 405, 410 (1974) (observing the Court’s decades-long recognition of the symbolism of flags). 2 The record provides no ideological explanation for the bakeries’ refusals. Cf. ante, at 1–2, 9, 11 (Gorsuch, J., concurring) (describing Jack’s requests as offensive to the bakers’ “secular” convictions). 3 Justice Gorsuch argues that the situations “share all legally sa-lient features.” Ante, at 4 (concurring opinion). But what criticallydifferentiates them is the role the customer’s “statutorily protected trait,” ibid. , played in the denial of service. Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request. The bakers’ objections to Jack’s cakes had nothing to do with “religious opposition to same-sex weddings.” Ante, at 6 (Gorsuch, J., concurring). Instead, the bakers simply refused to make cakes bearing statements demeaning to people protected by CADA. With respect to Jack’s second cake, in particular, where he requested an image of two groomsmen covered by a red “X” and the lines “God loves sinners” and “While we were yet sinners Christ died for us,” the bakers gave not the slightest indication that religious words, rather than the demeaning image, prompted the objection. See supra, at 3. Phillips did, therefore, discriminate because of sexual orientation; the other bakers did not discriminate because of religious belief; and the Commission properly found discrimination in one case but not the other. Cf. ante, at 4–6 (Gorsuch, J., concurring). 4 But see ante, at 7 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple cupcakes for a celebration of their union). 5 The Court undermines this observation when later asserting that the treatment of Phillips, as compared with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to the question of whether speech is involved.” Ante, at 15. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were turned away before any specific cake design could be discussed. (It appears that Phillips rarely, if ever, produces wedding cakes with words on them—or at least does not advertise such cakes. See Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/ wedding-cakes (as last visited June 1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text and one without, see ante, at 8–9 (Gorsuch, J., concurring); it is between a cake with a particular design and one whose form was never even discussed.

The Supreme Court ruled in favor of the baker, citing concerns about the Colorado Civil Rights Commission's handling of the case and its potential violation of the baker's First Amendment rights. The Court emphasized the need to balance the rights of gay persons against discrimination with the fundamental freedoms of speech and religion. The Court suggested that the baker's refusal to create a custom cake with a specific message celebrating the wedding differed from refusing to sell any cake at all. The Court also noted inconsistencies in how the Commission treated other bakeries in similar situations, indicating potential bias.

Property Rights & Land Use

U.S. v. Percheman

https://supreme.justia.com/cases/federal/us/32/51/

U.S. Supreme Court United States v. Percheman, 32 U.S. 7 Pet. 51 51 (1832) United States v. Percheman 32 U.S. (7 Pet.) 51 APPEAL FROM THE SUPERIOR COURT FOR THE EASTERN DISTRICT OF FLORIDA Syllabus Juan Percheman claimed two thousand acres of land lying in the Territory of Florida by virtue of a grant from the Spanish governor made in 1815. His title consisted of a petition presented by himself to the Governor of East Florida, praying for a grant of two thousand acres at a designated place in pursuance of the royal order of 29 March, 1815, granting lands to the military who were in St. Augustine during the invasion of 1812 and 1813; a decree by the governor made 12 December, 1815, in conformity to the petition, in absolute property, under the authority of the royal order, a certified copy of which decree and of the petition was directed to be issued to him from the secretary's offices in order that it may be to him in all events an equivalent of a title in form; a petition to the governor dated 31 December, 1815, for an order of survey, and a certificate of a survey having been made on 20 August, 1819, in obedience to the same. This claim was presented, according to law, to the Register and Receiver of East Florida, while acting as a board of commissioners to ascertain claims and titles to lands in East Florida. The claim was rejected by the board, and the following entry made of the same: "In the memorial of the claimant to this board, he speaks of a survey made by" authority in 1829. If this had been produced, it would have furnished some support for the certificate of Aguilar. As it is, we reject the claim. Held that this was not a final action on the claim in "the sense those words are used in the Act of 26 May, 1830 entitled An act supplementary to,'" &c. Even in cases of conquest, it is very unusual for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled on a change in the sovereignty of the country. The people change their allegiance, their relation to their ancient sovereign is dissolved, but their relations to each other and their rights of property remain undisturbed. Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change. It would have retrained the same as under the ancient sovereign. The language of the second article of the Treaty between the United States and Spain of 22 February, 1819, by which Florida was ceded to the United States, conforms to this general principle. The eighth article of the treaty must be intended to stipulate expressly for Page 32 U. S. 52 the security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old. And those titles, so far at least as they were consummated, might be asserted in the courts of the United States independently of this article. The treaty was drawn up in the Spanish as well as in the English languages. Both are original, and were unquestionably intended by the parties to be identical. The Spanish has been translated, and it is now understood that the article expressed in that language is that "the grants shall retrain ratified and confirmed to the persons in possession of them, to the same extent," &c., thus conforming exactly to the universally received law of nations. If the English and Spanish part can, without violence, be made to agree, that construction which establishes this conformity ought to prevail. No violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other. Although the words "shall be ratified and confirmed" are properly words of contract, stipulating for some future legislation, they are not necessarily so. They may import that "they shall be ratified and confirmed" by force of the instrument itself. When it is observed that in the counterpart of the same treaty, executed at the same time, by the same parties, they are used in this sense, the construction is proper, if not unavoidable. In the case of Foster v. Elam , 2 Pet. 253, this Court considered those words importing a contract. The Spanish part of the treaty was not then brought into view, and it was then supposed there was no variance between them. It was not supposed that there was even a formal difference of expression in the same instrument, drawn up in the language of each party. Had this circumstance been known, it is believed it would have produced the construction which it now given to the article. On 8 May, 1822, an act was passed "for ascertaining claims and titles to land within the Territory of Florida." Congress did not design to submit the validity of titles which were "valid under the Spanish government or by the law of nations" to the determination of the commissioners acting under this law. It was necessary to ascertain these claims and to ascertain their location, not to decide finally upon them. The powers to be exercised by the commissioners ought to be limited to the object and purpose of the act. In all the acts passed upon this subject previous to May, 1830, the decisions of the commissioners or of the register and receiver acting as commissioners have been confirmed. Whether these acts affirm those decisions by which claims are rejected, as well as those by which they are recommended for confirmation, admits of some doubt. Whether a rejection amounts to more than a refusal to recommend for confirmation may be a subject of serious inquiry. However this may be, it can admit of no doubt that the decision of the commissioners was conclusive in no Page 32 U. S. 53 case until confirmed by an act of Congress. The language of these acts, and among others that of the act of 1828, would indicate that the mind of Congress was directed solely to the confirmation of claims, not to their annulment. The decision of this question is not necessary to this case. The Act of 26 May, 1830, entitled "An act to provide for the final settlement of land claims in Florida," contains the action of Congress on the report of the commissioners of 14 January, 1830, in which is the rejection of the claim of the petitioner in this case. The first, second and third sections of this act confirm the claims recommended for confirmation by the commissioners. The fourth section enacts "That all remaining claims, which have been presented according to law, and not finally acted upon, shall be adjudicated and finally settled upon the same conditions," &c. It is apparent that no claim was finally acted upon until it had been acted upon by Congress, and it is equally apparent that the action of Congress in the report containing this claim is confined to the confirmation of those titles which were recommended for confirmation. Congress has not passed upon those which were rejected. They were, of consequence, expressly submitted to the court. From the testimony in the case, it does not appear that the Governor of Florida, under whose grant the land is claimed by the petitioner, exceeded his authority in making the grant. Papers translated from a foreign language respecting the transactions of foreign officers with whose powers and authorities the court are not well acquainted, containing uncertain and incomplete references to things well understood by the parties but not understood by the court, should be carefully examined before it pronounces that an officer holding a high place of trust and confidence has exceeded his authority. On general principles of law, a copy of a paper given by a public officer whose duty it is to keep the originals ought to be received in evidence. On 17 September, 1830, Juan Percheman filed in the clerk's office of the Superior Court for the Eastern District of Florida a petition, setting forth his claim to a tract of land containing two thousand acres within the District of East Florida, situated at a place called the Ockliwaha, along the margin of the River St. John. The petitioner stated that he derived his title to the said tract of land under a grant made to him on 12 December, 1815, by Governor Estrada, then Spanish Governor of East Florida, and whilst East Florida belonged to Spain. The documents exhibiting the alleged title annexed to the petition were the following: Page 32 U. S. 54 "His Excellency the Governor: Don Juan Percheman, ensign of the corps of dragoons of America, and stationed in this place, with due veneration and respect appears before your Excellency and says that in virtue of the bounty in lands which, pursuant to his royal order of 29 March of the present year, the King grants to the military which were of this place in the time of the invasion which took place in the years 1812 and 1813, and your petitioner considering himself as being comprehended in the said sovereign resolution, as it is proved by the annexed certificates of his lordship Brigadier Don Sebastian Kindelan, and by that which your lordship thought proper to provide herewith, which certificates express the merits and services rendered by your petitioner at the time of the siege, in consequence of which said bounties were granted to those who deserved them, and which said certificates your petitioner solicits from your goodness may be returned to him for any other purposes which may be useful to your petitioner; therefore he most respectfully supplicates your lordship to grant him two thousand acres of land in the place called Ockliwaha, situated on the margin of St. John's River, which favor he doubts not to receive from your good heart and paternal dispositions. St. Augustine of Florida, 8 December, 1815." "JUAN PERCHEMAN" "St. Augustine of Florida, 12 December, 1815. Whereas, this officer, the party interested, by the two certificates enclosed and which will be returned to him for the purposes which may be convenient to him, has proved the services which he rendered in the defense of this province, and in consideration also of what is provided in the royal order of 29 March last past, which he cites, I do grant him the two thousand acres of land which he solicits, in absolute property in the indicated place, to which effect let a certified copy of this petition and decree be issued to him from the secretary's office in order that it may be to him, in all events, an equivalent of a title in form." "ESTRADA" "PETITION. His Excellency the Governor:" "Don Juan Percheman, sergeant of the squadron of dragoons of America, stationed in this place, with due veneration and respect, appears before your Excellency, and says that in virtue of the royal Page 32 U. S. 55 bounties in lands, granted by his Majesty, by his royal order of 29 March of the present year, to the military individuals who were in this place aforesaid, in the time of the invasion thereof, in the years 1812 and 1813, and your petitioner considering himself as included in the said royal resolution, as he proves it by the annexed certificates, exhibited with due solemnity, one of them from the Brigadier Don Sebastian Kindelan, and the other with which your Excellency thought proper to provide him, which certificates express the merits and services which he acquired and rendered in the time and epochs of the siege, in consequence of which the meritorious were thus rewarded, and which certificates your Excellency will be pleased to return to your petitioner, for other purposes which may be useful to him, wherefore, your petitioner most respectfully supplicates your Excellency to be pleased to grant him two thousand acres of land, in the place called Ockliwaha, situated on the margins of the River St. John, which favor he doubts not to receive from the benevolent and charitable dispositions of your Excellency. St. Augustine of Florida, on 8 December, 1815." "JUAN PERCHEMAN" "DECREE. St. Augustine of Florida, on 12 December, 1815. Whereas, this officer interested proves by the two certificates annexed, and which will be returned to him for such purposes as may suit him, the services which he has rendered in the defense of this province, and also in consideration of the provisions of the royal order, under date 29 March last, which is referred to, I do grant to him in absolute property the two thousand acres of land in the place which he indicates, for the attainment of which, let a certified copy of this petition and decree be issued to him, which documents will at all events serve him as a title in form." "ESTRADA" "I, Don Tomas de Aguilar, under-lieutenant of the army, and secretary for his Majesty of the government of this place, and of the province thereof, do certify that the preceding copy is faithfully drawn from the original, which exists in the secretary's office under my charge, and in obedience to what is Page 32 U. S. 56 ordered, I give the present, in St. Augustine of Florida, on 12 December, 1815." "TOMAS DE AGUILAR" "PETITION FOR SURVEY. His Excellency the governor:" "Don Juan Percheman, ensign of the corps or dragoons and commandant of the detachment of the same stationed in this place, with due respect represents to your Excellency that this government having granted your petitioner two thousand acres of land in the place called Ockliwaha, on the margin of the River St. John, he may be permitted to have the same surveyed by a competent surveyor as soon and at any time your petitioner will find it convenient, which favor your petitioner hopes to receive from the high consideration of your Excellency. St. Augustine of Florida, on 31 December, 1815." "JUAN PERCHEMAN" "St. Augustine, 31 December 1815. The preceding petition is granted." "ESTRADA" I, Don Robert McHardy, an inhabitant of this province, and appointed surveyor, by decree of this government, rendered on the 31st December 1815 in behalf of the interested party, do certify, that I have surveyed for Don Juan Percheman, lieutenant of the Havana dragoons, a tract of land containing two thousand acres, situated on the south side of Ockliwaha, and is conformable in all its circumstances to the following plat. In testimony whereof, I sign the present, in St. Augustine of Florida, on the 20th of August 1819. "R'T McHARDY" The petitioner proceeds to state that his claim to said tract of land so claimed by him was submitted to the examination of the board of commissioners appointed under and in virtue of an act of the Congress of the United States of America entitled "An act for ascertaining claims and titles to lands in the Territory of Florida, and to provide for the survey and disposal of the public lands in Florida," passed 3 March, 1823. And that the land so claimed by him, and situated as aforesaid within the Territory of Florida and within the jurisdiction Page 32 U. S. 57 of this Honorable Court, as aforesaid, was embraced by the Treaty between Spain and the United States of 22 February, 1819; that his claim to said land had not been finally settled under the provisions of the Act of the Congress of the United States entitled "An act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida," passed 23 May, 1828, or of any of the acts to which the said last-recited act is supplementary, and that the claim of the petitioner to the said land had not been reported by the said commissioners appointed under any of the said acts of Congress or any other, or by the register and receiver acting as such under the several acts of the Congress of the United States in such case made and provided, as antedated or forged, and that the said claim had not been annulled by the aforesaid treaty between Spain and the United States, nor by the decree ratifying the same. Wherefore he prayed that the validity of his claim to said land might be inquired into and decided upon by the court and that, in pursuance of an act of Congress for that purpose, in that case made and provided, the United States be made a party defendant to this petition, and that process, &c. On the 2d of October, the attorney of the United States for the District of East Florida filed an answer to the petition of Juan Percheman in which it is stated that on 28 November, 1823, he, the said Juan Percheman, sold, transferred and conveyed to one Francis P. Sanchez all his right, title, and interest in the tract of land claimed by him, which, the answer asserted, appeared by a copy of the conveyance annexed to the action, and that he had not, at the time of the filing of his petition, any right, title, or interest in the land. The answer admitted that the claim of the said Francis P. Sanchez to the said tract of land was duly presented to the register and receiver of the district while they were acting as a board of commissioners to ascertain titles to land in East Florida, and averred that the said claim was finally acted upon and rejected by the said register and receiver, while lawfully acting as aforesaid, as appeared by a copy of their report thereon annexed to the answer. The United States further said that the tract of land claimed Page 32 U. S. 58 by the petitioner contains a less quantity than 3,500 acres, to-wit, but 2,000 acres, by the showing of the petitioner himself, and that the court had no jurisdiction in the case, nor could any court exercise jurisdiction over the claim against the United States. The answer submitted that if the Governor Estrada did make the grant or concession set forth by the petitioner at the time "and in the manner alleged in the said petition of bill of complaint, he made it contrary to the laws, ordinances, and royal regulations of the government of Spain which were then in force in East Florida on the subject of granting lands, and without any power or authority to do so, and that the said grant was therefore null and void, and that the right and title to said tract of land consequently vested in the said United States, as will more fully appear by reference to the laws, ordinances, and royal regulations aforesaid." The proceedings of the register and receiver on the claim of Francis P. Sanchez, referred to in the answer, were as follows: "This is a certificate of Thomas de Aguilar that in December, 1815, Estrada granted Don Juan Percheman, cornet of squadron of dragoons, for services, two thousand acres of land at a place called Ockliwaha, on the St. John's River. In 1819, Percheman sold to Sanchez. In the memorial of the claimant to this board, he speaks of a survey made by authority in 1819. If this had been produced, it would have furnished some support to the certificate of Aguilar. As it is, we reject the claim." The petitioner, by an amended petition, filed on t14 December, 1830, stated, that the Register and Receiver of the United States for East Florida, in their final report on the land claims, transmitted on 12 December, 1828, to the Secretary of the Treasury, reported the claim of the petitioner as rejected on the ground that the claim depended on a certificate only of Don Thomas Aguilar, notary of the Spanish government in East Florida, and he averred that his claim depended on an original grant on file in the Office of the Public Archives of East Florida, a certified copy of which was filed with the petition in the court, dated 8 December, 1815. The amended petition also stated that the sale made by him Page 32 U. S. 59 of the tract of land described in the original petition was a conditional sale, and no more. It also stated that the register and receiver further reported that the survey of the tract of land, made by the authority of the Spanish government, was not produced to them, but the petitioner averred the contrary, for that the survey was filed with the claim, and was before them when they examined the same; for the truth of which averment, a certificate from the keeper of the office of archives was filed with the amended petition. On the hearing of the case before the Supreme Court for the District of East Florida, the claimant, by his counsel, offered in evidence a copy from the Office of the Keeper of Public Archives of the original grant on which this claim was founded, to the receiving of which in evidence the said attorney for the United States objected, alleging that the original grant itself should be produced and its execution proved before it could be admitted in evidence, and that the original only could be received in evidence, which objection, after argument from the counsel, was overruled by the court, and the copy from the Office of the Keeper of the Public Archives, certified according to law, was ordered to be received in evidence. And the court further ordered that though, by the express statute of this territory, copies are to be received in evidence, yet, in cases where either the claimant or the United States shall suggest that the original in the Office of the Keeper of the Public Archives is deemed necessary to be produced in court, on motion therefor, a subpoena will be issued by order of the court to the said keeper to appear and produce the said original in court for due examination there. The court proceeded to a decree in the case and adjudged that the claim of the petitioner as presented was within its jurisdiction -- "that the grant is valid, that it ought to be, and by virtue of the statute of 26 May, 1830, and of the late treaty between the United States and Spain, it is confirmed." The United States appealed to this Court. Page 32 U. S. 82 MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court. This is an appeal from a decree pronounced by the Judge of the Superior Court for the District of East Florida confirming the title of the appellee to 2,000 acres of land lying in that territory which he claimed by virtue of a grant from the Spanish governor made in December, 1815. The title laid before the district court by the petitioner consists of a petition presented by himself to the Governor of East Florida, praying for a grant of 2,000 acres of land in the place called Ockliwaha, situated on the margin of St. John's River, which Page 32 U. S. 83 he prays for in pursuance of the royal order of 29 March, 1815, granting lands to the military who were in St. Augustine, during the invasion in the years 1812 and 1813, to which the following grant is attached. "St. Augustine of Florida, 12th of December 1815. Whereas this officer, the party interested, by the two certificates enclosed and which will be returned to him for the purposes which may be convenient to him, has proved the services which he rendered in defense of this province, and in consideration also of what is provided in the royal order of 29 March last past, which he cites, I do grant him the two thousand acres of land which he solicits in absolute property in the indicated place, to which effect let a certified copy of this petition and decree be issued to him from the secretary's office in order that it may be to him in all events an equivalent of a title in form." "ESTRADA" In a copy of the grant certified by Thomas de Aguilar, secretary of his Majesty's government, the words "which documents will at all events serve him as a title in form" are employed instead of the words "in order that it may be to him in all events an equivalent of a title in form." The petitioner also filed his petition to the governor for an order of survey, dated 31f December, 1815, which was granted on the same day, and a certificate of Robert McHardy, the surveyor, dated 20 August, 1813, that the survey had been made. The attorney of the United States for the district, in his answer to this petition, states that on 28 November, 1823, the petitioner sold and conveyed his right in and to the said tract of land to Francis P. Sanchez, as will appear by the deed of conveyance to which he refers; that the claim was presented by the said Francis P. Sanchez to the register and receiver, while acting as a board of commissioners to ascertain claims and titles to land in East Florida, and was finally acted upon and rejected by them, as appears by a copy of their report thereon. As the tract claimed by the petitioner contains less than 3,500 acres of land and had been rejected by the register and receiver acting as a board of Page 32 U. S. 84 commissioners, the attorney contended that the court had no jurisdiction of the case. At the trial, the counsel for the claimant offered in evidence a copy from the office of the keeper of public archives of the original grant on which the claim was founded, to the receiving of which in evidence the attorney for the United States objected, alleging that the original grant itself should be procured and its execution proved. This objection was overruled by the court, and the copy from the Office of the Keeper of the Public Archives, certified according to law, was admitted. The attorney for the United States excepted to this opinion. It appears from the words of the grant that the original was not in possession of the grantee. The decree which constitutes the title appears to be addressed to the officer of the government whose duty it was to keep the originals and to issue a copy. Its language, after granting in absolute property, is "for the attainment of which let a certified copy of this petition and decree be issued to him for the secretary's office, in order that it may be to him in all events equivalent to a title is form." This copy is, in contemplation of law, an original. It appears, too, from the opinion of the judge "that by an express statute of the territory, copies are to be received in evidence." The judge added that "Where either party shall suggest that the original in the Office of the Keeper of the Public Archives is deemed necessary to be produced in court, on motion therefor, a subpoena will be issued by order of the court to the said keeper to appear and produce the said original for examination." The act of 26 May, 1824, "enabling the claimants of lands within the limits of the State of Missouri and Territory of Arkansas to institute proceedings to try the validity of their claims," in its fourth section, makes it the duty of "the keeper of any public records who may have possession of the records and evidence of the different tribunals which have been constituted by law for the adjustment of land titles in Missouri, as held by France, upon the application of any person or persons whose claims to lands have been rejected by such tribunals, or either of them, or on the application of any person interested, Page 32 U. S. 85 or by the attorney of the United States for the District of Missouri, to furnish copies of such evidence, certified under his official signature, with the seal of office thereto annexed, if there be a seal of office." The act of 23 May, 1828, supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida, declares, in its sixth section that certain claims to lands in Florida which have not been decided and finally settled "shall be received and adjudicated by the judge of the superior court of the district within which the land lies, upon the petition of the claimant, according to the forms, rules, regulations, conditions, restrictions and limitations prescribed by [for] the district and claimants in the State of Missouri, by act of Congress approved May 26, 1824, entitled, 'an act enabling the claimants,'" &c. The copies directed by the act of 1824 would undoubtedly have been receivable in evidence on the trial of claims to lands in Missouri. Every reason which could operate with Congress for applying this rule of evidence to the courts of Missouri operates with equal force for applying it to the courts of Florida, and a liberal construction of the Act of May 23, 1828, admits of this application. The fourth section of the Act of May 26, 1830, "to provide for the final settlement of land claims in Florida" adopts, almost in words, the provision which has been cited from the sixth section of the Act of May 23, 1828. Whether these acts be or be not construed to authorize the admission of the copies offered in this cause, we think that on general principles of law, a copy given by a public officer whose duty it is to keep the original ought to be received in evidence. We are all satisfied that the opinion was perfectly correct and that the copies ought to have been admitted. We proceed, then, to examine the decree which was pronounced confirming the title of the petitioner. The general jurisdiction of the courts not extending to suits against the United States, the power of the Superior Court for the District of East Florida to act upon the claim of the petitioner, Percheman, in the form in which it was presented must be specially conferred by statute. It is conferred, if at all, by Page 32 U. S. 86 the Act of 26 May, 1830, entitled "An act to provide for the final settlement of land claims in Florida." The fourth section of that act enacts "That all the remaining claims which have been presented according to law and not finally acted upon shall be adjudicated and finally settled upon the same conditions, restrictions, and limitations in every respect as are prescribed by the Act of Congress approved 23 May, 1828, entitled 'An act supplementary,'" &c. The claim of the petitioner, it is admitted, "had been presented according to law," but the attorney for the United States contended that "it had been finally acted upon." The jurisdiction of the court depends on the correctness of the allegation. In support of it, the attorney for the United States produced an extract from the books of the register and receiver, acting as commissioners to ascertain claims and titles to land in East Florida, from which it appears that this claim was presented by Francis P. Sanchez, assignee of the petitioner, on which the following entry was made. "In the memorial of the claimant to this board, he speaks of a survey made by authority in 1819; if this had been produced, it would have furnished some support for the certificate of Aguilar; as it is, we reject the claim." Is this rejection a final action on the claim in the sense in which those words are used in the Act of 26 May, 1830? In pursuing this inquiry in endeavoring to ascertain the intention of Congress, it may not be improper to review the acts which have passed on the subject in connection with the actual situation of the person to whom those acts relate. Florida was a colony of Spain the acquisition of which by the United States was extremely desirable. It was ceded by a treaty concluded between the two powers at Washington on 22 February, 1819. The second article contains the cession and enumerates its objects. The eighth contains stipulations respecting the titles to lands in the ceded territory. It may not be unworthy of remark that it is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, Page 32 U. S. 87 would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged if private property should be generally confiscated and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other and their rights of property, remain undisturbed. If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change; it would have remained the same as under the ancient sovereign. The language of the second article conforms to this general principle: "His Catholic Majesty cedes to the United States in full property and sovereignty all the territories which belong to him, situated to the eastward of the Mississippi by the name of East and West Florida." A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The King cedes that only which belonged to him; lands he had previously granted were not his to cede. Neither party could so understand the cession; neither party could consider itself as attempting a wrong to individuals condemned by the practice of the whole civilized world. The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property. If this could be doubted, the doubt would be removed by the particular enumeration which follows: "The adjacent islands dependent on said provinces, all public lots and squares, vacant lands, public edifices, fortifications, barracks and other building which are not private property, archives and documents which relate directly to the property and sovereignty of the said provinces, are included in this article." This special enumeration could not have been made had the first clause of the article been supposed to pass not only the objects thus enumerated, but private property also. The grant Page 32 U. S. 88 of buildings could not have been limited by the words "which are not private property" had private property been included in the cession of the territory. This state of things ought to be kept in view when we construe the eighth article of the treaty, and the acts which have been passed by Congress for the ascertainment and adjustment of titles acquired under the Spanish government. That article, in the English part of it, is in these words: "All the grants of land made before 24 January, 1818, by his Catholic Majesty or by his lawful authorities in the said territories ceded by his Majesty to the United States shall be ratified and confirmed to the persons in possession of the lands to the same extent that the same grants would be valid if the territories had remained under the dominion of his Catholic Majesty." This article is apparently introduced on the part of Spain, and must be intended to stipulate expressly for that security to private property which the laws and usages of nations would, without express stipulation, have conferred. No construction which would impair that security further than its positive words require would seem to be admissible. Without it, the titles of individuals would remain as valid under the new government as they were under the old, and those titles, so far at least as they were consummate, might be asserted in the courts of the United States independently of this article. The treaty was drawn up in the Spanish as well as in the English language; both are originals, and were unquestionably intended by the parties to be identical. The Spanish has been translated, and we now understand that the article, as expressed in that language, is that the grants "shall remain ratified and confirmed to the person in possession of them to the same extent," &c. -- thus conforming exactly to the universally received doctrine of the law of nations. If the English and the Spanish parts can, without violence, be made to agree, that construction which establishes this conformity ought to prevail. If, as we think must be admitted, the security of private property was intended by the parties, if this security would have been complete without the article, the United States could have no motive for insisting on the interposition of government in order to give validity to titles which, according Page 32 U. S. 89 to the usages of the civilized world, were already valid. No violence is done to the language of the treaty by a construction which conforms the English and Spanish to each other. Although the words "shall be ratified and confirmed" are properly the words of contract stipulating for some future legislative act, they are not necessarily so. They may import that they "shall be ratified and confirmed" by force of the instrument itself. When we observe that in the counterpart of the same treaty, executed at the same time by the same parties, they are used in this sense, we think the construction proper, if not unavoidable. In the case of Foster v. Neilson , 2 Pet. 253, this Court considered these words as importing contract. The Spanish part of the treaty was not then brought to our view, and we then supposed that there was no variance between them. We did not suppose that there was even a formal difference of expression in the same instrument drawn up in the language of each party. Had this circumstance been known, we believe it would have produced the construction which we now give to the article. This understanding of the article must enter into our construction of the acts of Congress on the subject. The United States had acquired a territory containing near thirty millions of acres, of which about three millions had probably been granted to individuals. The demands of the Treasury and the settlement of the territory required that the vacant lands should be brought into the market, for which purpose the operations of the land office were to be extended into Florida. The necessity of distinguishing the vacant from the appropriated lands was obvious, and this could be effected only by adopting means to search out and ascertain preexisting titles. This seems to have been the object of the first legislation of Congress. On 8 May, 1822, an act was passed, "for ascertaining claims and titles to land within the Territory of Florida." The first section directs the appointment of commissioners for the purpose of ascertaining the claims and titles to lands within the Territory of Florida, as acquired by the Treaty of 22 February, 1819. Page 32 U. S. 90 It would seem from the title of the act and from this declaratory section that the object for which these commissioners were appointed was the ascertainment of these claims and titles; that they constituted a board of inquiry, not a court exercising judicial power and deciding finally on titles. By the act "for the establishment of a territorial government in Florida," previously passed at the same session, superior courts had been establish in East and West Florida whose jurisdiction extended to the trial of civil causes between individuals. These commissioners seem to have been appointed for the special purpose of procuring promptly for Congress that information which was required for the immediate operations of the land office. In pursuance of this idea, the second section directs that all the proceedings of the commissioners, the claims admitted with those rejected and the reason of their admission and rejection be recorded in a well bound book and forwarded to the Secretary of the Treasury, to be submitted to Congress. To this desire for immediate information we must ascribe the short duration of the board. Its session for East Florida was to terminate on the last of June in the succeeding year, but any claims not filed previous to 31 May in that year to be void and of no effect. These provisions show the solicitude of Congress to obtain with the utmost celerity that information which ought to be preliminary to the sale of the public lands. The provision that claims not filed with the commissioners previous to 30 June, 1823, should be void can mean only that they should be held so by the commissioners, and not allowed by them. Their power should not extend to claims filed afterwards. It is impossible to suppose that Congress intended to forfeit real titles not exhibited to their commissioners within so short a period. The principal object of this act is further illustrated by the sixth section, which directed the appointment of a surveyor who should survey the country, taking care to have surveyed and marked and laid down upon a general plan to be kept in his office the metes and bounds of the claims admitted. The fourth section might seem in its language to invest the commissioners with judicial powers and to enable them to Page 32 U. S. 91 decide as a court in the first instance for or against the title in cases brought before them, and to make such decision final if approved by Congress. It directs that the "said commissioners shall proceed to examine and determine on the validity of said patents," &c. If, however, the preceding part of the section to which this clause refers be considered, we shall find in it almost conclusive reason for the opinion that the examination and determination they were to make had relation to the purpose of the act, to the purpose of quieting speedily those whose titles were free from objection and procuring that information which was necessary for the safe operation of the land office, not for the ultimate decision which, if adverse, should bind the proprietor. The part of the section describing the claims into the validity of which the commissioners were to examine, and on which they were to determine, enacts that every person, &c., claiming title to lands under any patent, &c., "which were valid under the Spanish government or by the law of nations and which are not rejected by the treaty ceding the Territory of East and West Florida to the United States, shall file" &c. Is it possible that Congress could design to submit the validity of titles, which were "valid under the Spanish government or by the law of nations" to the determination of these commissioners? It was necessary to ascertain these claims and to ascertain their location, not to decide finally upon them. The powers to be exercised by the commissioners under these words ought therefore to be limited to the object and purpose of the act. The fifth section, in its terms, enables them only to examine into and confirm the claims before them. They were authorized to confirm those claims only which did not exceed one thousand acres. From this review of the original act, it results we think that the object for which this board of commissioners was appointed was to examine into and report to Congress such claims as ought to be confirmed, and their refusal to report a claim for confirmation, whether expressed by the term "rejected" or in any other manner, is not to be considered as a final judicial Page 32 U. S. 92 decision on the claim, binding the title of the party, but as a rejection for the purposes of the act. This idea is strongly supported by a consideration of the manner in which the commissioners proceeded and by an examination of the proceedings themselves, as exhibited in the reports to Congress. The commissioners do not appear to have proceeded with open doors, deriving aid from the argument of counsel, as is the usage of a judicial tribunal deciding finally on the rights of parties, but to have pursued their inquiries like a board of commissioners, making those preliminary inquiries which would enable the government to open its land office, whose inquiries would enable the government to ascertain the great bulk of titles which were to be confirmed, not to decide ultimately on the titles which those who had become American citizens legally possessed. On 3 March, 1823, Congress passed a supplementary act which also provided for the survey and disposal of the public lands in East Florida. It authorizes the appointment of a separate board of commissioners for East Florida, and empowers the commissioners to continue their sessions until the second Monday in the succeeding February, when they were to return their proceedings to the Secretary of the Treasury. This act dispenses with the necessity of deducing title from the original grantee, and authorizes the commissioners to decide on the validity of all claims derived from the Spanish government in favor of actual settlers where the quantity claimed does not exceed 3,500 acres. The act "to extend the time for the settlement of private land claims in the Territory of Florida," passed on 28 February, 1824, enacts that no person shall be deemed an actual settler "unless such person or those under whom he claims title shall have been in the cultivation or occupation of the land at and before the period of the cession." On 8 February, 1827, Congress passed an act extending the time for receiving private land claims in Florida and directing them to be filed on or before the 1st day of the following November with the register and receiver of the Page 32 U. S. 93 district, "whose duty it shall be to report the same, with their decision thereon" on or before 1 January, 1828, to be laid before Congress at the next session. These acts are not understood to vary the powers and duties of the tribunals authorized to settle and confirm these private land claims. On 23 May, 1828, an act passed supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida. This act continues the power of the register and receiver till the first Monday in the following December, when they are to make a final report, after which it shall not be lawful for any of the claimants to exhibit any further evidence in support of their claims. The sixth section of this act transfers to the court all claims "which shall not be decided and finally settled under the foregoing provisions of this act, containing a greater quantity of land than the commissioners were authorized to decide, and above the amount confirmed by this act, and which have not been reported as antedated or forged," and declares, that they "shall be received and adjudicated by the judge of the district court in which the land lies, upon the petition of the claimant, according to the forms," &c., "prescribed," &c., by act of Congress approved May 26, 1824, entitled "An act enabling the claimants to land within the limits of the State of Missouri and Territory of Arkansas to institute proceedings," &c. A proviso excepts from the jurisdiction of the court any claim annulled by the treaty or decree of ratification by the King of Spain or any claim not presented to the commissioners or register and receiver. The 13th section enacts that the decrees which may be rendered by the district or supreme court "shall be conclusive between the United States and the said claimants only, and shall not affect the interests of third persons." In all the acts passed upon this subject previous to that of May, 1830, the decisions of the commissioners, or of the register and receiver acting as commissioners, have been confirmed. Whether these acts affirm those decisions by which claims are rejected, as well as those by which they are recommended for confirmation, admits of some doubt; whether a rejection Page 32 U. S. 94 amounts to more than a refusal to recommend for confirmation may be a subject for serious inquiry; however this may be, we think it can admit of no doubt that the decision of the commissioners was conclusive in no case until confirmed by an act of Congress. The language of these acts, and among others, that of the act of 1828, would indicate that the mind of Congress was directed solely to the confirmation of claims, not to their annulment. The decision of this question is not necessary to this case. The claim of the petitioner was not contained in any one of the reports which have been stated. On 26 May, 1830, Congress passed "an act to provide for the final settlement of land claims in Florida." This act contains the action of Congress on the report of 14 January, 1830, which contains the rejection of the claim in question. The first section confirm all the claims and titles to land filed before the register and receiver of the land office, under one league square, which have been decided and recommended for confirmation. The second section confirms all the conflicting Spanish claims, recommended for confirmation as valid titles. The third confirms certain claims derived from the former British government and which have been recommended for confirmation. The fourth enacts "that all remaining claims which have been presented according to law and not finally acted upon shall be adjudicated and finally settled upon the same conditions," &c. It is apparent that no claim was finally acted upon until it had been acted upon by Congress, and it is equally apparent that the action of Congress on the report containing this claim is confined to the confirmation of those titles which were recommended for confirmation. Congress has not passed on those which were rejected; they were, of consequence, expressly submitted to the court. The decision of the register and receiver could not be conclusive for another reason. Their power to decide did not extend to claims exceeding one thousand acres unless the claimant was an actual settler, and it is not pretended that either the petitioner or Francisco de Sanchez, his assignee, Page 32 U. S. 95 was a settler, as described in the third section of the act of 1824. The rejection of this claim, then, by the register and receiver did not withdraw it from the jurisdiction of the court nor constitute any bar to a judgment on the case according to its merits. An objection not noticed in the decree of the territorial court has been urged by the Attorney General and is entitled to serious consideration. The governor, it is said, was empowered by the royal order on which the grant professes to be founded to allow to each person the quantity of land established by regulation in the province agreeable to the number of persons composing each family. The presumption arising from the grant itself of a right to make it is not directly controverted, but the attorney insists that the documents themselves prove that the governor has exceeded his authority. Papers translated from a foreign language respecting the transactions of foreign officers with whose powers and authorities we are not well acquainted, containing uncertain and incomplete references to things well understood by the parties but not understood by the court, should be carefully examined before we pronounce that an officer holding a high place of trust and confidence has exceeded his authority. The objection rests on the assumption that the grant to the petitioner is founded entirely on the allowance made in the royal order of 29 March, 1815, at the request of the Governor of East Florida, and the petition to the governor undoubtedly affords strong ground for this assumption; but we are far from thinking it conclusive. The petitioner says "That in virtue of the bounty in lands which, pursuant to his royal order of 29 March of the present year, the King grants to the military who were in this place at the time of the invasion which took place in the years 1812 and 1813, and your petitioner considering himself as being comprehended in the said sovereign resolution, as it is proved by the annexed certificates of his lordship, Brigadier Don Sebastian Kindelan, and by that which your lordship thought proper to provide herewith, which certificates express the merits and services Page 32 U. S. 96 rendered by your petitioner at the time of the siege, in consequence of which said bounties were granted to those who deserved them, . . . therefore he most respectfully supplicates your lordship to grant him two thousand acres of land in the place," &c. The governor granted the two thousand acres of land for which the petitioner prays. The attorney contends that the royal order of 29 March, 1815, empowered the governor to grant so much land only as according to the established rules was allowed to each settler. This did not exceed one hundred acres to the head of a family and a smaller portion for each member of it. The extraordinary facts that an application for two thousand acres should be founded on an express power to grant only one hundred, that this application should be accompanied by no explanation whatever, and that the grant should be made without hesitation, as an ordinary exercise of legitimate authority, are circumstances well calculated to excite some doubt whether the real character of the transaction is understood and to suggest the propriety of further examination. The royal order is founded on a letter from Governor Kindelan to the captain general of Cuba, in which he recommends the militia as worthy the gifts to which the supreme governor may think them entitled, "taking the liberty of recommending the granting of some, which may be as follows: to each officer who has been in actual service in said militia, a royal commission for each grade he may obtain as provincial, and to the soldiers a certain quantity of land as established by regulation in this province, agreeably to the number of persons composing each family, and which gifts can also be exclusively made to the married officers and soldiers of the said third battalion of Cuba." The words "and which gifts" &c. in the concluding part of the sentence would seem to refer to that part which asks lands for the soldiers of the militia, and yet it is unusual in land bounties for military service to bestow the same quantity on the officers as on the soldiers. But be this as it may, the application of Governor Kindelan is confined to the privates who served in the militia and to the married officers and soldiers of the third battalion of Cuba. Page 32 U. S. 97 The petitioner was in neither of these corps; he was an ensign of the corps of dragoons. The royal order alluded to, is contained in a letter of 29 March, 1815, from the minister of the Indies, who, after stating the application in favor of the militia and the third regiment of Cuba, adds "At the same time that his Majesty approves said gifts, he desires that your Excellency will inform him as to the reward which the commandant of the third battalion of Cuba, Don Juan Jose de Estrada, who acted as governor pro tem. at the commencement of the rebellion, the officers of artillery, Don Ignacia Salus, Don Manuel Paulin, and of dragoons, Don Juan Percheman, are entitled to, as mentioned by the governor in his official letter. By royal order, I communicate the same to his Excellency for your information and compliance therewith, enclosing the royal commissions of local militia, according to the note forwarded by your Excellency." The governor adds, "I forward you a copy of the same, enclosing also the documents above mentioned, that you may give their correspondent direction, with the intention, by the first opportunity, of informing his Majesty of what I consider just as to the remuneration before mentioned." It appears, then, that the part of the royal order which is supposed to limit this power of the governor to grants of one hundred acres does not comprehend the petitioner; that he is mentioned in that order as a person entitled to the royal bounty, the extent of which is not fixed, and respecting which the governor intended to inform his Majesty. The royal order, then, is referred to in the petition as showing the favorable intentions of the Crown towards the petitioner, not as ascertaining limits applying to him which the governor could not transcend. The petition also refers to certificates granted by General Kindelan and the governor himself expressing his merits and services during the siege. These could have no influence if the amount of the grant was fixed. In his grant, annexed to the petition, the governor says, "Whereas this officer, the party interested by the two certificates enclosed, has proved the services which he rendered in defense of Page 32 U. S. 98 this province, and in consideration also of what is provided in the royal order of 29 March last past, which he cites, I do grant him," &c. Military service, then, is the foundation of the grant, and the royal order is referred to only as showing that the favorable attention the King had been directed to the petitioner. The record furnishes other reasons for the opinion that the power of the governor was not so limited in this case as is supposed by the attorney for the United States. The objection does not appear to have been made in the territorial court, where the subject must have been understood. It was neither raised by the attorney for the United States nor noticed by the court. The register and receiver, before whom the claim was laid by Sanchez, the assignee of the present petitioner, did not reject it because the governor had exceeded his power in making it, but because the survey was not exhibited. "If this" (the survey), say the register and receiver, "had been produced, it would have furnished some support for the certificate of Aguilar; as it is, we reject the claim." It may be added that other claims under the same royal order for the same quantity of land have been admitted by the receiver and register, and have been confirmed by Congress. We do not think the testimony proves that the governor has transcended his power. The Court does not enter into the inquiry whether the title has been conveyed to Sanchez or remains in Percheman. That is a question in which the United States can feel no interest and which is not to be decided in this cause. It was very truly observed by the territorial court that this objection "is founded altogether on a suggestion of a private adverse claim," but adverse claims, under the law giving jurisdiction to the court, are not to be decided or investigated. The point has not been made in this Court. The decree is affirmed.

The case of United States v. Percheman (1832) centered around a land dispute in Florida following its acquisition from Spain. Juan Percheman claimed ownership of 2,000 acres of land in Florida based on a grant from the Spanish governor in 1815. The grant was made to military personnel who were in St. Augustine during the invasion of 1812-1813, as per a royal order. The dispute arose when Percheman's claim was rejected by the board of commissioners responsible for ascertaining land claims in East Florida. However, the Supreme Court held that the board's rejection was not a final action on the claim. The Court also affirmed the principle that, even in cases of conquest, it is uncommon for the conqueror to confiscate private property or annul private rights. The Treaty of 1819 between the United States and Spain, which ceded Florida to the United States, was referenced, with the Court noting that the treaty protected private property rights. The Court also addressed the governor's power to make land grants, finding that it was not exceeded in this case. Ultimately, the Supreme Court affirmed the territorial court's decision, upholding Percheman's land claim. The Court declined to address the question of whether the title had been conveyed to Sanchez or remained with Percheman, deeming it irrelevant to the case.

LGBTQ+ Rights

Bostock v. Clayton County

https://supreme.justia.com/cases/federal/us/590/17-1618/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1618, 17–1623 and 18–107 _________________ GERALD LYNN BOSTOCK, PETITIONER 17–1618 v. CLAYTON COUNTY, GEORGIA on writ of certiorari to the united states court of appeals for the eleventh circuit ALTITUDE EXPRESS, INC., et al., PETITIONERS 17–1623 v. MELISSA ZARDA and William Allen Moore, Jr., co-independent executors of the ESTATE OF DONALD ZARDA on writ of certiorari to the united states court of appeals for the second circuit R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER 18–107 v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 15, 2020] Justice Gorsuch delivered the opinion of the Court. Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. I Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status. Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his leadership, the county won national awards for its work. After a decade with the county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation and participation in the league. Soon, he was fired for conduct “unbecoming” a county employee. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with the company, Mr. Zarda mentioned that he was gay and, days later, was fired. Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “ live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.” While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78Stat. 255, 42 U. S. C. §2000e–2(a)(1). In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed. Appx. 964 (2018). Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. 883 F.3d 100 (2018). Ms. Stephens’s case has a more complex procedural history, but in the end the Sixth Circuit reached a decision along the same lines as the Second Circuit’s, holding that Title VII bars employers from firing employees because of their transgender status. 884 F.3d 560 (2018). During the course of the proceedings in these long-running disputes, both Mr. Zarda and Ms. Stephens have passed away. But their estates continue to press their causes for the benefit of their heirs. And we granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. 587 U. S. ___ (2019). II This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. After all, only the words on the page constitute the law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. See New Prime Inc. v. Oliveira , 586 U. S. ___, ___–___ (2019) (slip op., at 6–7). With this in mind, our task is clear. We must determine the ordinary public meaning of Title VII’s command that it is “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” §2000e–2(a)(1). To do so, we orient ourselves to the time of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing their impact on the cases at hand and then confirming our work against this Court’s precedents. A The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also the primary term in Title VII whose meaning the parties dispute. Appealing to roughly contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964 referred to “status as either male or female [as] determined by reproductive biology.” The employees counter by submitting that, even in 1964, the term bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female. Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it. Most notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of ’ or ‘on account of.’ ” University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , 350 (2013) (citing Gross v. FBL Financial Services , Inc ., 557 U.S. 167 , 176 (2009); quotation altered). In the language of law, this means that Title VII’s “because of ” test incorporates the “ ‘simple’ ” and “traditional” standard of but-for causation. Nassar , 570 U. S., at 346, 360. That form of causation is established whenever a particular outcome would not have happened “but for” the purported cause. See Gross , 557 U. S., at 176. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause. This can be a sweeping standard. Often, events have multiple but-for causes. So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Burrage v. United States , 571 U.S. 204 , 211–212 (2014). When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. See ibid .; Nassar , 570 U. S., at 350. No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law. Cf. 11 U. S. C. §525; 16 U. S. C. §511. Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688. But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice. Civil Rights Act of 1991, §107, 105Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision. Still, because nothing in our analysis depends on the motivating factor test, we focus on the more traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. §2000e–2(a)(1). As sweeping as even the but-for causation standard can be, Title VII does not concern itself with everything that happens “because of ” sex. The statute imposes liability on employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone because of a statutorily protected characteristic like sex. Ibid. The employers acknowledge that they discharged the plaintiffs in today’s cases, but assert that the statute’s list of verbs is qualified by the last item on it: “otherwise . . . discriminate against.” By virtue of the word otherwise , the employers suggest, Title VII concerns itself not with every discharge, only with those discharges that involve discrimination. Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As it turns out, it meant then roughly what it means today: “To make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated. See Burlington N. & S . F . R. Co. v. White , 548 U.S. 53 , 59 (2006). In so-called “disparate treatment” cases like today’s, this Court has also held that the difference in treatment based on sex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust , 487 U.S. 977 , 986 (1988). So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII. At first glance, another interpretation might seem possible. Discrimination sometimes involves “the act, practice, or an instance of discriminating categorically rather than individually.” Webster’s New Collegiate Dictionary 326 (1975); see also post, at 27–28, n. 22 (Alito, J., dissenting). On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus the other as a whole. That idea holds some intuitive appeal too. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. So how can we tell which sense, individual or group, “discriminate” carries in Title VII? The statute answers that question directly. It tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual , or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1) (emphasis added). And the meaning of “individual” was as uncontroversial in 1964 as it is today: “A particular being as distinguished from a class, species, or collection.” Webster’s New International Dictionary, at 1267. Here, again, Congress could have written the law differently. It might have said that “it shall be an unlawful employment practice to prefer one sex to the other in hiring, firing, or the terms or conditions of employment.” It might have said that there should be no “sex discrimination,” perhaps implying a focus on differential treatment between the two sexes as groups. More narrowly still, it could have forbidden only “sexist policies” against women as a class. But, once again, that is not the law we have. The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex. This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it. B From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins , 490 U.S. 228 , 239 (1989) (plurality opinion). The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision. That distinguishes these cases from countless others where Title VII has nothing to say. Take an employer who fires a female employee for tardiness or incompetence or simply supporting the wrong sports team. Assuming the employer would not have tolerated the same trait in a man, Title VII stands silent. But unlike any of these other traits or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision. Consider an employer with a policy of firing any woman he discovers to be a Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing “because of sex” if the employer would have tolerated the same allegiance in a male employee. Likewise here. When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach. Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees. There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex. An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same. At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment). C If more support for our conclusion were required, there’s no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider three of our leading precedents. In Phillips v. Martin Marietta Corp ., 400 U.S. 542 (1971) ( per curiam ), a company allegedly refused to hire women with young children, but did hire men with children the same age. Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too, that it hadn’t violated the law because, as a whole, it tended to favor hiring women over men. Unsurprisingly by now, these submissions did not sway the Court. That an employer discriminates intentionally against an individual only in part because of sex supplies no defense to Title VII. Nor does the fact an employer may happen to favor women as a class. In Los Angeles Dept. of Water and Power v. Manhart , 435 U.S. 702 (1978), an employer required women to make larger pension fund contributions than men. The employer sought to justify its disparate treatment on the ground that women tend to live longer than men, and thus are likely to receive more from the pension fund over time. By everyone’s admission, the employer was not guilty of animosity against women or a “purely habitual assumptio[n] about a woman’s inability to perform certain kinds of work”; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id. , at 707–708. Even so, the Court recognized, a rule that appears evenhanded at the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men as a class. But “[t]he statute’s focus on the individual is unambiguous,” and any individual woman might make the larger pension contributions and still die as early as a man. Id. , at 708. Likewise, the Court dismissed as irrelevant the employer’s insistence that its actions were motivated by a wish to achieve classwide equality between the sexes: An employer’s intentional discrimination on the basis of sex is no more permissible when it is prompted by some further intention (or motivation), even one as prosaic as seeking to account for actuarial tables. Ibid. The employer violated Title VII because, when its policy worked exactly as planned, it could not “pass the simple test” asking whether an individual female employee would have been treated the same regardless of her sex. Id. , at 711. In Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 (1998), a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment. The Court held it was immaterial that members of the same sex as the victim committed the alleged discrimination. Nor did the Court concern itself with whether men as a group were subject to discrimination or whether something in addition to sex contributed to the discrimination, like the plaintiff ’s conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress was concerned with when it enacted Title VII.” Id. , at 79. But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Ibid. Because the plaintiff alleged that the harassment would not have taken place but for his sex—that is, the plaintiff would not have suffered similar treatment if he were female—a triable Title VII claim existed. The lessons these cases hold for ours are by now familiar. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart , the employer called its rule requiring women to pay more into the pension fund a “life expectancy” adjustment necessary to achieve sex equality. In Phillips , the employer could have accurately spoken of its policy as one based on “motherhood.” In much the same way, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgender status. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips , they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability. Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. In Phillips , Manhart , and Oncale , the defendant easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is attracted to or presents as—might also be at work, or even play a more important role in the employer’s decision. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay more into a pension plan than a male counterpart even if the scheme promotes equality at the group level. Likewise, an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. III What do the employers have to say in reply? For present purposes, they do not dispute that they fired the plaintiffs for being homosexual or transgender. Sorting out the true reasons for an adverse employment decision is often a hard business, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against employees based on their homosexuality or transgender status supplies no basis for liability under Title VII. The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns out only to repackage errors we’ve already seen and this Court’s precedents have already rejected. In the end, the employers are left to retreat beyond the statute’s text, where they fault us for ignoring the legislature’s purposes in enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is. A Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guide our thinking and suffice to defeat any suggestion that the employees now before us were fired because of sex. Cf. post, at 3 (Alito, J., dissenting); post, at 8–13 (Kavanaugh, J., dissenting). But this submission rests on a mistaken understanding of what kind of cause the law is looking for in a Title VII case. In conversation, a speaker is likely to focus on what seems most relevant or informative to the listener. So an employee who has just been fired is likely to identify the primary or most direct cause rather than list literally every but-for cause. To do otherwise would be tiring at best. But these conversational conventions do not control Title VII’s legal analysis, which asks simply whether sex was a but-for cause. In Phillips , for example, a woman who was not hired under the employer’s policy might have told her friends that her application was rejected because she was a mother, or because she had young children. Given that many women could be hired under the policy, it’s unlikely she would say she was not hired because she was a woman. But the Court did not hesitate to recognize that the employer in Phillips discriminated against the plaintiff because of her sex. Sex wasn’t the only factor, or maybe even the main factor, but it was one but-for cause—and that was enough. You can call the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law. Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. See post , at 9–12 (Alito, J., dissenting); post , at 12–13 (Kavanaugh, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men and female employees for being attracted to women. What, then, do the employers mean when they insist intentional discrimination based on homosexuality or transgender status isn’t intentional discrimination based on sex? Maybe the employers mean they don’t intend to harm one sex or the other as a class. But as should be clear by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may mean that they don’t perceive themselves as motivated by a desire to discriminate based on sex. But nothing in Title VII turns on the employer’s labels or any further intentions (or motivations) for its conduct beyond sex discrimination. In Manhart , the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. In Phillips , the employer may have perceived itself as discriminating based on motherhood, not sex, given that its hiring policies as a whole favored women. But in both cases, the Court set all this aside as irrelevant. The employers’ policies involved intentional discrimination because of sex, and Title VII liability necessarily followed. Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender without revealing whether they also happen to be men or women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgender persons cannot be sex discrimination? No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants. The same holds here. There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done. Likewise, there is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating in part because of an applicant’s sex. By discriminating against homosexuals, the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex. Next, the employers turn to Title VII’s list of protected characteristics—race, color, religion, sex, and national origin. Because homosexuality and transgender status can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if Congress had wanted to address these matters in Title VII, it would have referenced them specifically. Cf. post, at 7–8 (Alito, J., dissenting); post, at 13–15 (Kavanaugh, J., dissenting). But that much does not follow. We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Oncale , 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips , 400 U. S., at 544. Would the employers have us reverse those cases on the theory that Congress could have spoken to those problems more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however they may manifest themselves or whatever other labels might attach to them. The employers try the same point another way. Since 1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has become law. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation. This postenactment legislative history, they urge, should tell us something. Cf. post , at 2, 42–43 (Alito, J., dissenting); post , at 4, 15–16 (Kavanaugh, J., dissenting). But what? There’s no authoritative evidence explaining why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some in the later legislatures understood the impact Title VII’s broad language already promised for cases like ours and didn’t think a revision needed. Maybe others knew about its impact but hoped no one else would notice. Maybe still others, occupied by other concerns, didn’t consider the issue at all. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. Pension Benefit Guaranty Corporation v. LTV Corp ., 496 U.S. 633 , 650 (1990); see also United States v. Wells , 519 U.S. 482 , 496 (1997); Sullivan v. Finkelstein , 496 U.S. 617 , 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should not be taken seriously, not even in a footnote”). That leaves the employers to seek a different sort of exception. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it just doesn’t work when it comes to cases involving homosexual and transgender employees. The test is too blunt to capture the nuances here. The employers illustrate their concern with an example. When we apply the simple test to Mr. Bostock—asking whether Mr. Bostock, a man attracted to other men, would have been fired had he been a woman—we don’t just change his sex. Along the way, we change his sexual orientation too (from homosexual to heterosexual). If the aim is to isolate whether a plaintiff ’s sex caused the dismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex and the sex to which he is attracted. So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it was a gay man, the employers conclude, no Title VII violation has occurred. While the explanation is new, the mistakes are the same. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. But both of these premises are mistaken. Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. Just cast a glance back to Manhart , where it was no defense that the employer sought to equalize pension contributions based on life expectancy. Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s employer might have decided to fire him only because of the confluence of two factors, his sex and the sex to which he is attracted. But exactly the same might have been said in Phillips , where motherhood was the added variable. Still, the employers insist, something seems different here. Unlike certain other employment policies this Court has addressed that harmed only women or only men, the employers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be necessary to the result if a member of the opposite sex might face the same outcome from the same policy? What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open “because of ” the outside temperature. Our cases are much the same. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. In either case, though, sex plays an essential but-for role. At bottom, the employers’ argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute. Consider an employer eager to revive the workplace gender roles of the 1950s. He enforces a policy that he will hire only men as mechanics and only women as secretaries. When a qualified woman applies for a mechanic position and is denied, the “simple test” immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. But like the employers before us today, this employer would say not so fast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly changed two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. And because that jobseeker would be refused too, this must not be sex discrimination. No one thinks that , so the employers must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status. Such a rule would create a curious discontinuity in our case law, to put it mildly. Employer hires based on sexual stereotypes? Simple test. Employer sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when that same employer discriminates against women who are attracted to women, or persons identified at birth as women who later identify as men, we suddenly roll out a new and more rigorous standard? Why are these reasons for taking sex into account different from all the rest? Title VII’s text can offer no answer. B Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And whatever the text and our precedent indicate, they say, shouldn’t this fact cause us to pause before recognizing liability? It might be tempting to reject this argument out of hand. This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. The people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms based on some extratextual consideration. See, e.g. , Carcieri v. Salazar , 555 U.S. 379 , 387 (2009); Connecticut Nat. Bank v. Germain , 503 U.S. 249 , 253–254 (1992); Rubin v. United States , 449 U.S. 424 , 430 (1981). Of course, some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. Cf. post , at 40 (Alito, J., dissenting). But that has no bearing here. “Legislative history, for those who take it into account, is meant to clear up ambiguity, not create it.” Milner v. Department of Navy , 562 U.S. 562 , 574 (2011). And as we have seen, no ambiguity exists about how Title VII’s terms apply to the facts before us. To be sure, the statute’s application in these cases reaches “beyond the principal evil” legislators may have intended or expected to address. Oncale , 523 U. S., at 79. But “ ‘the fact that [a statute] has been applied in situations not expressly anticipated by Congress’ ” does not demonstrate ambiguity; instead, it simply “ ‘demonstrates [the] breadth’ ” of a legislative command. Sedima , S. P. R. L. v. Imrex Co ., 473 U.S. 479 , 499 (1985). And “it is ultimately the provisions of ” those legislative commands “rather than the principal concerns of our legislators by which we are governed.” Oncale , 523 U. S., at 79; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (noting that unexpected applications of broad language reflect only Congress’s “presumed point [to] produce general coverage—not to leave room for courts to recognize ad hoc exceptions”). Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for a different purpose: Because the law’s ordinary meaning at the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle distinctions between literal and ordinary meaning, this Court has sometimes consulted the understandings of the law’s drafters as some (not always conclusive) evidence. For example, in the context of the National Motor Vehicle Theft Act, this Court admitted that the term “vehicle” in 1931 could literally mean “a conveyance working on land, water or air.” McBoyle v. United States , 283 U.S. 25 , 26 (1931). But given contextual clues and “everyday speech” at the time of the Act’s adoption in 1919, this Court concluded that “vehicles” in that statute included only things “moving on land,” not airplanes too. Ibid . Similarly, in New Prime , we held that, while the term “contracts of employment” today might seem to encompass only contracts with employees, at the time of the statute’s adoption the phrase was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op., at 6–9). Cf. post, at 7–8 (Kavanaugh, J., dissenting) (providing additional examples). The employers, however, advocate nothing like that here. They do not seek to use historical sources to illustrate that the meaning of any of Title VII’s language has changed since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message we have missed. To the contrary, as we have seen, the employers agree with our understanding of all the statutory language—“discriminate against any individual . . . because of such individual’s . . . sex.” Nor do the competing dissents offer an alternative account about what these terms mean either when viewed individually or in the aggregate. Rather than suggesting that the statutory language bears some other meaning , the employers and dissents merely suggest that, because few in 1964 expected today’s result , we should not dare to admit that it follows ineluctably from the statutory text. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. That is exactly the sort of reasoning this Court has long rejected. Admittedly, the employers take pains to couch their argument in terms of seeking to honor the statute’s “expected applications” rather than vindicate its “legislative intent.” But the concepts are closely related. One could easily contend that legislators only intended expected applications or that a statute’s purpose is limited to achieving applications foreseen at the time of enactment. However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it. If anything, the employers’ new framing may only add new problems. The employers assert that “no one” in 1964 or for some time after would have anticipated today’s result. But is that really true? Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application. See, e.g. , Smith v. Liberty Mut. Ins. Co. , 395 F. Supp. 1098 , 1099 (ND Ga. 1975) (addressing claim from 1969); Holloway v. Arthur Andersen & Co ., 566 F.2d 659, 661 (CA9 1977) (addressing claim from 1974). And less than a decade after Title VII’s passage, during debates over the Equal Rights Amendment, others counseled that its language—which was strikingly similar to Title VII’s—might also protect homosexuals from discrimination. See, e.g. , Note, The Legality of Homosexual Marriage, 82 Yale L. J. 573, 583–584 (1973). Why isn’t that enough to demonstrate that today’s result isn’t totally unexpected? How many people have to foresee the application for it to qualify as “expected”? Do we look only at the moment the statute was enacted, or do we allow some time for the implications of a new statute to be worked out? Should we consider the expectations of those who had no reason to give a particular application any thought or only those with reason to think about the question? How do we account for those who change their minds over time, after learning new facts or hearing a new argument? How specifically or generally should we frame the “application” at issue? None of these questions have obvious answers, and the employers don’t propose any. One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often lurking just behind such objections resides a cynicism that Congress could not possibly have meant to protect a disfavored group. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no “ ‘public entity’ ” can discriminate against any “ ‘qualified individual with a disability.’ ” Pennsylvania Dept . of Corrections v. Yeskey , 524 U.S. 206 , 208 (1998). Congress, of course, didn’t list every public entity the statute would apply to. And no one batted an eye at its application to, say, post offices. But when the statute was applied to prisons , curiously, some demanded a closer look: Pennsylvania argued that “Congress did not ‘envisio[n] that the ADA would be applied to state prisoners.’ ” Id ., at 211–212. This Court emphatically rejected that view, explaining that, “in the context of an unambiguous statutory text,” whether a specific application was anticipated by Congress “is irrelevant.” Id. , at 212. As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms. Cf. post , at 28–35 (Alito, J., dissenting); post, at 21–22 (Kavanaugh, J., dissenting). The employer’s position also proves too much. If we applied Title VII’s plain text only to applications some (yet-to-be-determined) group expected in 1964, we’d have more than a little law to overturn. Start with Oncale . How many people in 1964 could have expected that the law would turn out to protect male employees? Let alone to protect them from harassment by other male employees? As we acknowledged at the time, “male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII.” 523 U. S., at 79. Yet the Court did not hesitate to recognize that Title VII’s plain terms forbade it. Under the employer’s logic, it would seem this was a mistake. That’s just the beginning of the law we would have to unravel. As one Equal Employment Opportunity Commission (EEOC) Commissioner observed shortly after the law’s passage, the words of “ ‘the sex provision of Title VII [are] difficult to . . . control.’ ” Franklin, Inventing the “Traditional Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307, 1338 (2012) (quoting Federal Mediation Service To Play Role in Implementing Title VII, [1965–1968 Transfer Binder] CCH Employment Practices ¶8046, p. 6074). The “difficult[y]” may owe something to the initial proponent of the sex discrimination rule in Title VII, Representative Howard Smith. On some accounts, the congressman may have wanted (or at least was indifferent to the possibility of ) broad language with wide-ranging effect. Not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to scuttle the whole Civil Rights Act and thought that adding language covering sex discrimination would serve as a poison pill. See C. Whalen & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115–118 (1985). Certainly nothing in the meager legislative history of this provision suggests it was meant to be read narrowly. Whatever his reasons,thanks to the broad language Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were “unanticipated” at the time of the law’s adoption. In fact, many now-obvious applications met with heated opposition early on, even among those tasked with enforcing the law. In the years immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather than discriminatory. Franklin, 125 Harv. L. Rev., at 1340 (citing Press Release, EEOC (Sept. 22, 1965)). Some courts held that Title VII did not prevent an employer from firing an employee for refusing his sexual advances. See, e.g. , Barnes v. Train , 1974 WL 10628, *1 (D DC, Aug. 9, 1974). And courts held that a policy against hiring mothers but not fathers of young children wasn’t discrimination because of sex. See Phillips v. Martin Marietta Corp ., 411 F.2d 1 (CA5 1969), rev’d, 400 U.S. 542 (1971) ( per curiam ). Over time, though, the breadth of the statutory language proved too difficult to deny. By the end of the 1960s, the EEOC reversed its stance on sex-segregated job advertising. See Franklin, 125 Harv. L. Rev., at 1345. In 1971, this Court held that treating women with children differently from men with children violated Title VII. Phillips , 400 U. S., at 544. And by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex discrimination. See, e.g. , Barnes v. Costle , 561 F.2d 983, 990 (CADC 1977). While to the modern eye each of these examples may seem “plainly [to] constitut[e] discrimination because of biological sex,” post , at 38 (Alito, J., dissenting), all were hotly contested for years following Title VII’s enactment. And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. Cf. post , at 21–22 (Kavanaugh, J., dissenting) (highlighting that certain lower courts have rejected Title VII claims based on homosexuality and transgender status). Would the employers have us undo every one of these unexpected applications too? The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns. , Inc ., 531 U.S. 457 , 468 (2001). But it has no relevance here. We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. But where’s the mousehole? Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along. With that, the employers are left to abandon their concern for expected applications and fall back to the last line of defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Cf. post , at 44–54 (Alito, J., dissenting). Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should proceed without the law’s guidance to do as we think best. But that’s an invitation no court should ever take up. The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them. What are these consequences anyway? The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ ” refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R ., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these. Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases. See §2000bb–3. But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way. * Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected. But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. The judgments of the Second and Sixth Circuits in Nos. 17–1623 and 18–107 are affirmed. The judgment of the Eleventh Circuit in No. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1618, 17–1623 and 18–107 _________________ GERALD LYNN BOSTOCK, PETITIONER 17–1618 v. CLAYTON COUNTY, GEORGIA on writ of certiorari to the united states court of appeals for the eleventh circuit ALTITUDE EXPRESS, INC., et al., PETITIONERS 17–1623 v. MELISSA ZARDA and William Allen Moore, Jr., co-independent executors of the ESTATE OF DONALD ZARDA on writ of certiorari to the united states court of appeals for the second circuit R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER 18–107 v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 15, 2020] Justice Alito, with whom Justice Thomas joins, dissenting. There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1). Neither “sexual orientation” nor “gender identity” appears on that list. For the past 45 years, bills have been introduced in Congress to add “sexual orientation” to the list,[ 1 ] and in recent years, bills have included “gender identity” as well.[ 2 ] But to date, none has passed both Houses. Last year, the House of Representatives passed a bill that would amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R. 5, 116th Cong., 1st Sess. (2019), but the bill has stalled in the Senate. An alternative bill, H. R. 5331, 116th Cong., 1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.[ 3 ] This bill remains before a House Subcommittee. Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5’s provision on employment discrimination and issued it under the guise of statutory interpretation.[ 4 ] A more brazen abuse of our authority to interpret statutes is hard to recall. The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.” And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written .” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time. The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22 (1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.[ 5 ] Many will applaud today’s decision because they agree on policy grounds with the Court’s updating of Title VII. But the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964 . It indisputably did not. I A Title VII, as noted, prohibits discrimination “because of . . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear could be that this meant discrimination because of the genetic and anatomical characteristics that men and women have at the time of birth. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.”[ 6 ] Ante , at 2. (Appendix A, infra , to this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.) In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms formed on the distinction of male and female.” See also American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. 1) (1966) (Random House Dictionary) (“the fact or character of being either male or female”); 9 Oxford English Dictionary 577 (def. 1) (1933) (“Either of the two divisions of organic beings distinguished as male and female respectively”). The Court does not dispute that this is what “sex” means in Title VII, although it coyly suggests that there is at least some support for a different and potentially relevant definition. Ante , at 5. (I address alternative definitions below. See Part I–B–3, infra .) But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . . . refer[s] only to biological distinctions between male and female.” Ante , at 5. If that is so, it should be perfectly clear that Title VII does not reach discrimination because of sexual orientation or gender identity. If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. How then does the Court claim to avoid that conclusion? The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Court observes that a Title VII plaintiff need not show that “sex” was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc.); and that Title VII protects individual rights, not group rights. See ante , at 5–9, 11. All that is true, but so what? In cases like those before us, a plaintiff must show that sex was a “motivating factor” in the challenged employment action, 42 U. S. C. §2000e–2(m), so the question we must decide comes down to this: if an individual employee or applicant for employment shows that his or her sexual orientation or gender identity was a “motivating factor” in a hiring or discharge decision, for example, is that enough to establish that the employer discriminated “because of . . . sex”? Or, to put the same question in different terms, if an employer takes an employment action solely because of the sexual orientation or gender identity of an employee or applicant, has that employer necessarily discriminated because of biological sex? The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity inherently constitutes discrimination because of sex. The Court attempts to prove that point, and it argues, not merely that the terms of Title VII can be interpreted that way but that they cannot reasonably be interpreted any other way . According to the Court, the text is unambiguous. See ante , at 24, 27, 30. The arrogance of this argument is breathtaking. As I will show, there is not a shred of evidence that any Member of Congress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra . But the Court apparently thinks that this was because the Members were not “smart enough to realize” what its language means. Hively v. Ivy Tech Community College of Ind. , 853 F.3d 339, 357 (CA7 2017) (Posner, J., concurring). The Court seemingly has the same opinion about our colleagues on the Courts of Appeals, because until 2017, every single Court of Appeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discrimination on the basis of biological sex. See Part III–C, infra . And for good measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the EEOC failed to see the obvious for the first 48 years after Title VII became law.[ 7 ] Day in and day out, the Commission enforced Title VII but did not grasp what discrimination “because of . . . sex” unambiguously means. See Part III–C, infra . The Court’s argument is not only arrogant, it is wrong. It fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante , at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation” nor “gender identity” is tied to either of the two biological sexes. See ante , at 10 (recognizing that “discrimination on these bases” does not have “some disparate impact on one sex or another”). Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes.[ 8 ] And individuals who are born with the genes and organs of either biological sex may identify with a different gender.[ 9 ] Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrimination because of sex. See ante , at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante , at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”); ante , at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . . . inescapably intends to rely on sex in its decisionmaking”); ante , at 12 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex”); ante , at 14 (“When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex”); ante , at 19 (“[D]iscrimination based on homosexuality or transgender status necessarily entails discrimination based on sex”). But repetition of an assertion does not make it so, and the Court’s repeated assertion is demonstrably untrue. Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in and of itself entail discrimination because of sex. We can see this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. In fact, at the time of the enactment of Title VII, the United States military had a blanket policy of refusing to enlist gays or lesbians, and under this policy for years thereafter, applicants for enlistment were required to complete a form that asked whether they were “homosexual.” Appendix D, infra , at 88, 101. At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians, and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her candid answer was that this would “not” be sex discrimination.[ 10 ] And she was right. The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. Contra, ante , at 19. An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. And if an employer does not violate Title VII by discriminating on the basis of sexual orientation or gender identity without knowing the sex of the affected individuals, there is no reason why the same employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent— i.e., that the employee’s sex motivated the firing. In short, what this example shows is that discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination because of sex, and for that reason, the Court’s chief argument collapses. Trying to escape the consequences of the attorney’s concession, the Court offers its own hypothetical: “Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not.” Ante , at 18. How this hypothetical proves the Court’s point is a mystery. A person who checked that box would presumably be black, Catholic, or both, and refusing to hire an applicant because of race or religion is prohibited by Title VII. Rejecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female. The Court follows this strange hypothetical with an even stranger argument. The Court argues that an applicant could not answer the question whether he or she is homosexual without knowing something about sex. If the applicant was unfamiliar with the term “homosexual,” the applicant would have to look it up or ask what the term means. And because this applicant would have to take into account his or her sex and that of the persons to whom he or she is sexually attracted to answer the question, it follows, the Court reasons, that an employer could not reject this applicant without taking the applicant’s sex into account. See ante , at 18–19. This is illogical. Just because an applicant cannot say whether he or she is homosexual without knowing his or her own sex and that of the persons to whom the applicant is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing the applicant’s sex. While the Court’s imagined application form proves nothing, another hypothetical case offered by the Court is telling. But what it proves is not what the Court thinks. The Court posits: “Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.” Ante , at 11. This example disproves the Court’s argument because it is perfectly clear that the employer’s motivation in firing the female employee had nothing to do with that employee’s sex. The employer presumably knew that this employee was a woman before she was invited to the fateful party. Yet the employer, far from holding her biological sex against her, rated her a “model employee.” At the party, the employer learned something new, her sexual orientation, and it was this new information that motivated her discharge. So this is another example showing that discrimination because of sexual orientation does not inherently involve discrimination because of sex. In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are “inextricably bound up with sex,” ante , at 10, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante , at 17. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. All these variants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that “[i]t would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation.’ ” Hively , 853 F. 3d, at 350.[ 11 ] The Second Circuit wrote that sex is necessarily “a factor in sexual orientation” and further concluded that “sexual orientation is a function of sex.” 883 F.3d 100, 112–113 (CA2 2018) (en banc). Bostock’s brief and those of amici supporting his position contend that sexual orientation is “a sex-based consideration.”[ 12 ] Other briefs state that sexual orientation is “a function of sex”[ 13 ] or is “intrinsically related to sex.”[ 14 ] Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”[ 15 ] It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex. Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and “sexual content.” Does the Court really think that Title VII prohibits discrimination on all these grounds? Is it unlawful for an employer to refuse to hire an employee with a record of sexual harassment in prior jobs? Or a record of sexual assault or violence? To be fair, the Court does not claim that Title VII prohibits discrimination because of everything that is related to sex. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” Ante , at 10. Apparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not.[ 16 ] And it would do this in the name of high textualism. An additional argument made in passing also fights the text of Title VII and the policy it reflects. The Court proclaims that “[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.” Ante , at 9. That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened. But that is not the policy embodied in Title VII in its current form. Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. As long as an employer does not discriminate based on one of the listed grounds, the employer is free to decide for itself which characteristics are “relevant to [its] employment decisions.” Ibid. By proclaiming that sexual orientation and gender identity are “not relevant to employment decisions,” the Court updates Title VII to reflect what it regards as 2020 values. The Court’s remaining argument is based on a hypothetical that the Court finds instructive. In this hypothetical, an employer has two employees who are “attracted to men,” and “ to the employer’s mind ” the two employees are “materially identical” except that one is a man and the other is a woman. Ante , at 9 (emphasis added). The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. Ante , at 9–10. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be? The problem with this argument is that the Court loads the dice. That is so because in the mind of an employer who does not want to employ individuals who are attracted to members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary, they differ in another way that the employer thinks is quite material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 42 U. S. C. §2000e–2(a)(1), Title VII allows employers to decide whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinks that Scorpios make bad employees, the employer can refuse to hire Scorpios. Such a policy would be unfair and foolish, but under Title VII, it is permitted. And until Title VII is amended, so is a policy against employing gays, lesbians, or transgender individuals. Once this is recognized, what we have in the Court’s hypothetical case are two employees who differ in two ways––sex and sexual orientation––and if the employer fires one and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation, entirely by sex, or in part by both. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. The Court harps on the fact that under Title VII a prohibited ground need not be the sole motivation for an adverse employment action, see ante , at 10–11, 14–15, 21, but its example does not show that sex necessarily played any part in the employer’s thinking. The Court tries to avoid this inescapable conclusion by arguing that sex is really the only difference between the two employees. This is so, the Court maintains, because both employees “are attracted to men.” Ante , at 9–10. Of course, the employer would couch its objection to the man differently. It would say that its objection was his sexual orientation. So this may appear to leave us with a battle of labels. If the employer’s objection to the male employee is characterized as attraction to men, it seems that he is just like the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex. The Court insists that its label is the right one, and that presumably is why it makes such a point of arguing that an employer cannot escape liability under Title VII by giving sex discrimination some other name. See ante , at 14, 17. That is certainly true, but so is the opposite. Something that is not sex discrimination cannot be converted into sex discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Ante , at 9–10. Rather, the Court needs to show that its label is the correct one. And a labeling standoff would not help the Court because that would mean that the bare text of Title VII does not unambiguously show that its interpretation is right. The Court would have no justification for its stubborn refusal to look any further. As it turns out, however, there is no standoff. It can easily be shown that the employer’s real objection is not “attract[ion] to men” but homosexual orientation. In an effort to prove its point, the Court carefully includes in its example just two employees, a homosexual man and a heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who is attracted to women. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) We now have the four exemplars listed below, with the discharged employees crossed out: Man attracted to men Woman attracted to men Woman attracted to women Man attracted to women The discharged employees have one thing in common. It is not biological sex, attraction to men, or attraction to women. It is attraction to members of their own sex—in a word, sexual orientation. And that, we can infer, is the employer’s real motive. In sum, the Court’s textual arguments fail on their own terms. The Court tries to prove that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” ante, at 9, but as has been shown, it is entirely possible for an employer to do just that. “[H]omosexuality and transgender status are distinct concepts from sex,” ante , at 19, and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex. The Court’s arguments are squarely contrary to the statutory text. But even if the words of Title VII did not definitively refute the Court’s interpretation, that would not justify the Court’s refusal to consider alternative interpretations. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Unless the Court has met that high standard, it has no justification for its blinkered approach. And to say that the Court’s interpretation is the only possible reading is indefensible. B Although the Court relies solely on the arguments discussed above, several other arguments figure prominently in the decisions of the lower courts and in briefs submitted by or in support of the employees. The Court apparently finds these arguments unpersuasive, and so do I, but for the sake of completeness, I will address them briefly. 1 One argument, which relies on our decision in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989) (plurality opinion), is that discrimination because of sexual orientation or gender identity violates Title VII because it constitutes prohibited discrimination on the basis of sex stereotypes. See 883 F. 3d, at 119–123; Hively , 853 F. 3d, at 346; 884 F.3d 560, 576–577 (CA6 2018). The argument goes like this. Title VII prohibits discrimination based on stereotypes about the way men and women should behave; the belief that a person should be attracted only to persons of the opposite sex and the belief that a person should identify with his or her biological sex are examples of such stereotypes; therefore, discrimination on either of these grounds is unlawful. This argument fails because it is based on a faulty premise, namely, that Title VII forbids discrimination based on sex stereotypes. It does not. It prohibits discrimination because of “sex,” and the two concepts are not the same. See Price Waterhouse , 490 U. S., at 251. That does not mean, however, that an employee or applicant for employment cannot prevail by showing that a challenged decision was based on a sex stereotype. Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. See ibid. Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. The plaintiff was a woman who was passed over for partnership at an accounting firm, and some of the adverse comments about her work appeared to criticize her for being forceful and insufficiently “feminin[e].” Id. , at 235–236. The main issue in Price Waterhouse ––the proper allocation of the burdens of proof in a so-called mixed motives Title VII case—is not relevant here, but the plurality opinion, endorsed by four Justices, commented on the issue of sex stereotypes. The plurality observed that “sex stereotypes do not inevitably prove that gender played a part in a particular employment decision” but “can certainly be evidence that gender played a part.” Id. , at 251.[ 17 ] And the plurality made it clear that “[t]he plaintiff must show that the employer actually relied on her gender in making its decision.” Ibid. Plaintiffs who allege that they were treated unfavorably because of their sexual orientation or gender identity are not in the same position as the plaintiff in Price Waterhouse . In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. “[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sex- specific stereotype at all.” Hively , 853 F. 3d, at 370 (Sykes, J., dissenting). To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse . That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter. 2 A second prominent argument made in support of the result that the Court now reaches analogizes discrimination against gays and lesbians to discrimination against a person who is married to or has an intimate relationship with a person of a different race. Several lower court cases have held that discrimination on this ground violates Title VII. See, e.g. , Holcomb v. Iona College , 521 F.3d 130 (CA2 2008); Parr v. Woodmen of World Life Ins. Co. , 791 F.2d 888 (CA11 1986). And the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavorably because he or she is married to, or has an intimate relationship with, a person of the same sex. This argument totally ignores the historically rooted reason why discrimination on the basis of an interracial relationship constitutes race discrimination. And without taking history into account, it is not easy to see how the decisions in question fit the terms of Title VII. Recall that Title VII makes it unlawful for an employer to discriminate against an individual “because of such individual’s race .” 42 U. S. C. §2000e–2(a) (emphasis added). So if an employer is happy to employ whites and blacks but will not employ any employee in an interracial relationship, how can it be said that the employer is discriminating against either whites or blacks “because of such individual’s race”? This employer would be applying the same rule to all its employees regardless of their race. The answer is that this employer is discriminating on a ground that history tells us is a core form of race discrimination.[ 18 ] “It would require absolute blindness to the history of racial discrimination in this country not to understand what is at stake in such cases . . . . A prohibition on ‘race-mixing’ was . . . grounded in bigotry against a particular race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black race as inferior to whites.” 883 F. 3d, at 158–159 (Lynch, J., dissenting). Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. See Wittmer v. Phillips 66 Co. , 915 F.3d 328, 338 (CA5 2019) (Ho, J., concurring). 3 The opinion of the Court intimates that the term “sex” was not universally understood in 1964 to refer just to the categories of male and female, see ante , at 5, and while the Court does not take up any alternative definition as a ground for its decision, I will say a word on this subject. As previously noted, the definitions of “sex” in the unabridged dictionaries in use in the 1960s are reproduced in Appendix A, infra . Anyone who examines those definitions can see that the primary definition in every one of them refers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. In addition, some definitions refer to heterosexual sex acts. See Random House Dictionary 1307 (“coitus,” “sexual intercourse” (defs. 5–6)); American Heritage Dictionary, at 1187 (“sexual intercourse” (def. 5)).[ 19 ] Aside from these, what is there? One definition, “to neck passionately,” Random House Dictionary 1307 (def. 8), refers to sexual conduct that is not necessarily heterosexual. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking? And even if Title VII had that effect, that is not what is at issue in cases like those before us. That brings us to the two remaining subsidiary definitions, both of which refer to sexual urges or instincts and their manifestations. See the fourth definition in the American Heritage Dictionary, at 1187 (“the sexual urge or instinct as it manifests itself in behavior”), and the fourth definition in both Webster’s Second and Third (“[p]henomena of sexual instincts and their manifestations,” Webster’s New International Dictionary, at 2296 (2d ed.); Webster’s Third New International Dictionary 2081 (1966)). Since both of these come after three prior definitions that refer to men and women, they are most naturally read to have the same association, and in any event, is it plausible that Title VII prohibits discrimination based on any sexual urge or instinct and its manifestations? The urge to rape? Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (The same is true of current definitions, which are reproduced in Appendix B, infra .) This no doubt explains why neither this Court nor any of the lower courts have tried to make much of the dictionary definitions of sex just discussed. II A So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. See Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev. 1, 109 (2001). Dictionary definitions are valuable because they are evidence of what people at the time of a statute’s enactment would have understood its words to mean. Ibid. But they are not the only source of relevant evidence, and what matters in the end is the answer to the question that the evidence is gathered to resolve: How would the terms of a statute have been understood by ordinary people at the time of enactment? Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time. ” Reading Law, at 16 (emphasis added).[ 20 ] Leading proponents of Justice Scalia’s school of textualism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textualists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006). “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context,” id ., at 79–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic community apply shared background conventions for understanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore, judges should ascribe to the words of a statute “what a reasonable person conversant with applicable social conventions would have understood them to be adopting.” Manning, 106 Colum. L. Rev., at 77. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “ ‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’ ” Manning, 116 Harv. L. Rev., at 2397–2398. Judge Frank Easterbrook has made the same points: “Words are arbitrary signs, having meaning only to the extent writers and readers share an understanding. . . . Language in general, and legislation in particular, is a social enterprise to which both speakers and listeners contribute, drawing on background understandings and the structure and circumstances of the utterance.” Herrmann v. Cencom Cable Assocs ., Inc. , 978 F.2d 978, 982 (CA7 1992). Consequently, “[s]licing a statute into phrases while ignoring . . . the setting of the enactment . . . is a formula for disaster.” Ibid .; see also Continental Can Co. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund , 916 F.2d 1154, 1157 (CA7 1990) (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”). Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time. For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. To get a picture of this, we may imagine this scene. Suppose that, while Title VII was under consideration in Congress, a group of average Americans decided to read the text of the bill with the aim of writing or calling their representatives in Congress and conveying their approval or disapproval. What would these ordinary citizens have taken “discrimination because of sex” to mean? Would they have thought that this language prohibited discrimination because of sexual orientation or gender identity? B The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds. 1 In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and well-understood concept, and what it meant was equal treatment for men and women. Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “ on account of sex , [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” Art. XX, §18 (emphasis added). It also prohibited a student’s exclusion from any state university department “on account of sex.” Art. IX, §9; accord, Mont. Const., Art. XI, §9 (1889). Wyoming’s first Constitution proclaimed broadly that “[b]oth male and female citizens of this state shall equally enjoy all civil, political and religious rights and privileges,” Art. VI, §1 (1890), and then provided specifically that “[i]n none of the public schools . . . shall distinction or discrimination be made on account of sex ,” Art. VII, §10 (emphasis added); see also §16 (the “university shall be equally open to students of both sexes”). Washington’s Constitution likewise required “ample provision for the education of all children . . . without distinction or preference on account of . . . sex .” Art. IX, §1 (1889) (emphasis added). The Constitution of Utah, adopted in 1895, provided that the right to vote and hold public office “shall not be denied or abridged on account of sex .” Art. IV, §1 (emphasis added). And in the next sentence it made clear what “on account of sex” meant, stating that “[b]oth male and female citizens . . . shall enjoy equally all civil, political and religious rights and privileges.” Ibid . The most prominent example of a provision using this language was the Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. Const., Amdt. 19. Similar language appeared in the proposal of the National Woman’s Party for an Equal Rights Amendment. As framed in 1921, this proposal forbade all “political, civil or legal disabilities or inequalities on account of sex , [o]r on account of marriage.” Women Lawyers Meet: Representatives of 20 States Endorse Proposed Equal Rights Amendment, N. Y. Times, Sept. 16, 1921, p. 10. Similar terms were used in the precursor to the Equal Pay Act. Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against employees, in rates of compensation paid, on account of sex ” was “contrary to the public interest.” H. R. 5056, 78th Cong., 2d Sess. In 1952, the new Constitution for Puerto Rico, which was approved by Congress, 66Stat. 327, prohibited all “discrimination . . . on account of . . . sex ,” Art. II, Bill of Rights §1 (emphasis added), and in the landmark Immigration and Nationality Act of 1952, Congress outlawed discrimination in naturalization “ because of . . . sex .” 8 U. S. C. §1422 (emphasis added). In 1958, the International Labour Organisation, a United Nations agency of which the United States is a member, recommended that nations bar employment discrimination “made on the basis of . . . sex .” Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, Art. 1(a), June 25, 1958, 362 U. N. T. S. 32 (emphasis added). In 1961, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to assure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex .”[ 21 ] He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in government and private employment on the basis of sex .” Exec. Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis added). In short, the concept of discrimination “because of,” “on account of,” or “on the basis of ” sex was well understood. It was part of the campaign for equality that had been waged by women’s rights advocates for more than a century, and what it meant was equal treatment for men and women.[ 22 ] 2 Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. Any such notion would have clashed in spectacular fashion with the societal norms of the day. For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. In its then-most recent Diagnostic and Statistical Manual of Mental Disorders (1952) (DSM–I), the American Psychiatric Association (APA) classified same-sex attraction as a “sexual deviation,” a particular type of “sociopathic personality disturbance,” id. , at 38–39, and the next edition, issued in 1968, similarly classified homosexuality as a “sexual deviatio[n],” Diagnostic and Statistical Manual of Mental Disorders 44 (2d ed.) (DSM–II). It was not until the sixth printing of the DSM–II in 1973 that this was changed.[ 23 ] Society’s treatment of homosexuality and homosexual conduct was consistent with this understanding. Sodomy was a crime in every State but Illinois, see W. Eskridge, Dishonorable Passions 387–407 (2008), and in the District of Columbia, a law enacted by Congress made sodomy a felony punishable by imprisonment for up to 10 years and permitted the indefinite civil commitment of “sexual psychopath[s],” Act of June 9, 1948, §§104, 201–207, 62Stat. 347–349.[ 24 ] This view of homosexuality was reflected in the rules governing the federal work force. In 1964, federal “[a]gencies could deny homosexual men and women employment because of their sexual orientation,” and this practice continued until 1975. GAO, D. Heivilin, Security Clearances: Consideration of Sexual Orientation in the Clearance Process 2 (GAO/NSIAD–95–21, 1995). See, e.g. , Anonymous v. Macy , 398 F.2d 317, 318 (CA5 1968) (affirming dismissal of postal employee for homosexual acts). In 1964, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. A 1953 Executive Order provided that background investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Order No. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.). “Until about 1991, when agencies began to change their security policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GAO, Security Clearances, at 2. See, e.g. , Adams v. Laird , 420 F.2d 230, 240 (CADC 1969) (upholding denial of security clearance to defense contractor employee because he had “engaged in repeated homosexual acts”); see also Webster v. Doe , 486 U.S. 592 , 595, 601 (1988) (concluding that decision to fire a particular individual because he was homosexual fell within the “discretion” of the Director of Central Intelligence under the National Security Act of 1947 and thus was unreviewable under the APA). The picture in state employment was similar. In 1964, it was common for States to bar homosexuals from serving as teachers. An article summarizing the situation 15 years after Title VII became law reported that “[a]ll states have statutes that permit the revocation of teaching certificates (or credentials) for immorality, moral turpitude, or unprofessionalism,” and, the survey added, “[h]omosexuality is considered to fall within all three categories.”[ 25 ] The situation in California is illustrative. California laws prohibited individuals who engaged in “immoral conduct” (which was construed to include homosexual behavior), as well as those convicted of “sex offenses” (like sodomy), from employment as teachers. Cal. Educ. Code Ann. §§13202, 13207, 13209, 13218, 13255 (West 1960). The teaching certificates of individuals convicted of engaging in homosexual acts were revoked. See, e.g. , Sarac v . State Bd. of Ed. , 249 Cal. App. 2d 58 , 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (upholding revocation of secondary teaching credential from teacher who was convicted of engaging in homosexual conduct on public beach), overruled in part, Morrison v. State Bd. of Ed ., 1 Cal. 3d 214 , 461 P.2d 375 (1969). In Florida, the legislature enacted laws authorizing the revocation of teaching certificates for “misconduct involving moral turpitude,” Fla. Stat. Ann. §229.08(16) (1961), and this law was used to target homosexual conduct. In 1964, a legislative committee was wrapping up a 6-year campaign to remove homosexual teachers from public schools and state universities. As a result of these efforts, the state board of education apparently revoked at least 71 teachers’ certificates and removed at least 14 university professors. Eskridge, Dishonorable Passions, at 103. Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.”[ 26 ] See, e.g. , Florida Bar v. Ka y, 232 So. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in public bathroom). In 1964 and for many years thereafter, homosexuals were barred from the military. See, e.g. , Army Reg. 635–89, §I(2) (a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted to serve in the Army in any capacity, and their prompt separation is mandatory”); Army Reg. 600–443, §I(2) (April 10, 1953) (similar). Prohibitions against homosexual conduct by members of the military were not eliminated until 2010. See Don’t Ask, Don’t Tell Repeal Act of 2010, 124Stat. 3515 (repealing 10 U. S. C. §654, which required members of the Armed Forces to be separated for engaging in homosexual conduct). Homosexuals were also excluded from entry into the United States. The Immigration and Nationality Act of 1952 (INA) excluded aliens “afflicted with psychopathic personality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v. INS , 387 U.S. 118 , 120–123 (1967), this Court, relying on the INA’s legislative history, interpreted that term to encompass homosexuals and upheld an alien’s deportation on that ground. Three Justices disagreed with the majority’s interpretation of the phrase “psychopathic personality.”[ 27 ] But it apparently did not occur to anyone to argue that the Court’s interpretation was inconsistent with the INA’s express prohibition of discrimination “because of sex.” That was how our society—and this Court—saw things a half century ago. Discrimination because of sex and discrimination because of sexual orientation were viewed as two entirely different concepts. To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment. The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity. Chisom v. Roemer , 501 U.S. 380 , 410 (1991) (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ ordinary meaning” of the statute. Ibid . And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity. The Court makes a tiny effort to suggest that at least some people in 1964 might have seen what Title VII really means. Ante , at 26. What evidence does it adduce? One complaint filed in 1969, another filed in 1974, and arguments made in the mid-1970s about the meaning of the Equal Rights Amendment. Ibid . To call this evidence merely feeble would be generous. C While Americans in 1964 would have been shocked to learn that Congress had enacted a law prohibiting sexual orientation discrimination, they would have been bewildered to hear that this law also forbids discrimination on the basis of “transgender status” or “gender identity,” terms that would have left people at the time scratching their heads. The term “transgender” is said to have been coined “ ‘in the early 1970s,’ ”[ 28 ] and the term “gender identity,” now understood to mean “[a]n internal sense of being male, female or something else,”[ 29 ] apparently first appeared in an academic article in 1964.[ 30 ] Certainly, neither term was in common parlance; indeed, dictionaries of the time still primarily defined the word “gender” by reference to grammatical classifications. See, e.g. , American Heritage Dictionary, at 548 (def. 1(a)) (“Any set of two or more categories, such as masculine, feminine, and neuter, into which words are divided . . . and that determine agreement with or the selection of modifiers, referents, or grammatical forms”). While it is likely true that there have always been individuals who experience what is now termed “gender dysphoria,” i.e. , “[d]iscomfort or distress related to an incongruence between an individual’s gender identity and the gender assigned at birth,”[ 31 ] the current understanding of the concept postdates the enactment of Title VII. Nothing resembling what is now called gender dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults.[ 32 ] DSM–III, at 261–266. The first widely publicized sex reassignment surgeries in the United States were not performed until 1966,[ 33 ] and the great majority of physicians surveyed in 1969 thought that an individual who sought sex reassignment surgery was either “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”[ 34 ] It defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time. D 1 The Court’s main excuse for entirely ignoring the social context in which Title VII was enacted is that the meaning of Title VII’s prohibition of discrimination because of sex is clear, and therefore it simply does not matter whether people in 1964 were “smart enough to realize” what its language means. Hively, 853 F. 3d, at 357 (Posner, J., concurring). According to the Court, an argument that looks to the societal norms of those times represents an impermissible attempt to displace the statutory language. Ante , at 25–26. The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted. In arguing that we must put out of our minds what we know about the time when Title VII was enacted, the Court relies on Justice Scalia’s opinion for the Court in Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 (1998). But Oncale is nothing like these cases, and no one should be taken in by the majority’s effort to enlist Justice Scalia in its updating project. The Court’s unanimous decision in Oncale was thoroughly unremarkable. The Court held that a male employee who alleged that he had been sexually harassed at work by other men stated a claim under Title VII. Although the impetus for Title VII’s prohibition of sex discrimination was to protect women, anybody reading its terms would immediately appreciate that it applies equally to both sexes, and by the time Oncale reached the Court, our precedent already established that sexual harassment may constitute sex discrimination within the meaning of Title VII. See Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 (1986). Given these premises, syllogistic reasoning dictated the holding. What today’s decision latches onto are Oncale’ s comments about whether “ ‘male-on-male sexual harassment’ ” was on Congress’s mind when it enacted Title VII. Ante , at 28 (quoting 523 U. S., at 79). The Court in Oncale observed that this specific type of behavior “was assuredly not the principal evil Congress was concerned with when it enacted Title VII,” but it found that immaterial because “statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” 523 U. S., at 79 (emphasis added). It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules. These comments are better understood as stating mundane and uncontroversial truths. Who would argue that a statute applies only to the “principal evils” and not lesser evils that fall within the plain scope of its terms? Would even the most ardent “purposivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “ principal concerns”? Properly understood, Oncale does not provide the slightest support for what the Court has done today. For one thing, it would be a wild understatement to say that discrimination because of sexual orientation and transgender status was not the “principal evil” on Congress’s mind in 1964. Whether we like to admit it now or not, in the thinking of Congress and the public at that time, such discrimination would not have been evil at all. But the more important difference between these cases and Oncale is that here the interpretation that the Court adopts does not fall within the ordinary meaning of the statutory text as it would have been understood in 1964. To decide for the defendants in Oncale , it would have been necessary to carve out an exception to the statutory text. Here, no such surgery is at issue. Even if we totally disregard the societal norms of 1964, the text of Title VII does not support the Court’s holding. And the reasoning of Oncale does not preclude or counsel against our taking those norms into account. They are relevant, not for the purpose of creating an exception to the terms of the statute, but for the purpose of better appreciating how those terms would have been understood at the time. 2 The Court argues that two other decisions–– Phillips v. Martin Marietta Corp. , 400 U.S. 542 (1971) ( per curiam ), and Los Angeles Dept. of Water and Power v. Manhart , 435 U.S. 702 (1978)––buttress its decision, but those cases merely held that Title VII prohibits employer conduct that plainly constitutes discrimination because of biological sex. In Philips , the employer treated women with young children less favorably than men with young children. In Manhart , the employer required women to make larger pension contributions than men. It is hard to see how these holdings assist the Court. The Court extracts three “lessons” from Phillips , Manhart , and Oncale , but none sheds any light on the question before us. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Ante , at 14. This lesson is obviously true but proves nothing. As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? Could a bank robber escape conviction by saying he was engaged in asset enhancement? So if an employer discriminates because of sex, the employer is liable no matter what it calls its conduct, but if the employer’s conduct is not sex discrimination, the statute does not apply. Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of biological sex. For reasons already discussed, see Part I–A, supra , it is not. It likewise proves nothing of relevance here to note that an employer cannot escape liability by showing that discrimination on a prohibited ground was not its sole motivation. So long as a prohibited ground was a motivating factor, the existence of other motivating factors does not defeat liability. The Court makes much of the argument that “[i]n Phillips , the employer could have accurately spoken of its policy as one based on ‘motherhood.’ ” Ante , at 14; see also ante, at 16. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distinguishes between motherhood and parenthood is necessarily a policy that draws a sex-based distinction. There was sex discrimination in Phillips , because women with children were treated disadvantageously compared to men with children. Lesson number two—“the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action,” ante , at 14—is similarly unhelpful. The standard of causation in these cases is whether sex is necessarily a “motivating factor” when an employer discriminates on the basis of sexual orientation or gender identity. 42 U. S. C. §2000e–2(m). But the essential question—whether discrimination because of sexual orientation or gender identity constitutes sex discrimination—would be the same no matter what causation standard applied. The Court’s extensive discussion of causation standards is so much smoke. Lesson number three––“an employer cannot escape liability by demonstrating that it treats males and females comparably as groups,” ante , at 15, is also irrelevant. There is no dispute that discrimination against an individual employee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average employee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Nor does it matter if an employer discriminates against only a subset of men or women, where the same subset of the opposite sex is treated differently, as in Phillips . That is not the issue here. An employer who discriminates equally on the basis of sexual orientation or gender identity applies the same criterion to every affected individual regardless of sex. See Part I–A, supra . III A Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history. So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court’s interpretation. B As the Court explained in General Elec. Co. v. Gilbert , 429 U.S. 125 , 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the House of Representatives,” Meritor Savings Bank , 477 U. S., at 63, by Representative Howard Smith, the Chairman of the Rules Committee. See 110 Cong. Rec. 2577 (1964). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. See, e.g. , Ulane v. Eastern Airlines, Inc ., 742 F.2d 1081, 1085 (CA7 1984). On this theory, Representative Smith thought that prohibiting employment discrimination against women would be unacceptable to Members who might have otherwise voted in favor of the bill and that the addition of this prohibition might bring about the bill’s defeat.[ 35 ] But if Representative Smith had been looking for a poison pill, prohibiting discrimination on the basis of sexual orientation or gender identity would have been far more potent. However, neither Representative Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex.[ 36 ] See 110 Cong. Rec. 2577–2584. Representative Smith’s motivations are contested, 883 F. 3d, at 139–140 (Lynch, J., dissenting), but whatever they were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id. , at 140. “Discrimination against gay women and men, by contrast, was not on the table for public debate . . . [i]n those dark, pre-Stonewall days.” Ibid . For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s legislative history cannot be missed. C Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra , at 2, and two such bills were before Congress in 1991[ 37 ] when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation,[ 38 ] two other Circuits had endorsed that interpretation in dicta,[ 39 ] and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument that it covered discrimination on this basis.[ 40 ] These were also the positions of the EEOC.[ 41 ] In enacting substantial changes to Title VII, the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also disagreed with the decisions regarding sexual orientation and transgender discrimination, it could have easily overruled those as well, but it did not do so.[ 42 ] After 1991, six other Courts of Appeals reached the issue of sexual orientation discrimination, and until 2017, every single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. See, e.g. , Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252 , 259 (CA1 1999); Simonton v. Runyon , 232 F.3d 33 , 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co. , 260 F.3d 257 , 261 (CA3 2001), cert. denied,  534 U.S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc. , 99 F.3d 138 , 143 (CA4 1996); Hamm v. Weyauwega Milk Products, Inc. , 332 F.3d 1058 , 1062 (CA7 2003); Medina v. Income Support Div., N. M ., 413 F.3d 1131 , 1135 (CA10 2005); Evans v. Georgia Regional Hospital , 850 F.3d 1248, 1255 (CA11), cert. denied, 583 U. S. ___ (2017). Similarly, the other Circuit to formally address whether Title VII applies to claims of discrimination based on transgender status had also rejected the argument, creating unanimous consensus prior to the Sixth Circuit’s decision below. See Etsitty v. Utah Transit Authority , 502 F.3d 1215, 1220–1221 (CA10 2007). The Court observes that “[t]he people are entitled to rely on the law as written, without fearing that courts might disregard its plain terms,” ante , at 24, but it has no qualms about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. Rather, the Court makes the jaw-dropping statement that its decision exemplifies “judicial humility.” Ante , at 31. Is it humble to maintain, not only that Congress did not understand the terms it enacted in 1964, but that all the Circuit Judges on all the pre-2017 cases could not see what the phrase discrimination “because of sex” really means? If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold. IV What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See Appendix C, infra ; e.g. , 20 U. S. C. §1681(a) (Title IX); 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). The briefs in these cases have called to our attention the potential effects that the Court’s reasoning may have under some of these laws, but the Court waves those considerations aside. As to Title VII itself, the Court dismisses questions about “bathrooms, locker rooms, or anything else of the kind.” Ante , at 31. And it declines to say anything about other statutes whose terms mirror Title VII’s. The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible. If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least some of them. In addition, Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead. As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty. I will briefly note some of the potential consequences of the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues should necessarily play out under the Court’s reasoning.[ 43 ] “[B]athrooms, locker rooms, [and other things] of [that] kind.” The Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.[ 44 ] Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify, and while the Court does not define what it means by a transgender person, the term may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes over time.[ 45 ] Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time. The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed. A similar issue has arisen under Title IX, which prohibits sex discrimination by any elementary or secondary school and any college or university that receives federal financial assistance.[ 46 ] In 2016, a Department of Justice advisory warned that barring a student from a bathroom assigned to individuals of the gender with which the student identifies constitutes unlawful sex discrimination,[ 47 ] and some lower court decisions have agreed. See Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Ed. , 858 F.3d 1034, 1049 (CA7 2017); G. G. v. Gloucester Cty. School Bd ., 822 F.3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. of St. Johns Cty. , 318 F. Supp. 3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area School Dist. , 897 F.3d 518, 533 (CA3 2018), cert. denied, 587 U. S. ___ (2019). Women’s sports . Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex.[ 48 ] This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male. See, e.g. , Complaint in Soule v. Connecticut Assn. of Schools , No. 3:20–cv–00201 (D Conn., Apr. 17, 2020) (challenging Connecticut policy allowing transgender students to compete in girls’ high school sports); Complaint in Hecox v. Little , No. 1:20–cv–00184 (D Idaho, Apr. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). Students in these latter categories have found success in athletic competitions reserved for females.[ 49 ] The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgender status, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s professional sports team. The owners of the team might try to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. See Dothard v. Rawlinson , 433 U.S. 321 , 334 (1977). Housing . The Court’s decision may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates. A provision of Title IX, 20 U. S. C. §1686, allows schools to maintain “separate living facilities for the different sexes,” but it may be argued that a student’s “sex” is the gender with which the student identifies.[ 50 ] Similar claims may be brought under the Fair Housing Act. See 42 U. S. C. §3604. Employment by religious organizations . Briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim––express deep concern that the position now adopted by the Court “will trigger open conflict with faith- based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”[ 51 ] They argue that “[r]eligious organizations need employees who actually live the faith,”[ 52 ] and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message. This problem is perhaps most acute when it comes to the employment of teachers. A school’s standards for its faculty “communicate a particular way of life to its students,” and a “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”[ 53 ] Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment. Yet today’s decision may lead to Title VII claims by such teachers and applicants for employment. At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the “ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 (2012). Two cases now pending before the Court present the question whether teachers who provide religious instruction can be considered to be “ministers.”[ 54 ] But even if teachers with those responsibilities qualify, what about other very visible school employees who may not qualify for the ministerial exception? Provisions of Title VII provide exemptions for certain religious organizations and schools “with respect to the employment of individuals of a particular religion to perform work connected with the carrying on” of the “activities” of the organization or school, 42 U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scope of these provisions is disputed, and as interpreted by some lower courts, they provide only narrow protection.[ 55 ] Healthcare . Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.[ 56 ] Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.[ 57 ] Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs. Freedom of speech . The Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.[ 58 ] Some jurisdictions, such as New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense,[ 59 ] and some colleges have similar rules.[ 60 ] After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination. See Prescott v. Rady Children’s Hospital San Diego , 265 F. Supp. 3d 1090, 1098–1100 (SD Cal. 2017) (hospital staff ’s refusal to use preferred pronoun violates ACA).[ 61 ] The Court’s decision may also pressure employers to suppress any statements by employees expressing disapproval of same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims. Constitutional claims . Finally, despite the important differences between the Fourteenth Amendment and Title VII, the Court’s decision may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a “heightened” standard of review is met. Sessions v. Morales-Santana , 582 U. S. ___, ___ (2017) (slip op., at 8); United States v. Virginia , 518 U.S. 515 , 532–534 (1996). By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review. Under this logic, today’s decision may have effects that extend well beyond the domain of federal anti- discrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. See, e.g. , Complaint in Hecox , No. 1: 20–CV–00184 (state law prohibiting transgender students from competing in school sports in accordance with their gender identity); Second Amended Complaint in Karnoski v. Trump , No. 2:17–cv–01297 (WD Wash., July 31, 2019) (military’s ban on transgender members); Kadel v. Folwell , ___ F. Supp. 3d ___, ___–___, 2020 WL 1169271, *10–*11 (MDNC, Mar. 11, 2020) (state health plan’s exclusion of coverage for sex reassignment procedures); Complaint in Gore v. Lee , No. 3:19–cv–00328 (MD Tenn., Mar. 3, 2020) (change of gender on birth certificates); Brief for Appellee in Grimm v. Gloucester Cty. School Bd. , No. 19–1952 (CA4, Nov. 18, 2019) (transgender student forced to use gender neutral bathrooms at school); Complaint in Corbitt v. Taylor , No. 2:18–cv–00091 (MD Ala., July 25, 2018) (change of gender on driver’s licenses); Whitaker , 858 F. 3d, at 1054 (school policy requiring students to use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. of Corrections Secretary , 952 F.3d 1257, 1262–1265 (CA11 2020) (transgender prisoner denied hormone therapy and ability to dress and groom as a female); Edmo v. Corizon, Inc. , 935 F.3d 757, 767 (CA9 2019) (transgender prisoner requested sex reassignment surgery); cf. Glenn v. Brumby , 663 F.3d 1312, 1320 (CA11 2011) (transgender individual fired for gender non-conformity). Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning. *  *  * The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is . The Court itself recognizes this: “The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us.” Ante , at 31. It is easy to utter such words. If only the Court would live by them. I respectfully dissent. APPENDIXES A Webster’s New International Dictionary 2296 (2d ed. 1953): sex (sĕks), n. [F. sexe , fr. L. sexus; prob. orig., division, and akin to L. secare to cut. See section.] 1. One of the two divisions of organisms formed on the distinction of male and female; males or females collectively. 2. The sum of the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctive function of the male or female in reproduction. Conjugation, or fertilization (union of germplasm of two individuals), a process evidently of great but not readily explainable importance in the perpetuation of most organisms, seems to be the function of differentiation of sex, which occurs in nearly all organisms at least at some stage in their life history. Sex is manifested in the conjugating cells by the larger size, abundant food material, and immobility of the female gamete ( egg , egg cell , or ovum ), and the small size and the locomotive power of the male gamete ( spermatozoon or spermatozoid ), and in the adult organisms often by many structural, physiological, and (in higher forms) psychological characters, aside from the necessary modification of the reproductive apparatus. Cf. HERMAPHRODITE, 1. In botany the term sex is often extended to the distinguishing peculiarities of staminate and pistillate flowers, and hence in dioecious plants to the individuals bearing them. In many animals and plants the body and germ cells have been shown to contain one or more chromosomes of a special kind (called sex chromosomes; idiochromosomes; accessory chromosomes ) in addition to the ordinary paired autosomes. These special chromosomes serve to determine sex. In the simplest case, the male germ cells are of two types, one with and one without a single extra chromosome ( X chromosome , or monosome ). The egg cells in this case all possess an X chromosome , and on fertilization by the two types of sperm, male and female zygotes result, of respective constitution X , and XX . In many other animals and plants (probably including man) the male organism produces two types of gametes, one possessing an X chromosome , the other a Y chromosome , these being visibly different members of a pair of chromosomes present in the diploid state. In this case also, the female organism is XX , the eggs X , and the zygotes respectively male ( XY ) and female ( XX ). In another type of sex determination, as in certain moths and possibly in the fowl, the female produces two kinds of eggs, the male only one kind of sperm. Each type of egg contains one member of a pair of differentiated chromosomes, called respectively Z chromosomes and W chromosomes , while all the sperm cells contain a Z chromosome. In fertilization, union of a Z with a W gives rise to a female, while union of two Z chromosomes produces a male. Cf. secondary sex character. 3. a The sphere of behavior dominated by the relations between male and female. b Psychoanalysis . By extension, the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct. 4. Phenomena of sexual instincts and their manifestations. 5. Sect;—a confused use. Syn. —Sex, gender. Sex refers to physiological distinctions; GENDER, to distinctions in grammar. — the sex . The female sex; women, in general. sex, adj . Based on or appealing to sex. sex, v. t. To determine the sex of, as skeletal remains. Webster’s Third New International Dictionary 2081 (1966): 1 sex \‘seks\ n –es often attrib [ME, fr. L sexus; prob. akin to L secare to cut–more at saw] 1: one of the two divisions of organic esp. human beings respectively designated male or female 2: the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the same individual in many plants and some invertebrates and though no such distinction can be made in many lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in sexual reproduction are indistinguishable—compare heterothallic, homothallic; fertilization, meio- sis, mendel’s law; freemartin, hermaphrodite, intersex 3: the sphere of interpersonal behavior esp. between male and female most directly associated with, leading up to, substituting for, or resulting from genital union 4: the phenomena of sexual instincts and their manifestations ; specif : sexual intercourse 2 sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic being) —compare autosexing 2 a: to increase the sexual appeal or attraction of—usu. used with up b: to arouse the sexual instincts or desires of—usu. used with up 9 Oxford English Dictionary 577–578 (1933): Sex (seks), sb . Also 6–7 sexe, (6 seex, 7 pl. sexe, 8 poss . sexe’s). [ad. L. sexus ( u -stem), whence also F. sexe (12th c.), Sp., Pg. sexo , It. sesso . Latin had also a form secus neut. (indeclinable).] 1. Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (of a species, etc., esp. of the human race) viewed collectively. 1382 Wyclif Gen . vi. 19 Of alle thingis hauynge sowle of ony flehs, two thow shalt brynge into the ark, that maal sex and femaal lyuen with thee. 1532 More Confut. Tindale II. 152, I had as leue he bare them both a bare cheryte, as wyth the frayle feminyne sexe fall to far in loue. 1559 Alymer Harborowe E 4 b, Neither of them debarred the heires female .. as though it had ben .. vnnatural for that sexe to gouern. 1576 Gascoigne Philomene xcviii, I speake against my sex. a 1586 Sidney Arcadia II. (1912) 158 The sexe of womankind of all other is most bound to have regardfull eie to mens judgements. 1600 Nashe Summer’s Last Will F 3 b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 1615 Crooke Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male is sooner perfected .. in the wombe. 1634 Sir T. Herbert Trav. 19 Both sexe goe naked. 1667 Milton P. L. IX, 822 To add what wants In Femal Sex. 1671— Samson 774 It was a weakness In me, but incident to all our sex. 1679 Dryden Troilus & Cr. I. ii, A strange dissembling sex we women are. 1711 Addison Spect. No. 10 ¶ 6 Their Amusements .. are more adapted to the Sex than to the Species. 1730 Swift Let. to Mrs. Whiteway 28 Dec., You have neither the scrawl nor the spelling of your sex. 1742 Gray Propertius II. 73 She .. Condemns her fickle Sexe’s fond Mistake. 1763 G. Williams in Jesse Selwyn & Contemp. (1843) I. 265 It would astonish you to see the mixture of sexes at this place. 1780 Bentham Princ. Legisl. VI. §35 The sensibility of the female sex appears .. to be greater than that of the male. 1814 Scott Ld. of Isles VI. iii, Her sex’s dress regain’d. 1836 Thirlwall Greece xi. II. 51 Solon also made regulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety and necessity of dividing the sexes during the publick offices of the Church. 1848 Thackeray Van. Fair xxv, She was by no means so far superior to her sex as to be above jealousy. 1865 Dickens Mut. Fr. II. i, It was a school for both sexes. 1886 Mabel Collins Prettiest Woman ii, Zadwiga had not yet given any serious attention to the other sex. b. collect. followed by plural verb. rare. 1768 Goldsm. Good. n. Man IV. (Globe) 632/2 Our sex are like poor tradesmen. 1839 Malcom Trav. (1840) 40/I Neither sex tattoo any part of their bodies. c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout sex ; the second sex ; † the woman sex : the female sex, women. The † better, sterner sex : the male sex, men. [ 1583 Stubbes Anat. Abus. E vij b, Ye magnificency & liberalitie of that gentle sex. 1613 Purchas Pilgrimage (1614) 38 Strong Sampson and wise Solomon are witnesses, that the strong men are slaine by this weaker sexe.] 1641 Brome Jovial Crew III. (1652) H 4, I am bound by a strong vow to kisse all of the woman sex I meet this morning. 1648 J. Beaumont Psyche XIV. I, The softer sex, attending Him And his still-growing woes. 1665 Sir T. Herbert Trav. (1677) 22 Whiles the better sex seek prey abroad, the women (therein like themselves) keep home and spin. 1665 Boyle Occas. Refl. v. ix. 176 Persons of the fairer Sex. a 1700 Evelyn Diary 12 Nov. an. 1644, The Pillar .. at which the devout sex are always rubbing their chaplets. 1701 Stanhope St. Aug. Medit. I. xxxv. (1704) 82, I may .. not suffer my self to be outdone by the weaker Sex. 1732 [see FAIR a. I b]. 1753 Hogarth Anal. Beauty x. 65 An elegant degree of plumpness peculiar to the skin of the softer sex. 1820 Byron Juan IV. cviii, Benign Ceruleans of the second sex! Who advertise new poems by your looks. 1838 Murray’s Hand-bk. N. Germ. 430 It is much frequented by the fair sex. 1894 C. D. Tyler in Geog. Jrnl. III. 479 They are beardless, and usually wear a shock of unkempt hair, which is somewhat finer in the gentler sex. ¶d. Used occas. with extended notion. The third sex : eunuchs. Also sarcastically (see quot. 1873). 1820 Byron Juan IV. lxxxvi, From all the Pope makes yearly, ‘twould perplex To find three perfect pipes of the third sex. Ibid . V. xxvi, A black old neutral personage Of the third sex stept up. [ 1873 Ld. Houghton Monogr. 280 Sydney Smith .. often spoke with much bitterness of the growing belief in three Sexes of Humanity—Men, Women, and Clergymen.] e. The sex : the female sex. [F. le sexe .] Now rare. 1589 Puttenham Eng. Poesie III. xix. (Arb.) 235 As he that had tolde a long tale before certaine noble women, of a matter somewhat in honour touching the Sex. 1608 D. T[uvill] Ess. Pol. & Mor. 101 b, Not yet weighing with himselfe, the weaknesse and imbecillitie of the sex. 1631 Massinger Emperor East I. ii, I am called The Squire of Dames, or Servant of the Sex. 1697 Vanbrugh Prov. Wife II. ii, He has a strange penchant to grow fond of me, in spite of his aversion to the sex. 1760-2 Goldsm. Cit. W. xcix, The men of Asia behave with more deference to the sex than you seem to imagine. 1792 A. Young Trav. France I. 220 The sex of Venice are undoubtedly of a distinguished beauty. 1823 Byron Juan XIII. lxxix, We give the sex the pas . 1863 R. F. Burton W. Africa I. 22 Going ‘up stairs’, as the sex says, at 5 a.m. on the day after arrival, I cast the first glance at Funchal. f. Without the , in predicative quasi-adj. use=feminine. rare. a 1700 Dryden Cymon & Iph. 368 She hugg’d th’ Offender, and forgave th’ Offence, Sex to the last! 2. Quality in respect of being male or female. a. With regard to persons or animals. 1526 Pilgr. Perf. (W. de. W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of his kynde, nor yet hath ony distinct sex. 1577 T. Kendall Flowers of Epigr. 71 b, If by corps supposd may be her seex, then sure a virgin she. 1616 T. Scott Philomythie I. (ed. 2) A 3 Euen as Hares change shape and sex, some say Once euery yeare. 1658 Sir T. Browne Hydriot . iii. 18 A critical view of bones makes a good distinction of sexes. a 1665 Digby Chym. Secrets (1682) II. 225 Persons of all Ages and Sexes. 1667 Milton P. L. I. 424 For Spirits when they please can either Sex assume, or both. 1710-11 Swift Jrnl. to Stella 7 Mar., I find I was mistaken in the sex, ‘tis a boy. 1757 Smollett Reprisal IV. v, As for me, my sex protects me. 1825 Scott Betrothed xiii, I am but a poor and neglected woman, feeble both from sex and age. 1841 Elphinstone Hist. India I. 349 When persons of different sexes walk together, the woman always follows the man. 1882 Tension-Woods Fish N. S. Wales 116 Oysters are of distinct sexes. b. with regard to plants (see Female a . 2, Male a . 2). 1567 Maplet Gr. Forest 28 Some seeme to haue both sexes and kindes: as the Oke, the Lawrell and such others. 1631 Widdowes Nat. Philos. (ed. 2) 49 There be sexes of hearbes .. namely, the Male or Female. 1720 P. Blair Bot. Ess. iv. 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. 1790 Smellie Philos. Nat. Hist. I. 245 There is not a notion more generally adopted, that that vegetables have the distinction of sexes. 1848 Lindley Introd. Bot. (ed. 4) II. 80 Change of Sex under the influence of external causes. 3. The distinction between male and female in general. In recent use often with more explicit notion: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned. Organs of sex: the reproductive organs in sexed animals or plants. a 1631 Donne Songs & Sonn., The Printrose Poems 1912 I. 61 Should she Be more then woman, she would get above All thought of sexe, and think to move My heart to study her, and not to love. a 1643 Cartwright Siedge III. vi, My Soul’s As Male as yours; there’s no Sex in the mind. 1748 Melmoth Fitzosborne Lett. lxii. (1749) II. 119 There may be a kind of sex in the very soul. 1751 Harris Hermes Wks. (1841) 129 Besides number, another characteristic, visible in substances, is that of sex. 1878 Gladstone Prim. Homer 68 Athenè .. has nothing of sex except the gender, nothing of the woman except the form. 1887 K. Pearson Eth. Freethought xv. (1888) 429 What is the true type of social (moral) action in matters of sex? 1895 Crackanthorpe in 19 th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The writers and readers who have strenuously refused to allow to sex its place in creative art. 1912 H. G. Wells Marriage ii. § 6. 72 The young need .. to be told .. all we know of three fundamental things; the first of which is God, .. and the third Sex. ¶ 4. Used, by confusion, in senses of Sect (q. v. I, 4 b, 7, and cf. I d note ). 1575-85 Abp. Sandys Serm. xx. 358 So are all sexes and sorts of people called vpon. 1583 Melbancke Philotimus L iij b, Whether thinkest thou better sporte & more absurd, to see an Asse play on an harpe contrary to his sex, or heare [etc.]. 1586 J. Hooker Hist. Irel. 180/2 in Holinshed , The whole sex of the Oconhours. 1586 T. B. La Primaud. Fr. Acad. I. 359 O detestable furie, not to be found in most cruell beasts, which spare the blood of their sexe. a 1704 T Brown Dial. Dead, Friendship Wks. 1711 IV. 56 We have had enough of these Christians, and sure there can be no worse among the other Sex of Mankind [i.e. Jews and Turks]? 1707 Atterbury Large Vind. Doctr. 47 Much less can I imagine, why a Jewish Sex (whether of Pharisees or Saducees) should be represented, as [etc.]. 5. attrib. and Comb., as sex-distinction, function, etc.; sex-abusing, transforming adjs.; sex-cell, a reproductive cell, with either male or female function; a sperm-cell or an egg-cell. 1642 H. More Song of Soul I. III. lxxi, Mad-making waters, sex trans-forming springs. 1781 Cowper Expost. 415 Sin, that in old time Brought fire from heav’n, the sex-abusing crime. 1876 Hardy Ethelberta xxxvii, You cannot have celebrity and sex-privilege both. 1887 Jrnl. Educ. No. 210. 29 If this examination craze is to prevail, and the sex-abolitionists are to have their way. 1889 Geddes & Thomson Evol. Sex 91 Very commonly the sex-cells originate in the ectoderm and ripen there. 1894 H. Drummond Ascent of Man 317 The sex-distinction slowly gathers definition. 1897 J. Hutchinson in Arch. Surg. VIII. 230 Loss of Sex Function. Sex (seks), v. [f. Sex sb. ] trans. To determine the sex of, by anatomical examination; to label as male or female. 1884 Gurney Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex noted on the drawing. 1888 A. Newton in Zoologist Ser. 111. XII. 101 The .. barbarous phrase of ‘collecting a specimen’ and then of ‘sexing’ it. Concise Oxford Dictionary of Current English 1164 (5th ed. 1964): sĕx, n. Being male or female or hermaphrodite ( what is its ~?; ~ does not matter; without distinction of age or ~ ), whence ~’LESS a., ~’ lėss NESS n., ~’Y2 a., immoderately concerned with ~; males or females collectively ( all ranks & both ~es; the fair, gentle, softer, weaker, ~, & joc. the ~, women; the sterner ~, men; is the fairest of her ~ ); (attrib.) arising from difference, or consciousness, of ~ (~ antagonism , ~ instinct , ~ urge ); ~ appeal , attractiveness arising from difference of ~. [f. L sexus –ūs; partly thr. F] Random House Dictionary of the English Language 1307 (1966): sex (seks), n. 1. The fact or character of being either male or female: persons of different sex. 2. either of the two groups of persons exhibiting this character: the stronger sex; the gentle sex. 3. the sum of the structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences. 4. the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct. 5. coitus. 6. to have sex, Informal . to engage in sexual intercourse. – v.t. 7. to ascertain the sex of, esp. of newly hatched chicks. 8. sex it up, Slang . to neck passionately: They were really sexing it up last night . 9. sex up, Informal. a. to arouse sexually: She certainly knows how to sex up the men. b. to increase the appeal of; to make more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [ME < L sex ( us ), akin to secus , deriv. of secāre to cut, divide; see SECTION] American Heritage Dictionary 1187 (1969): sex (sĕks) n. 1. a. The property or quality by which organ-isms are classified according to their reproductive functions. b. Either of two divisions, designated male and female , of this classification. 2. Males or females collectively. 3. The condition or character of being male or female; the physiological, functional, and psychological differences that distinguish the male and the female. 4. The sexual urge or instinct as it manifests itself in behavior. 5. Sexual intercourse. – tr.v. sexed, sexing, sexes. To determine the sex of (young chickens). [Middle English, from Old French sexe , from Latin sexus †.] B Webster’s Third New International Dictionary 2081 (2002): 1 sex \‘seks\ n –es often attrib [ME, fr. L sexus ; prob. akin to L secare to cut—more at saw] 1: one of the two divisions of organic esp. human beings respectively designated male or female 2: the sum of the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change, that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness and femaleness with one or the other of these being present in most higher animals though both may occur in the same individual in many plants and some invertebrates and though no such distinction can be made in many lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are replaced by mating types or because the participants in sexual reproduction are indistinguishable—compare heterothallic, homothallic; fertilization, meiosis, mendel’s law; freemartin, hermaphrodite, intersex 3: the sphere of interpersonal behavior esp. between male and female most directly associated with, leading up to, substituting for, or resulting from genital union 4: the phenomena of sexual instincts and their manifestations ; specif : sexual intercourse 2 sex \“\ vt –ed/–ing/–es 1: to determine the sex of (an organic being) —compare autosexing 2 a: to increase the sexual appeal or attraction of—usu. used with up b: to arouse the sexual instincts or desires of—usu. used with up Random House Webster’s Unabridged Dictionary 1754 (2d ed. 2001): Sex (seks), n . 1 . either the male or female division of a species, esp. as differentiated with reference to the reproductive functions. 2 . the sum of the structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent on these differences. 3 . the instinct or attraction drawing one sex toward another, or its manifestation in life and conduct. 4 . coitus. 5 . genitalia. 6 . to have sex , to engage in sexual intercourse. – v.t. 7 . to ascertain the sex of, esp. of newly-hatched chicks. 8 . sex up , Informal . a . to arouse sexually: The only intent of that show was to sex up the audience . b . to increase the appeal of; to make more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes . [1350–1400; ME < L Sexus , perh. akin to secāre to divide (see section)] American Heritage Dictionary 1605 (5th ed. 2011): Sex (seks) n . 1a. Sexual activity, especially sexual intercourse: hasn’t had sex in months . b . The sexual urge or instinct as it manifests itself in behavior: motivated by sex . 2a . Either of the two divisions, designated female and male, by which most organisms are classified on the basis of their reproductive organs and functions: How do you determine the sex of a lobster? b . The fact or condition of existing in these two divisions, especially the collection of characteristics that distinguish female and male: the evolution of sex in plants; a study that takes sex into account. See Usage Note at gender. 3. Females or males considered as a group: dormitories that house only one sex. 4 . One’s identity as either female or male. 5 . The genitals. ⸭ tr.v. sexed, sex-ing, sex-es 1. To determine the sex of (an organism). 2. Slang a. To arouse sexually. Often used with up . b . To increase the appeal or attractiveness of. Often used with up [Middle English < Latin sexus. ] C Statutes Prohibiting Sex Discrimination 2 U. S. C. §658a(2) (Congressional Budget and Fiscal Operations; Federal Mandates) 2 U. S. C. §1311(a)(1) (Congressional Accountability; Extension of Rights and Protections) 2 U. S. C. §1503(2) (Unfunded Mandates Reform) 3 U. S. C. §411(a)(1) (Presidential Offices; Employment Discrimination) 5 U. S. C. §2301(b)(2) (Merit System Principles) 5 U. S. C. §2302(b)(1) (Prohibited Personnel Practices) 5 U. S. C. §7103(a)(4)(A) (Labor-Management Relations; Definitions) 5 U. S. C. §7116(b)(4) (Labor-Management Relations; Unfair Labor Practices) 5 U. S. C. §7201(b) (Antidiscrimination Policy; Minority Recruitment Program) 5 U. S. C. §7204(b) (Antidiscrimination; Other Prohibitions) 6 U. S. C. §488f(b) (Secure Handling of Ammonium Nitrate; Protection From Civil Liability) 7 U. S. C. §2020(c)(1) (Supplemental Nutrition Assistance Program) 8 U. S. C. §1152(a)(1)(A) (Immigration; Numerical Limitations on Individual Foreign States) 8 U. S. C. §1187(c)(6) (Visa Waiver Program for Certain Visitors) 8 U. S. C. §1522(a)(5) (Authorization for Programs for Domestic Resettlement of and Assistance to Refugees) 10 U. S. C. §932(b)(4) (Uniform Code of Military Justice; Article 132 Retaliation) 10 U. S. C. §1034(j)(3) (Protected Communications; Prohibition of Retaliatory Personnel Actions) 12 U. S. C. §302 (Directors of Federal Reserve Banks; Number of Members; Classes) 12 U. S. C. §1735f–5(a) (Prohibition Against Discrimination on Account of Sex in Extension of Mortgage Assistance) 12 U. S. C. §1821(d)(13)(E)(iv) (Federal Deposit Insurance Corporation; Insurance Funds) 12 U. S. C. §1823(d)(3)(D)(iv) (Federal Deposit Insurance Corporation; Corporation Moneys) 12 U. S. C. §2277a–10c(b)(13)(E)(iv) (Farm Credit System Insurance Corporation; Corporation as Conservator or Receiver; Certain Other Powers) 12 U. S. C. §3015(a)(4) (National Consumer Cooperative Bank; Eligibility of Cooperatives) 12 U. S. C. §§3106a(1)(B) and (2)(B) (Foreign Bank Participation in Domestic Markets) 12 U. S. C. §4545(1) (Fair Housing) 12 U. S. C. §5390(a)(9)(E)(v) (Wall Street Reform and Consumer Protection; Powers and Duties of the Corporation) 15 U. S. C. §631(h) (Aid to Small Business) 15 U. S. C. §633(b)(1) (Small Business Administration) 15 U. S. C. §719 (Alaska Natural Gas Transportation; Civil Rights) 15 U. S. C. §775 (Federal Energy Administration; Sex Discrimination; Enforcement; Other Legal Remedies) 15 U. S. C. §1691(a)(1) (Equal Credit Opportunity Act) 15 U. S. C. §1691d(a) (Equal Credit Opportunity Act) 15 U. S. C. §3151(a) (Full Employment and Balanced Growth; Nondiscrimination) 18 U. S. C. §246 (Deprivation of Relief Benefits) 18 U. S. C. §3593(f ) (Special Hearing To Determine Whether a Sentence of Death Is Justified) 20 U. S. C. §1011(a) (Higher Education Resources and Student Assistance; Antidiscrimination) 20 U. S. C. §1011f(h)(5)(D) (Disclosures of Foreign Gifts) 20 U. S. C. §1066c(d) (Historically Black College and University Capital Financing; Limitations on Federal Insurance Bonds Issued by Designated Bonding Authority) 20 U. S. C. §1071(a)(2) (Federal Family Education Loan Program) 20 U. S. C. §1078(c)(2)(F) (Federal Payments To Reduce Student Interest Costs) 20 U. S. C. §1087–1(e) (Federal Family Education Loan Program; Special Allowances) 20 U. S. C. §1087–2(e) (Student Loan Marketing Association) 20 U. S. C. §1087–4 (Discrimination in Secondary Markets Prohibited) 20 U. S. C. §1087tt(c) (Discretion of Student Financial Aid Administrators) 20 U. S. C. §1231e(b)(2) (Education Programs; Use of Funds Withheld) 20 U. S. C. §1681 (Title IX of the Education Amendments of 1972) 20 U. S. C. §1701(a)(1) (Equal Educational Opportunities; Congressional Declaration of Policy) 20 U. S. C. §1702(a)(1) (Equal Educational Opportunities; Congressional Findings) 20 U. S. C. §1703 (Denial of Equal Educational Opportunity Prohibited) 20 U. S. C. §1705 (Assignment on Neighborhood Basis Not a Denial of Equal Educational Opportunity) 20 U. S. C. §1715 (District Lines) 20 U. S. C. §1720 (Equal Educational Opportunities; Definitions) 20 U. S. C. §1756 (Remedies With Respect to School District Lines) 20 U. S. C. §2396 (Career and Technical Education; Federal Laws Guaranteeing Civil Rights) 20 U. S. C. §3401(2) (Department of Education; Congressional Findings) 20 U. S. C. §7231d(b)(2)(C) (Magnet Schools Assistance; Applications and Requirements) 20 U. S. C. §7914 (Strengthening and Improvement of Elementary and Secondary Schools; Civil Rights) 22 U. S. C. §262p–4n (Foreign Relations and Intercourse; Equal Employment Opportunities) 22 U. S. C. §2304(a)(1) (Human Rights and Security Assistance) 22 U. S. C. §2314(g) (Furnishing of Defense Articles or Related Training or Other Defense Service on Grant Basis) 22 U. S. C. §2426 (Discrimination Against United States Personnel) 22 U. S. C. §2504(a) (Peace Corps Volunteers) 22 U. S. C. §2661a (Foreign Contracts or Arrangements; Discrimination) 22 U. S. C. §2755 (Discrimination Prohibited if Based on Race, Religion, National Origin, or Sex) 22 U. S. C. §3901(b)(2) (Foreign Service; Congressional Findings and Objectives) 22 U. S. C. §3905(b)(1) (Foreign Service; Personnel Actions) 22 U. S. C. §4102(11)(A) (Foreign Service; Definitions) 22 U. S. C. §4115(b)(4) (Foreign Service; Unfair Labor Practices) 22 U. S. C. §6401(a)(3) (International Religious Freedom; Findings; Policy) 22 U. S. C. §8303(c)(2) (Office of Volunteers for Prosperity) 23 U. S. C. §140(a) (Federal-Aid Highways; Nondiscrimination) 23 U. S. C. §324 (Highways; Prohibition of Discrimination on the Basis of Sex) 25 U. S. C. §4223(d)(2) (Housing Assistance for Native Hawaiians) 26 U. S. C. §7471(a)(6)(A) (Tax Court; Employees) 28 U. S. C. §994(d) (Duties of the United States Sentencing Commission) 28 U. S. C. §1862 (Trial by Jury; Discrimination Prohibited) 28 U. S. C. §1867(e) (Trial by Jury; Challenging Compliance With Selection Procedures) 29 U. S. C. §206(d)(1) (Equal Pay Act of 1963) 29 U. S. C. §§2601(a)(6) and (b)(4) (Family and Medical Leave; Findings and Purposes) 29 U. S. C. §2651(a) (Family and Medical Leave; Effect on Other Laws) 29 U. S. C. §3248 (Workforce Development Opportunities; Nondiscrimination) 30 U. S. C. §1222(c) (Research Funds to Institutes) 31 U. S. C. §732(f ) (Government Accountability Office; Personnel Management System) 31 U. S. C. §6711 (Federal Payments; Prohibited Discrimination) 31 U. S. C. §6720(a)(8) (Federal Payments; Definitions, Application, and Administration) 34 U. S. C. §10228(c) (Prohibition of Federal Control Over State and Local Criminal Justice Agencies; Prohibition of Discrimination) 34 U. S. C. §11133(a)(16) (Juvenile Justice and Delinquency Prevention; State Plans) 34 U. S. C. §12161(g) (Community Schools Youth Services and Supervision Grant Program) 34 U. S. C. §12361 (Violent Crime Control and Law Enforcement; Civil Rights for Women) 34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions) 34 U. S. C. §50104(a) (Emergency Federal Law Enforcement Assistance) 36 U. S. C. §20204(b) (Air Force Sergeants Association; Membership) 36 U. S. C. §20205(c) (Air Force Sergeants Association; Governing Body) 36 U. S. C. §21003(a)(4) (American GI Forum of the United States; Purposes) 36 U. S. C. §21004(b) (American GI Forum of the United States; Membership) 36 U. S. C. §21005(c) (American GI Forum of the United States; Governing Body) 36 U. S. C. §21704A (The American Legion) 36 U. S. C. §22703(c) (Amvets; Membership) 36 U. S. C. §22704(d) (Amvets; Governing Body) 36 U. S. C. §60104(b) (82nd Airborne Division Association, Incorporated; Membership) 36 U. S. C. §60105(c) (82nd Airborne Division Association, Incorporated; Governing Body) 36 U. S. C. §70104(b) (Fleet Reserve Association; Membership) 36 U. S. C. §70105(c) (Fleet Reserve Association; Governing Body) 36 U. S. C. §140704(b) (Military Order of the World Wars; Membership) 36 U. S. C. §140705(c) (Military Order of the World Wars; Governing Body) 36 U. S. C. §154704(b) (Non Commissioned Officers Association of the United States of America, Incorporated; Membership) 36 U. S. C. §154705(c) (Non Commissioned Officers Association of the United States of America, Incorporated; Governing Body) 36 U. S. C. §190304(b) (Retired Enlisted Association, Incorporated; Membership) 36 U. S. C. §190305(c) (Retired Enlisted Association, Incorporated; Governing Body) 36 U. S. C. §220522(a)(8) and (9) (United States Olympic Committee; Eligibility Requirements) 36 U. S. C. §230504(b) (Vietnam Veterans of America, Inc.; Membership) 36 U. S. C. §230505(c) (Vietnam Veterans of America, Inc.; Governing Body) 40 U. S. C. §122(a) (Federal Property and Administrative Services; Prohibition on Sex Discrimination) 40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination) 42 U. S. C. §213(f ) (Military Benefits) 42 U. S. C. §290cc–33(a) (Projects for Assistance in Transition From Homelessness) 42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements With Respect to Carrying Out Purpose of Grants) 42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex) 42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex) 42 U. S. C. §300w–7(a)(2) (Preventive Health and Health Services Block Grants; Nondiscrimination Provisions) 42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse; Nondiscrimination) 42 U. S. C. §603(a)(5)(I)(iii) (Block Grants to States for Temporary Assistance for Needy Families) 42 U. S. C. §708(a)(2) (Maternal and Child Health Services Block Grant; Nondiscrimination Provisions) 42 U. S. C. §1975a(a) (Duties of Civil Rights Commission) 42 U. S. C. §2000c(b) (Civil Rights; Public Education; Definitions) 42 U. S. C. §2000c–6(a)(2) (Civil Rights; Public Education; Civil Actions by the Attorney General) 42 U. S. C. §2000e–2 (Equal Employment Opportunities; Unlawful Employment Practices) 42 U. S. C. §2000e–3(b) (Equal Employment Opportunities; Other Unlawful Employment Practices) 42 U. S. C. §2000e–16(a) (Employment by Federal Government) 42 U. S. C. §2000e–16a(b) (Government Employee Rights Act of 1991) 42 U. S. C. §2000e–16b(a)(1) (Discriminatory Practices Prohibited) 42 U. S. C. §2000h–2 (Intervention by Attorney General; Denial of Equal Protection on Account of Race, Color, Religion, Sex or National Origin) 42 U. S. C. §3123 (Discrimination on Basis of Sex Prohibited in Federally Assisted Programs) 42 U. S. C. §3604 (Fair Housing Act; Discrimination in the Sale or Rental of Housing and Other Prohibited Practices) 42 U. S. C. §3605 (Fair Housing Act; Discrimination in Residential Real Estate-Related Transactions) 42 U. S. C. §3606 (Fair Housing Act; Discrimination in the Provision of Brokerage Services) 42 U. S. C. §3631 (Fair Housing Act; Violations; Penalties) 42 U. S. C. §4701 (Intergovernmental Personnel Program; Congressional Findings and Declaration of Policy) 42 U. S. C. §5057(a)(1) (Domestic Volunteer Services; Nondiscrimination Provisions) 42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance) 42 U. S. C. §5309(a) (Community Development; Nondiscrimination in Programs and Activities) 42 U. S. C. §5891 (Development of Energy Sources; Sex Discrimination Prohibited) 42 U. S. C. §6709 (Public Works Employment; Sex Discrimination; Prohibition; Enforcement) 42 U. S. C. §6727(a)(1) (Public Works Employment; Nondiscrimination) 42 U. S. C. §6870(a) (Weatherization Assistance for Low-Income Persons) 42 U. S. C. §8625(a) (Low-Income Home Energy Assistance; Nondiscrimination Provisions) 42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions) 42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions) 42 U. S. C. §9918(c)(1) (Community Services Block Grant Program; Limitations on Use of Funds) 42 U. S. C. §10406(c)(2)(B)(i) (Family Violence Prevention and Services; Formula Grants to States) 42 U. S. C. §11504(b) (Enterprise Zone Development; Waiver of Modification of Housing and Community Development Rules in Enterprise Zones) 42 U. S. C. §12635(a)(1) (National and Community Service State Grant Program; Nondiscrimination) 42 U. S. C. §12832 (Investment in Affordable Housing; Nondiscrimination) 43 U. S. C. §1747(10) (Loans to States and Political Subdivisions; Discrimination Prohibited) 43 U. S. C. §1863 (Outer Continental Shelf Resource Management; Unlawful Employment Practices; Regulations) 47 U. S. C. §151 (Federal Communications Commission) 47 U. S. C. §398(b)(1) (Public Broadcasting; Equal Opportunity Employment) 47 U. S. C. §§554(b) and (c) (Cable Communications; Equal Employment Opportunity) 47 U. S. C. §555a(c) (Cable Communications; Limitation of Franchising Authority Liability) 48 U. S. C. §1542(a) (Virgin Islands; Voting Franchise; Discrimination Prohibited) 48 U. S. C. §1708 (Discrimination Prohibited in Rights of Access to, and Benefits From, Conveyed Lands) 49 U. S. C. §306(b) (Duties of the Secretary of Transportation; Prohibited Discrimination) 49 U. S. C. §5332(b) (Public Transportation; Nondiscrimination) 49 U. S. C. §40127 (Air Commerce and Safety; Prohibitions on Discrimination) 49 U. S. C. §47123(a) (Airport Improvement; Nondiscrimination) 50 U. S. C. §3809(b)(3) (Selective Service System) 50 U. S. C. §4842(a)(1)(B) (Anti-Boycott Act of 2018) D Notes 1 E.g. , H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong., 1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R. 655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5 (1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong., 1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311, 106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2 (2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th Cong., 1st Sess., §2 (2005). 2 See, e.g. , H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R. 1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess., §7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th Cong., 1st Sess. (2019). 3 H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019). 4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2 and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND GENDER IDENTITY).” 5 That is what Judge Posner did in the Seventh Circuit case holding that Title VII prohibits discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind. , 853 F.3d 339 (2017) (en banc). Judge Posner agreed with that result but wrote: “ I would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted .” Id. , at 357 (concurring opinion) (emphasis added). 6 The Court does not define what it means by “transgender status,” but the American Psychological Association describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were assigned at birth.” A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/ce-corner-glossary. It defines “gender identity” as “[a]n internal sense of being male, female or something else, which may or may not correspondto an individual’s sex assigned at birth or sex characteristics.” Ibid. Under these definitions, there is no apparent difference between discrimination because of transgender status and discrimination because of gender identity. 7 The EEOC first held that “discrimination against a transgender individual because that person is transgender” violates Title VII in 2012 in Macy v. Holder , 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier advanced that position in an amicus brief in Federal District Court in 2011, ibid ., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx , 2015 WL 4397641 (July 15, 2015). 8 “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 B.Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry 2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed. 2011) (defining “sexual orientation” as “[t]he direction of a person’s sexual interest, as toward people of the opposite sex, the same sex, or both sexes”); Webster’s New College Dictionary 1036 (3d ed. 2008) (defining “sexual orientation” as “[t]he direction of one’s sexual interest toward members of the same, opposite, or both sexes”). 9 See n. 6, supra ; see also Sadock, supra, at 2063 (“transgender” refers to “any individual who identifies with and adopts the gender role of a member of the other biological sex”). 10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex”); see also id. , at 69 (“Somebody who comes in and says I’m not going to tell you what my sex is, but, believe me, I was fired for my sexual orientation, that person will lose”). 11 See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2 (“[T]here is no reasonable way to disentangle sex from same-sex attraction or transgender status”). 12 Brief for Petitioner in No. 17–1618, at 14; see also Brief for Southern Poverty Law Center et al. as Amici Curiae 7–8. 13 Brief for Scholars Who Study the LGB Population as Amici Curiae in Nos. 17–1618, 17–1623, p. 10. 14 Brief for American Psychological Association et al. as Amici Curiae 11. 15 Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5. 16 Notably, Title VII itself already suggests a line, which the Court ignores. The statute specifies that the terms “because of sex” and “on the basis of sex” cover certain conditions that are biologically tied to sex,namely, “pregnancy, childbirth, [and] related medical conditions.” 42 U. S. C. §2000e(k). This definition should inform the meaning of “because of sex” in Title VII more generally. Unlike pregnancy, neither sexual orientation nor gender identity is biologically linked to women or men. 17 Two other Justices concurred in the judgment but did not comment on the issue of stereotypes. See id. , at 258–261 (opinion of White, J.); id. , at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated on behalf of the three Justices in dissent that “Title VII creates no independent cause of action for sex stereotyping,” but he added that “[e]vidence of use by decisionmakers of sex stereotypes is, of course, quite relevant to the question of discriminatory intent.” Id. , at 294. 18 Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain dis-tinctions based on sex. Title 42 U. S. C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” Race is wholly absent from this list. 19 See American Heritage Dictionary 1188 (1969) (defining “sexual intercourse”); Webster’s Third New International Dictionary 2082 (1966) (same); Random House Dictionary of the English Language 1308 (1966) (same). 20 See also Chisom v. Roemer , 501 U.S. 380 , 405 (1991) (Scalia, J., dissenting) (“We are to read the words of [a statutory] text as any ordinary Member of Congress would have read them . . . and apply the meaning so determined”). 21 J. Kennedy, Statement by the President on the Establishment ofthe President’s Commission on the Status of Women 3 (Dec. 14, 1961) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/JFKPOF/093/JFKPOF-093-004. 22 Analysis of the way Title VII’s key language was used in books and articles during the relevant time period supports this conclusion. A study searched a vast database of documents from that time to determine how the phrase “discriminate against . . . because of [some trait]” was used. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (manuscript, at 3) (May 11, 2020) (brackets in original), https://ssrn.com/abstract=3585940. The study found that the phrase was used to denote discrimination against “someone . . . motivated by prejudice, or biased ideas or attitudes . . . directed at people with that trait in particular.” Id. , at 7 (emphasis deleted). In other words, “ discriminate against ” was “associated with negative treatment directed at members of a discrete group.” Id., at 5. Thus, as used in 1964, “discrimination because of sex” would have been understood to mean discrimination against a woman or a man based on “unfair beliefs or attitudes” about members of that particular sex. Id., at 7. 23 APA, Homosexuality and Sexual Orientation Disturbance: Proposed Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by . . . or wish to change their sexual orientation,” and explaining that “homosexuality . . . by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. 1980) (DSM–III) (similarly creating category of “Ego-dystonic Homosexuality” for “homosexuals for whom changing sexual orientation is a persistent concern,” while observing that “homosexuality itself is not considered a mental disorder”); Obergefell v. Hodges , 576 U.S. 644, 661 (2015). 24 In 1981, after achieving home rule, the District attempted to decriminalize sodomy, see D. C. Act No. 4–69, but the House of Representatives vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec. 22764–22779 (1981). Sodomy was not decriminalized in the District until 1995. See Anti-Sexual Abuse Act of 1994, §501(b), 41 D. C. Reg. 53 (1995), enacted as D. C. Law 10–257. 25 Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L. J. 799, 861 (1979). 26 Eskridge, Challenging the Apartheid of the Closet: Establishing Conditions for Lesbian and Gay Intimacy, Nomos , and Citizenship, 1961–1981, 25 Hofstra L. Rev. 817, 819 (1997). 27 Justices Douglas and Fortas thought that a homosexual is merely “one, who by some freak, is the product of an arrested development.” Boutilier , 387 U. S., at 127 (Douglas, J., dissenting); see also id. , at 125 (Brennan, J., dissenting) (based on lower court dissent). 28 Drescher, Transsexualism, Gender Identity Disorder and the DSM, 14 J. Gay & Lesbian Mental Health 109, 110 (2010). 29 American Psychological Association, 49 Monitor on Psychology, at 32. 30 Green, Robert Stoller’s Sex and Gender : 40 Years On, 39 Archives Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study of Gender Identity, 45 Int’l J. Psychoanalysis 220 (1964). The term appears to have been coined a year or two earlier. See Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting the term was first introduced at 23rd International Psycho-Analytical Congress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002) (referring to founding of “Gender Identity Research Clinic” at UCLA in 1962). In his book, Sex and Gender, published in 1968, Robert Stoller referred to “ gender identity ” as “a working term” “associated with” his research team but noted that they were not “fixed on copyrighting the term or on defending the concept as one of the splendors of the scientific world.” Sex and Gender, p. viii. 31 American Psychological Association, 49 Monitor on Psychology, at 32. 32 See Drescher, supra , at 112. 33 Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins, N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002). 34 Drescher, supra , at 112 (quoting Green, Attitudes Toward Transsexualism and Sex-Reassignment Procedures, in Transsexualism and Sex Reassignment 241–242 (R. Green & J. Money eds. 1969)). 35 See Osterman, Origins of a Myth: Why Courts, Scholars, and the Public Think Title VII’s Ban on Sex Discrimination Was an Accident, 20 Yale J. L. & Feminism 409, 409–410 (2009). 36 Recent scholarship has linked the adoption of the Smith Amendment to the broader campaign for women’s rights that was underway at the time. E.g. , Osterman, supra ; Freeman, How Sex Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163 (1991); Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale of Two Amendments: The Reasons Congress Added Sex to Title VII and Their Implication for the Issue of Comparable Worth, 19 Duquesne L. Rev. 453 (1981). None of these studies has unearthed evidence that the amendment was understood to apply to discrimination because of sexual orientation or gender identity. 37 H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the Senate on Mar. 6, 1991). 38 See Williamson v. A. G. Edwards & Sons, Inc. , 876 F.2d 69, 70 (CA8 1989) ( per curiam ), cert. denied, 493 U.S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co. , 608 F.2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp. , 597 F.2d 936, 938 (CA5 1979) ( per curiam ). 39 Ruth v. Children’s Med. Ctr. , 1991 WL 151158, *5 (CA6, Aug. 8, 1991) ( per curiam ); Ulane v. Eastern Airlines, Inc. , 742 F.2d 1081, 1084–1085 (CA7 1984), cert. denied, 471 U.S. 1017 (1985). 40 See Ulane , 742 F. 2d, at 1084–1085; Sommers v. Budget Mktg., Inc. , 667 F.2d 748, 750 (CA8 1982) ( per curiam ); Holloway v. Arthur Andersen & Co. , 566 F.2d 659, 661–663 (CA9 1977). 41 Dillon v. Frank , 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990); LaBate v. USPS , 1987 WL 774785, *2 (EEOC, Feb. 11, 1987). 42 In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has referred to those grounds by name. See, e.g. , 18 U. S. C. §249(a)(2)(A) (hate crimes) (enacted 2009); 34 U. S. C. §12291(b)(13)(A) (certain federally funded programs) (enacted 2013). 43 Contrary to the implication in the Court’s opinion, I do not label these potential consequences “undesirable.” Ante , at 31. I mention them only as possible implications of the Court’s reasoning. 44 Brief for Defend My Privacy et al. as Amici Curiae 7–10. 45 See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (explaining that “gender is now often regarded as more fluid ” and “[t]hus, gender identity may be described as masculine, feminine, or somewhere in between”). 46 Title IX makes it unlawful to discriminate on the basis of sex in education: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U. S. C. §1681(a). 47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on Transgender Students, May 13, 2016 (Dear Colleague Letter), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf. 48 A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but the statute itself would of course take precedence. 49 “[S]ince 2017, two biological males [in Connecticut] have collectively won 15 women’s state championship titles (previously held by ten different Connecticut girls) against biologically female track athletes.” Brief for Independent Women’s Forum et al. as Amici Curiae in No. 18–107, pp. 14–15. At the college level, a transgendered woman (biological male) switched from competing on the men’s Division II track team to the women’s Division II track team at Franklin Pierce University in New Hampshire after taking a year of testosterone suppressants. While this student had placed “eighth out of nine male athletes in the 400 meter hurdles theyear before, the student won the women’s competition by over a second and a half––a time that had garnered tenth place in the men’s conference meet just three years before.” Id. , at 15. A transgender male— i.e ., a biological female who was in the process of transitioning to male and actively taking testosterone injections––won the Texas girls’ state championship in high school wrestling in 2017. Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26, 2017, p. A1, col. 1. 50 Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4. 51 Brief for National Association of Evangelicals et al. as Amici Curiae 3; see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, pp. 8–18. 52 Brief for National Association of Evangelicals et al. as Amici Curiae 7. 53 McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990). 54 See Our Lady of Guadalupe School v. Morrissey-Berru , No. 19–267; St. James School v. Biel , No. 19–348. 55 See, e.g. , EEOC v. Kamehameha Schools/Bishop Estate , 990 F.2d 458, 460 (CA9 1993); EEOC v. Fremont Christian School , 781 F.2d 1362, 1365–1367 (CA9 1986); Rayburn v. General Conference of Seventh-day Adventists , 772 F.2d 1164, 1166 (CA4 1985); EEOC v. Mississippi College , 626 F.2d 477, 484–486 (CA5 1980); see also Brief for United States Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, at 30, n. 28 (discussing disputed scope). In addition, 42 U. S. C. §2000e–2(e)(1) provides that religion may be a BFOQ, and allows religious schools to hire religious employees, but as noted, the BFOQ exception has been read narrowly. See supra , at 48. 56 See, e.g. , Amended Complaint in Toomey v. Arizona , No. 4:19–cv–00035 (D Ariz., Mar. 2, 2020). At least one District Court has already held that a state health insurance policy that does not provide coverage for sex reassignment surgery violates Title VII. Fletcher v. Alaska , ___ F. Supp. 3d ___, ___, 2020 WL 2487060, *5 (D Alaska, Mar. 6, 2020). 57 See, e.g. , Complaint in Conforti v. St. Joseph’s Healthcare System , No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimination under the ACA because a Catholic hospital refused to allow a surgeon to perform a hysterectomy). And multiple District Courts have already concluded that the ACA requires health insurance coverage for sex reassignment surgery and treatment. Kadel v. Folwell , ___ F. Supp. 3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11, 2020) (allowingclaims of discrimination under ACA, Title IX, and Equal Protection Clause); Tovar v. Essentia Health , 342 F. Supp. 3d 947, 952–954 (D Minn. 2018) (allowing ACA claim). Section 1557 of the ACA, 42 U. S. C. §18116, provides: “Except as otherwise provided for in this title (or an amendment made by this title), an individual shall not, on the ground prohibited under title VI of the Civil Rights Act of 1964 (42 U. S. C. 2000d et seq.), title IX of the Education Amendments of 1972 (20 U. S. C. 1681 et seq.), the Age Discrimination Act of 1975 (42 U. S. C. 6101 et seq.), or section 794 of title 29, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such Age Discrimination Act shall apply for purposes of violations of this subsection.” (Footnote omitted.) 58 See, e.g. , University of Wisconsin Milwaukee Lesbian, Gay, Bisexual, Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns (2020), https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers;ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs). 59 See 47 N. Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate refusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. Code §8–107 “where the refusal is motivated by the individual’s gender”); see also N. Y. C. Admin. Code §§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the basis of “gender” in employment, housing, and public accommodations); cf. D. C. Mun. Regs., tit. 4, §801.1 (2020) (making it “unlawful . . . to discriminate . . . on the basis of . . . actual or perceived gender identity or expression” in “employment, housing, public accommodations, or educational institutions” and further proscribing “engaging in verbal . . . harassment”). 60 See University of Minn., Equity and Access: Gender Identity, Gender Expression, Names, and Pronouns, Administrative Policy (Dec. 11, 2019), https://policy.umn.edu/operations/genderequity (“University members and units are expected to use the names, gender identities, and pronouns specified to them by other University members, except as legally required”); Meriwether v. Trustees of Shawnee State Univ. , 2020 WL 704615, *1 (SD Ohio, Feb. 12, 2020) (rejecting First Amendment challenge to university’s nondiscrimination policy brought by evangelical Christian professor who was subjected to disciplinary actions for failing to use student’s preferred pronouns). 61 Cf. Notice of Removal in Vlaming v. West Point School Board , No. 3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school teacher’s firing for failure to use student’s preferred pronouns was based on nondiscrimination policy adopted pursuant to Title IX). SUPREME COURT OF THE UNITED STATES _________________ Nos. 17–1618, 17–1623 and 18–107 _________________ GERALD LYNN BOSTOCK, PETITIONER 17–1618 v. CLAYTON COUNTY, GEORGIA on writ of certiorari to the united states court of appeals for the eleventh circuit ALTITUDE EXPRESS, INC., et al., PETITIONERS 17–1623 v. MELISSA ZARDA and William Allen Moore, Jr., co-independent executors of the ESTATE OF DONALD ZARDA on writ of certiorari to the united states court of appeals for the second circuit R.G. & G.R. HARRIS FUNERAL HOMES, INC., PETITIONER 18–107 v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al. on writ of certiorari to the united states court of appeals for the sixth circuit [June 15, 2020] Justice Kavanaugh, dissenting. Like many cases in this Court, this case boils down to one fundamental question: Who decides? Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII should be expanded to prohibit employment discrimination because of sexual orientation. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court. The political branches are well aware of this issue. In 2007, the U. S. House of Representatives voted 235 to 184 to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 in favor of a similar ban. In 2019, the House again voted 236 to 173 to outlaw employment discrimination on the basis of sexual orientation. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law. The policy arguments for amending Title VII are very weighty. The Court has previously stated, and I fully agree, that gay and lesbian Americans “cannot be treated as social outcasts or as inferior in dignity and worth.” Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n , 584 U. S. ___, ___ (2018) (slip op., at 9). But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” The Federalist No. 78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s separation of powers, our role as judges is to interpret and follow the law as written, regardless of whether we like the result. Cf. Texas v. Johnson , 491 U.S. 397 , 420–421 (1989) (Kennedy, J., concurring). Our role is not to make or amend the law. As written, Title VII does not prohibit employment discrimination because of sexual orientation.[ 1 ] I Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1).[ 2 ] As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination. Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 81Stat. 602. In 1973, Congress passed and President Nixon signed the Rehabilitation Act, which in substance prohibited disability discrimination against federal and certain other employees. 87Stat. 355. In 1990, Congress passed and President George H. W. Bush signed the comprehensive Americans with Disabilities Act. 104Stat. 327. To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of powers. For several decades, Congress has considered numerous bills to prohibit employment discrimination based on sexual orientation. But as noted above, although Congress has come close, it has not yet shouldered a bill over the legislative finish line. In the face of the unsuccessful legislative efforts (so far) to prohibit sexual orientation discrimination, judges may not rewrite the law simply because of their own policy views. Judges may not update the law merely because they think that Congress does not have the votes or the fortitude. Judges may not predictively amend the law just because they believe that Congress is likely to do it soon anyway. If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty. As James Madison stated: “Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator .” The Federalist No. 47, at 326 (citing Montesquieu). If judges could, for example, rewrite or update securities laws or healthcare laws or gun laws or environmental laws simply based on their own policy views, the Judiciary would become a democratically illegitimate super-legislature—unelected, and hijacking the important policy decisions reserved by the Constitution to the people’s elected representatives. Because judges interpret the law as written, not as they might wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges considered the question. All 30 judges said no, based on the text of the statute. 30 out of 30. But in the last few years, a new theory has emerged. To end-run the bedrock separation-of-powers principle that courts may not unilaterally rewrite statutes, the plaintiffs here (and, recently, two Courts of Appeals) have advanced a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired because he is gay, he is fired because he is attracted to men, even though a similarly situated woman would not be fired just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex. Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination, and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—and actually has done so since 1964, unbeknownst to everyone. Surprisingly, the Court today buys into this approach. Ante , at 9–12. For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary meaning. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. The plaintiffs fall short on both counts. First , courts must follow ordinary meaning, not literal meaning. And courts must adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase. There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning, not literal meaning, when interpreting statutes. As Justice Scalia explained, “the good textualist is not a literalist.” A. Scalia, A Matter of Interpretation 24 (1997). Or as Professor Eskridge stated: The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,” so that “for hard cases as well as easy ones, the ordinary meaning (or the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation.” W. Eskridge, Interpreting Law 33, 34–35 (2016) (footnote omitted). Or as Professor Manning put it, proper statutory interpretation asks “how a reasonable person, conversant with the relevant social and linguistic conventions, would read the text in context. This approach recognizes that the literal or dictionary definitions of words will often fail to account for settled nuances or background conventions that qualify the literal meaning of language and, in particular, of legal language.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as Professor Nelson wrote: No “mainstream judge is interested solely in the literal definitions of a statute’s words.” Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The ordinary meaning that counts is the ordinary public meaning at the time of enactment—although in this case, that temporal principle matters little because the ordinary meaning of “discriminate because of sex” was the same in 1964 as it is now. Judges adhere to ordinary meaning for two main reasons: rule of law and democratic accountability. A society governed by the rule of law must have laws that are known and understandable to the citizenry. And judicial adherence to ordinary meaning facilitates the democratic accountability of America’s elected representatives for the laws they enact. Citizens and legislators must be able to ascertain the law by reading the words of the statute. Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning. Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on “vehicles in the park” would literally encompass a baby stroller. But no good judge would interpret the statute that way because the word “vehicle,” in its ordinary meaning, does not encompass baby strollers. The ordinary meaning principle is longstanding and well settled. Time and again, this Court has rejected literalism in favor of ordinary meaning. Take a few examples: The Court recognized that beans may be seeds “in the language of botany or natural history,” but concluded that beans are not seeds “in commerce” or “in common parlance.” Robertson v. Salomon , 130 U.S. 412 , 414 (1889). The Court explained that tomatoes are literally “the fruit of a vine,” but “in the common language of the people,” tomatoes are vegetables. Nix v. Hedden , 149 U.S. 304 , 307 (1893). The Court stated that the statutory term “vehicle” does not cover an aircraft: “No doubt etymologically it is possible to use the word to signify a conveyance working on land, water or air . . . . But in everyday speech ‘vehicle’ calls up the picture of a thing moving on land.” McBoyle v. United States , 283 U.S. 25 , 26 (1931). The Court pointed out that “this Court’s interpretation of the three-judge-court statutes has frequently deviated from the path of literalism.” Gonzalez v. Automatic Employees Credit Union , 419 U.S. 90 , 96 (1974). The Court refused a reading of “mineral deposits” that would include water, even if “water is a ‘mineral,’ in the broadest sense of that word,” because it would bring about a “major . . . alteration in established legal relationships based on nothing more than an overly literal reading of a statute, without any regard for its context or history.” Andrus v. Charlestone Stone Products Co. , 436 U.S. 604 , 610, 616 (1978). The Court declined to interpret “facilitating” a drug distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits uncomfortably with common usage.” Abuelhawa v. United States , 556 U.S. 816 , 820 (2009). The Court rebuffed a literal reading of “personnel rules” that would encompass any rules that personnel must follow (as opposed to human resources rules about personnel), and stated that no one “using ordinary language would describe” personnel rules “in this manner.” Milner v. Department of Navy , 562 U.S. 562 , 578 (2011). The Court explained that, when construing statutory phrases such as “arising from,” it avoids “uncritical literalism leading to results that no sensible person could have intended.” Jennings v. Rodriguez , 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 9–10) (internal quotation marks omitted). Those cases exemplify a deeply rooted principle: When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning. Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when—as in this case—judges consider phrases in statutes. (Recall that the shorthand version of the phrase at issue here is “discriminate because of sex.”)[ 3 ] Courts must heed the ordinary meaning of the phrase as a whole , not just the meaning of the words in the phrase. That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual words in the phrase. Examples abound. An “American flag” could literally encompass a flag made in America, but in common parlance it denotes the Stars and Stripes. A “three-pointer” could literally include a field goal in football, but in common parlance, it is a shot from behind the arc in basketball. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict short of open warfare. A “washing machine” could literally refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes. This Court has often emphasized the importance of sticking to the ordinary meaning of a phrase , rather than the meaning of words in the phrase. In FCC v. AT&T Inc. , 562 U.S. 397 (2011), for example, the Court explained: “AT&T’s argument treats the term ‘personal privacy’ as simply the sum of its two words: the privacy of a person. . . . But two words together may assume a more particular meaning than those words in isolation. We understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who is charming, lucky, and talented. A golden opportunity is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ It suggests a type of privacy evocative of human concerns—not the sort usually associated with an entity like, say, AT&T.” Id., at 406. Exactly right and exactly on point in this case. Justice Scalia explained the extraordinary importance of hewing to the ordinary meaning of a phrase: “Adhering to the fair meaning of the text (the textualist’s touchstone) does not limit one to the hyperliteral meaning of each word in the text. In the words of Learned Hand: ‘a sterile literalism . . . loses sight of the forest for the trees.’ The full body of a text contains implications that can alter the literal meaning of individual words.” A. Scalia & B. Garner, Reading Law 356 (2012) (footnote omitted). Put another way, “the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes.” Helvering v. Gregory , 69 F.2d 809, 810–811 (CA2 1934) (L. Hand, J.). Judges must take care to follow ordinary meaning “when two words combine to produce a meaning that is not the mechanical composition of the two words separately.” Eskridge, Interpreting Law, at 62. Dictionaries are not “always useful for determining the ordinary meaning of word clusters (like ‘driving a vehicle’) or phrases and clauses or entire sentences.” Id. , at 44. And we must recognize that a phrase can cover a “dramatically smaller category than either component term.” Id., at 62. If the usual evidence indicates that a statutory phrase bears an ordinary meaning different from the literal strung-together definitions of the individual words in the phrase, we may not ignore or gloss over that discrepancy. “Legislation cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming that, if the right example of the meaning of each is selected, the ‘plain meaning’ of the statute leads to a particular result. No theory of interpretation, including textualism itself, is premised on such an approach.” 883 F.3d 100, 144, n. 7 (CA2 2018) (Lynch, J., dissenting).[ 4 ] In other words, this Court’s precedents and longstanding principles of statutory interpretation teach a clear lesson: Do not simply split statutory phrases into their component words, look up each in a dictionary, and then mechanically put them together again, as the majority opinion today mistakenly does. See ante , at 5–9. To reiterate Justice Scalia’s caution, that approach misses the forest for the trees. A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is. It destabilizes the rule of law and thwarts democratic accountability. For phrases as well as terms, the “linchpin of statutory interpretation is ordinary meaning , for that is going to be most accessible to the citizenry desirous of following the law and to the legislators and their staffs drafting the legal terms of the plans launched by statutes and to the administrators and judges implementing the statutory plan.” Eskridge, Interpreting Law , at 81; see Scalia, A Matter of Interpretation, at 17. Bottom line: Statutory Interpretation 101 instructs courts to follow ordinary meaning, not literal meaning, and to adhere to the ordinary meaning of phrases, not just the meaning of the words in a phrase. Second , in light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question in this case boils down to the ordinary meaning of the phrase “discriminate because of sex.” Does the ordinary meaning of that phrase encompass discrimination because of sexual orientation? The answer is plainly no. On occasion, it can be difficult for judges to assess ordinary meaning. Not here. Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today. As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of their sex. Ante , at 16. That observation is clearly correct. In common parlance, Bostock and Zarda were fired because they were gay, not because they were men. Contrary to the majority opinion’s approach today, this Court has repeatedly emphasized that common parlance matters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted. New Prime Inc. v. Oliveira , 586 U. S. ___, ___–___ (2019) (slip op., at 6–7); see Henson v. Santander Consumer USA Inc. , 582 U. S. ___, ___ (2017) (slip op., at 4) (using a conversation between friends to demonstrate ordinary meaning); see also Wisconsin Central Ltd. v. United States , 585 U. S. ___, ___–___ (2018) (slip op., at 2–3) (similar); AT&T , 562 U. S., at 403–404 (similar). Consider the employer who has four employees but must fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man, and a lesbian. The employer with animosity against women (animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian. Those are two distinct harms caused by two distinct biases that have two different outcomes. To treat one as a form of the other—as the majority opinion does—misapprehends common language, human psychology, and real life. See Hively v. Ivy Tech Community College of Ind. , 853 F.3d 339, 363 (CA7 2017) (Sykes, J., dissenting). It also rewrites history. Seneca Falls was not Stonewall. The women’s rights movement was not (and is not) the gay rights movement, although many people obviously support or participate in both. So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology. Importantly, an overwhelming body of federal law reflects and reinforces the ordinary meaning and demonstrates that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Since enacting Title VII in 1964, Congress has never treated sexual orientation discrimination the same as, or as a form of, sex discrimination. Instead, Congress has consistently treated sex discrimination and sexual orientation discrimination as legally distinct categories of discrimination. Many federal statutes prohibit sex discrimination, and many federal statutes also prohibit sexual orientation discrimination. But those sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. Every single one. To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination, Congress explicitly refers to sexual orientation discrimination.[ 5 ] That longstanding and widespread congressional practice matters. When interpreting statutes, as the Court has often said, we “usually presume differences in language” convey “differences in meaning.” Wisconsin Central , 585 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. As Justice Scalia explained for the Court, “it is not our function” to “treat alike subjects that different Congresses have chosen to treat differently.” West Virginia Univ. Hospitals, Inc. v. Casey , 499 U.S. 83 , 101 (1991); see id., at 92. And the Court has likewise stressed that we may not read “a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” Eskridge, Interpreting Law, at 415; see University of Tex. Southwestern Medical Center v. Nassar , 570 U.S. 338 , 357 (2013); Arlington Central School Dist. Bd. of Ed. v. Murphy , 548 U.S. 291 , 297–298 (2006); Jama v. Immigration and Customs Enforcement , 543 U.S. 335 , 341–342 (2005); Custis v. United States , 511 U.S. 485 , 491–493 (1994); West Virginia Univ. Hospitals , 499 U. S., at 99. So it is here. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination. So courts should not read that specific concept into the general words “discriminate because of sex.” We cannot close our eyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two distinct categories. Where possible, we also strive to interpret statutes so as not to create undue surplusage. It is not uncommon to find some scattered redundancies in statutes. But reading sex discrimination to encompass sexual orientation discrimination would cast aside as surplusage the numerous references to sexual orientation discrimination sprinkled throughout the U. S. Code in laws enacted over the last 25 years. In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The story is the same with bills proposed in Congress. Since the 1970s, Members of Congress have introduced many bills to prohibit sexual orientation discrimination in the workplace. Until very recently, all of those bills would have expressly established sexual orientation as a separately proscribed category of discrimination. The bills did not define sex discrimination to encompass sexual orientation discrimination.[ 6 ] The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A. , 511 U.S. 164 , 186–188 (1994). Rather, the proposed bills are telling because they, like the enacted laws, further demonstrate the widespread usage of the English language in the United States: Sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Presidential Executive Orders reflect that same common understanding. In 1967, President Johnson signed an Executive Order prohibiting sex discrimination in federal employment. In 1969, President Nixon issued a new order that did the same. Exec. Order No. 11375, 3 CFR 684 (1966–1970 Comp.); Exec. Order No. 11478, id., at 803. In 1998, President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discrimination in federal employment. Exec. Order No. 13087, 3 CFR 191 (1999). The Nixon and Clinton Executive Orders remain in effect today. Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new, separately prohibited form of discrimination. As Judge Lynch cogently spelled out, “the Clinton Administration did not argue that the prohibition of sex discrimination in” the prior 1969 Executive Order “already banned, or henceforth would be deemed to ban, sexual orientation discrimination.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short, President Clinton’s 1998 Executive Order indicates that the Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not a form of, sex discrimination. Federal regulations likewise reflect that same understanding. The Office of Personnel Management is the federal agency that administers and enforces personnel rules across the Federal Government. OPM has issued regulations that “govern . . . the employment practices of the Federal Government generally, and of individual agencies.” 5 CFR §§300.101, 300.102 (2019). Like the federal statutes and the Presidential Executive Orders, those OPM regulations separately prohibit sex discrimination and sexual orientation discrimination. The States have proceeded in the same fashion. A majority of States prohibit sexual orientation discrimination in employment, either by legislation applying to most workers,[ 7 ] an executive order applying to public employees,[ 8 ] or both. Almost every state statute or executive order proscribing sexual orientation discrimination expressly prohibits sexual orientation discrimination separately from the State’s ban on sex discrimination. That common usage in the States underscores that sexual orientation discrimination is commonly understood as a legal concept distinct from sex discrimination. And it is the common understanding in this Court as well. Since 1971, the Court has employed rigorous or heightened constitutional scrutiny of laws that classify on the basis of sex. See United States v. Virginia , 518 U.S. 515 , 531–533 (1996); J. E. B. v. Alabama ex rel. T. B. , 511 U.S. 127 , 136–137 (1994); Craig v. Boren , 429 U.S. 190 , 197–199 (1976); Frontiero v. Richardson , 411 U.S. 677 , 682–684 (1973) (plurality opinion); Reed v. Reed , 404 U.S. 71 , 75–77 (1971). Over the last several decades, the Court has also decided many cases involving sexual orientation. But in those cases, the Court never suggested that sexual orientation discrimination is just a form of sex discrimination. All of the Court’s cases from Bowers to Romer to Lawrence to Windsor to Obergefell would have been far easier to analyze and decide if sexual orientation discrimination were just a form of sex discrimination and therefore received the same heightened scrutiny as sex discrimination under the Equal Protection Clause. See Bowers v. Hardwick , 478 U.S. 186 (1986); Romer v. Evans , 517 U.S. 620 (1996); Lawrence v. Texas , 539 U.S. 558 (2003); United States v. Windsor , 570 U.S. 744 (2013); Obergefell v. Hodges , 576 U.S. 644 (2015). Did the Court in all of those sexual orientation cases just miss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? That seems implausible. Nineteen Justices have participated in those cases. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. The opinions in those five cases contain no trace of such reasoning. That is presumably because everyone on this Court, too, has long understood that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. In sum, all of the usual indicators of ordinary meaning—common parlance, common usage by Congress, the practice in the Executive Branch, the laws in the States, and the decisions of this Court—overwhelmingly establish that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. The usage has been consistent across decades, in both the federal and state contexts. Judge Sykes summarized the law and language this way: “To a fluent speaker of the English language—then and now—. . . discrimination ‘because of sex’ is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here.” Hively , 853 F. 3d, at 363 (dissenting opinion). To tie it all together, the plaintiffs have only two routes to succeed here. Either they can say that literal meaning overrides ordinary meaning when the two conflict. Or they can say that the ordinary meaning of the phrase “discriminate because of sex” encompasses sexual orientation discrimination. But the first flouts long-settled principles of statutory interpretation. And the second contradicts the widespread ordinary use of the English language in America. II Until the last few years, every U. S. Court of Appeals to address this question concluded that Title VII does not prohibit discrimination because of sexual orientation. As noted above, in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination. 30 out of 30 judges.[ 9 ] The unanimity of those 30 federal judges shows that the question as a matter of law, as compared to as a matter of policy, was not deemed close. Those 30 judges realized a seemingly obvious point: Title VII is not a general grant of authority for judges to fashion an evolving common law of equal treatment in the workplace. Rather, Title VII identifies certain specific categories of prohibited discrimination. And under the separation of powers, Congress—not the courts—possesses the authority to amend or update the law, as Congress has done with age discrimination and disability discrimination, for example. So what changed from the situation only a few years ago when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII. The law has not changed. Rather, the judges’ decisions have evolved. To be sure, the majority opinion today does not openly profess that it is judicially updating or amending Title VII. Cf. Hively , 853 F. 3d, at 357 (Posner, J., concurring). But the majority opinion achieves the same outcome by seizing on literal meaning and overlooking the ordinary meaning of the phrase “discriminate because of sex.” Although the majority opinion acknowledges that the meaning of a phrase and the meaning of a phrase’s individual words could differ, it dismisses phrasal meaning for purposes of this case. The majority opinion repeatedly seizes on the meaning of the statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. See ante , at 5–9, 17, 24–26. But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles of statutory interpretation dictate that we look to ordinary meaning, not literal meaning, and that we likewise adhere to the ordinary meaning of phrases, not just the meaning of words in a phrase. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination. The majority opinion deflects that critique by saying that courts should base their interpretation of statutes on the text as written, not on the legislators’ subjective intentions. Ante , at 20, 23–30. Of course that is true. No one disagrees. It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc. , 523 U.S. 75 , 79 (1998). But in my respectful view, the majority opinion makes a fundamental mistake by confusing ordinary meaning with subjective intentions. To briefly explain: In the early years after Title VII was enacted, some may have wondered whether Title VII’s prohibition on sex discrimination protected male employees. After all, covering male employees may not have been the intent of some who voted for the statute. Nonetheless, discrimination on the basis of sex against women and discrimination on the basis of sex against men are both understood as discrimination because of sex (back in 1964 and now) and are therefore encompassed within Title VII. Cf. id., at 78–79; see Newport News Shipbuilding & Dry Dock Co. v. EEOC , 462 U.S. 669 , 682–685 (1983). So too, regardless of what the intentions of the drafters might have been, the ordinary meaning of the law demonstrates that harassing an employee because of her sex is discriminating against the employee because of her sex with respect to the “terms, conditions, or privileges of employment,” as this Court rightly concluded. Meritor Savings Bank, FSB v. Vinson , 477 U.S. 57 , 64 (1986) (internal quotation marks omitted).[ 10 ] By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now, federal law has always reflected that common usage and recognized that distinction between sex discrimination and sexual orientation discrimination. To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions. To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought to exclude from the workplace from those it did not, and the distinctive nature of anti-gay prejudice.” 883 F. 3d, at 162 (dissenting opinion). The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two. As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today. Many will no doubt believe that the Court has unilaterally rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively , 853 F. 3d, at 360 (Sykes, J., dissenting). Some will surmise that the Court succumbed to “the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others.” Furman v. Georgia , 408 U.S. 238 , 467 (1972) (Rehnquist, J., dissenting). I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspiration that judges base their decisions on law rather than on personal preference. The best way for judges to demonstrate that we are deciding cases based on the ordinary meaning of the law is to walk the walk, even in the hard cases when we might prefer a different policy outcome. *  *  * In judicially rewriting Title VII, the Court today cashiers an ongoing legislative process, at a time when a new law to prohibit sexual orientation discrimination was probably close at hand. After all, even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation—the House voted 235 to 184 to prohibit sexual orientation discrimination in employment. H. R. 3685, 110th Cong., 1st Sess. In 2013, the Senate overwhelmingly approved a similar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. H. R. 5, 116th Cong., 1st Sess. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn. It is true that meaningful legislative action takes time—often too much time, especially in the unwieldy morass on Capitol Hill. But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” Henson , 582 U. S., at ___–___ (slip op., at 10–11). Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law. Under the Constitution and laws of the United States, this Court is the wrong body to change American law in that way. The Court’s ruling “comes at a great cost to representative self-government.” Hively , 853 F. 3d, at 360 (Sykes, J., dissenting). And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come. Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII. I therefore must respectfully dissent from the Court’s judgment. Notes 1 Although this opinion does not separately analyze discrimination on the basis of gender identity, this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity. 2 In full, the statute provides: “ It shall be an unlawful employment practice for an employer — “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin ; or “(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a) (emphasis added). As the Court today recognizes, Title VII contains an important exemption for religious organizations. §2000e–1(a); see also §2000e–2(e). The First Amendment also safeguards the employment decisions of religious employers. See Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC , 565 U.S. 171 , 188–195 (2012). So too, the Religious Freedom Restoration Act of 1993 exempts employers from federal laws that substantially burden the exercise of religion, subject to limited exceptions. §2000bb–1. 3 The full phrasing of the statute is provided above in footnote 2. This opinion uses “discriminate because of sex” as shorthand for “discriminate . . . because of . . . sex.” Also, the plaintiffs do not dispute that the ordinary meaning of the statutory phrase “discriminate” because of sex is the same as the statutory phrase “to fail or refuse to hire or to discharge any individual” because of sex. 4 Another longstanding canon of statutory interpretation—the absurdity canon—similarly reflects the law’s focus on ordinary meaning rather than literal meaning. That canon tells courts to avoid construing a statute in a way that would lead to absurd consequences. The absurdity canon, properly understood, is “an implementation of (rather than . . . an exception to) the ordinary meaning rule.” W. Eskridge, Interpreting Law 72 (2016). “What the rule of absurdity seeks to do is what all rules of interpretation seek to do: make sense of the text.” A. Scalia & B. Garner, Reading Law 235 (2012). 5 See 18 U. S. C. §249(a)(2)(A) (criminalizing violence because of “gender, sexual orientation”); 20 U. S. C. §1092(f )(1)(F)(ii) (requiring funding recipients to collect statistics on crimes motivated by the victim’s “gender, . . . sexual orientation”); 34 U. S. C. §12291(b)(13)(A) (prohibiting discrimination on the basis of “sex, . . . sexual orientation”); §30501(1) (identifying violence motivated by “gender, sexual orientation” as national problem); §30503(a)(1)(C) (authorizing Attorney General to assist state, local, and tribal investigations of crimes motivated by the victim’s “gender, sexual orientation”); §§41305(b)(1), (3) (requiring Attorney General to acquire data on crimes motivated by “gender . . . , sexual orientation,” but disclaiming any cause of action including one “based on discrimination due to sexual orientation”); 42 U. S. C. §294e–1(b)(2) (conditioning funding on institution’s inclusion of persons of “different genders and sexual orientations”); see also United States Sentencing Commission, Guidelines Manual §3A1.1(a) (Nov. 2018) (authorizing increased offense level if the crime was motivated by the victim’s “gender . . . or sexual orientation”); 2E Guide to Judiciary Policy §320 (2019) (prohibiting judicial discrimination because of “sex, . . . sexual orientation”). 6 See, e.g. , H. R. 14752, 93d Cong., 2d Sess., §§6, 11 (1974) (amending Title VII “by adding after the word ‘sex’ ” the words “ ‘sexual orientation,’ ” defined as “choice of sexual partner according to gender”); H. R. 451, 95th Cong., 1st Sess., §§6, 11 (1977) (“adding after the word ‘sex,’ . . . ‘affectional or sexual preference,’ ” defined as “having or manifesting an emotional or physical attachment to another consenting person or persons of either gender, or having or manifesting a preference for such attachment”); S. 1708, 97th Cong., 1st Sess., §§1, 2 (1981) (“inserting after ‘sex’ . . . ‘sexual orientation,’ ” defined as “ ‘homosexuality, heterosexuality, and bisexuality’ ”); H. R. 230, 99th Cong., 1st Sess., §§4, 8 (1985) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); S. 47, 101st Cong., 1st Sess., §§5, 9 (1989) (“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); H. R. 431, 103d Cong., 1st Sess., §2 (1993) (prohibiting discrimination “on account of . . . sexual orientation” without definition); H. R. 1858, 105th Cong., 1st Sess., §§3, 4 (1997) (prohibiting discrimination “on the basis of sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2692, 107th Cong., 1st Sess., §§3, 4 (2001) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, bisexuality, or heterosexuality”); H. R. 2015, 110th Cong., 1st Sess., §§3, 4 (2007) (prohibiting discrimination “because of . . . sexual orientation,” defined as “homosexuality, heterosexuality, or bisexuality”); S. 811, 112th Cong., 1st Sess., §§3, 4 (2011) (same). 7 See Cal. Govt. Code Ann. §12940(a) (West 2020 Cum. Supp.) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Colo. Rev. Stat. §24–34–402(1)(a) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Conn. Gen. Stat. §46a–81c (2017) (prohibiting discrimination because of “sexual orientation”); Del. Code Ann., Tit. 19, §711 (2018 Cum. Supp.) (prohibiting discrimination because of “sex (including pregnancy), sexual orientation,” etc.); D. C. Code §2–1402.11(a)(1) (2019 Cum. Supp.) (prohibiting discrimination based on “sex, . . . sexual orientation,” etc.); Haw. Rev. Stat. §378–2(a)(1)(A) (2018 Cum. Supp.) (prohibiting discrimination because of “sex[,] . . . sexual orientation,” etc.); Ill. Comp. Stat., ch. 775, §§5/1–103(Q), 5/2–102(A) (West 2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Iowa Code §216.6(1)(a) (2018) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Me. Rev. Stat. Ann., Tit. 5, §4572(1)(A) (2013) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Md. State Govt. Code Ann. §20–606(a)(1)(i) (Supp. 2019) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Gen. Laws, ch. 151B, §4 (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Minn. Stat. §363A.08(2) (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Nev. Rev. Stat. §613.330(1) (2017) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. H. Rev. Stat. Ann. §354–A:7(I) (2018 Cum. Supp.) (prohibiting discrimination because of “sex,” “sexual orientation,” etc.); N. J. Stat. Ann. §10:5–12(a) (West Supp. 2019) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); N. M. Stat. Ann. §28–1–7(A) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); N. Y. Exec. Law Ann. §296(1)(a) (West Supp. 2020) (prohibiting discrimination because of “sexual orientation, . . . sex,” etc.); Ore. Rev. Stat. §659A.030(1) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); R. I. Gen. Laws §28–5–7(1) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Utah Code §34A–5–106(1) (2019) (prohibiting discrimination because of “sex; . . . sexual orientation,” etc.); Vt. Stat. Ann., Tit. 21, §495(a)(1) (2019 Cum. Supp.) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Wash. Rev. Code §49.60.180 (2008) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.). 8 See, e.g., Alaska Admin. Order No. 195 (2002) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ariz. Exec. Order No. 2003–22 (2003) (prohibiting public-employment discrimination because of “sexual orientation”); Cal. Exec. Order No. B–54–79 (1979) (prohibiting public-employment discrimination because of “sexual preference”); Colo. Exec. Order (Dec. 10, 1990) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Del. Exec. Order No. 8 (2009) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ind. Governor’s Pol’y Statement (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Kan. Exec. Order No. 19–02 (2019) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); Ky. Exec. Order No. 2008–473 (2008) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Exec. Order No. 526 (2011) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Minn. Exec. Order No. 86–14 (1986) (prohibiting public-employment discrimination because of “sexual orientation”); Mo. Exec. Order No. 10–24 (2010) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mont. Exec. Order No. 04–2016 (2016) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); N. H. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “sex, sexual orientation,” etc.); N. J. Exec. Order No. 39 (1991) (prohibiting public-employment discrimination because of “sexual orientation”); Ohio Exec. Order No. 2019–05D (2019) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ore. Exec. Order No. 19–08 (2019) (prohibiting public-employment discrimination because of “sexual orientation”); Pa. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); R. I. Exec. Order No. 93–1 (1993) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Va. Exec. Order No. 1 (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Wis. Exec. Order No. 1 (2019) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); cf. Wis. Stat. §§111.36(1)(d)(1), 111.321 (2016) (prohibiting employment discrimination because of sex, defined as including discrimination because of “sexual orientation”); Mich. Exec. Directive No. 2019–9 (2019) (prohibiting public-employment discrimination because of “sex,” defined as including “sexual orientation”). 9 See Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252 , 258–259 (CA1 1999); Simonton v. Runyon , 232 F.3d 33 , 36 (CA2 2000); Bibby v. Philadelphia Coca Cola Bottling Co. , 260 F.3d 257 , 261 (CA3 2001); Wrightson v. Pizza Hut of America, Inc. , 99 F.3d 138 , 143 (CA4 1996); Blum v. Gulf Oil Corp. , 597 F.2d 936, 938 (CA5 1979) ( per curiam ); Ruth v. Children’s Medical Center , 1991 WL 151158, *5 (CA6, Aug. 8, 1991) ( per curiam ); Ulane v. Eastern Airlines, Inc. , 742 F.2d 1081, 1084–1085 (CA7 1984); Williamson v. A. G. Edwards & Sons, Inc. , 876 F.2d 69, 70 (CA8 1989) ( per curiam ); DeSantis v. Pacific Tel. & Tel. Co. , 608 F.2d 327, 329–330 (CA9 1979); Medina v. Income Support Div., N. M. , 413 F.3d 1131 , 1135 (CA10 2005). 10 An amicus brief supporting the plaintiffs suggests that the plaintiffs’ interpretive approach is supported by the interpretive approach employed by the Court in its landmark decision in Brown v. Board of Education , 347 U.S. 483 (1954). See Brief for Anti-Discrimination Scholars as Amici Curiae 4. That suggestion is incorrect. Brown is a correct decision as a matter of original public meaning. There were two analytical components of Brown . One issue was the meaning of “equal protection.” The Court determined that black Americans—like all Americans—have an individual equal protection right against state discrimination on the basis of race. (That point is also directly made in Bolling v. Sharpe , 347 U.S. 497 , 499–500 (1954).) Separate but equal is not equal. The other issue was whether that racial nondiscrimination principle applied to public schools, even though public schools did not exist in any comparable form in 1868. The answer was yes. The Court applied the equal protection principle to public schools in the same way that the Court applies, for example, the First Amendment to the Internet and the Fourth Amendment to cars. This case raises the same kind of inquiry as the first question in Brown . There, the question was what equal protection meant. Here, the question is what “discriminate because of sex” means. If this case raised the question whether the sex discrimination principle in Title VII applied to some category of employers unknown in 1964, such as to social media companies, it might be a case in Brown ’s second category, akin to the question whether the racial nondiscrimination principle applied to public schools. But that is not this case.

Here is a summary of the text provided: The Supreme Court of the United States ruled that Title VII of the Civil Rights Act of 1964 protects homosexual and transgender employees from discrimination based on sexual orientation and gender identity. The Court found that an employer who fires an individual for being homosexual or transgender is in violation of Title VII, as sex is a determining factor in the decision to terminate employment. The Court acknowledged that the drafters of the Civil Rights Act may not have anticipated this interpretation, but emphasized that the express terms of the statute take precedence over any extratextual considerations. The Court's decision was based on the interpretation of "discriminate because of sex," concluding that this applies to sexual orientation and gender identity in the context of employment.

Property Rights & Land Use

Kohl v. U.S.

https://supreme.justia.com/cases/federal/us/91/367/

U.S. Supreme Court Kohl v. United States, 91 U.S. 367 (1875) Kohl v. United States 91 U.S. 367 ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF OHIO Syllabus 1. The right of eminent domain exists in the government of the United States, and may be exercised by it within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. 2. Where Congress by one act authorized the Secretary of the Treasury to purchase in the City of Cincinnati a suitable site for a building for the accommodation of the United States courts and for other public purposes, and by a subsequent act made an appropriation "for the purchase at private sale, or by condemnation of such site," power was conferred upon him to acquire, in his discretion, the requisite ground by the exercise of the national right of eminent domain, and the proper circuit court of the United States had, under the general grant of jurisdiction made by the Act of 1789, jurisdiction of the proceedings brought by the United States to secure the condemnation of the ground. 3. Where proceedings for the condemnation of land are brought in the courts of Ohio, the statute of that state treats all the owners of a parcel of ground as one party, and gives to them collectively a trial separate from the trial of the issues between the government and the owners of other parcels; but each owner of an estate or interest in each parcel is not entitled to a separate trial. Page 91 U. S. 368 This was a proceeding instituted by the United States to appropriate a parcel of land in the City of Cincinnati as a site for a post office and other public uses. The plaintiffs in error owned a perpetual leasehold estate in a portion of the property sought to be appropriated. They moved to dismiss the proceeding on the ground of want of jurisdiction, which motion was overruled. They then demanded a separate trial of the value of their estate in the property, which demand the court also overruled. To these rulings of the court the plaintiffs in error here excepted. Judgment was rendered in favor of the United States. There are three acts of Congress which have reference to the acquisition of a site for a post office in Cincinnati. The first, approved March 2, 1872, 17 Stat. 39, is as follows: "Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled that the Secretary of the Treasury be, and he is hereby, authorized and directed to purchase a central and suitable site in the City of Cincinnati, Ohio, for the erection of a building for the accommodation of the United States courts, custom house, United States depository, post office, internal revenue and pension offices, at a cost not exceeding three hundred thousand dollars, provided that no money which may hereafter be appropriated for this purpose shall be used or expended in the purchase of said site until a valid title thereto shall be vested in the United States and until the State of Ohio shall cede its jurisdiction over the same, and shall duly release and relinquish to the United States the right to tax or in any way assess said site and the property of the United States that may be thereon during the time that the United States shall be or remain the owner thereof." In the Appropriation Act of June 10, 1872, 17 Stat. 352, a further provision was made as follows: "To commence the erection of a building at Cincinnati, Ohio, for the accommodation of the United States courts, custom house, United States depository, post office, internal revenue and pension offices, and for the purchase, at private sale or by condemnation, of ground for a site therefor -- the entire cost of completion of which Page 91 U. S. 369 building is hereby limited to two million two hundred and fifty thousand dollars (inclusive of the cost of the site of the same) -- seven hundred thousand dollars, and the Act of March 12, 1872, authorizing the purchase of a site therefor, is hereby so amended as to limit the cost of the site to a sum not exceeding five hundred thousand dollars." And in the subsequent Appropriation Act of March 3, 1873, 17 Stat. 523, a further provision was inserted as follows: "For purchase of site for the building for custom house and post office at Cincinnati, Ohio, seven hundred and fifty thousand dollars." Page 91 U. S. 371 MR. JUSTICE STRONG delivered the opinion of the Court. It has not been seriously contended during the argument that the United States government is without power to appropriate lands or other property within the states for its own uses, and to enable it to perform its proper functions. Such an authority is essential to its independent existence and perpetuity. These cannot be preserved if the obstinacy of a private person, or if any other authority, can prevent the acquisition of the means or instruments by which alone governmental functions can be performed. The powers vested by the Constitution in the general government demand for their exercise the acquisition of lands in all the states. These are needed for forts, armories, and arsenals, for navy yards and lighthouses, for custom houses, post offices, and courthouses, and for other public uses. If the right to acquire property for such uses may be made a barren right by the unwillingness of propertyholders to sell, or by the action of a state prohibiting a sale to the federal government, the constitutional grants of power may be rendered nugatory, and the government is dependent for its practical existence upon the will of a state, or even upon that of a private citizen. This cannot be. No one doubts the existence in the state governments of the right of eminent domain -- a right distinct from and paramount to the right of ultimate ownership. It grows out of the necessities of their being, not out of the tenure by which lands are held. It may be exercised though the lands are not held by grant from the government, either mediately or immediately, and independent of the consideration whether they would escheat to the government in case of a failure of heirs. The right is the offspring of political necessity, and it is inseparable Page 91 U. S. 372 from sovereignty, unless denied to it by its fundamental law. Vattel, c. 20, 34; Bynk., lib. 2, c. 15; Kent's Com. 338-340; Cooley on Const.Lim. 584 et seq. But it is no more necessary for the exercise of the powers of a state government than it is for the exercise of the conceded powers of the federal government. That government is as sovereign within its sphere as the states are within theirs. True, its sphere is limited. Certain subjects only are committed to it; but its power over those subjects is as full and complete as is the power of the states over the subjects to which their sovereignty extends. The power is not changed by its transfer to another holder. But, if the right of eminent domain exists in the federal government, it is a right which may be exercised within the states, so far as is necessary to the enjoyment of the powers conferred upon it by the Constitution. In Ableman v. Booth , 21 How. 523, Chief Justice Taney described in plain language the complex nature of our government and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its powers, and each, within its sphere of action prescribed by the Constitution of the United States, independent of the other. Neither is under the necessity of applying to the other for permission to exercise its lawful powers. Within its own sphere, it may employ all the agencies for exerting them which are appropriate or necessary, and which are not forbidden by the law of its being. When the power to establish post offices and to create courts within the states was conferred upon the federal government, included in it was authority to obtain sites for such offices and for courthouses, and to obtain them by such means as were known and appropriate. The right of eminent domain was one of those means well known when the Constitution was adopted, and employed to obtain lands for public uses. Its existence, therefore, in the grantee of that power ought not to be questioned. The Constitution itself contains an implied recognition of it beyond what may justly be implied from the express grants. The fifth amendment contains a provision that private property shall not be taken for public use without just compensation. What is that but an implied assertion that, on Page 91 U. S. 373 making just compensation, it may be taken? In Cooley on Constitutional Limitations 526 it is said: "So far as the general government may deem it important to appropriate lands or other property for its own purposes and to enable it to perform its functions -- as must sometimes be necessary in the case of forts, lighthouses, and military posts or roads and other conveniences and necessities of government -- the general government may exercise the authority as well within the states as within the territory under its exclusive jurisdiction, and its right to do so may be supported by the same reasons which support the right in any case -- that is to say the absolute necessity that the means in the government for performing its functions and perpetuating its existence should not be liable to be controlled or defeated by the want of consent of private parties or of any other authority." We refer also to Trombley v. Humphrey, 23 Mich. 471; 35 U. S. 10 Pet. 723; Dickey v. Turnpike Co., 7 Dana 113; McCullough v. Maryland , 4 Wheat. 429. It is true, this power of the federal government has not heretofore been exercised adversely, but the nonuser of a power does not disprove its existence. In some instances the states, by virtue of their own right of eminent domain, have condemned lands for the use of the general government, and such condemnations have been sustained by their courts, without, however, denying the right of the United States to act independently of the states. Such was the ruling in Gilmer v. Lime Point, 18 Cal. 229, where lands were condemned by a proceeding in a state court and under a state law for a United States fortification. A similar decision was made in Burt v. Merchants' Ins. Co., 106 Mass. 356, where land was taken under a state law as a site for a post office and subtreasury building. Neither of these cases denies the right of the federal government to have lands in the states condemned for its uses under its own power and by its own action. The question was whether the state could take lands for any other public use than that of the state. In Trombley v. Humphrey , 23 Mich. 471, a different doctrine was asserted, founded, we think, upon better reason. The proper view of the right of eminent domain seems to be that it is a right belonging to a Page 91 U. S. 374 sovereignty to take private property for its own public uses, and not for those of another. Beyond that, there exists no necessity, which alone is the foundation of the right. If the United States have the power, it must be complete in itself. It can neither be enlarged nor diminished by a state. Nor can any state prescribe the manner in which it must be exercised. The consent of a state can never be a condition precedent to its enjoyment. Such consent is needed only, if at all, for the transfer of jurisdiction and of the right of exclusive legislation after the land shall have been acquired. It may therefore fairly be concluded that the proceeding in the case we have in hand was a proceeding by the United States government in its own right, and by virtue of its own eminent domain. The Act of Congress of March 2, 1872, 17 Stat. 39, gave authority to the Secretary of the Treasury to purchase a central and suitable site in the City of Cincinnati, Ohio, for the erection of a building for the accommodation of the United States courts, custom house, United States depository, post office, internal revenue and pension offices, at a cost not exceeding $300,000, and a proviso to the act declared that no money should be expended in the purchase until the State of Ohio should cede its jurisdiction over the site and relinquish to the United States the right to tax the property. The authority here given was to purchase. If that were all, it might be doubted whether the right of eminent domain was intended to be invoked. It is true, the words "to purchase" might be construed as including the power to acquire by condemnation, for technically purchase includes all modes of acquisition other than that of descent. But generally, in statutes as in common use, the word is employed in a sense not technical only as meaning acquisition by contract between the parties without governmental interference. That Congress intended more than this is evident, however, in view of the subsequent and amendatory act passed June 10, 1872, which made an appropriation "for the purchase at private sale or by condemnation of the ground for a site" for the building. These provisions, connected as they are, manifest a clear intention to confer upon the Secretary of the Treasury power to acquire the grounds needed by the exercise of the national right of eminent domain, Page 91 U. S. 375 or by private purchase, at his discretion. Why speak of condemnation at all if Congress had not in view an exercise of the right of eminent domain and did not intend to confer upon the secretary the right to invoke it? But it is contended on behalf of the plaintiffs in error that the circuit court had no jurisdiction of the proceeding. There is nothing in the acts of 1872, it is true, that directs the process by which the contemplated condemnation should be effected, or which expressly authorizes a proceeding in the circuit court to secure it. Doubtless Congress might have provided a mode of taking the land and determining the compensation to be made which would have been exclusive of all other modes. They might have prescribed in what tribunal or by what agents the taking and the ascertainment of the just compensation should be accomplished. The mode might have been by a commission, or it might have been referred expressly to the circuit court, but this, we think, was not necessary. The investment of the Secretary of the Treasury with power to obtain the land by condemnation, without prescribing the mode of exercising the power, gave him also the power to obtain it by any means that were competent to adjudge a condemnation. The Judiciary Act of 1789 conferred upon the circuit courts of the United States jurisdiction of all suits at common law or in equity when the United States or any officer thereof suing under the authority of any act of Congress are plaintiffs. If, then, a proceeding to take land for public uses by condemnation may be a suit at common law, jurisdiction of it is vested in the circuit court. That it is a "suit" admits of no question. In Weston v. Charleston , 2 Pet. 464, Chief Justice Marshall, speaking for this Court, said, "The term [suit] is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords. The modes of proceeding may be various, but, if a right is litigated in a court of justice, the proceeding by which the decision of the court is sought is a suit." A writ of prohibition has therefore been held to be a suit; so has a writ of right, of which the circuit court has jurisdiction, Green v. Liter , 8 Cranch 229; so has habeas corpus. Holmes v. Jamison , 14 Pet. 564. When, Page 91 U. S. 376 in the eleventh section of the Judiciary Act of 1789, jurisdiction of suits of a civil nature at common law or in equity was given to the circuit courts, it was intended to embrace not merely suits which the common law recognized as among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined as distinguished from rights in equity, as well as suits in admiralty. The right of eminent domain always was a right at common law. It was not a right in equity, nor was it even the creature of a statute. The time of its exercise may have been prescribed by statute, but the right itself was superior to any statute. That it was not enforced through the agency of a jury is immaterial, for many civil as well as criminal proceedings at common law were without a jury. It is difficult, then, to see why a proceeding to take land in virtue of the government's eminent domain, and determining the compensation to be made for it, is not within the meaning of the statute a suit at common law when initiated in a court. It is an attempt to enforce a legal right. It is quite immaterial that Congress has not enacted that the compensation shall be ascertained in a judicial proceeding. That ascertainment is in its nature at least quasi -judicial. Certainly no other mode than a judicial trial has been provided. It is argued that the assessment of property for the purpose of taking it is in its nature like the assessment of its value for the purpose of taxation. It is said they are both valuations of the property to be made as the legislature may prescribe, to enable the government in the one case to take the whole of it, and in the other to take a part of it for public uses, and it is argued that no one but Congress could prescribe in either case that the valuation should be made in a judicial tribunal or in a judicial proceeding, although it is admitted that the legislature might authorize the valuation to be thus made in either case. If the supposed analogy be admitted, it proves nothing. Assessments for taxation are specially provided for, and a mode is prescribed. No other is therefore admissible. But there is no special provision for ascertaining the just compensation to be made for land taken. That is left to the ordinary processes of the law, and hence, as the government is a suitor for the property under Page 91 U. S. 377 a claim of legal right to take it, there appears to be no reason for holding that the proper circuit court has not jurisdiction of the suit, under the general grant of jurisdiction made by the Act of 1789. The second assignment of error is that the circuit court refused the demand of the defendants below, now plaintiffs in error, for a separate trial of the value of their estate in the property. They were lessees of one of the parcels sought to be taken, and they demanded a separate trial of the value of their interest; but the court overruled their demand and required that the jury should appraise the value of the lot or parcel and that the lessees should in the same trial try the value of their leasehold estate therein. In directing the course of the trial, the court required the lessor and the lessees each separately to state the nature of their estates to the jury, the lessor to offer his testimony separately and the lessees theirs, and then the government to answer the testimony of the lessor and the lessees, and the court instructed the jury to find and return separately the value of the estates of the lessor and the lessees. It is of this that the lessees complain. They contend that whether the proceeding is to be treated as founded on the national right of eminent domain or on that of the state, its consent having been given by the enactment of the state legislature of Feb. 15, 1873, 70 Ohio Laws, 36, sec. 1, it was required to conform to the practice and proceedings in the courts of the state in like cases. This requirement, it is said, was made by the Act of Congress of June 1, 1872, 17 Stat. 522. But, admitting that the court was bound to conform to the practice and proceedings in the state courts in like cases, we do not perceive that any error was committed. Under the laws of Ohio, it was regular to institute joint proceeding against all the owners of lots proposed to be taken, Giesy v. C. W. & T.R. Co., 4 Ohio St. 308; but the eighth section of the state statute gave to "the owner or owners of each separate parcel" the right to a separate trial. In such a case, therefore, a separate trial is the mode of proceeding in the state courts. The statute treats all the owners of a parcel as one party, and gives to them collectively a trial separate from the trial of the issues between the government and the owners of other parcels. It Page 91 U. S. 378 hath this extent; no more. The court is not required to allow a separate trial to each owner of an estate or interest in each parcel, and no consideration of justice to those owners would be subserved by it. The circuit court therefore gave to the plaintiffs in error all, if not more than all, they had a right to ask. The judgment of the circuit court is affirmed. MR. JUSTICE FIELD, dissenting. Assuming that the majority are correct in the doctrine announced in the opinion of the Court -- that the right of eminent domain within the states, using those terms not as synonymous with the ultimate dominion or title to property, but as indicating merely the right to take private property for public uses, belongs to the federal government, to enable it to execute the powers conferred by the Constitution -- and that any other doctrine would subordinate, in important particulars, the national authority to the caprice of individuals or the will of state legislatures, it appears to me that provision for the exercise of the right must first be made by legislation. The federal courts have no inherent jurisdiction of a proceeding instituted for the condemnation of property, and I do not find any statute of Congress conferring upon them such authority. The Judiciary Act of 1789 only invests the circuit courts of the United States with jurisdiction, concurrent with that of the state courts, of suits of a civil nature at common law or in equity, and these terms have reference to those classes of cases which are conducted by regular pleadings between parties, according to the established doctrines prevailing at the time in the jurisprudence of England. The proceeding to ascertain the value of property which the government may deem necessary to the execution of its powers, and thus the compensation to be made for its appropriation, is not a suit at common law or in equity, but an inquisition for the ascertainment of a particular fact as preliminary to the taking, and all that is required is that the proceeding shall be conducted in some fair and just mode, to be provided by law, either with or without the intervention of a jury, opportunity being afforded to parties interested to present evidence as to the value of the property, and to be heard thereon. The proceeding by the states, in the Page 91 U. S. 379 exercise of their right of eminent domain, is often had before commissioners of assessment or special boards appointed for that purpose. It can hardly be doubted that Congress might provide for inquisition as to the value of property to be taken by similar instrumentalities, and yet if the proceeding be a suit at common law, the intervention of a jury would be required by the seventh amendment to the Constitution. I think that the decision of the majority of the court in including the proceeding in this case under the general designation of a suit at common law, with which the circuit courts of the United States are invested by the eleventh section of the Judiciary Act, goes beyond previous adjudications, and is in conflict with them. Nor am I able to agree with the majority in their opinion, or at least intimation, that the authority to purchase carries with it authority to acquire by condemnation. The one supposes an agreement upon valuation, and a voluntary conveyance of the property; the other implies a compulsory taking, and a contestation as to the value. Beekman v. Saratoga & Schenectady Railroad Co., 3 Paige 75; Railroad Company v. Davis, 2 Dev. & Batt. 465; Willyard v. Hamilton, 7 Ham. (Ohio) 453; Livingston v. Mayor of New York, 7 Wend. 85; Koppikus v. State Capitol Commissioners, 16 Cal. 249. For these reasons, I am compelled to dissent from the opinion of the Court.

The U.S. Supreme Court case of Kohl v. United States (1875) dealt with the federal government's right of eminent domain and its ability to exercise this power within states. The Court upheld the federal government's authority to condemn land for public use, such as for a post office and other public purposes, through the Secretary of the Treasury. The case also addressed procedural matters, including jurisdiction and the right to a separate trial for each owner of an estate or interest in the land. The Court ruled that while each owner of a parcel of land is treated as one party, they are not entitled to separate trials. Justice Clifford dissented, arguing that the federal courts lacked inherent jurisdiction over condemnation proceedings and that the authority to purchase land did not include the power to acquire it through eminent domain.

Property Rights & Land Use

Village of Euclid v. Ambler Realty Co.

https://supreme.justia.com/cases/federal/us/272/365/

U.S. Supreme Court Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) Village of Euclid v. Ambler Realty Co. No. 31 Argued January 27, 1926 Reargued October 12, 1926 Decided November 22, 1926 272 U.S. 365 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO Syllabus 1. A suit to enjoin the enforcement of a zoning ordinance with respect to the plaintiff's land need not be preceded by any application on his part for a building permit, or for relief under the ordinance from the board which administers it, where the gravamen of the bill is that the ordinance, of its own force, operates unconstitutionally to reduce the value of the land and destroy its marketability, and the attack is not against specific provisions, but against the ordinance in its entirety. P. 272 U. S. 386 . 2. While the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. P. 272 U. S. 386 . Page 272 U. S. 366 3. The question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined by considering the building or the thing not abstractly, but in connection with the circumstances and the locality. P. 272 U. S. 387 . 4. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. P. 272 U. S. 388 . 5. No serious difference of opinion exists in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open in order to minimize the danger of fire or collapse, the evils of over-crowding, and the like, and excluding from residential sections offensive trades, industries, and structures likely to create nuisances. P. 272 U. S. 388 . 6. The same power may be extended to a general exclusion from residential districts of all industrial establishments, though some may not be dangerous or offensive; for the inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity. P. 272 U. S. 388 . 7. The power to relegate industrial establishments to localities separate from residential sections is not to be denied upon the ground that its exercise will divert a flow of industrial development from the course which it would follow and will thereby injure the complaining land owner. P. 272 U. S. 389 . 8. The police power supports also, generally speaking, an ordinance forbidding the erection in designated residential districts, of business houses, retail stores and shops, and other like establishments, also of apartment houses in detached-house sections -- since such ordinances, apart from special applications, cannot be declared clearly arbitrary and unreasonable, and without substantial relation to the public health, safety, morals, or general welfare. P. 272 U. S. 390 . 9. Where an injunction is sought against such an ordinance upon the broad ground that its mere existence and threatened enforcement, by materially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court, finding the ordinance in its general scope and dominant features valid, will not scrutinize its provisions sentence by sentence to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, or relating to matters of administration, or not shown Page 272 U. S. 367 to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality. P. 272 U. S. 395 . 297 Fed. 307, reversed. APPEAL from a decree of the District Court enjoining the Village and its Building Inspector from enforcing a zoning ordinance. The suit was brought by an owner of unimproved land within the corporate limits of the village, who sought the relief upon the ground that, because of the building restrictions imposed, the ordinance operated to reduce the normal value of his property and to deprive him of liberty and property without due process of law. Page 272 U. S. 379 MR. JUSTICE SUTHERLAND delivered the opinion of the Court. The Village of Euclid is an Ohio municipal corporation. It adjoins and practically is a suburb of the City of Cleveland. Its estimated population is between 5,000 and 10,000, and its area from twelve to fourteen square miles, the greater part of which is farmlands or unimproved acreage. It lies, roughly, in the form of a parallelogram measuring approximately three and one-half miles each way. East and west it is traversed by three principal highways: Euclid Avenue, through the southerly border, St. Clair Avenue, through the central portion, and Lake Shore Boulevard, through the northerly border in close proximity to the shore of Lake Erie. The Nickel Plate railroad lies from 1,500 to 1,800 feet north of Euclid Avenue, and the Lake Shore railroad 1,600 feet farther to the north. The three highways and the two railroads are substantially parallel. Appellee is the owner of a tract of land containing 68 acres, situated in the westerly end of the village, abutting on Euclid Avenue to the south and the Nickel Plate railroad to the north. Adjoining this tract, both on the east and on the west, there have been laid out restricted residential plats upon which residences have been erected. On November 13, 1922, an ordinance was adopted by the Village Council establishing a comprehensive zoning plan for regulating and restricting the location of trades, Page 272 U. S. 380 industries, apartment houses, two-family houses, single family houses, etc., the lot area to be built upon, the size and height of buildings, etc. The entire area of the village is divided by the ordinance into six classes of use districts, denominated U-1 to U-6, inclusive; three classes of height districts, denominated H-1 to H-3, inclusive, and four classes of area districts, denominated A-1 to A-4, inclusive. The use districts are classified in respect of the buildings which may be erected within their respective limits, as follows: U-1 is restricted to single family dwellings, public parks, water towers and reservoirs, suburban and interurban electric railway passenger stations and rights of way, and farming, noncommercial greenhouse nurseries and truck gardening; U-2 is extended to include two-family dwellings; U-3 is further extended to include apartment houses, hotels, churches, schools, public libraries, museums, private clubs, community center buildings, hospitals, sanitariums, public playgrounds and recreation buildings, and a city hall and courthouse; U-4 is further extended to include banks, offices, studios, telephone exchanges, fire and police stations, restaurants, theatres and moving picture shows, retail stores and shops, sales offices, sample rooms, wholesale stores for hardware, drugs and groceries, stations for gasoline and oil (not exceeding 1,000 gallons storage) and for ice delivery, skating rinks and dance halls, electric substations, job and newspaper printing, public garages for motor vehicles, stables and wagon sheds (not exceeding five horses, wagons or motor trucks) and distributing stations for central store and commercial enterprises; U-5 is further extended to include billboards and advertising signs (if permitted), warehouses, ice and ice cream manufacturing and cold storage plants, bottling works, milk bottling and central distribution stations, laundries, carpet cleaning, dry cleaning and dyeing establishments, Page 272 U. S. 381 blacksmith, horseshoeing, wagon and motor vehicle repair shops, freight stations, street car barns, stables and wagon sheds (for more than five horses, wagons or motor trucks), and wholesale produce markets and salesrooms; U-6 is further extended to include plants for sewage disposal and for producing gas, garbage and refuse incineration, scrap iron, junk, scrap paper and rag storage, aviation fields, cemeteries, crematories, penal and correctional institutions, insane and feeble minded institutions, storage of oil and gasoline (not to exceed 25,000 gallons), and manufacturing and industrial operations of any kind other than, and any public utility not included in, a class U-1, U-2, U-3, U-4 or U-5 use. There is a seventh class of uses which is prohibited altogether. Class U-1 is the only district in which buildings are restricted to those enumerated. In the other classes, the uses are cumulative; that is to say, uses in class U-2 include those enumerated in the preceding class, U-1; class U-3 includes uses enumerated in the preceding classes, U-2 and U-1, and so on. In addition to the enumerated uses, the ordinance provides for accessory uses, that is, for uses customarily incident to the principal use, such as private garages. Many regulations are provided in respect of such accessory uses. The height districts are classified as follows: In class H-1, buildings are limited to a height of two and one-half stories or thirty-five feet; in class H-2, to four stories or fifty feet; in class H-3, to eighty feet. To all of these, certain exceptions are made, as in the case of church spires, water tanks, etc. The classification of area districts is: in A-1 districts, dwellings or apartment houses to accommodate more than one family must have at least 5,000 square feet for interior lots and at least 4,000 square feet for corner lots; in A-2 districts, the area must be at least 2,500 square feet for interior lots, and 2 000 square feet for corner lots; in A-3 Page 272 U. S. 382 districts, the limits are 1,250 and 1,000 square feet, respectively; in A-4 districts, the limits are 900 and 700 square feet, respectively. The ordinance contains, in great variety and detail, provisions in respect of width of lots, front, side and rear yards, and other matters, including restrictions and regulations as to the use of bill boards, sign boards and advertising signs. A single family dwelling consists of a basement and not less than three rooms and a bathroom. A two-family dwelling consists of a basement and not less than four living rooms and a bathroom for each family, and is further described as a detached dwelling for the occupation of two families, one having its principal living rooms on the first floor and the other on the second floor. Appellee's tract of land comes under U-2, U-3 and U-6. The first strip of 620 feet immediately north of Euclid Avenue falls in class U-2, the next 130 feet to the north, in U-3, and the remainder in U-6. The uses of the first 620 feet, therefore, do not include apartment houses, hotels, churches, schools, or other public and semi-public buildings, or other uses enumerated in respect of U-3 to U-6, inclusive. The uses of the next 130 feet include all of these, but exclude industries, theatres, banks, shops, and the various other uses set forth in respect of J-4 to U-6, inclusive. * Page 272 U. S. 383 Annexed to the ordinance, and made a part of it, is a zone map showing the location and limits of the various use, height and area districts, from which it appears that the three classes overlap one another; that is to say, for example, both U-5 and U-6 use districts are in A-4 area districts, but the former is in H-2 and the latter in H-3 height districts. The plan is a complicated one, and can be better understood by an inspection of the map, though it does not seem necessary to reproduce it for present purposes. The lands lying between the two railroads for the entire length of the village area and extending some distance on either side to the north and south, having an average width of about 1,600 feet, are left open, with slight exceptions, for industrial and all other uses. This includes the larger part of appellee's tract. Approximately one-sixth of the area of the entire village is included in U-5 and U-6 use districts. That part of the village lying south of Euclid Avenue is principally in U-1 districts. The lands lying north of Euclid Avenue and bordering on the long strip just described are included in U-1, U-2, U-3 and U-4 districts, principally in U-2. The enforcement of the ordinance is entrusted to the inspector of buildings, under rules and regulations of the board of zoning appeals. Meetings of the board are public, and minutes of its proceedings are kept. It is authorized to adopt rules and regulations to carry into effect provisions of the ordinance. Decisions of the inspector of buildings may be appealed to the board by any person claiming to be adversely affected by any such decision. The board is given power in specific cases of practical difficulty or unnecessary hardship to interpret the ordinance in harmony with its general purpose and intent, so that the public health, safety and general welfare may be secure, and substantial justice done. Penalties are prescribed for violations, and it is provided that the various Page 272 U. S. 384 provisions are to be regarded as independent, and the holding of any provision to be unconstitutional, void or ineffective shall not affect any of the others. The ordinance is assailed on the grounds that it is in derogation of § 1 of the Fourteenth Amendment to the Federal Constitution in that it deprives appellee of liberty and property without due process of law and denies it the equal protection of the law, and that it offends against certain provisions of the Constitution of the State of Ohio. The prayer of the bill is for an injunction restraining the enforcement of the ordinance and all attempts to impose or maintain as to appellee's property any of the restrictions, limitations or conditions. The court below held the ordinance to be unconstitutional and void, and enjoined its enforcement. 297 Fed. 307. Before proceeding to a consideration of the case, it is necessary to determine the scope of the inquiry. The bill alleges that the tract of land in question is vacant and has been held for years for the purpose of selling and developing it for industrial uses, for which it is especially adapted, being immediately in the path of progressive industrial development; that, for such uses, it has a market value of about $10,000 per acre, but if the use be limited to residential purposes, the market value is not in excess of $2,500 per acre; that the first 200 feet of the parcel back from Euclid Avenue, if unrestricted in respect of use, has a value of $150 per front foot, but if limited to residential uses, and ordinary mercantile business be excluded therefrom, its value is not in excess of $50 per front foot. It is specifically averred that the ordinance attempts to restrict and control the lawful uses of appellee's land so as to confiscate and destroy a great part of its value; that it is being enforced in accordance with its terms; that prospective buyers of land for industrial, commercial and residential uses in the metropolitan district of Cleveland Page 272 U. S. 385 are deterred from buying any part of this land because of the existence of the ordinance and the necessity thereby entailed of conducting burdensome and expensive litigation in order to vindicate the right to use the land for lawful and legitimate purposes; that the ordinance constitutes a cloud upon the land, reduces and destroys its value, and has the effect of diverting the normal industrial, commercial and residential development thereof to other and less favorable locations. The record goes no farther than to show, as the lower court found, that the normal and reasonably to be expected use and development of that part of appellee's land adjoining Euclid Avenue is for general trade and commercial purposes, particularly retail stores and like establishments, and that the normal, and reasonably to be expected use and development of the residue of the land is for industrial and trade purposes. Whatever injury is inflicted by the mere existence and threatened enforcement of the ordinance is due to restrictions in respect of these and similar uses; to which perhaps should be added -- if not included in the foregoing -- restrictions in respect of apartment houses. Specifically, there is nothing in the record to suggest that any damage results from the presence in the ordinance of those restrictions relating to churches, schools, libraries and other public and semi-public buildings. It is neither alleged nor proved that there is, or may be, a demand for any part of appellee's land for any of the last named uses, and we cannot assume the existence of facts which would justify an injunction upon this record in respect of this class of restrictions. For present purposes the provisions of the ordinance in respect of these uses may therefore be put aside as unnecessary to be considered. It is also unnecessary to consider the effect of the restrictions in respect of U-1 districts, since none of appellee's land falls within that class. Page 272 U. S. 386 We proceed, then, to a consideration of those provisions of the ordinance to which the case as it is made relates, first disposing of a preliminary matter. A motion was made in the court below to dismiss the bill on the ground that, because complainant [appellee] had made no effort to obtain a building permit or apply to the zoning board of appeals for relief as it might have done under the terms of the ordinance, the suit was premature. The motion was properly overruled. The effect of the allegations of the bill is that the ordinance of its own force operates greatly to reduce the value of appellee's lands and destroy their marketability for industrial, commercial and residential uses, and the attack is directed not against any specific provision or provisions, but against the ordinance as an entirety. Assuming the premises, the existence and maintenance of the ordinance, in effect, constitutes a present invasion of appellee's property rights and a threat to continue it. Under these circumstances, the equitable jurisdiction is clear. See Terrace v. Thompson, 263 U. S. 197 , 263 U. S. 215 ; Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 535 . It is not necessary to set forth the provisions of the Ohio Constitution which are thought to be infringed. The question is the same under both Constitutions, namely, as stated by appellee: is the ordinance invalid in that it violates the constitutional protection "to the right of property in the appellee by attempted regulations under the guise of the police power, which are unreasonable and confiscatory?" Building zone laws are of modern origin. They began in this country about twenty-five years ago. Until recent years, urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in Page 272 U. S. 387 urban communities. Regulations the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for, while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall. The ordinance now under review, and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delimitation. It varies with circumstances and conditions. A regulatory zoning ordinance, which would be clearly valid as applied to the great cities, might be clearly invalid as applied to rural communities. In solving doubts, the maxim sic utere tuo ut alienum non laedas, which lies at the foundation of so much of the common law of nuisances, ordinarily will furnish a fairly helpful clew. And the law of nuisances likewise may be consulted not for the purpose of controlling, but for the helpful aid of its analogies in the process of ascertaining Page 272 U. S. 388 the scope of, the power. Thus, the question whether the power exists to forbid the erection of a building of a particular kind or for a particular use, like the question whether a particular thing is a nuisance, is to be determined not by an abstract consideration of the building or of the thing considered apart, but by considering it in connection with the circumstances and the locality. Sturgis v. Bridgeman, L.R. 11 Ch. 852, 865. A nuisance may be merely a right thing in the wrong place -- like a pig in the parlor instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control. Radice v. New York, 264 U. S. 292 , 264 U. S. 294 . There is no serious difference of opinion in respect of the validity of laws and regulations fixing the height of buildings within reasonable limits, the character of materials and methods of construction, and the adjoining area which must be left open, in order to minimize the danger of fire or collapse, the evils of over-crowding, and the like, and excluding from residential sections offensive trades, industries and structures likely to create nuisances. See Welch v. Swasey, 214 U. S. 91 ; Hadacheck v. Los Angeles, 239 U. S. 394 ; Reinman v. Little Rock, 237 U. S. 171 ; Cusack Co. v. City of Chicago, 242 U. S. 526 , 242 U. S. 529 -530. Here, however, the exclusion is in general terms of all industrial establishments, and it may thereby happen that not only offensive or dangerous industries will be excluded, but those which are neither offensive nor dangerous will share the same fate. But this is no more than happens in respect of many practice-forbidding laws which this Court has upheld although drawn in general terms so as to include individual cases that may turn out to be innocuous in themselves. Hebe Co. v. Shaw, 248 U. S. 297 , 248 U. S. 303 ; Pierce Oil Corp. v. City of Hope, 248 U. S. 498 , 248 U. S. 500 . The inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise Page 272 U. S. 389 valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation. In the light of these considerations, we are not prepared to say that the end in view was not sufficient to justify the general rule of the ordinance, although some industries of an innocent character might fall within the proscribed class. It cannot be said that the ordinance in this respect "passes the bounds of reason and assumes the character of a merely arbitrary fiat." Purity Extract Co. v. Lynch, 226 U. S. 192 , 226 U. S. 204 . Moreover, the restrictive provisions of the ordinance in this particular may be sustained upon the principles applicable to the broader exclusion from residential districts of all business and trade structures, presently to be discussed. It is said that the Village of Euclid is a mere suburb of the City of Cleveland; that the industrial development of that city has now reached and in some degree extended into the village and, in the obvious course of things, will soon absorb the entire area for industrial enterprises; that the effect of the ordinance is to divert this natural development elsewhere, with the consequent loss of increased values to the owners of the lands within the village borders. But the village, though physically a suburb of Cleveland, is politically a separate municipality, with powers of its own and authority to govern itself as it sees fit within the limits of the organic law of its creation and the State and Federal Constitutions. Its governing authorities, presumably representing a majority of its inhabitants and voicing their will, have determined not that industrial development shall cease at its boundaries, but that the course of such development shall proceed within definitely fixed lines. If it be a proper exercise of the police power to relegate industrial establishments to localities Page 272 U. S. 390 separated from residential sections, it is not easy to find a sufficient reason for denying the power because the effect of its exercise is to divert an industrial flow from the course which it would follow, to the injury of the residential public if left alone, to another course where such injury will be obviated. It is not meant by this, however, to exclude the possibility of cases where the general public interest would so far outweigh the interest of the municipality that the municipality would not be allowed to stand in the way. We find no difficulty in sustaining restrictions of the kind thus far reviewed. The serious question in the case arises over the provisions of the ordinance excluding from residential districts, apartment houses, business houses, retail stores and shops, and other like establishments. This question involves the validity of what is really the crux of the more recent zoning legislation, namely, the creation and maintenance of residential districts, from which business and trade of every sort, including hotels and apartment houses, are excluded. Upon that question, this Court has not thus far spoken. The decisions of the state courts are numerous and conflicting; but those which broadly sustain the power greatly outnumber those which deny altogether or narrowly limit it, and it is very apparent that there is a constantly increasing tendency in the direction of the broader view. We shall not attempt to review these decisions at length, but content ourselves with citing a few as illustrative of all. As sustaining the broader view, see Opinion of the Justices, 234 Mass. 597, 607; Inspector of Buildings of Lowell v. Stoklosa, 250 Mass. 52; Spector v. Building Inspector of Milton, 250 Mass. 63; Brett v. Building Commissioner of Brookline, 250 Mass. 73; State v. City of New Orleans, 154 La. 271, 282; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N.Y. 313; City of Aurora v. Burns, 319 Ill. 84, 93; Deynzer v. City of Evanston, 319 Ill. 226; Page 272 U. S. 391 State ex rel. Beery v. Houghton, 164 Minn. 146; State ex rel. Carter v. Harper, 182 Wis. 148, 157-161; Ware v. City of Wichita, 113 Kan. 153; Miller v. Board of Public Works, 195 Cal. 477, 486-495; City of Providence v. Stephens, 133 Atl. 614. For the contrary view, see Goldman v. Crowther, 147 Md. 282; Ignaciunas v. Risley, 98 N.J.L. 712; Spann v. City of Dallas, 111 Tex. 350. As evidence of the decided trend toward the broader view, it is significant that, in some instances, the state courts in later decisions have reversed their former decisions holding the other way. For example, compare State ex rel. Beery v. Houghton, supra, sustaining the power, with State ex rel. Lachtman v. Houghton, 134 Minn. 226; State ex rel. Roerig v. City of Minneapolis, 136 Minn. 479, and Vorlander v. Hokenson, 145 Minn. 484, denying it, all of which are disapproved in the Houghton case (p. 151) last decided. The decisions enumerated in the first group cited above agree that the exclusion of buildings devoted to business, trade, etc., from residential districts bears a rational relation to the health and safety of the community. Some of the grounds for this conclusion are promotion of the health and security from injury of children and others by separating dwelling houses from territory devoted to trade and industry; suppression and prevention of disorder; facilitating the extinguishment of fires and the enforcement of street traffic regulations and other general welfare ordinances; aiding the health and safety of the community by excluding from residential areas the confusion and danger of fire, contagion and disorder which, in greater or less degree, attach to the location of stores, shops and factories. Another ground is that the construction and repair of streets may be rendered easier and less expensive by confining the greater part of the heavy traffic to the streets where business is carried on. Page 272 U. S. 392 The Supreme Court of Illinois, in City of Aurora v. Burns, supra, pp. 93-95, in sustaining a comprehensive building zone ordinance dividing the city into eight districts, including exclusive residential districts for one and two-family dwellings, churches, educational institutions and schools, said: "The constantly increasing density of our urban populations, the multiplying forms of industry, and the growing complexity of our civilization make it necessary for the State, either directly or through some public agency by its sanction, to limit individual activities to a greater extent than formerly. With the growth and development of the State, the police power necessarily develops, within reasonable bounds, to meet the changing conditions. . . ." ". . . The harmless may sometimes be brought within the regulation or prohibition in order to abate or destroy the harmful. The segregation of industries commercial pursuits and dwellings to particular districts in a city, when exercised reasonably, may bear a rational relation to the health, morals, safety and general welfare of the community. The establishment of such districts or zones may, among other things, prevent congestion of population, secure quiet residence districts, expedite local transportation, and facilitate the suppression of disorder, the extinguishment of fires, and the enforcement of traffic and sanitary regulations. The danger of fire and the risk of contagion are often lessened by the exclusion of stores and factories from areas devoted to residences, and, in consequence, the safety and health of the community may he promoted. . . . ." ". . . The exclusion of places of business from residential districts is not a declaration that such places are nuisances or that they are to be suppressed as such, but it is a part of the general plan by which the city's territory is allotted to different uses in order to prevent, or at least to reduce, the congestion, disorder and dangers Page 272 U. S. 393 which often inhere in unregulated municipal development." The Supreme Court of Louisiana, in State v. City of New Orleans, supra, pp. 282-283, said: "In the first place, the exclusion of business establishments from residence districts might enable the municipal government to give better police protection. Patrolmen's beats are larger, and therefore fewer, in residence neighborhoods than in business neighborhoods. A place of business in a residence neighborhood furnishes an excuse for any criminal to go into the neighborhood where, otherwise, a stranger would be under the ban of suspicion. Besides, open shops invite loiterers and idlers to congregate, and the places of such congregations need police protection. In the second place, the zoning of a city into residence districts and commercial districts is a matter of economy in street paving. Heavy trucks, hauling freight to and from places of business in residence districts, require the city to maintain the same costly pavement in such districts that is required for business districts; whereas, in the residence districts, where business establishments are excluded, a cheaper pavement serves the purpose. . . ." "Aside from considerations of economic administration, in the matter of police and fire protection, street paving, etc., any business establishment is likely to be a genuine nuisance in a neighborhood of residences. Places of business are noisy; they are apt to be disturbing at night; some of them are malodorous; some are unsightly; some are apt to breed rats, mice, roaches, flies, ants, etc. . . ." "If the municipal council deemed any of the reasons which have been suggested, or any other substantial reason, a sufficient reason for adopting the ordinance in question, it is not the province of the courts to take issue with the council. We have nothing to do with the question of the wisdom or good policy of municipal ordinances. If they are not satisfying to a majority of the citizens, their recourse is to the ballot -- not the courts. " Page 272 U. S. 394 The matter of zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehensive reports. These reports, which bear every evidence of painstaking consideration, concur in the view that the segregation of residential, business, and industrial buildings will make it easier to provide fire apparatus suitable for the character and intensity of the development in each section; that it will increase the safety and security of home life; greatly tend to prevent street accidents, especially to children, by reducing the traffic and resulting confusion in residential sections; decrease noise and other conditions which produce or intensify nervous disorders; preserve a more favorable environment in which to rear children, etc. With particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that, in such sections, very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities -- until, finally, the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, Page 272 U. S. 395 apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances. If these reasons, thus summarized, do not demonstrate the wisdom or sound policy in all respects of those restrictions which we have indicated as pertinent to the inquiry, at least the reasons are sufficiently cogent to preclude us from saying, as it must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. Cusack Co. v. City of Chicago, supra, pp. 242 U. S. 530 -531; Jacobson v. Massachusetts, 197 U. S. 11 , 197 U. S. 30 -31. It is true that when, if ever, the provisions set forth in the ordinance in tedious and minute detail come to be concretely applied to particular premises, including those of the appellee, or to particular conditions, or to be considered in connection with specific complaints, some of them, or even many of them, may be found to be clearly arbitrary and unreasonable. But where the equitable remedy of injunction is sought, as it is here, not upon the ground of a present infringement or denial of a specific right, or of a particular injury in process of actual execution, but upon the broad ground that the mere existence and threatened enforcement of the ordinance, by materially and adversely affecting values and curtailing the opportunities of the market, constitute a present and irreparable injury, the court will not scrutinize its provisions, sentence by sentence, to ascertain by a process of piecemeal dissection whether there may be, here and there, provisions of a minor character, or relating to matters of administration, or not shown to contribute to the injury complained of, which, if attacked separately, might not withstand the test of constitutionality. In respect of such provisions, of which specific complaint is not Page 272 U. S. 396 made, it cannot be said that the landowner has suffered or is threatened with an injury which entitles him to challenge their constitutionality. Turpin v. Lemon, 187 U. S. 51 , 187 U. S. 60 . In Railroad Commission Cases, 116 U. S. 307 , 116 U. S. 335 -337, this Court dealt with an analogous situation. There, an act of the Mississippi legislature, regulating freight and passenger rates on intrastate railroads and creating a supervisory commission was attacked as unconstitutional. The suit was brought to enjoin the commission from enforcing against the plaintiff railroad company any of its provisions. In an opinion delivered by Chief Justice Waite, this Court held that the chief purpose of the statute was to fix a maximum of charges and to regulate in some matters of a police nature the use of railroads in the state. After sustaining the constitutionality of the statute "in its general scope," this Court said: "Whether in some of its details the statute may be defective or invalid we do not deem it necessary to inquire, for this suit is brought to prevent the commissioners from giving it any effect whatever as against this company." Quoting with approval from the opinion of the Supreme Court of Mississippi, it was further said: " Many questions may arise under it not necessary to be disposed of now, and we leave them for consideration when presented." And finally: "When the commission has acted and proceedings are had to enforce what it has done, questions may arise as to the validity of some of the various provisions which will be worthy of consideration, but we are unable to say that, as a whole, the statute is invalid." The relief sought here is of the same character, namely, an injunction against the enforcement of any of the restrictions, limitations, or conditions of the ordinance. And the gravamen of the complaint is that a portion of the land of the appellee cannot be sold for certain enumerated Page 272 U. S. 397 uses because of the general and broad restraints of the ordinance. What would be the effect of a restraint imposed by one or more of the innumerable provisions of the ordinance, considered apart, upon the value or marketability of the lands is neither disclosed by the bill nor by the evidence, and we are afforded no basis, apart from mere speculation, upon which to rest a conclusion that it or they would have any appreciable effect upon those matters. Under these circumstances, therefore, it is enough for us to determine, as we do, that the ordinance, in its general scope and dominant features, so far as its provisions are here involved, is a valid exercise of authority, leaving other provisions to be dealt with as cases arise directly involving them. And this is in accordance with the traditional policy of this Court. In the realm of constitutional law especially, this Court has perceived the embarrassment which is likely to result from an attempt to formulate rules or decide questions beyond the necessities of the immediate issue. It has preferred to follow the method of a gradual approach to the general by a systematically guarded application and extension of constitutional principles to particular cases as they arise, rather than by out of hand attempts to establish general rules to which future cases must be fitted. This process applies with peculiar force to the solution of questions arising under the due process clause of the Constitution as applied to the exercise of the flexible powers of police, with which we are here concerned. Decree reversed. MR. JUSTICE VAN DEVANTER, MR. JUSTICE McREYNOLDS and MR. JUSTICE BUTLER, dissent. * The court below seemed to think that the frontage of this property on Euclid Avenue to a depth of 150 feet came under U-1 district and was available only for single family dwellings. An examination of the ordinance and subsequent amendments, and a comparison of their terms with the maps, shows very clearly, however, that this view was incorrect. Appellee's brief correctly interpreted the ordinance: "The northerly 500 feet thereof immediately adjacent to the right of way of the New York, Chicago & St. Louis Railroad Company under the original ordinance was classed as U-6 territory and the rest thereof as U-2 territory. By amendments to the ordinance, a strip 630 [620] feet wide north of Euclid Avenue is classed as U-2 territory, a strip 130 feet wide next north as U-3 territory, and the rest of the parcel to the Nickel Plate right of way as U-6 territory."

The Supreme Court case of Village of Euclid v. Ambler Realty Co. (1926) dealt with the constitutionality of zoning ordinances and their impact on land value and use. The Court upheld the power of legislative bodies to create and enforce zoning regulations, provided that the classification for zoning purposes is "fairly debatable." The Court also asserted that the police power supports ordinances that exclude businesses and industries from residential areas to promote the health, safety, and general welfare of the community. In this case, the Court reversed the lower court's decision and allowed the zoning ordinance to stand, finding that it was a valid exercise of legislative power.

Property Rights & Land Use

Miller v. Schoene

https://supreme.justia.com/cases/federal/us/276/272/

U.S. Supreme Court Miller v. Schoene, 276 U.S. 272 (1928) Miller v. Schoene No.199 Argued January 20, 1928 Decided February 20, 1928 276 U.S. 272 ERROR TO THE SUPREME COURT OF APPEALS OF VIRGINIA Syllabus 1. An Act of Virginia provides, compulsorily, for the cutting down of red cedar trees within two miles of any apple orchard when found upon official investigation to be the source or "host plant" of the communicable plant disease called cedar rust and to "constitute a menace to the health of any apple orchard in said locality." The owner is allowed a judicial review of the order of the State Entomologist directing such cutting, and may use the trees when cut, but no compensation is allowed him for their value standing or for decrease in market value of the realty caused by their destruction. The evidence shows that the life cycle of the parasite has two phases, passed alternately on the cedar and the apple; that it is without effect on the value of the cedar, but destructive of the leaves and fruit of the apple; that it is communicable by spores from the cedar to the apple over a radius of at least two miles; that the only practicable method of controlling it is destruction of all red cedar trees within that distance of apple orchards, and that the economic value of cedars in Virginia is small as compared with that of the apple orchards. Held, that the Act is consistent with the Due Process Clause of the Fourteenth Amendment. P. 276 U. S. 277 . 2. When forced to make the choice, the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. P 276 U. S. 279 . 3. Preferment of the public interest, even to the extent of destroying property interests of the individual, is one of the distinguishing characteristics of every exercise of the police power which affects property. P. 276 U. S. 280 . Page 276 U. S. 273 4. The provision of the statute that the investigation of the locality shall be made upon the request of ten or more reputable freeholders of the county or magisterial district does not make it objectionable as subjecting private property to arbitrary or irresponsible action of private citizens, since the decision whether the facts revealed bring the case within the statute is made by the State Entomologist, and subject to judicial review. Eubank v. Richmond, 226 U. S. 137 , distinguished. P. 276 U. S. 280 . 5. Since no penalty can be incurred or disadvantage suffered under the statute in advance of the judicial ascertainment of its applicability, and since it was held applicable in this case by the state court, the objection to its vagueness is without weight. P. 276 U. S. 281 . 146 Va. 175 affirmed. Error to a judgment of the Supreme Court of Appeals of Virginia, which affirmed a judgment affirming on appeal an order of the State Entomologist, Schoene, requiring the plaintiffs to cut down a large number of ornamental red cedar trees growing on their property. The judgment allowed them $100 to cover the expense of removing the cedars. Page 276 U. S. 277 MR. JUSTICE STONE delivered the opinion of the Court. Acting under the Cedar Rust Act of Virginia, Va.Acts 1914, c. 36, as amended by Va.Acts 1920, c. 260, now embodied in Va.Code (1924) as §§ 885 to 893, defendant in error, the State Entomologist, ordered the plaintiffs in error to cut down a large number of ornamental red cedar trees growing on their property as a means of preventing the communication of a rust or plant disease with which they were infected to the apple orchards in the vicinity. The plaintiffs in error appealed from the order to the Circuit Court of Shenandoah County which, after a hearing and a consideration of evidence, affirmed the order and allowed to plaintiffs in error $100 to cover the expense of removal of the cedars. Neither the judgment of the court nor the statute as interpreted allows compensation for the value of the standing cedars or the decrease in the market value of the realty caused by their destruction, whether considered as ornamental trees or otherwise. But they save to plaintiffs in error the privilege of using the trees when felled. On appeal, the Supreme Court of Appeals of Virginia affirmed the judgment. Miller v. State Entomologist, 146 Va. 175, 135 S.E. 813. Both in the circuit court and the Supreme Court of Appeals, plaintiffs in error challenged the constitutionality of the statute under the due process clause of the Fourteenth Amendment, and the case is properly here on writ of error. Judicial Code, § 237a. The Virginia statute presents a comprehensive scheme for the condemnation and destruction of red cedar trees infected by cedar rust. By § 1, it is declared to be unlawful for any person to "own, plant or keep alive and standing" on his premises any red cedar tree which is or may be the source or "host plant" of the communicable plant disease known as cedar rust, and any such tree growing within a certain radius of any apple orchard is declared to be a public nuisance, subject to destruction. Section 2 makes it the duty of the State Entomologist, "upon the Page 276 U. S. 278 request in writing of ten or more reputable freeholders of any county or magisterial district, to make a preliminary investigation of the locality . . . to ascertain if any cedar tree or trees . . . are the source of, harbor, or constitute the host plant for the said disease . . . and constitute a menace to the health of any apple orchard in said locality, and that said cedar tree or trees exist within a radius of two miles of any apple orchard in said locality." If affirmative findings are so made, he is required to direct the owner in writing to destroy the trees, and, in his notice, to furnish a statement of the "fact found to exist whereby it is deemed necessary or proper to destroy" the trees and to call attention to the law under which it is proposed to destroy them. Section 5 authorizes the State Entomologist to destroy the trees if the owner, after being notified, fails to do so. Section 7 furnishes a mode of appealing from the order of the entomologist to the circuit court of the county, which is authorized to "hear the objections" and "pass upon all questions involved," the procedure followed in the present case. As shown by the evidence and as recognized in other cases involving the validity of this statute, Bowman v. Virginia State Entomologist, 128 Va. 351; Kelleher v. Schoene, 14 F.2d 341 , cedar rust is an infectious plant disease in the form of a fungoid organism which is destructive of the fruit and foliage of the apple, but without effect on the value of the cedar. Its life cycle has two phases which are passed alternately as a growth on red cedar and on apple trees. It is communicated by spores from one to the other over a radius of at least two miles. It appears not to be communicable between trees of the same species, but only from one species to the other, and other plants seem not to be appreciably affected by it. The only practicable method of controlling the disease and protecting apple trees from its ravages is the destruction Page 276 U. S. 279 of all red cedar trees subject to the infection located within two miles of apple orchards. The red cedar, aside from its ornamental use, has occasional use and value as lumber. It is indigenous to Virginia, is not cultivated or dealt in commercially on any substantial scale, and its value throughout the state is shown to be small as compared with that of the apple orchards of the state. Apple growing is one of the principal agricultural pursuits in Virginia. The apple is used there and exported in large quantities. Many millions of dollars are invested in the orchards, which furnish employment for a large portion of the population, and have induced the development of attendant railroad and cold storage facilities. On the evidence, we may accept the conclusion of the Supreme Court of Appeals that the state was under the necessity of making a choice between the preservation of one class of property and that of the other wherever both existed in dangerous proximity. It would have been nonetheless a choice if, instead of enacting the present statute, the state, by doing nothing, had permitted serious injury to the apple orchards within its borders to go on unchecked. When forced to such a choice, the state does not exceed its constitutional powers by deciding upon the destruction of one class of property in order to save another which, in the judgment of the legislature, is of greater value to the public. It will not do to say that the case is merely one of a conflict of two private interests, and that the misfortune of apple growers may not be shifted to cedar owners by ordering the destruction of their property; for it is obvious that there may be, and that here there is, a preponderant public concern in the preservation of the one interest over the other. Compare Bacon v. Walker, 204 U. S. 311 ; Missouri, Kansas & Texas R. Co. v. May, 194 U. S. 267 ; Chicago, Terre Haute & Southeastern R. Co. v. Anderson, 242 U. S. 283 ; Perley v. North Carolina, 249 U. S. 510 . And, where the public interest is involved, Page 276 U. S. 280 preferment of that interest over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property. Mugler v. Kansas, 123 U. S. 623 ; Hadacheck v. Los Angeles, 239 U. S. 394 ; Village of Euclid v. Ambler Realty Co., 272 U. S. 365 ; Northwestern Fertilizer Co. v. Hyde Park, 97 U. S. 659 ; Northwestern Laundry v. Des Moines, 239 U. S. 486 ; Lawton v. Steele, 152 U. S. 133 ; Sligh v. Kirkwood, 237 U. S. 52 ; Reinman v. Little Rock, 237 U. S. 171 . We need not weigh with nicety the question whether the infected cedars constitute a nuisance according to the common law, or whether they may be so declared by statute. See Hadacheck v. Los Angeles, supra, 239 U. S. 411 . For where, as here, the choice is unavoidable, we cannot say that its exercise, controlled by considerations of social policy which are not unreasonable, involves any denial of due process. The injury to property here is no more serious, nor the public interest less, than in Hadacheck v. Los Angeles, supra, Northwestern Laundry v. Des Moines, supra, Reinman v. Little Rock, supra, or Sligh v. Kirkwood, supra. The statute is not, as plaintiffs in error argue, subject to the vice which invalidated the ordinance considered by this Court in Eubank v. Richmond, 226 U. S. 137 . That ordinance directed the committee on streets of the City of Richmond to establish a building line not less than five nor more than thirty feet from the street line whenever requested to do so by the owners of two-thirds of the property abutting on the street in question. No property owner might build beyond the line so established. Of this, the Court said (p. 226 U. S. 143 ): "It [the ordinance] leaves no discretion in the committee on streets as to whether the street [building, semble ] line shall or shall not be established in a given case. The action of the committee is determined by two-thirds of the property owners. In Page 276 U. S. 281 other words, part of the property owners fronting on the block determine the extent of use that other owners shall make of their lots, and against the restriction they are impotent." The function of the property owners there is in no way comparable to that of the "ten or more reputable freeholders" in the Cedar Rust Act. They do not determine the action of the State Entomologist. They merely request him to conduct an investigation. In him is vested the discretion to decide, after investigation, whether or not conditions are such that the other provisions of the statute shall be brought into action, and his determination is subject to judicial review. The property of plaintiffs in error is not subjected to the possibly arbitrary and irresponsible action of a group of private citizens. The objection of plaintiffs in error to the vagueness of the statute is without weight. The state court has held it to be applicable, and that is enough when, by the statute, no penalty can be incurred or disadvantage suffered in advance of the judicial ascertainment of its applicability. Compare Connally v. General Construction Co., 269 U. S. 385 . Affirmed.

The Supreme Court upheld a Virginia law that authorized the compulsory cutting down of red cedar trees found to be the source of a communicable plant disease, cedar rust, that was harmful to apple orchards. The law was challenged on the basis of the Due Process Clause of the Fourteenth Amendment, but the Court ruled that the state's decision to destroy one class of property (the cedar trees) to save another (apple orchards) of greater value to the public was a valid exercise of its police power. The Court also rejected arguments that the law subjected private property to arbitrary action by private citizens and was unconstitutionally vague.

Property Rights & Land Use

Chicago, Burlington & Quincy Railroad Co. v. Chicago

https://supreme.justia.com/cases/federal/us/166/226/

U.S. Supreme Court Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226 (1897) Chicago, Burlington & Quincy Railroad Co. v. Chicago No. 129 Argued November 6, 9, 1896 Decided March 1, 1897 166 U.S. 226 ERROR TO THE SUPREME COURT OF THE STATE OF ILLINOIS This court has authority to reexamine the final judgment of the highest court of a State, rendered in a proceeding to condemn private property for public use, in which, after verdict, a defendant assigned as a ground for new trial that the statute under which the case was instituted and the proceedings under it were in violation of the clause of the Fourteenth Amendment forbidding a State to deprive any person of property without due process of law, and which ground of objection was repeated in the highest court of the State, provided the judgment of the court, by its necessary operation, was adverse to the claim of Federal right and could not rest upon any independent ground of local law. The prohibitions of the Fourteenth Amendment refer to all the instrumentalities of the State, to its legislative, executive aud judicial authorities, and, therefore, whoever, by virtue of public position under a state government deprives another of any right protected by that amendment against deprivation by the State violates the constitutional inhibition; and, as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. The contention that the defendant has been deprived of property without due process of law is not entirely met by the suggestion that he had due notice of the proceedings for condemnation, appeared, and was admitted to make defence. The judicial authorities of a State may keep within the letter of the statute prescribing forms of procedure in the courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its action would be inconsistent with that amendment. A judgment of a state court, even if authorized by statute, whereby private property is taken for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States. The clause of the Seventh Amendment of the Constitution of the United States declaring that "no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law" applies to cases coming to this Court from the highest courts of the States in which facts have been found by a jury. In a proceeding in a state court for the condemnation of private property for public use, the court having jurisdiction of the subject matter and of the parties, the judgment ought not to be held in violation of the due Page 166 U. S. 227 process of law enjoined by the Fourteenth Amendment unless some rule of law was prescribed for the jury that was in absolute disregard of the right to just compensation. In a proceeding in a state court in Illinois to ascertain the compensation due to a railroad company arising from the opening of a street across its tracks -- the land as such not being taken, and the railroad not being prevented from using it for its ordinary railroad purposes, and being interfered with only so far as the right to its exclusive enjoyment for purposes of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a street -- the measure of compensation is the amount of decrease in the value of its use for railroad purposes caused by its use for purposes of a street, the use for the purposes of a street being exercised jointly with the company for railroad purposes. While the general rule is that compensation is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future, mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded. The railroad, having laid its tracks within the limits of the city, must be deemed to have done so subject to the condition -- not, it is true, expressed, but necessarily implied -- that new streets of the city might be opened and extended from time to time across its tracks as the public convenience required, and under such restrictions as might be prescribed by statute. When a city seeks by condemnation proceedings to open a street across the tracks of a railroad within its corporate limits, it is not bound to obtain and pay for the fee in the land over which the street is opened, leaving untouched the right of the company to cross the street with its tracks, nor is it bound to pay the expenses that will be incurred by the railroad company in the way of constructing gates, placing flagmen, etc., caused by the opening of the street across its tracks. All property, whether owned by private persons or by corporations, is held subject to the power of the State to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the State by reasonable regulations to protect the lives and secure the safety of the people. The expenses that will be incurred by the railroad company in erecting gates, planking the crossing, and maintaining flagmen, in order that its road may be safely operated -- if all that should be required -- necessarily result from the maintenance of a public highway, under legislative sanction, and must be deemed to have been taken by the company into account when it accepted the privileges and franchises granted by the State. Such expenses must be regarded as incidental to the exercise of the police powers of the State, and must be borne by the company. Page 166 U. S. 228 The case is stated in the opinion. MR. JUSTICE HARLAN delivered the opinion of the court. The questions presented on this writ of error relate to the jurisdiction of this court to reexamine the final judgment of the Supreme Court of Illinois, and to certain rulings of the state court, which, it is alleged, were in disregard of that part of the Fourteenth Amendment declaring that no State shall deprive any person of his property without due process of law, or deny the equal protection of the laws to any person within its jurisdiction. The Constitution of Illinois provides that "no person shall be deprived of life, liberty or property, without due process of law." Article 2, § 2. It also provides: "Private property shall not be taken or damaged for public use without just compensation. Such compensation, when not made by the State, shall be ascertained by a jury, as shall be prescribed by law. The fee of land taken for railroad tracks, without consent of the owners thereof, shall remain in such owners, subject to the use for which it is taken." Article 2, § 13. By the fifth article of the general statute of Illinois, approved April 10, 1872, and relating to the incorporation of cities and villages, it was provided that "[t]he city council shall have power, by condemnation or otherwise, to extend any street, alley or highway over or across, or to construct any sewer under or through any railroad track, right of way or land of any railroad company (within the corporate limits); but where no compensation is made to such railroad company, the city shall restore such railroad track, right of way or land Page 166 U. S. 229 to its former state, or in a sufficient manner not to have impaired its usefulness." 1 Starr & Curtis' Anno. Stat. pp. 452, 472, art. V, § 89. The ninth article of the same statute declared that, when the corporate authorities of a city or village provided by ordinance for the making of any local improvement authorized to be made, the making of which would require that private property be taken or damaged for public use, the city or village should file in its name a petition in some court of record of the county praying "that the just compensation to be made for private property to be taken or damaged" for the improvement or purpose specified in the ordinance be ascertained by a jury. That statute further provided: "§ 14. Any final judgment or judgments, rendered by said court, upon any finding or findings of any jury or juries, shall be a lawful and sufficient condemnation of the land or property to be taken upon the payment of the amount of such finding as hereinafter provided. It shall be final and conclusive as to the damages caused by such improvement, unless such judgment or judgments shall be appealed from; but no appeal or writ of error upon the same shall delay proceedings under said ordinance, if such city or village shall deposit, as directed by the court, the amount of the judgment and costs, and shall file a bond in the court in which such judgment was rendered, in a sum to be fixed, and with security to be approved by the judge of said court, which shall secure the payment of any future compensation which may at any time be finally awarded to such party so appealing or suing out such writ of error, and his or her costs." "§ 15. The court, upon proof that said just compensation so found by the jury has been paid to the person entitled thereto, or has been deposited as directed by the court (and bond given, in case of any appeal or writ of error), shall enter an order that the city or village shall have the right, at any time thereafter, to take possession of or damage the property, in respect to which such compensation shall have been so paid or deposited, as aforesaid." 1 Starr & Curtis' Anno.Stat. p. 487 et seq. Page 166 U. S. 230 All of these provisions became a part of the charter of the City of Chicago in 1875. By an ordinance of the City Council of Chicago approved October 9, 1880, it was ordained that Rockwell street, in that city, be opened and widened from West Eighteenth street to West Nineteenth street by condemning therefor, in accordance with the above act of April 10, 1872, certain parcels of land owned by individuals, and also certain parts of the right of way in that city of the Chicago, Burlington & Quincy Railroad Company, a corporation of Illinois. In execution of that ordinance, a petition was filed by the city, November 12, 1890, in the Circuit Court of Cook County, Illinois, for the condemnation of the lots, pieces, or parcels of land and property proposed to be taken or damaged for the proposed improvement, and praying that the just compensation required for private property taken or damaged be ascertained by a jury. The parties interested in the property described in the petition, including the Chicago, Burlington & Quincy Railroad Company, were admitted as defendants in the proceeding. In their verdict, the jury fixed the just compensation to be paid to the respective individual owners of the lots, pieces, and parcels of land and property sought to be taken or damaged by the proposed improvements, and fixed one dollar as just compensation to the railroad company in respect of those parts of its right of way described in the city's petition as necessary to be used for the purposes of the proposed street. Thereupon, the railroad company moved for a new trial. T he motion was overruled, and a final judgment was rendered in execution of the award by the jury. That judgment was affirmed by the Supreme Court of the State. The motion by the city to dismiss the writ of error for want of jurisdiction will be first considered. It the right now asserted under the Constitution of the United States was specifically set up or claimed by the defendant in the state court, the motion to dismiss must be overruled. Rev.State. § 709. Page 166 U. S. 231 An examination of the statues under which this proceeding was instituted will show that no provision is made for an answer by the defendants. In Smith v. Chicago & Western Indiana Railroad, 105 Illinois 511, 516, the Supreme Court of Illinois said that there was no rule of law or of practice authorizing the filing of an answer to a petition for the condemnation of land under the eminent domain act of that State; that the proceeding was purely statutory; and that, although the statute was very minute in all its details, specifically setting forth every step to be taken in the progress of a cause from its inception to its final determination, it did not contain any allusion to an answer by the defendants. It is not, therefore, important that the defendant neither filed nor offered to file an answer specially setting up or claiming a right under the Constitution of the United States. It is sufficient if it appears from the record that such right was specially set up or claimed in the state court in such manner as to being it to the attention of that court. Now, the right in question was distinctly asserted by the defendant in its written motion to set aside the verdict and grant a new trial. Among the grounds for a new trial were the following: that the several rulings of the court in excluding proper evidence for the defendant, the statute under which the proceedings for condemnation were instituted, and the verdict of the jury and the judgment based upon it, were all contrary to the Fourteenth Amendment, declaring that no State shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its limits the equal protection of the laws. When the trial court overruled the motion for a new trial, and entered judgment, it necessarily held adversely to these claims of federal right. But this is not all. In the assignment of errors filed by the defendant in the Supreme Court of Illinois, these claims of rights under the Constitution of the United States were distinctly reasserted. It is true that the Supreme Court of Illinois did not, in its opinion, expressly refer to the Constitution of the United Page 166 U. S. 232 States. But that circumstance is not conclusive against the jurisdiction of this court to reexamine the final judgment of the state court. The judgment of affirmance necessarily denied the federal rights thus specially set up be the defendant, for that judgment could not have been rendered without deciding adversely to such claims of right. Those claims went to the very foundation of the whole proceeding so far as it related to the railroad company, and the legal effect of the judgment of the Supreme Court of the State was to deny them. "The true and rational rule," this court said in Bridge Proprietors v. Hoboken Co. , 1 Wall. 116, 68 U. S. 143 , "is that the court must be able to see clearly, from the whole record, that a certain provision of the Constitution or act of Congress was relied on by the party who brings the writ of error, and that the right thus claimed by him was denied." In Roby v. Colehour, 146 U. S. 153 , 146 U. S. 159 , it was said that: "Our jurisdiction being invoked upon the ground that a right or immunity, specially set up and claimed under the Constitution or authority of the United States, has been denied by the judgment sought to be reviewed, it must appear from the record of the case either that the right so set up and claimed was expressly denied, or that such was the necessary effect in law of the judgment." De Saussure v. Gaillard, 127 U. S. 216 , 127 U. S. 234 ; Brown v. Atwell, 92 U. S. 327 ; Chicago Life Ins. Co. v. Needles, 113 U. S. 574 , 113 U. S. 577 ; Sayward v. Denny, 158 U. S. 180 , 158 U. S. 183 . There is, we conceive, no room to doubt that the legal effect of the judgment below was to declare that the rights asserted by the defendant under the national Constitution were not infringed by the proceedings in the case. Consequently, the motion to dismiss for want of jurisdiction must be overruled, and we proceed to examine the case upon its merits. The general contentions of the railroad company are: That the judgment of the state court whereby a public street is opened across its land used for railroad purposes, and whereby compensation to the extent of one dollar only is awarded, deprives it of its property without due process of law, contrary to the prohibitions of the Fourteenth Amendment; and Page 166 U. S. 233 That the railroad company was entitled, by reason of the opening of the street, to recover as compensation a sum equal to the difference between the value of the fee of the land sought to be crossed, without any restrictions on its right to use the land for any lawful purpose, and the value of the land burdened with a perpetual right in the public to use it for the purpose of a street subject to the right of the company or those acquiring title under it to use it only for railroad tracks, or any purpose for which the same could be used without interfering with its use by the public. The city contends that the question as to the amount of compensation to be awarded to the railroad company was one of local law merely, and, as that question was determined in the mode prescribed by the Constitution and laws of Illinois, the company appearing and having full opportunity to be heard, the requirement of due process of law was observed. If this position be sound, it is an end of the case, and we need not determine whether the state court erred in not recognizing the principles of law embodied in the instructions asked by the railroad company. It is therefore necessary to inquire at the outset whether "due process of law" requires compensation to be made or secured to the owner of private property taken for public use, and also as to the circumstances under which the final judgment of the highest court of a State in a proceeding instituted to condemn such property for public use may be reviewed by this court. It is not contended -- as it could not be -- that the Constitution of Illinois deprives the railroad company of any right secured by the Fourteenth Amendment. For the state constitution not only declares that no person shall be deprived of his property without due process of law, but that private property shall not be taken or damaged for public use without just compensation. But it must be observed that the prohibitions of the amendment refer to all the instrumentalities of the State -- to its legislative, executive, and judicial authorities -- and therefore whoever, by virtue of public position under a state government, deprives another of any right protected by that Page 166 U. S. 234 amendment against deprivation by the State, "violates the constitutional inhibition, and, as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State." This must be so, or, as we have often said, the constitutional prohibition has no meaning, and "the State has clothed one of its agents with power to annul or evade it." Ex parte Virginia, 100 U. S. 339 , 100 U. S. 346 -347; Neal v. Delaware, 103 U. S. 370 ; Yick Wo v. Hopkins, 118 U. S. 356 ; Gibson v. Mississippi, 162 U. S. 579 . These principles were enforced in the recent case of Scott v. McNeal, 154 U. S. 34 , in which it was held that the prohibitions of the Fourteenth Amendment extended to "all acts of the State, whether through its legislative, its executive, or its judicial authorities"; and consequently it was held that a judgment of the highest court of a State, by which a purchaser at an administration sale, under an order of a probate court, of land belonging to a living person who had not been notified of the proceedings, deprived him of his property without due process of law, contrary to the Fourteenth Amendment. Nor is the contention that the railroad company has been deprived of its property without due process of law entirely met by the suggestion that it had due notice of the proceedings for condemnation, appeared in court, and was permitted to make defense. It is true that this court has said that a trial in a court of justice according to the modes of proceeding applicable to such a case, secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice -- the court having jurisdiction of the subject matter and of the parties, and the defendant having full opportunity to be heard -- met the requirement of due process of law. United States v. Cruikshank, 92 U. S. 542 , 92 U. S. 554 ; Leeper v. Texas, 139 U. S. 462 , 139 U. S. 468 . But a State may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts, and give the parties interested the fullest opportunity to be heard, and yet Page 166 U. S. 235 it might be that its final action would be inconsistent with that amendment. In determining what is due process of law, regard must be had to substance, not to form. This Court, referring to the Fourteenth Amendment, has said: "Can a State make anything due process of law which, by its own legislation, it chooses to declare such? To affirm this is to hold that the prohibition to the States is of no avail, or has no application, where the invasion of private rights is effected under the forms of state legislation." Davidson v. New Orleans, 96 U. S. 97 , 96 U. S. 102 . The same question could be propounded, and the same answer should be made, in reference to judicial proceedings inconsistent with the requirement of due process of law. If compensation for private property taken for public use is an essential element of due process of law as ordained by the Fourteenth Amendment, then the final judgment of a state court, under the authority of which the property is in fact taken, is to be deemed the act of the State within the meaning of that amendment. It is proper now to inquire whether the due process of law enjoined by the Fourteenth Amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State. In Davidson v. New Orleans, above cited, it was said that a statute declaring in terms, without more, that the full and exclusive title to a described piece of land belonging to one person should be and is hereby vested in another person, would, if effectual, deprive the former of his property without due process of law within the meaning of the Fourteenth Amendment. See also Missouri Pacific Railway v. Nebraska, 164 U. S. 403 , 164 U. S. 417 . Such an enactment would not receive judicial sanction in any country having a written Constitution distributing the powers of government among three coordinate departments, and committing to the judiciary, expressly or by implication, authority to enforce the provisions of such Constitution. It would be treated not as an exertion of legislative power, but as a sentence -- an act of spoliation. Due protection of the rights of property has been regarded as a vital principle of Page 166 U. S. 236 republican institutions. "Next in degree to the right of personal liberty," Mr. Broom, in his work on constitutional Law, says, "is that of enjoying private property without undue interference or molestation." (P. 228.) The requirement that the property shall not be taken for public use without just compensation is but "an affirmance of a great doctrine established by the common law for the protection of private property. It is founded in natural equity, and is laid down as a principle of universal law. Indeed, in a free government, almost all other rights would become worthless if the government possessed an uncontrollable power over the private fortune of every citizen." 2 Story Const. § 1790; 1 Bl.Comm. 138, 139; Cooley, Const.Lim. *559; People v. Platt, 17 Johns. 195, 215; Bradshaw v. Rogers, 20 Johns. 103, 106; Petition of Mt. Washington Road Co., 4 N.H. 134, 142; Parham v. The Justices &c., 9 Georgia 341, 348; Martin, et al., ex parte, 13 Arkansas 198, 206 et seq.; Johnston v. Rankin, 70 N.C. 550, 555. But if, as this court has adjudged, a legislative enactment, assuming arbitrarily to take the property of one individual and give it to another individual, would not be due process of law, as enjoined by the Fourteenth Amendment, it must be that the requirement of due process of law in that amendment is applicable to the direct appropriation by the State to public use, and without compensation, of the private property of the citizen. The legislature may prescribe a form of procedure to be observed in the taking of private property for public use, but it is not due process of law if provision be not made for compensation. Notice to the owner to appear in some judicial tribunal and show cause why his property shall not be taken for public use without compensation would be a mockery of justice. Due process of law, as applied to judicial proceedings instituted for the taking of private property for public use means, therefore, such process as recognizes the right of the owner to be compensated if his property be wrested from him and transferred to the public. The mere form of the proceeding instituted against the owner, even if he be admitted to defend, cannot convert the process used Page 166 U. S. 237 into due process of law, if the necessary result be to deprive him of his property without compensation. In Fletcher v. Peck , 6 Cranch, 87, 10 U. S. 135 -136, this Court, speaking by Chief Justice Marshall, said: "It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power, and, if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted, but the question whether the act of transferring the property of an individual to the public be in the nature of legislative power is well worthy of serious reflection." In Loan Ass'n v. Topeka , 20 Wall. 655, 87 U. S. 663 , Mr. Justice Miller, delivering the judgment of this Court, after observing that there were private rights in every free government beyond the control of the State, and that a government, by whatever name it was called, under which the property of citizens was at the absolute disposition and unlimited control of any depository of power, was, after all, but a despotism, said: "The theory of our governments, state and national, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power, which grow out of the essential nature of all free governments, implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name." No court, he said, would hesitate to adjudge void any statute declaring that "the homestead now owned by A. should no longer be his, but should henceforth be the property of B." In accordance with these principles, it was held in that case that the property of the citizen could not be taken under the power of taxation to promote private objects, and, therefore, that a statute authorizing a town to issue its bonds in aid of a manufacturing enterprise of individuals was void because the object was a private, not a public, one. See also Cole v. La Grange, 113 U. S. 1 . In the early case of Gardner v. Newburgh, 2 Johns.Ch. Page 166 U. S. 238 162, there being no provision in the Constitution of the State of New York on the subject, Chancellor Kent said that it was a principle of natural equity, recognized by all temperate and civilized governments, from a deep and universal sense of its justice, that fair compensation be made to the owner of private property taken for public use. In Sinnickson v. Johnson, 17 N.J.Law, 129, 145, it was held to be a settled principle of universal law, reaching back of all constitutional provisions, that the right to compensation was an incident to the exercise of the power of eminent domain; that the one was so inseparably connected with the other that they may be said to exist not as separate and distinct principles, but as parts of one and the same principle; and that the legislature "can no more take private property for public use without just compensation than if this restraining principle were incorporated into, and made part of, its state constitution." These cases are referred to with approval in Pumpelly v. Green Bay Co. , 13 Wall. 166, 80 U. S. 178 , and in Monongahela Nav. Co. v. United States, 148 U. S. 312 , 148 U. S. 325 , this Court saying in the latter case: "And in this there is a natural equity which commends it to everyone. It in no wise detracts from the power of the public to take whatever may be necessary for it uses; while, on the other hand, it prevents the public from loading upon one individual more than his just share of the burdens of government, and says that, when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him." In Searl v. School District, 133 U. S. 553 , 133 U. S. 562 , and in Sweet v. Rechel, 159 U. S. 380 , 159 U. S. 398 , the court said that it was a condition precedent to the exercise of the power of eminent domain that the statute make provision for reasonable compensation to the owner. In Scott v. Toledo, 36 Fed.Rep. 385, 395-396, the late Mr. Justice Jackson, while Circuit Judge, had occasion to consider this question. After full consideration, that able judge said: "Whatever may have been the power of the States on this subject prior to the adoption of the Fourteenth Amendment Page 166 U. S. 239 to the Constitution, it seems clear that, since that amendment went into effect, such limitations and restraints have been placed upon their power in dealing with individual rights that the States cannot now lawfully appropriate private property for the public benefit or to public uses without compensation to the owner, and that any attempt so to do, whether done in pursuance of a constitutional provision or legislative enactment, whether done by the legislature itself or under delegated authority by one of the subordinate agencies of the State, and whether done directly, by taking the property of one person and vesting it in another or the public, or indirectly, through the forms of law, by appropriating the property and requiring the owner thereof to compensate himself, or to refund to another the compensation to which he is entitled, would be wanting in that 'due process of law' required by said amendment. The conclusion of the court on this question is that, since the adoption of the Fourteenth Amendment, compensation for private property taken for public uses constitutes an essential element in 'due process of law,' and that, without such compensation, the appropriation of private property to public uses, no matter under what form of procedure it is taken, would violate the provisions of the federal Constitution." To the same effect are Henderson v. Central Passenger Railway, 21 Fed.Rep. 359, and Baker v. Village of Norwood, 74 Fed.Rep. 997. In Mt. Hope Cemetery v. Boston, 158 Mass. 509, 519, in which the Fourteenth Amendment was invoked against a statute requiring the City of Boston to transfer certain cemetery property owned by it to a particular company, the court said: "The conclusion to which we have come is that the cemetery falls within the class of property which the city owns in its private or proprietary character, as a private corporation might own it, and that its ownership is protected under the Constitutions of Massachusetts and of the United States, so that the legislature has no power to require its transfer without compensation," citing the Constitution of Massachusetts, Declaration of Rights, Article X, and the Fourteenth Amendment of the Constitution of the United States. Page 166 U. S. 240 In his work on Constitutional Limitations, Mr. Cooley says: "The principles, then upon which the process is based, are to determine whether it is 'due process' or not, and not any considerations of mere form. . . . When the government, through its established agencies, interferes with the title to one's property, or with his independent enjoyment of it, and its action is called in question as not in accordance with the law of the land, we are to test its validity by those principles of civil liberty and constitutional protection which have become established in our system of laws, and not generally by the rules that pertain to forms of procedure merely. In judicial proceedings, the law of the land requires a hearing before condemnation, and judgment before dispossession; but when property is appropriated by the government to public uses, or the legislature interferes to give direction to its title through remedial statutes, different considerations from those which regard the controversies between man and man must prevail, different proceedings are required, and we have only to see whether the interference can be justified by the established rules applicable to the special case. Due process of law in each particular case means such an exertion of the powers of government as the settled maxims of law permit and sanction and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs. . . . In every government, there is inherent authority to appropriate the property of the citizen for the necessities of the State, and constitutional provisions do not confer the power, though they generally surround it with safeguards to prevent abuse. The restraints are that, when specific property is taken, a pecuniary compensation, agreed upon or determined by judicial inquiry, must be paid." Pp. *356, *357. In his discussion as to the meaning and scope of the Fourteenth Amendment, the same writer, in his edition of Story on the Constitution, after observing that every species of individual property was subject to be appropriated for the special needs of either the State or national government, but that the power to appropriate was subject to the restriction, among others, that it must Page 166 U. S. 241 not be exercised without making due compensation for whatever is taken, says: "Due process of law requires, first, the legislative act authorizing the appropriation, pointing out how it may be made and how the compensation shall be assessed, and, second, that the parties or officers proceeding to make the appropriation shall keep within the authority conferred, and observe every regulation which the act makes for the protection or in the interest of the property owner, except as he may see fit voluntarily to waive them." 2 Story, Const. § 1956. In our opinion, a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State or under its direction for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment of the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that State of a right secured to the owner by that instrument. It remains to inquire whether the necessary effect of the proceedings in the court below was to appropriate to the public use any property right of the railroad company without compensation being made or secured to the owner. The contention of the railroad company is that the verdict and judgment for one dollar as the amount to be paid to it was, in effect, an appropriation of its property rights without any compensation whatever; that the judgment should be read as if, in form as well as in fact, it made no provision whatever for compensation for the property so appropriated. Undoubtedly the verdict may not unreasonably be taken as meaning that in the judgment of the jury the company's property, proposed to be taken, was not materially damaged; that is, looking at the nature of the property, and the purposes for which it was obtained and was being used, that which was taken from the company was not, in the judgment of the jury, of any substantial value in money. The owner of private property taken under the right of eminent domain obtains just compensation if he is awarded such sum as, under all the Page 166 U. S. 242 circumstances, is a fair and full equivalent for the thing taken from him by the public. If the opening of the street across the railroad tracks did not unduly interfere with the company's use of the right of way for legitimate railroad purposes, then its compensation would be nominal. But whether there was such an interference, what was its extent, and what was the value of that lost by the company as the direct result of such interference, were questions of fact, which the State committed to the jury under such instructions touching the law as were proper and necessary. It was for the jury to determine the facts, but it belonged to the court to determine the legal principles by which they were to be governed in fixing the amount of compensation to the owner. Whatever may have been the power of the trial court to set aside the verdict as not awarding just compensation, or the authority of the Supreme Court of Illinois, under the Constitution and laws of the State, to review the facts, can this Court go behind the final judgment of the State court for the purpose of reexamining and weighing the evidence, and of determining whether, upon the facts, the jury erred in not returning a verdict in favor of the railroad company for a larger sum than one dollar? This question may be considered in two aspects: first, with reference to the Seventh Amendment of the Constitution, providing that, "[i]n suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law;" second, with reference to the statute, Rev.Stat. § 709, which provides that the final judgment of the highest court of a State in certain named cases may be reexamined in this Court upon writ of error. It is clear that the last clause of the Seventh Amendment is not restricted in its application to suits at common law tried before juries in the courts of the United States. It applies equally to a case tried before a jury in a state court, and brought here by writ of error from the highest court of the Page 166 U. S. 243 State. One of the objections made to the acceptance of the Constitution as it came from the hands of the Convention of 1787 was that it did not, in express words, preserve the right of trial by jury, and that, under it, facts tried by a jury could be reexamined by the courts of the United States otherwise than according to the rules of the common law. The Seventh Amendment was intended to meet these objections, and to deprive the courts of the United States of any such authority. It could not have been intended thus to restrict the power of the courts of the United States to reexamine facts tried by juries in the courts of the Union, and leave it open for those courts to reexamine, in disregard of the rules of the common law, facts tried by juries impaneled in the state courts in cases which, by reason of the questions involved in them, could be brought under the cognizance of the courts of the United States. In The Justices v. Murray , 9 Wall. 274, 76 U. S. 278 , a case removed from a state court to a Circuit Court of the United States after verdict in the state court, and brought from the latter court to this Court by writ of error, the question was presented as to the constitutionality of so much of the fifth section of the Act of March 3, 1863, c. 81, 12 Stat. 755, as authorized the removal of a judgment in a state court, in which the case was tried by a jury, to the Circuit Court of the United States for a retrial on the facts and the law. The argument was made that, as by the construction uniformly given to the first clause of the Amendment, the suits there mentioned were only those in the federal courts, the words "and no fact tried by a jury," mentioned in the second clause, relate to trial by jury only in such courts. But this Court said: "It is admitted that the clause applies to the appellate powers of the Supreme Court of the United States in all common law cases coming up from an inferior federal court, and also to the Circuit Court in like cases, in the exercise of its appellate powers. And why not as it respects the exercise of these powers in cases of federal cognizance coming up from a state court? The terms of the Amendment are general, and contain no qualification in respect of the restriction Page 166 U. S. 244 upon the appellate jurisdiction of the courts, except as to the class of cases (namely, suits at common law) where the trial had been by jury. The natural inference is that no other was intended. Its language, upon any reasonable, if not necessary, interpretation, we think, applies to this entire class, no matter from what court the case comes, of which cognizance can be taken by the appellate court. It seems to us also that cases of federal cognizance, coming up from state courts are not only within the words, but are also within the reason and policy, of the amendment. They are cases involving questions arising under the Constitution, the laws of the United States, and treaties, or under some other federal authority, and therefore are as completely within the exercise of the judicial power the United States -- as much so -- as if the cases had been originally brought in some inferior federal court. No other cases tried in the state courts can be brought under the appellate jurisdiction of this Court, or any inferior federal court on which appellate jurisdiction may have been conferred. The case must be one involving some federal question, and it is difficult to perceive any sensible reason for the distinction that is attempted to be made between the reexamination by the appellate court of a cause coming from an inferior federal court and one of the class above mentioned coming up form a state court. In both instances, the cases are to be disposed of by the same system of laws, and by the same judicial tribunal." It was therefore held that Congress could not authorize a Circuit Court of the United States, upon the removal of a case tried by a jury in a state court, to retry "the facts and law." Upon the reasoning in the case just referred to, it would seem to be clear that the last clause of the Seventh Amendment forbids the retrial by this Court of the facts tried by the jury in the present case. This conclusion is not affected by the circumstance that this proceeding is to be referred to the State's power of eminent domain, in which class of cases it had been held that, in the absence of express constitutional provisions on the subject, the owner of private property taken for public use cannot claim, as of right, that his compensation Page 166 U. S. 245 shall be ascertained by a common law jury. The reason for this rule is that, before the establishment of the government of the United States, it had been the practice in this country and in England to ascertain by commissioners, special tribunals, and other like agencies the compensation to be made to owners of private property taken for public use, and it was not to be supposed that the general provisions in American constitutions, national and state, preserving the right of trial by jury, superseded that practice. Lewis on Eminent Domain 311, 312, and authorities cited. But, in Illinois, such practice is not permitted in cases of the condemnation of private property for public use. The state Constitution of 1848 provided that "the right of trial by jury shall remain inviolate and shall extend to all cases at law without regard to the amount in controversy." Article 13, § 6. The Constitution of 1870 provides that "[t]he right of trial by jury, as heretofore enjoyed, shall remain inviolate, but the trial of civil cases before the justices of the peace by a jury of less than twelve men may be authorized by law." Article 2, § 5. And by the latter instrument, as we have sen, it is expressly provided that the just compensation required to be made to the owner of private property taken or damaged for public use "shall be ascertained by a jury as shall be prescribed by law." Art. 2, § 13. That the last-named provision prohibited the ascertainment of such compensation in any other mode than by a jury is made clear by the decision of the Supreme Court of Illinois in Kine v. Defenbaugh, 64 Illinois 291, in which it was adjudged that a provision in a statute of Illinois authorizing commissioners of highways, or three supervisors of the county on appeal from the commissioners, to ascertain the damages sustained by reason of the construction of a highway across the owner's premises, was superseded by the thirteenth section of article 2 of the state constitution; the court observing that a trial by jury was "a constitutional right of which the party may not be debarred either by the action or nonaction of the legislature. People v. McRoberts, 62 Illinois 38." The persons impaneled in this case to ascertain the just compensation due to the railroad Page 166 U. S. 246 company constituted a jury as ordained by the Constitution of Illinois in cases of the condemnation of private property for public use, and, being a jury within the meaning of the Seventh Amendment of the Constitution of the United States, the facts tried by it cannot be retried "in any court of the United States otherwise than according to the rules of the common law." The only modes known to the common law "to reexamine such facts are the granting of a new trial by the court where the issue was tried, or to which the record was properly returnable, or the award of a venire facias de novo by an appellate court, for some error of law which intervened in the proceedings." Parsons v. Bedford , 3 Pet. 433, 28 U. S. 447 -448; Railroad Co. v. Fraloff, 100 U. S. 24 , 100 U. S. 31 . To this it may be added that Congress has provided that the final judgment of the highest court of a State in cases of which this Court may take cognizance shall be reexamined upon writ of error, a process of common law origin, which removes nothing for reexamination but questions of law arising upon the record. Egan v. Hart, 165 U. S. 188 . Even if we were of opinion, in view of the evidence, that the jury erred in finding that no property right, of substantial value in money, had been taken from the railroad company by reason of the opening of a street across its right of way, we cannot, on that ground, reexamine the final judgment of the state court. We are permitted only to inquire whether the trial court prescribed any rule of law for the guidance of the jury that was in absolute disregard of the company's right to just compensation. We say "in absolute disregard of the company's right to just compensation" because we do not wish to be understood as holding that every order or ruling of the state court in a case like this may be reviewed here, notwithstanding our jurisdiction, for some purposes, is beyond question. Many matters may occur in the progress of such cases that do not necessarily involve, in any substantial sense, the federal right alleged to have been denied; and, in respect of such matters, that which is done or omitted to be done by the state court may constitute only error in the administration of the law under which the proceedings were instituted. Page 166 U. S. 247 In Lent v. Tillson, 140 U. S. 316 , 140 U. S. 331 , which was a case of the widening of a public street, for the cost of which bonds were issued, to be paid by taxation on the lands benefited, in proportion to the benefits, and in which it was alleged by a property owner that the local statute had been so administered as to deprive him of his property without due process of law, this Court said: "Errors in the mere administration of the statute, not involving jurisdiction of the subject matter and of the parties, could not justify this Court, in its reexamination of the judgment of the state court, upon writ of error, to hold that the State had deprived, or was about to deprive, the plaintiffs of their property without due process of law. Whether it was expedient to widen Dupont street, or whether the board of supervisors should have so declared, or whether the board of commissioners properly apportioned the cost of the work, or correctly estimated the benefits accruing to the different owners of property affected by the widening of the street, or whether the board's incidental expenses in executing the statute were too great, or whether a larger amount of bonds were issued than should have been, the excess, if any, not being so great as to indicate upon the face of the transaction a palpable and gross departure from the requirements of the statute, or whether upon the facts disclosed the report of the commissioners should have been confirmed, are none of them issues presenting federal questions, and the judgment of the state court upon them cannot be reviewed here." In harmony with those views, we may say in the present case that the state court having jurisdiction of the subject matter and of the parties, and being under a duty to guard and protect the constitutional right here asserted, the final judgment ought not to be held to be in violation of the due process of law enjoined by the Fourteenth Amendment unless, by its rulings upon questions of law, the company was prevented from obtaining substantially any compensation. See also Marchant v. Pennsylvania Railroad, 153 U. S. 380 . The principal point of dispute between the parties was whether the railroad company, by reason of the opening of the street, was entitled to recover a sum equal to the difference Page 166 U. S. 248 between the value of the land in question, as land, without any restriction on its right to use it for any lawful purpose, and the value of the land when burdened with the right of the public to use it for the purposes of a street crossing. In its opinion in this case, the Supreme Court of Illinois says that, when a city council, under the authority of the act of April 10, 1872, extends a street across railroad tracks or right of way, "it does not condemn the land of the railroad company, nor prevent the use of the tracks and right of way." 149 Illinois 457. We take this to be a correct interpretation of the local statute, and as indicating, not only the interest acquired by the public through proceedings instituted for the extension of a street across the tracks and right of way of the railroad company, but also the extent to which the company was deprived, by the proceedings for condemnation, of any right in respect of the land. Such being the law of the State, it would necessarily follow that the jury, in ascertaining the amount of compensation, could not properly take as a basis of calculation the market value of the land as land. The land, as such, was not taken, the railroad company was not prevented from using it, and its use for all the purposes for which it was held by the railroad company was interfered with only so far as its exclusive enjoyment for purposes of railroad tracks was diminished in value by subjecting the land within the crossing to public use as a street. The Supreme Court of Illinois well said that "[t]he measure of compensation is the amount of decrease in the value of the use for railroad purposes caused by the use for purposes of a street, such use for the purposes of a street being exercised jointly with the use of the company for railroad purposes. In other words, the company is to be compensated for the diminution in its right to use its tracks caused by the existence and use of the street." 149 Illinois 457. But it was contended in the court below, and is here contended, that the land was subject to sale by the company for any lawful use; that, after being condemned for purposes of a public street, it could not be sold as land held for private use could be sold in the market; consequently its salable value, Page 166 U. S. 249 treating it as land simply, was practically destroyed by the opening of a public street across it. Touching this point, the state court, observing that a railroad company can only acquire land, whether by voluntary purchase or otherwise, for railroad purposes as defined in its charter, and that, in this case, the descriptions of the strips of land conveyed to the appellant, as set forth in the conveyances introduced in evidence, show that the strips were purchased for railroad right of way, and they have been ever since so used, said: "It is manifest that the appellant is restricted in its use of the right of way over which this street is to be extended to those purposes for which such right of way is now used. The future use must be the same as the present use, so long as the appellant continues to operate its railroad, unless the legislature shall permit it to change its route." 149 Illinois 457. The Supreme Court of Illinois, therefore, held that the trial court did not err in excluding evidence to show the general salable value of the right of way included in the crossing, or its general value for other uses than that to which it was applied. According to this view of the powers of the railroad company, it is clear that the jury could not properly have taken into consideration the possibility of such legislative permission being granted. That is, the power of the legislature to permit a change of route, and the possibility of the exercise of that power, could not be elements in the inquiry as to the compensation to be now awarded to the railroad company. But even if it were true that the company, so long as it operated its railroad, could without legislative permission take up its tracks placed across the land in question, and use the land for purposes other than for a right of way, the jury could not properly have taken into consideration the possibility that, at some future time, the company would adopt that course, and thereby put itself in condition, if no street were opened across it, to sell its land for what it was worth as land, freed from any public easement. Such a possibility was too remote and contingent to have been taken into account. There was nothing in the evidence, introduced or Page 166 U. S. 250 offered and excluded, suggesting any probability that the company intended to use, or would in the near future use, the land within the crossing for any other purpose than as a right of way. While, as held in Boom Co. v. Patterson, 98 U. S. 403 , 98 U. S. 408 , the general rule is that compensation "is to be estimated by reference to the uses for which the property is suitable, having regard to the existing business and wants of the community, or such as may be reasonably expected in the immediate future," it is well settled that "mere possible or imaginary uses, or the speculative schemes of its proprietor, are to be excluded." Pierce on Railroads 217, and authorities cited; Worcester v. Great Falls Manufacturing Co., 41 Maine 159, 164; Dorlan v. East Brandywine & Waynesburg Railroad, 46 Penn.St. 520, 525. The company must be deemed to have laid its tracks within the corporate limits of the city subject to the condition -- not, it is true, expressed, but necessarily implied -- that new streets of the city might be opened and extended from time to time across its tracks, as the public convenience required, and under such restrictions as might be prescribed by statute. Suppose the city had many years ago acquired the land in question by purchase or condemnation for the purpose of extending, and had extended, a street over it, and that the railroad company had thereafter acquired by condemnation the right to lay its tracks across the street upon making just compensation to the city. In ascertaining, in such a case, the compensation due the city, would it not be assumed, the street having once been opened, that the convenience of the public would always require it to be kept open, and that, therefore, compensation was to be ascertained not upon the basis of the value of the city's land, as land, when crossed by the railroad tracks, but upon the basis that the land would always be a part of a public street? Both branches of this question must be answered in the affirmative. But they should not be so answered if the position of the railroad company be sound; for, according to its contention, the jury, in the case supposed, must have taken into account the possibility that the city might at some future Page 166 U. S. 251 time discontinue the street, and sell the land, or devote it to other purposes. There was and is no more probability that the city, in the case supposed, would close the street, than, in this case, that the railroad company will take up its tracks from the land in question. Such a probability was too remote to be regarded as an element in the inquiry as to compensation. When these proceedings were instituted the railroad company had an exclusive right to use the land in question for tracks upon which to move its cars, and the city did not propose to interfere in any degree with the enjoyment of that right otherwise than by the opening of a street across the tracks for public use. To what extent was the value of the company's right to use the land for railroad tracks unduly diminished by opening across it a public street? Under all the circumstances, in view of the purpose for which the railroad company obtained the land, for which the land was in fact used, and for which it was likely to be always used -- which purpose is the most valuable one for the railroad company -- that was the only question to be determined by the jury. As the right to open a street across the railroad tracks was all that the city sought to obtain by the proceeding for condemnation, it was not bound to obtain and pay for the fee in the land over which the street was opened. If, prior to the institution of these proceedings, the railroad company had constructed upon the land embraced within the crossing buildings to be used in its business, it would have been necessary for the jury, in ascertaining the just compensation to be awarded, to take into consideration the value of such buildings. But no such case is before us. The case is simply one of the opening of a street across land with no buildings upon it, and used only for railroad tracks. It is next contended that error of law was committed by the refusal of the court to allow the company to prove that, in the event of the opening of the street, it would be necessary, in order that the railroad be properly and safely operated, to construct gates and a tower for operating them, plank the crossing, fill between the rails, put in an extra rail, and to incur an annual expense of depreciations, maintenance, Page 166 U. S. 252 employment of gatemen, etc. It was not claimed that the railroad company could recover specifically on account of such expenditures, but that the proof of their being made necessary by the opening of the street was admissible for the purpose of showing the compensation due to the company. There are some authorities that seem to support the view taken by the railroad company, but we are of opinion that no error was committed in excluding the evidence offered. The plaintiff in error took its charter subject to the power of the State to provide for the safety of the public, in so far as the safety of the lives and persons of the people were involved in the operation of the railroad. The company laid its tracks subject to the condition, necessarily implied, that their use could be so regulated by competent authority as to insure the public safety. And as all property, whether owned by private persons or by corporations, is held subject to the authority of the State to regulate its use in such manner as not to unnecessarily endanger the lives and the personal safety of the people, it is not a condition of the exercise of that authority that the State shall indemnify the owners of property for the damage or injury resulting from its exercise. Property thus damaged or injured is not, within the meaning of the Constitution, taken for public use, nor is the owner deprived of it without due process of law. The requirement that compensation be made for private property taken for public use imposes no restriction upon the inherent power of the State by reasonable regulations to protect the lives and secure the safety of the people. In the recent case of New York & N. E. Railroad v. Bristol, 151 U. S. 556 , 151 U. S. 567 , this Court declared it to be thoroughly established that the inhibitions of the Constitution of the United States upon the impairment of the obligation of contracts, or the deprivation of property without due process or of the equal protection of the laws, by the States, are not violated by the legitimate exercise of legislative power in securing the public safety, health, and morals. "The governmental power of self-protection," the court said, "cannot be contracted away, nor can the exercise of rights granted, nor the use of property, be withdrawn from the implied Page 166 U. S. 253 liability to governmental regulation in particulars essential to the preservation of the community from injury." See New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650 , 115 U. S. 671 . In Toledo, Peoria & Warsaw Railway v. Deacon, 63 Illinois 91, the Supreme Court of Illinois said: "The State has reserved to itself the power to enact all police laws necessary and proper to secure and protect the life and property of the citizen. Prominent among the rights reserved, and which must inhere in the State, is the power to regulate the approaches to and the crossing of public highways, and the passage through cities and villages, where life and property are constantly in imminent danger by the rapid and fearful speed of railway trains. The exercise of their franchises by corporations must yield to the public exigencies and the safety of the community." And in Illinois Central Railroad v. Willenborg, 117 Illinois 203, where the question was whether a railroad company could be required to construct a farm crossing over its road years after the road had been built, the court said: "The point is made, however, that these provisions are not obligatory on this corporation because they were enacted many years since it received its charter from the State. This is a misapprehension of the law. The regulations in regard to fencing railroad tracks, and the construction of farm crossings for the use of adjoining landowners, are 'police regulations,' in the strict sense of those terms, and apply with equal force to corporations whose tracks are already built, as well as to those to be thereafter constructed. They have reference to the public security both as to persons and to property. . . . No reason is perceived why, upon the same principle on which a railroad corporation may be required to fence its track and construct cattle guards, it may not be required also to construct farm crossings." In Chicago & Northwestern Railway Co. v. Chicago, 140 Illinois 309, 317-319, the question was whether, in a case where a city institutes a condemnation proceeding to open or extend a street across a railroad already constructed, the company owning such railroad was entitled to be allowed, as a Page 166 U. S. 254 part of its just compensation, the amount of its expenses in constructing and maintaining the street crossing. In that case, it appeared that the railroad was constructed prior to the above act of 1872 for the incorporation of cities and villages, and before the passage of the act of 1874, which required that, thereafter, at all railroad crossings of highways "and streets" the railroad companies should construct and maintain such crossings, and the approaches thereto, within their respective rights of way, so that at all times they should be safe as to person and property. 2 Starr & Curtis' Anno.Stat. p. 1927. The court said: "Government owes to its citizens the duty of providing and preserving safe and convenient highways. From this duty results the right of public control over public highways. Railroads are public highways, and, in their relations as such to the public, are subject to legislative supervision, though the interests of their shareholders are private property. Every railroad company takes its right of way subject to the right of the public to extend the public highways and streets across such right of way. . . . If railroads, so far as they are public highways, are, like other highways, subject to legislative supervision, then railroad companies, in their relations to highways and streets which intersect their rights of way, are subject to the control of the police power of the State; that power of which this Court has said that" "it may be assumed that it is a power coextensive with self-protection, and is not inaptly termed 'the law of overruling necessity.' Lake View v. Rose Hill Cemetery Co., 70 Illinois 191. The requirement embodied in section 8, that railroad companies shall construct and maintain the highway and street crossings and the approaches thereto within their respective rights of way, is nothing more than a police regulation. It is proper that the portion of the street or highway which is within the limits of the railroad should be constructed by the railroad company and maintained by it because of the dangers attending the operation of its road. It should control the making and repairing of the crossing for the protection of those passing along the street and of those riding on the cars. . . . The items of expense for Page 166 U. S. 255 which appellant claims compensation are such only as are involved in its compliance with a police regulation of the statute. It is well settled that" "neither a natural person nor a corporation can claim damages on account of being compelled to render obedience to a police regulation designed to secure the common welfare. Chicago & Alton Railroad v. Joliet, Lockport &c. Railroad, 105 Illinois 388. It has been held by this Court in a number of cases that railroad corporations may be required to fence their tracks, to put in cattle guards, to place upon their engines a bell, and to do other things for the protection of life and property, although their charters contained no such requirements. Galena & Chicago Union Railroad v. Loomis, 13 Illinois 548; Galena & Chicago Union Railroad v. Dill, 22 Illinois 264; Ohio & Mississippi Railroad v. McClelland, 25 Illinois 140; Peoria & Pekin Union Railway v. Peoria & Farmington Railroad, 105 Illinois 110. . . . Uncompensated obedience to a regulation enacted for the public safety under the police power of the State is not a taking or damaging without just compensation of private property, or of private property affected with a public interest." See also Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 668 ; Boston & Maine Railroad v. County Comm'rs, 79 Maine 386; Thorpe v. Railroad, 27 Vermont 150; Lake Shore Railway v. Cincinnati & Sandusky Railway, 30 Ohio St. 604; Portland & Rochester Railroad v. Deering, 78 Maine 61, 70; State v. Chicago &c. Railway, (Neb.), 45 N.W.Rep. 469; New York & N.E. Railway v. Waterbury, 60 Connecticut 1; Charlotte, Columbia &c. Railroad v. Gibbes, 142 U. S. 386 , 142 U. S. 393 . We concur in these views. The expenses that will be incurred by the railroad company in erecting gates, planking the crossing, and maintaining flagmen, in order that its road may be safely operated -- if all that should be required -- necessarily result from the maintenance of a public highway under legislative sanction, and must be deemed to have been taken by the company into account when it accepted the privileges and franchises granted by the State. Such expenses must be regarded as incidental to the exercise of the police powers of the State. What was obtained, and all that Page 166 U. S. 256 was obtained, by the condemnation proceedings for the public was the right to open a street across land within the crossing that was used, and was always likely to be used, for railroad tracks. While the city was bound to make compensation for that which was actually taken, it cannot be required to compensate the defendant for obeying lawful regulations enacted for the safety of the lives and property of the people. And the value to the railroad company of that which was taken from it is, as we have said, the difference between the value of the right to the exclusive use of the land in question for the purposes for which it was being used, and for which it was always likely to be used, and that value after the city acquired the privilege of participating in such use by the opening of a street across it, leaving the railroad tracks untouched. Upon that theory the case was considered by the jury, and the court did not err in placing it before them upon that basis as to compensation. One of the instructions asked by the company, and refused by the court, was to the effect that, if the land to be crossed by the proposed street was of such width and dimensions that it would be practicable for the company, or those acquiring title under it, to lay and operate other railroad tracks in addition to those already placed thereon, the company was entitled to recover, as part of the compensation to be awarded, the difference, if any, between the value of the strip for railroad purposes with the right to lay and operate thereon such additional tracks and the value of the same for railroad purposes with the right to use and operate only the railroad tracks now on the same. This instruction was properly refused, because it assumed, as matter of law, that the opening of the street across the existing railroad tracks prevented the company from laying additional tracks across the land within the crossing, if there was room for such tracks. The right of the company to use the land or its right of way for as many tracks as it reasonably required for its business -- if such right it had when the present proceedings were instituted -- is not affected by the opening of the street in question. The opening of the street across the company's land -- the city not acquiring the Page 166 U. S. 257 fee-simple title -- was necessarily subject to the right, if any, of the company to lay down additional tracks, if necessary in the proper conduct of its business. Another instruction asked by the company, and to the refusal of which it excepted, was to the effect that, if the land of the railroad company to be crossed by the proposed street was used by it for railroad purposes as part of "its railroad and terminal facilities," and the value of such railroad and terminal facilities would be depreciated and lessened by the use of the land by the public for the purposes of a street (such use for the purposes of a street being subject, however, to the use of the land by the company for railroad purposes), then the railroad company was entitled to recover from the city a sum equal to such depreciation in value as damages to part of its land not taken or crossed by the proposed street. This instruction was properly refused. It was objectionable, for the reason, if there were no other, that it was too general. The words "its railroad and terminal facilities" included the company's entire line of road and terminal facilities within, at least, the corporate limits of the city. The land within the crossing is three miles inside the city limits, about four miles from the passenger depot of the company, and a thousand feet from its nearest freight depot. If the instruction last referred to had been given, the range of inquiry as to the sum due the company for what was taken from it would have been extended far beyond what was required or permissible in order to ascertain the amount of compensation. It is further contended that the railroad company was denied the equal protection of the laws in that, by the final judgment, individual property owners were awarded, as compensation for contiguous property appropriated to the public use by the same proceeding, the value of their land taken, while only nominal compensation was given to the company; the value of its land, simply as land, across which the street was opened, not being taken into account. This contention is without merit. Compensation was awarded to individual owners upon the basis of the value of the property actually taken, having regard to the uses for which it was best adapted, Page 166 U. S. 258 and the purposes for which it was held and used and was likely always to be used. Compensation was awarded to the railroad company upon the basis of the value of the thing actually appropriated by the public -- the use of the company's right of way for a street crossing -- having regard to the purposes for which the land in question was acquired and held and was always likely to be held. In the case of individual owners, they were deprived of the entire use and enjoyment of their property, while the railroad company was left in the possession and use of its property for the purposes for which it was being used, and for which it was best adapted, subject only to the right of the public to have a street across it. In this, there was no denial of the equal protection of the laws, unless it be that the public cannot have a street across the tracks of a railroad company, except upon the condition precedent that it shall condemn and acquire the absolute ownership of the land, leaving untouched the right of the company to cross it with its tracks. We do not think the equal protection of the laws imposes such a burden upon the people of a city within the limits of which a railroad company has been permitted to lay its tracks. We have examined all the questions of law arising on the record of which this Court may take cognizance, and which, in our opinion, are of sufficient importance to require notice at our hands; and, finding no error, the judgment is Affirmed. MR. JUSTICE BREWER, dissenting. Page 166 U. S. 259 I dissent from the judgment in this case. I approve that which is said in the first part of the opinion as to the potency of the Fourteenth Amendment to restrain action by a State through either its legislative, executive, or judicial department, which deprives a party of his property without due compensation, also the ruling that "due process" is not always satisfied by the mere form of the proceeding, the fact of notice, and a right to be heard. I agree to the proposition that "a judgment of a state court, even if it be authorized by statute, whereby private property is taken for the State, or under its direction, for public use, without compensation made or secured to the owner, is, upon principle and authority, wanting in the due process of law required by the Fourteenth Amendment to the Constitution of the United States, and the affirmance of such judgment by the highest court of the State is a denial by that state of a right secured to the owner by that instrument." It is disappointing, after reading so strong a declaration of the protecting reach of the Fourteenth Amendment, and the power and duty of this Court in enforcing it as against action by a State by any of its officers and agencies, to find sustained a judgment, depriving a party -- even though a railroad corporation -- of valuable property without any, or at least only nominal, compensation. It seems as though the denial which is so strenuously made as to the power of the State through either its legislative, executive, or judicial department is subject to one limitation; that is, the verdict of a jury. The abundant promises of the forepart of the opinion vanish into nothing when the conclusion is reached. They amount to a mere brutum fulmen. It is a case frequent in all our experiences in life, where the promise and the performance are sadly at variance, and suggest those many sayings, some serious and some jocular, which are used to picture the grotesque incongruity so often manifested between the beginning and the end, the proclamation and the act. For what is the result which is sustained and adjudged rightful by this decision? The railroad company, which owns a tract of land within the limits of the City of Chicago, holds Page 166 U. S. 260 it by deed from the original proprietors, having, therefore, the highest and best of all titles, a fee simple, and by virtue thereof a right to its exclusive use, with all the benefits and profits which attend thereon, is deprived of such exclusive use, forced to admit everybody to an equal use and occupation, to give to the public, indeed, all the use and occupation it has of any road or highway, including therein its power to require all owners of steam cars crossing such highways to plank at their own expense crossings, construct gates, employ gatemen, and take all other necessary means to prevent accidents at such crossings, and receives for this only one dollar -- merely nominal compensation. The property thus condemned is the private property of the company. Missouri Pacific Railway v. Nebraska, 164 U. S. 403 , 164 U. S. 417 . The individual owners of tracts alongside and similarly situated are, for being deprived the exclusive use (for in neither case is the fee taken) of their property, awarded damages at the rate of about $5,000 for an equal area of ground, and this without being exposed to any further burden than the loss of the use of the property condemned. It is no answer to say that the company only uses this piece of ground for its tracks and the passage of its trains, and may still use it in the same way. It is not the present use, but the possibilities of use, which determine the value of property. Can the owner of vacant land have it taken from him without compensation simply because, at the moment, he does not use it? As said by this Court in Boom Co. v. Patterson, 98 U. S. 403 , 98 U. S. 408 : "The inquiry in such cases must be, what is the property worth in the market, viewed not merely with reference to the uses to which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses?" The value of this property to the railroad company, its owner, does not depend alone on the uses to which it is now put, but also on the uses to which the company may rightfully put it; and, as shown by the testimony in this case, that portion of the ground on either side of the tracks is available and valuable for station houses, offices, coal chutes, Page 166 U. S. 261 elevator offices, signal towers, switch stands, etc., the possibility of use for which purposes is taken away when the land is appropriated for a highway. The claim that the leaving of the present use of his property to the owner destroys the right of compensation is a proposition which, to my mind, is simply monstrous. Could another railroad company or an individual condemn and take from this company any use of its tracks, with only nominal compensation, simply because its own use was left to the company? And yet, if the taking of a crossing without compensation can be defended on this ground, why may not the taking of the use of the tracks without compensation also be defended? Neither, as I submit, can the large matter of damages by liability to the expense of planking between the tracks, establishing gates, hiring gatemen, and resorting to all other necessary means of guarding against accidents at the crossing, be ignored in any just estimate of compensation. It is no sufficient answer to say that wherever a crossing has been rightfully established the public may legally compel the company at its own expense to provide these means of protection. The company is liable to no such burden until the highway is opened. As long as the public had no right of crossing, the company was under no burden. The establishment of the crossing, the taking of the property for a highway, creates the right on the part of the public to cast the burden upon the company, and it seems to me monstrous to say that the public can create the right to cast a large burden of expense upon the company, and yet be under no obligations to compensate therefor. It amounts simply to this: that the city says to the railroad company, "I will take your property, and use it for a highway, and pay you nothing for it, or for your liability to bear such a burden of expense as I may see fit to cast upon you hereafter in order to protect that crossing against accident; and I can do all this without compensation, because, if I had owned the property in the first place, and simply given you permission to cross my highway, I could compel you to bear such burden." The right to impose a burden after a public ownership is created is used as a justification Page 166 U. S. 262 for creating the public ownership without compensation. I cannot agree to any such proposition. This question was presented to the Supreme Court of Kansas in Kansas Central Railroad Co. v. Commissioners, 45 Kansas 716, 724, where a highway was sought to be established across a railroad track without any compensation, and the court denied the claim, saying: "Whether the duty imposed upon the railroad company of constructing cattle guards, fences, signs, etc., can be or is imposed upon it under the police power of the State, makes no difference in this case. If the highway should not be established across the railroad company's right of way, then it would not be necessary for any of these things to exist; but, if a highway is so established, then the duty under the statutes immediately springs into existence, requiring the railroad to so construct these things. The establishment of the highway is, therefore, the cause of all these additional burdens' being imposed upon the railroad company. And must the railroad company bear these burdens and suffer these losses without compensation? Why should it be treated differently from others who have interests in real estate? All others having interests in real estate are entitled to compensation for losses resulting from the location of a public highway interfering with their free and rightful use of such interests. Smith County Commissioners v. Labore, 37 Kansas 480, 484 et seq. " See also the many cases cited in the opinion. Among them is Grand Rapids v. Grand Rapids &c. Railroad, 58 Michigan 641, 648, in which it was said by Campbell, C.J.: "The damage done to a railroad by having a highway run across it must necessarily include all the additional expense entailed by such a crossing, which in a city may involve a considerable outlay in making the crossing safe, and providing guards against accidents." Again, in Chicago & Grand Trunk Railway v. Hough, 61 Mich. 507, 508, the court observed, speaking by the same chief justice: "If a railroad interferes with an existing highway, it must bear all the expense of crossing and restoring the highway, as far as practicable, to safe condition; and the fencing and cattle guards are necessary for that purpose. Page 166 U. S. 263 But, as pointed out in 52 Mich. 277, when a new highway is created, then it belongs to those who create it to bear the expense of making the crossing in the condition necessary to meet all the expense and danger which it occasions." Indeed, in Illinois, as between two railroads, one seeking to obtain the right of crossing over the tracks of the other, the court, in Chicago & Alton Railroad v. Springfield & N.W. Railroad, 67 Illinois 142, well said: "Appellants are entitled to such a sum for damages, to be paid by appellee in money, as well enable appellants to construct and keep in repair all such works as may be necessary to keep their track in a safe and secure condition. Nothing short of this can amount to the 'just compensation' provided by law." I do not care to enlarge upon this matter. These propositions seem to me so absolutely clear that the mere statement of them ought to carry conviction. And after a declaration by this Court that a State may not, through any of its departments, take private property for public use without just compensation, I cannot assent to a judgment which, in effect, permits that to be done. THE CHIEF JUSTICE took no part in the consideration or decision of these cases.

In Chicago, Burlington & Quincy Railroad Co. v. Chicago (1897), the U.S. Supreme Court ruled that a state court's judgment authorizing the taking of private property for public use without providing just compensation violated the Fourteenth Amendment's due process clause. The Court asserted its authority to review such state court decisions and emphasized that the Fourteenth Amendment's protections apply to all state instrumentalities, including legislative, executive, and judicial branches. The case involved a proceeding to condemn private property (the railroad company's right-of-way) for public use, and the Court determined that the railroad company's constitutional rights were violated when it was not provided just compensation for the additional burdens and losses imposed by establishing a highway across its right-of-way. The Court's decision reinforced the principle that just compensation must be provided when private property is taken for public use, regardless of whether the taking is done by a state or one of its departments.

Property Rights & Land Use

Pennsylvania Coal Co. v. Mahon

https://supreme.justia.com/cases/federal/us/260/393/

U.S. Supreme Court Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) Pennsylvania Coal Company v. Mahon No. 549 Argued November 14, 1922 Decided December 11, 1922 260 U.S. 393 ERROR TO THE SUPREME COURT OF THE STATE OF PENNSYLVANIA Syllabus 1. One consideration in deciding whether limitations on private property, to be implied in favor of the police power, are exceeded, is the degree in which the values incident to the property are diminished by the regulation in question, and this is to be determined from the facts of the particular case. P. 260 U. S. 413 . 2. The general rule, at least, is that, if regulation goes too far, it will be recognized as a taking for which compensation must be paid. P. 260 U. S. 415 . 3. The rights of the public in a street, purchased or laid out by eminent domain, are those that it has paid for. P. 260 U. S. 415 . 4. Where the owner of land containing coal deposits had deeded the surface with express reservation of the right to remove all the coal beneath, the grantees assuming the risk and waiving all claim to damages that might arise from such mining, and the property rights thus reserved, and contracts made, were valid under the state law, and a statute, enacted later, forbade mining in such a way as to cause subsidence of any human habitation or public street or building, etc., and thereby made commercially impracticable the removal of very valuable coal deposits still standing unmined, held, that the prohibition exceeded the police power, whether viewed as a protection to private surface owners or to cities having only surface rights, and contravened the rights of the coal owner under the Contract Clause of the Constitution and the Due process Clause of the Fourteenth Amendment. * P. 260 U. S. 413 . 274 Pa.St. 489 reversed. Error to a decree of the Supreme Court of Pennsylvania, for the defendants in error, in their suit to enjoin the Coal Company from mining under their property in such a way as to remove supports and cause subsidence of the surface and of their house. Page 260 U. S. 412 MR. JUSTICE HOLMES delivered the opinion of the Court. This is a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house. The bill sets out a deed executed by the Coal Company in 1878, under which the plaintiffs claim. The deed conveys the surface, but, in express terms, reserves the right to remove all the coal under the same, and the grantee takes the premises with the risk, and waives all claim for damages that may arise from mining out the coal. But the plaintiffs say that, whatever may have been the Coal Company's rights, they were taken away by an Act of Pennsylvania, approved May 27, 1921, P.L. 1198, commonly known there as the Kohler Act. The Court of Common Pleas found that, if not restrained, the defendant would cause the damage to prevent which the bill was brought, but denied an injunction, holding that the statute, if applied to this case, would be unconstitutional. On appeal, the Supreme Court of the State agreed that the defendant had contract and property rights protected by the Constitution of the United States, but held that the statute was a legitimate exercise of the police power, and directed a decree for the plaintiffs. A writ of error was granted bringing the case to this Court. The statute forbids the mining of anthracite coal in such way as to cause the subsidence of, among other Page 260 U. S. 413 things, any structure used as a human habitation, with certain exceptions, including among them land where the surface is owned by the owner of the underlying coal and is distant more than one hundred and fifty feet from any improved property belonging to any other person. As applied to this case, the statute is admitted to destroy previously existing rights of property and contract. The question is whether the police power can be stretched so far. Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation, and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases, there must be an exercise of eminent domain and compensation to sustain the act. So the question depends upon the particular facts. The greatest weight is given to the judgment of the legislature, but it always is open to interested parties to contend that the legislature has gone beyond its constitutional power. This is the case of a single private house. No doubt there is a public interest even in this, as there is in every purchase and sale and in all that happens within the commonwealth. Some existing rights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But usually, in ordinary private affairs, the public interest does not warrant much of this kind of interference. A source of damage to such a house is not a public nuisance even if similar damage is inflicted on others in different places. The damage is not common or public. Wesson v. Washburn Iron Co., 13 Allen 95, 103. The extent of Page 260 U. S. 414 the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed, the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand, the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate in land -- a very valuable estate -- and what is declared by the Court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiffs' position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant's constitutionally protected rights. But the case has been treated as one in which the general validity of the act should be discussed. The Attorney General of the State, the City of Scranton, and the representatives of other extensive interests were allowed to take part in the argument below, and have submitted their contentions here. It seems, therefore, to be our duty to go farther in the statement of our opinion, in order that it may be known at once, and that further suits should not be brought in vain. It is our opinion that the act cannot be sustained as an exercise of the police power, so far as it affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved. As said in a Pennsylvania case, "For practical purposes, the right to coal consists in the right to mine it." Commonwealth v. Clearview Coal Co., 256 Pa.St. 328, 331. What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. This Page 260 U. S. 415 we think that we are warranted in assuming that the statute does. It is true that, in Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 , it was held competent for the legislature to require a pillar of coal to the left along the line of adjoining property, that with the pillar on the other side of the line would be a barrier sufficient for the safety of the employees of either mine in case the other should be abandoned and allowed to fill with water. But that was a requirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage that has been recognized as a justification of various laws. The rights of the public in a street purchased or laid out by eminent domain are those that it has paid for. If in any case its representatives have been so short sighted as to acquire only surface rights without the right of support, we see no more authority for supplying the latter without compensation than there was for taking the right of way in the first place and refusing to pay for it because the public wanted it very much. The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the Fourteenth Amendment. Hairston v. Danville & Western Ry. Co., 208 U. S. 598 , 208 U. S. 605 . When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more, until at last private property disappears. But that cannot be accomplished in this way under the Constitution of the United States. The general rule, at least, is that, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking. It may be doubted how far exceptional cases, like the blowing up of a house to stop a conflagration, go -- and, if they go beyond the general rule, Page 260 U. S. 416 whether they do not stand as much upon tradition as upon principle. Bowditch v. Boston, 101 U. S. 16 . In general, it is not plain that a man's misfortunes or necessities will justify his shifting the damages to his neighbor's shoulders. Spade v. Lynn & Boston R.R. Co., 172 Mass. 488, 489. We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change. As we already have said, this is a question of degree -- and therefore cannot be disposed of by general propositions. But we regard this as going beyond any of the cases decided by this Court. The late decisions upon laws dealing with the congestion of Washington and New York, caused by the war, dealt with laws intended to meet a temporary emergency and providing for compensation determined to be reasonable by an impartial board. They were to the verge of the law, but fell far short of the present act. Block v. Hirsh, 256 U. S. 135 ; Marcus Brown Holding Co. v. Feldman, 256 U. S. 170 ; Levy Leasing Co. v. Siegel, 258 U. S. 242 . We assume, of course, that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain. But the question at bottom is upon whom the loss of the changes desired should fall. So far as private persons or communities have seen fit to take the risk of acquiring only surface rights, we cannot see that the fact that their risk has become a danger warrants the giving to them greater rights than they bought. Decree reversed. * The following summary of the statute involved is taken from the opinion of the Pennsylvania Supreme Court: The statute is entitled: "An act regulating the mining of anthracite coal; prescribing duties for certain municipal officers; and imposing penalties." Section 1 provides that it shall be unlawful "so to conduct the operation of mining anthracite coal as to cause the caving-in, collapse, or subsidence of (a) any public building or any structure customarily used by the public as a place of resort, assemblage, or amusement, including, but not being limited to, churches, schools, hospitals, theatres, hotels, and railroad stations; (b) any street, road, bridge, or other public passageway dedicated to public use or habitually used by the public; (c) any track, roadbed, right of way, pipe, conduit, wire, or other facility used in the service of the public by any municipal corporation or public service company as defined by the Public Service Company Law; (d) any dwelling or other structure used as a human habitation, or any factory, store, or other industrial or mercantile establishment in which human labor is employed; (e) any cemetery or public burial ground." Sections 2 to 5, inclusive, place certain duties on public officials and persons in charge of mining operations to facilitate the accomplishment of the purpose of the act. Section 6 provides that act "shall not apply to [mines in] townships of the second class [ i.e., townships having a population of less than 300 persons to a square mile], nor to any area wherein the surface overlying the mine or mining operation is wild or unseated land, nor where such surface is owned by the owner or operator of the underlying coal and is distant more than one hundred and fifty feet from any improved property belonging to any other person." Section 7 sets forth penalties, and § 8 reads: "The courts of common pleas shall have power to award injunctions to restrain violations of this act." P.L. 1921, p. 1198. MR. JUSTICE BRANDEIS dissenting. The Kohler Act prohibits, under certain conditions, the mining of anthracite coal within the limits of a city in such a manner or to such an extent "as to cause the . . . Page 260 U. S. 417 subsidence of . . . any dwelling or other structure used as a human habitation, or any factory, store, or other industrial or mercantile establishment in which human labor is employed." Coal in place is land, and the right of the owner to use his land is not absolute. He may not so use it as to create a public nuisance, and uses, once harmless, may, owing to changed conditions, seriously threaten the public welfare. Whenever they do, the legislature has power to prohibit such uses without paying compensation, and the power to prohibit extends alike to the manner, the character, and the purpose of the use. Are we justified in declaring that the Legislature of Pennsylvania has, in restricting the right to mine anthracite, exercised this power so arbitrarily as to violate the Fourteenth Amendment? Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the state of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The state does not appropriate it or make any use of it. The state merely prevents the owner from making a use which interferes with paramount rights of the public. Whenever the use prohibited ceases to be noxious -- as it may because of further change in local or social conditions -- the restriction will have to be removed and the owner will again be free to enjoy his property as heretofore. The restriction upon the use of this property cannot, of course, be lawfully imposed unless its purpose is to protect the public. But the purpose of a restriction does not cease to be public because, incidentally, some private Page 260 U. S. 418 persons may thereby receive gratuitously valuable special benefits. Thus, owners of low buildings may obtain, through statutory restrictions upon the height of neighboring structures, benefits equivalent to an easement of light and air. Welch v. Swasey, 214 U. S. 91 . Compare Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 ; Walls v. Midland Carbon Co., 254 U. S. 300 . Furthermore, a restriction, though imposed for a public purpose, will not be lawful unless the restriction is an appropriate means to the public end. But to keep coal in place is surely an appropriate means of preventing subsidence of the surface; and ordinarily it is the only available means. Restriction upon use does not become inappropriate as a means merely because it deprives the owner of the only use to which the property can then be profitably put. The liquor and the oleomargine cases settled that. Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 668 -669; Powell v. Pennsylvania, 127 U. S. 678 , 127 U. S. 682 . See also Hadacheck v. Los Angeles, 239 U. S. 394 ; Pierce Oil Corporation v. City of Hope, 248 U. S. 498 . Nor is a restriction imposed through exercise of the police power inappropriate as a means, merely because the same end might be effected through exercise of the power of eminent domain, or otherwise at public expense. Every restriction upon the height of buildings might be secured through acquiring by eminent domain the right of each owner to build above the limiting height; but it is settled that the state need not resort to that power. Compare Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 ; Missouri Pacific Railway Co. v. Omaha, 235 U. S. 121 . If, by mining anthracite coal, the owner would necessarily unloose poisonous gases, I suppose no one would doubt the power of the state to prevent the mining, without buying his coal fields. And why may not the state, likewise without paying compensation, prohibit one from digging so deep or excavating so near the surface, as to expose the community to Page 260 U. S. 419 like dangers? In the latter case, as in the former, carrying on the business would be a public nuisance. It is said that one fact for consideration in determining whether the limits of the police power have been exceeded is the extent of the resulting diminution in value, and that here the restriction destroys existing rights of property and contract. But values are relative. If we are to consider the value of the coal kept in place by the restriction, we should compare it with the value of all other parts of the land. That is, with the value not of the coal alone, but with the value of the whole property. The rights of an owner as against the public are not increased by dividing the interests in his property into surface and subsoil. The sum of the rights in the parts can not be greater than the rights in the whole. The estate of an owner in land is grandiloquently described as extending ab orco usque ad coelum. But I suppose no one would contend that, by selling his interest above 100 feet from the surface, he could prevent the state from limiting, by the police power, the height of structures in a city. And why should a sale of underground rights bar the state's power? For aught that appears, the value of the coal kept in place by the restriction may be negligible as compared with the value of the whole property, or even as compared with that part of it which is represented by the coal remaining in place and which may be extracted despite the statute. Ordinarily a police regulation, general in operation, will not be held void as to a particular property, although proof is offered that, owing to conditions peculiar to it, the restriction could not reasonably be applied. See Powell v. Pennsylvania, 127 U. S. 678 , 127 U. S. 681 , 127 U. S. 684 ; Murphy v. California, 225 U. S. 623 , 225 U. S. 629 . But even if the particular facts are to govern, the statute should, in my opinion be upheld in this case. For the defendant has failed to adduce any evidence from which Page 260 U. S. 420 it appears that to restrict its mining operations was an unreasonable exercise of the police power. Compare Reinman v. Little Rock, 237 U. S. 171 , 237 U. S. 177 , 237 U. S. 180 ; Pierce Oil Corporation v. City of Hope, 248 U. S. 498 , 248 U. S. 500 . Where the surface and the coal belong to the same person, self-interest would ordinarily prevent mining to such an extent as to cause a subsidence. It was, doubtless, for this reason that the legislature, estimating the degrees of danger, deemed statutory restriction unnecessary for the public safety under such conditions. It is said that this is a case of a single dwelling house, that the restriction upon mining abolishes a valuable estate hitherto secured by a contract with the plaintiffs, and that the restriction upon mining cannot be justified as a protection of personal safety, since that could be provided for by notice. The propriety of deferring a good deal to tribunals on the spot has been repeatedly recognized. Welch v. Swasey, 214 U. S. 91 , 214 U. S. 106 ; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358 , 216 U. S. 365 ; Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 . May we say that notice would afford adequate protection of the public safety where the legislature and the highest court of the State, with greater knowledge of local conditions, have declared, in effect, that it would not? If the public safety is imperiled, surely neither grant nor contract can prevail against the exercise of the police power. Fertilizing Co. v. Hyde Park, 97 U. S. 659 ; Atlantic Coast Line R.R. Co. v. North Carolina, 232 U. S. 548 ; Union Dry Goods Co. v. Georgia Public Service Corporation, 248 U. S. 372 ; St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269 . The rule that the state's power to take appropriate measures to guard the safety of all who may be within its jurisdiction may not be bargained away was applied to compel carriers to establish grade crossings at their own expense, despite contracts to the contrary; Chicago, Burlington & Quincy R.R. Co. v. Nebraska, 170 U. S. 57 ; Page 260 U. S. 421 and, likewise, to supersede, by an Employers' Liability Act, the provision of a charter exempting a railroad from liability for death of employees, since the civil liability was deemed a matter of public concern, and not a mere private right. Texas & New Orleans R.R. Co. v. Miller, 221 U. S. 408 . Compare Boyd v. Alabama, 94 U. S. 645 ; Stone v. Mississippi, 101 U. S. 814 ; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746 ; Douglas v. Kentucky, 168 U. S. 488 ; Pennsylvania Hospital v. Philadelphia, 245 U. S. 20 , 245 U. S. 23 . Nor can existing contracts between private individuals preclude exercise of the police power. "One whose rights, such as they are, are subject to state restriction cannot remove them from the power of the state by making a contract about them." Hudson Water Co. v. McCarter, 209 U. S. 349 , 209 U. S. 357 ; Knoxville Water Co. v. Knoxville, 189 U. S. 434 , 189 U. S. 438 ; Rast v. Van Deman & Lewis Co., 240 U. S. 342 . The fact that this suit is brought by a private person is, of course, immaterial. To protect the community through invoking the aid, as litigant, of interested private citizens is not a novelty in our law. That it may be done in Pennsylvania was decided by its Supreme Court in this case. And it is for a state to say how its public policy shall be enforced. This case involves only mining which causes subsidence of a dwelling house. But the Kohler Act contains provisions in addition to that quoted above; and as to these also, an opinion is expressed. These provisions deal with mining under cities to such an extent as to cause subsidence of -- "(a) Any public building or any structure customarily used by the public as a place of resort, assemblage, or amusement, including, but not limited to, churches, schools, hospitals, theaters, hotels, and railroad stations." "(b) Any street, road, bridge, or other public passageway, dedicated to public use or habitually used by the public. " Page 260 U. S. 422 "(c) Any track, roadbed, right of way, pipe, conduit, wire, or other facility, used in the service of the public by any municipal corporation or public service company as defined by the Public Service Law." A prohibition of mining which causes subsidence of such structures and facilities is obviously enacted for a public purpose, and it seems likewise clear that mere notice of intention to mine would not in this connection secure the public safety. Yet it is said that these provisions of the act cannot be sustained as an exercise of the police power where the right to mine such coal has been reserved. The conclusion seems to rest upon the assumption that, in order to justify such exercise of the police power, there must be "an average reciprocity of advantage" as between the owner of the property restricted and the rest of the community, and that here such reciprocity is absent. Reciprocity of advantage is an important consideration, and may even be an essential, where the state's power is exercised for the purpose of conferring benefits upon the property of a neighborhood, as in drainage projects, Wurts v. Hoagland, 114 U. S. 606 ; Fallbrook Irrigation District v. Bradley, 164 U. S. 112 ; or upon adjoining owners, as by party wall provisions, Jackman v. Rosenbaum Co., ante, 260 U. S. 22 . But where the police power is exercised not to confer benefits upon property owners but to protect the public from detriment and danger, there is, in my opinion, no room for considering reciprocity of advantage. There was no reciprocal advantage to the owner prohibited from using his oil tanks in 248 U. S. 248 U.S. 498; his brickyard, in 239 U. S. 239 U.S. 394; his livery stable, in 237 U. S. 237 U.S. 171; his billiard hall, in 225 U. S. 225 U.S. 623; his oleomargarine factory, in 127 U. S. 127 U.S. 678; his brewery, in 123 U. S. 123 U.S. 623; unless it be the advantage of living and doing business in a civilized community. That reciprocal advantage is given by the act to the coal operators.

The Pennsylvania Coal Company v. Mahon case centered on a dispute between a coal company and property owners. The coal company had reserved the right to mine coal under the property, while the property owners sought to prevent mining that would cause subsidence of their house. The case ultimately decided that a state statute prohibiting mining that causes subsidence of human habitations or public infrastructure exceeded the police power and violated the Contract Clause and Due Process Clause of the U.S. Constitution. The court ruled in favor of the coal company, prioritizing their property rights and contracts over the state's attempt to protect public safety.

Labor & Employment

EEOC v. Abercrombie & Fitch Stores, Inc.

https://supreme.justia.com/cases/federal/us/575/14-86/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–86 _________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER v. ABERCROMBIE & FITCHSTORES, INC. on writ of certiorari to the united states court of appeals for the tenth circuit [June 1, 2015] Justice Scalia delivered the opinion of the Court. Title VII of the Civil Rights Act of 1964 prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question presented is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. I We summarize the facts in the light most favorable to the Equal Employment Opportunity Commission (EEOC), against whom the Tenth Circuit granted summary judgment. Respondent Abercrombie & Fitch Stores, Inc., operates several lines of clothing stores, each with its own “style.” Consistent with the image Abercrombie seeks to project for each store, the company imposes a Look Policy that governs its employees’ dress. The Look Policy prohibits “caps”—a term the Policy does not define—as too informal for Abercrombie’s desired image. Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf’s headscarf would conflict with the store’s Look Policy. Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf. The EEOC sued Abercrombie on Elauf’s behalf, claiming that its refusal to hire Elauf violated Title VII. The District Court granted the EEOC summary judgment on the issue of liability, 798 F. Supp. 2d 1272 (ND Okla. 2011), held a trial on damages, and awarded $20,000. The Tenth Circuit reversed and awarded Abercrombie summary judgment. 731 F. 3d 1106 (2013). It concluded that ordinarily an employer cannot be liable under Title VII for failing to accommodate a religious practice until the applicant (or employee) provides the employer with actual knowledge of his need for an accommodation. Id., at 1131. We granted certiorari. 573 U. S. ___ (2014). II Title VII of the Civil Rights Act of 1964 78Stat. 253, as amended, prohibits two categories of employment prac-tices. It is unlawful for an employer: “(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race,color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a). These two proscriptions, often referred to as the “disparate treatment” (or “intentional discrimination”) provision and the “disparate impact” provision, are the only causes of action under Title VII. The word “religion” is defined to “includ[e] all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to” a “religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e( j).[ 1 ] Abercrombie’s primary argument is that an applicant cannot show disparate treatment without first showing that an employer has “actual knowledge” of the applicant’s need for an accommodation. We disagree. Instead, an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.[ 2 ] The disparate-treatment provision forbids employers to: (1) “fail . . . to hire” an applicant (2) “because of” (3) “such individual’s . . . religion” (which includes his religious practice). Here, of course, Abercrombie (1) failed to hire Elauf. The parties concede that (if Elauf sincerely believes that her religion so requires) Elauf’s wearing of a headscarf is (3) a “religious practice.” All that remains is whether she was not hired (2) “because of” her religious practice. The term “because of” appears frequently in antidiscrimination laws. It typically imports, at a minimum, the traditional standard of but-for causation. University of Tex. Southwestern Medical Center v . Nassar , 570 U. S. ___ (2013). Title VII relaxes this standard, however, to prohibit even making a protected characteristic a “motivating factor” in an employment decision. 42 U. S. C. §2000e–2(m). “Because of” in §2000e–2(a)(1) links the forbidden consideration to each of the verbs preceding it; an individual’s actual religious practice may not be a motivating factor in failing to hire, in refusing to hire, and so on. It is significant that §2000e–2(a)(1) does not impose a knowledge requirement. As Abercrombie acknowledges, some antidiscrimination statutes do. For example, the Americans with Disabilities Act of 1990 defines discrimination to include an employer’s failure to make “reason-able accommodations to the known physical or mental limitations” of an applicant. §12112(b)(5)(A) (emphasis added). Title VII contains no such limitation. Instead, the intentional discrimination provision prohibits certain motives , regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive . Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed. Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII. Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” Brief for Respondent 46. This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence. Its disparate-treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice. A request for accommodation, or the employer’s certainty that the practice exists, may make it easier to infer motive, but is not a necessary condition of liability.[ 3 ] Abercrombie argues in the alternative that a claim based on a failure to accommodate an applicant’s religious practice must be raised as a disparate-impact claim, not a disparate-treatment claim. We think not. That might have been true if Congress had limited the meaning of “religion” in Title VII to religious belief —so that discriminating against a particular religious practice would not be disparate treatment though it might have disparate impact. In fact, however, Congress defined “religion,” for Title VII’s purposes, as “includ[ing] all aspects of religious observance and practice, as well as belief.” 42 U. S. C. §2000e(j). Thus, religious practice is one of the protected characteristics that cannot be accorded disparate treatment and must be accommodated. Nor does the statute limit disparate-treatment claims to only those employer policies that treat religious practices less favorably than similar secular practices. Abercrombie’s argument that a neutral policy cannot constitute “intentional discrimination” may make sense in other contexts. But Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices. Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no-headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the sub-sequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy. Title VII requires otherwise-neutralpolicies to give way to the need for an accommodation. *  *  * The Tenth Circuit misinterpreted Title VII’s requirements in granting summary judgment. We reverse its judgment and remand the case for further consideration consistent with this opinion. It is so ordered. Notes 1 For brevity’s sake, we will in the balance of this opinion usuallyomit reference to the §2000e( j) “undue hardship” defense to the accom-modation requirement, discussing the requirement as though it is absolute. 2 The concurrence mysteriously concludes that it is not the plaintiff ’s burden to prove failure to accommodate. Post , at 5. But of course that is the plaintiff’s burden, if failure to hire “because of” the plaintiff’s “religious practice” is the gravamen of the complaint. Failing to hire for that reason is synonymous with refusing to accommodate the religious practice. To accuse the employer of the one is to accuse him of the other. If he is willing to “accommodate”—which means nothing more than allowing the plaintiff to engage in her religious practice despite the employer’s normal rules to the contrary—adverse action “because of” the religious practice is not shown. “The clause that begins with the word ‘unless,’” as the concurrence describes it, ibid. , has no function except to place upon the employer the burden of establishing an “undue hardship” defense. The concurrence provides no example, not even an unrealistic hypothetical one, of a claim of failure to hire because of religious practice that does not say the employer refused to permit (“failed to accommodate”) the religious practice. In the nature of things, there cannot be one. 3 While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice— i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument. It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do. SUPREME COURT OF THE UNITED STATES _________________ No. 14–86 _________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER v. ABERCROMBIE & FITCHSTORES, INC. on writ of certiorari to the united states court of appeals for the tenth circuit [June 1, 2015] Justice Alito, concurring in the judgment. This case requires us to interpret a provision of Title VII of the Civil Rights Act of 1964 that prohibits an employer from taking an adverse employment action (refusal to hire, discharge, etc.) “against any individual . . . because of [[ 1 ]] such individual’s . . . religion.” 42 U. S. C. §2000e–2(a). Another provision states that the term “religion” “includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e( j). When these two provisions are put together, the following rule (expressed in somewhat simplified terms) results: An employer may not take an adverse employment action against an applicant or employee because of any aspect of that individual’s religious observance or practice unless the employer demonstrates that it is unable to reasonably accommodate that observance or practice without undue hardship. In this case, Samantha Elauf, a practicing Muslim, wore a headscarf for a religious reason when she was interviewed for a job in a store operated by Abercrombie & Fitch. She was rejected because her scarf violated Abercrombie’s dress code for employees. There is sufficient evidence in the summary judgment record to support a finding that Abercrombie’s decisionmakers knew that Elauf was a Muslim and that she wore the headscarf for a religious reason. But she was never asked why she wore the headscarf and did not volunteer that information. Nor was she told that she would be prohibited from wearing the headscarf on the job. The Tenth Circuit held that Abercrombie was entitled to summary judgment because, except perhaps in unusual circumstances, “[a]pplicants or employees must initially inform employers of their religious practices that conflict with a work requirement and their need for a reasonable accommodation for them.” 731 F. 3d 1106, 1142 (2013) (emphasis deleted). The relevant provisions of Title VII, however, do not impose the notice requirement that formed the basis for the Tenth Circuit’s decision. While I interpret those provisions to require proof that Abercrombie knew that Elauf wore the headscarf for a religious reason, the evidence of Abercrombie’s knowledge is sufficient to defeat summary judgment. The opinion of the Court states that “§2000e–2(a)(1) does not impose a knowledge requirement,” ante , at 4, but then reserves decision on the question whether it is a condition of liability that the employer know or suspect that the practice he refuses to accommodate is a religious practice, ante , at 6, n. 3, but in my view, the answer to this question, which may arise on remand,[ 2 ]2 is obvious. I would hold that an employer cannot be held liable for taking an adverse action because of an employee’s religious practice unless the employer knows that the employee engages in the practice for a religious reason. If §2000e–2(a)(1) really “does not impose a knowledge requirement,” ante at 4, it would be irrelevant in this case whether Abercrombie had any inkling that Elauf is a Muslim or that she wore the headscarf for a religious reason. That would be very strange. The scarves that Elauf wore were not articles of clothing that were designed or marketed specifically for Muslim women. Instead, she generally purchased her scarves at ordinary clothing stores. In this case, the Abercrombie employee who interviewed Elauf had seen her wearing scarves on other occasions, and for reasons that the record does not make clear, came to the (correct) conclusion that she is a Muslim. But suppose that the interviewer in this case had never seen Elauf before. Suppose that the interviewer thought Elauf was wearing the scarf for a secular reason. Suppose that nothing else about Elauf made the interviewer even suspect that she was a Muslim or that she was wearing the scarf for a religious reason. If “§2000e–2(a)(1) does not impose a knowledge requirement,” Abercrombie would still be liable. The EEOC, which sued on Elauf’s behalf, does not adopt that interpretation, see, e.g., Brief for Petitioner 19, and it is surely wrong. The statutory text does not compel such a strange result. It is entirely reasonable to understand the prohibition against an employer’s taking an adverse action because of a religious practice to mean that an employer may not take an adverse action because of a practice that the employer knows to be religious. Consider the following sentences. The parole board granted the prisoner parole because of an exemplary record in prison. The court sanctioned the attorney because of a flagrant violation of Rule 11 of the Federal Rules of Civil Procedure. No one is likely to understand these sentences to mean that the parole board granted parole because of a record that, unbeknownst to the board, happened to be exemplary or that the court sanctioned the attorney because of a violation that, unbeknownst to the court, happened to be flagrant. Similarly, it is entirely reasonable to understand this statement—“The employer rejected the applicant because of a religious practice”—to mean that the employer rejected the applicant because of a practice that the employer knew to be religious. This interpretation makes sense of the statutory provisions. Those provisions prohibit intentional discrimination, which is blameworthy conduct, but if there is no knowledge requirement, an employer could be held liable without fault. The prohibition of discrimination because of religious practices is meant to force employers to consider whether those practices can be accommodated without undue hardship. See §2000e( j). But the “no-knowledge” interpretation would deprive employers of that opportunity. For these reasons, an employer cannot be liable for taking adverse action because of a religious practice if the employer does not know that the practice is religious. A plaintiff need not show, however, that the employer took the adverse action because of the religious nature of the practice. Cf. post , at 4 (Thomas, J., concurring in part and dissenting in part). Suppose, for example, that an employer rejected all applicants who refuse to work on Saturday, whether for religious or nonreligious reasons. Applicants whose refusal to work on Saturday was known by the employer to be based on religion will have been rejected because of a religious practice. This conclusion follows from the reasonable accommodation requirement imposed by §2000e( j). If neutral work rules ( e.g. , every employee must work on Saturday, no employee may wear any head covering) precluded liability, there would be no need to provide that defense, which allows an employer to escape liability for refusing to make an exception to a neutral work rule if doing so would impose an undue hardship. This brings me to a final point. Under the relevant statutory provisions, an employer’s failure to make a reasonable accommodation is not an element that the plaintiff must prove. I am therefore concerned about the Court’s statement that it “ is the plaintiff’s burden [to prove failure to accommodate].” Ante, at 3 n. 2. This blatantly contradicts the language of the statutes. As I noted at the beginning, when §2000e–2(a) and §2000e( j) are combined, this is the result: “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual . . . because of [any aspect of] such individual’s . . . religious . . . practice . . . unless an employer demonstrates that he is unable to reasonably accommodate to [the] employee’s or prospective employee’s religious . . . practice . . . without undue hardship on the conduct of the employer’s business. ” (Emphasis added.) The clause that begins with the term “unless” unmistakably sets out an employer defense. If an employer chooses to assert that defense, it bears both the burden of production and the burden of persuasion. A plaintiff, on the other hand, must prove the elements set out prior to the “unless” clause, but that portion of the rule makes no mention of accommodation. Thus, a plaintiff need not plead or prove that the employer wished to avoid making an accommodation or could have done so without undue hardship. If a plaintiff shows that the employer took an adverse employment action because of a religious observance or practice, it is then up to the employer to plead and prove the defense. The Court’s statement subverts the statutory text, and in close cases, the Court’s reallocation of the burden of persuasion may be decisive. In sum, the EEOC was required in this case to prove that Abercrombie rejected Elauf because of a practice that Abercrombie knew was religious. It is undisputed that Abercrombie rejected Elauf because she wore a headscarf, and there is ample evidence in the summary judgment record to prove that Abercrombie knew that Elauf is a Muslim and that she wore the scarf for a religious reason. The Tenth Circuit therefore erred in ordering the entry of summary judgment for Abercrombie. On remand, the Tenth Circuit can consider whether there is sufficient evidence to support summary judgment in favor of the EEOC on the question of Abercrombie’s knowledge. The Tenth Circuit will also be required to address Abercrombie’s claim that it could not have accommodated Elauf’s wearing the headscarf on the job without undue hardship. Notes 1 Under 42 U. S. C. §2000e–2(m), an employer takes an action “because of” religion if religion is a “motivating factor” in the decision. 2 2 Cooke testified that she told Johnson that she believed Elauf wore a head scarf for a religious reason, App. 87, but Johnson testified that Cooke did not share this belief with him, id., at 146. If Abercrombie’s knowledge is irrelevant, then the lower courts will not have to decide whether there is a genuine dispute on this question. But if Abercrombie’s knowledge is relevant and if the lower courts hold that there is a genuine dispute of material fact about Abercrombie’s knowledge, the question will have to be submitted to the trier of fact. For these reasons, we should decide this question now. SUPREME COURT OF THE UNITED STATES _________________ No. 14–86 _________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, PETITIONER v. ABERCROMBIE & FITCHSTORES, INC. on writ of certiorari to the united states court of appeals for the tenth circuit [June 1, 2015] Justice Thomas, concurring in part and dissenting in part. I agree with the Court that there are two—and only two—causes of action under Title VII of the Civil Rights Act of 1964 as understood by our precedents: a disparate-treatment (or intentional-discrimination) claim and a disparate-impact claim. Ante, at 3. Our agreement ends there. Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.” Because the Equal Employment Opportunity Commission (EEOC) can prevail here only if Abercrombie engaged in intentional discrimination, and because Abercrombie’s application of its neutral Look Policy does not meet that description, I would affirm the judgment of the Tenth Circuit. I This case turns on whether Abercrombie’s conduct constituted “intentional discrimination” within the meaning of 42 U. S. C. §1981a(a)(1). That provision allows a Title VII plaintiff to “recover compensatory and punitive damages” only against an employer “who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact).” The damages award EEOC obtained against Abercrombie is thus proper only if that company engaged in “intentional discrimination”—as opposed to “an employment practice that is unlawful because of its disparate impact”—within the meaning of §1981a(a)(1). The terms “intentional discrimination” and “disparate impact” have settled meanings in federal employment discrimination law. “[I]ntentional discrimination . . . occur[s] where an employer has treated a particular person less favorably than others because of a protected trait.” Ricci v. DeStefano , 557 U. S. 557, 577 (2009) (internal quotation marks and alteration omitted). “[D]isparate-impact claims,” by contrast, “involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Raytheon Co. v. Hernandez , 540 U. S. 44, 52 (2003) (internal quotation marks omitted). Conceived by this Court in Griggs v. Duke Power Co. , 401 U. S. 424 (1971) , this “theory of discrimination” provides that “a facially neutral employment practice may be deemed illegally discriminatory without evidence of the employer’s subjective intent to discriminate that is required in a disparate-treatment case,” Raytheon, supra, at 52–53 (internal quotation marks and alteration omitted). I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf’s religious practice of wearing a headscarf. Ante, at 2. In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy. See ibid. ; App. 134, 144. Because I cannot classify Abercrombie’s conduct as “intentional discrimination,” I would affirm. II A Resisting this straightforward application of §1981a, the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.” Ante, at 6–7. But contrary to the majority’s assumption, this novel theory of discrimination is not commanded by the relevant statutory text. Title VII makes it illegal for an employer “to fail or refuse to hire . . . any individual . . . because of such individual’s . . . religion.” §2000e–2(a)(1). And as used in Title VII, “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” §2000e( j). With this gloss on the definition of “religion” in §2000e–2(a)(1), the majority concludes that an employer may violate Title VII if he “refuse[s] to hire . . . any individual . . . because of such individual’s . . . religious . . . practice” (unless he has an “undue hardship” defense). See ante, at 3–4. But inserting the statutory definition of religion into §2000e–2(a) does not answer the question whether Abercrombie’s refusal to hire Elauf was “because of her religious practice.” At first glance, the phrase “because of such individual’s religious practice” could mean one of two things. Under one reading, it could prohibit taking an action because of the religious nature of an employee’s particular practice. Under the alternative reading, it could prohibit taking an action because of an employee’s practice that happens to be religious. The distinction is perhaps best understood by example. Suppose an employer with a neutral grooming policy forbidding facial hair refuses to hire a Muslim who wears a beard for religious reasons. Assuming the employer applied the neutral grooming policy to all applicants, the motivation behind the refusal to hire the Muslim applicant would not be the religious nature of his beard, but its existence. Under the first reading, then, the Muslim applicant would lack an intentional-discrimination claim, as he was not refused employment “because of” the religious nature of his practice. But under the second reading, he would have such a claim, as he was refused employment “because of” a practice that happens to be religious in nature. One problem with the second, more expansive reading is that it would punish employers who have no discrimina-tory motive. If the phrase “because of such individual’s religious practice” sweeps in any case in which an employer takes an adverse action because of a practice that hap-pens to be religious in nature, an employer who had no idea that a particular practice was religious would be penalized. That strict-liability view is plainly at odds with the concept of intentional discrimination. Cf. Raytheon , supra, at 54, n. 7 (“If [the employer] were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on [the applicant’s] disability. And, if no part of the hiring decision turned on [the applicant’s] status as disabled, he cannot, ipso facto , have been subject to disparate treatment”). Surprisingly, the majority leaves the door open to this strict-liability theory, reserving the question whether an employer who does not even “suspec[t] that the practice in question is a religious practice” can nonetheless be punished for intentional discrimination. Ante, at 6, n. 3. For purposes of today’s decision, however, the majority opts for a compromise, albeit one that lacks a foothold in the text and fares no better under our precedents. The majority construes §2000e–2(a)(1) to punish employers who refuse to accommodate applicants under neutral policies when they act “with the motive of avoiding accommodation.” Ante , at 5. But an employer who is aware that strictly applying a neutral policy will have an adverse effect on a religious group, and applies the policy anyway, is not engaged in intentional discrimination, at least as that term has traditionally been understood. As the Court explained many decades ago, “ ‘Discriminatory purpose’ ”— i.e., the purpose necessary for a claim of intentional discrimination—demands “more than . . . awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Personnel Administrator of Mass. v. Feeney , 442 U. S. 256, 279 (1979) (internal citation and footnote omitted). I do not dispute that a refusal to accommodate can, in some circumstances, constitute intentional discrimination. If an employer declines to accommodate a particular religious practice, yet accommodates a similar secular (or other denominational) practice, then that may be proof that he has “treated a particular person less favorably than others because of [a religious practice].” Ricci , 557 U. S., at 577 (internal quotation marks and alteration omitted); see also, e.g., Dixon v. Hallmark Cos. , 627 F. 3d 849, 853 (CA11 2010) (addressing a policy forbidding display of “religious items” in management offices). But merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant “less favorably than others.” The majority itself appears to recognize that its construction requires something more than equal treatment. See ante, at 6–7 (“Title VII does not demand mere neutrality with regard to religious practices,” but instead “gives them favored treatment”). But equal treatment is not disparate treatment, and that basic principle should have disposed of this case. B The majority’s novel theory of intentional discrimination is also inconsistent with the history of this area of employment discrimination law. As that history shows, cases arising out of the application of a neutral policy absent religious accommodations have traditionally been understood to involve only disparate-impact liability. When Title VII was enacted in 1964, it prohibited discrimination “because of . . . religion” and did not include the current definition of “religion” encompassing “religious observance and practice” that was added to the statute in 1972. Civil Rights Act of 1964, §§701, 703(a), 78Stat. 253–255. Shortly thereafter, the EEOC issued guidelines purporting to create “an obligation on the part of the employer to accommodate to the religious needs of employees.” 31 Fed. Reg. 8370 (1966). From an early date, the EEOC defended this obligation under a disparate-impact theory. See Brief for United States as Amicus Curiae in Dewey v. Reynolds Metals Co. , O. T. 1970, No. 835, pp. 7, 13, 29–32. Courts and commentators at the time took the same view. See, e.g., Reid v. Memphis Publishing Co. , 468 F. 2d 346, 350 (CA6 1972); Dewey v. Reynolds Metals Co. , 300 F. Supp. 709, 713 (WD Mich. 1969), rev’d, 429 F. 2d 324 (CA6 1970), aff’d by an equally di-vided Court, 402 U. S. 689 (1971) ( per curiam ); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 187–188 (3d ed. 1976). This Court’s first decision to discuss a refusal to accommodate a religious practice, Trans World Airlines, Inc. v. Hardison , 432 U. S. 63 (1977) , similarly did not treat such conduct as intentional discrimination. Hardison involved a conflict between an employer’s neutral seniority system for assigning shifts and an employee’s observance of a Saturday Sabbath. The employer denied the employee an accommodation, so he refused to show up for work on Saturdays and was fired. Id., at 67–69. This Court held that the employer was not liable under Title VII because the proposed accommodations would have imposed an undue hardship on the employer. Id. , at 77. To bolster its conclusion that there was no statutory violation, the Court relied on a provision of Title VII shielding the application of a “ ‘bona fide seniority or merit system’ ” from challenge unless that application is “ ‘the result of an intention to discriminate because of . . . religion.’ ” Id., at 81–82 (quoting §2000e–2(h)). In applying that provision, the Court observed that “[t]here ha[d] been no suggestion of discriminatory intent in th[e] case.” Id., at 82. But if the major-ity’s view were correct—if a mere refusal to accommodate a religious practice under a neutral policy could constitute intentional discrimination—then the Court in Hardison should never have engaged in such reasoning. After all, the employer in Hardison knew of the employee’s religious practice and refused to make an exception to its neutral seniority system, just as Abercrombie arguably knew of Elauf’s religious practice and refused to make an exception to its neutral Look Policy.[ 1 ]* Lower courts following Hardison likewise did not equate a failure to accommodate with intentional discrimination. To the contrary, many lower courts, including the Tenth Circuit below, wrongly assumed that Title VII creates a freestanding failure-to-accommodate claim distinct from either disparate treatment or disparate impact. See, e.g., 731 F. 3d 1106, 1120 (2013) (“A claim for religious discrimination under Title VII can be asserted under several different theories, including disparate treatment and failure to accommodate” (internal quotation marks omitted)); Protos v. Volkswagen of Am., Inc. , 797 F. 2d 129, 134, n. 2 (CA3 1986) (“In addition to her religious accommodation argument, [the plaintiff] maintains that she prevailed in the district court on a disparate treatment claim”). That assumption appears to have grown out of statements in our cases suggesting that Title VII’s definitional provision concerning religion created an independent duty. See, e.g., Ansonia Bd. of Ed. v. Philbrook , 479 U. S. 60 , n. 1 (1986) (“The reasonable accommodation duty was incorporated into the statute, somewhat awkwardly, in the definition of religion”). But in doing so, the lower courts correctly recognized that a failure-to-accommodate claim based on the application of a neutral policy is not a disparate-treatment claim. See, e.g., Reed v. International Union, United Auto, Aerospace and Agricultural Implement Workers of Am. , 569 F. 3d 576, 579–580 (CA6 2009); Chalmers v. Tulon Co. of Richmond , 101 F. 3d 1012, 1018 (CA4 1996). At least before we granted a writ of certiorari in this case, the EEOC too understood that merely applying a neutral policy did not automatically constitute intentional discrimination giving rise to a disparate-treatment claim. For example, the Commission explained in a recent compliance manual, “A religious accommodation claim is distinct from a disparate treatment claim, in which the question is whether employees are treated equally.” EEOC Compliance Manual §12–IV, p. 46 (2008). Indeed, in asking us to take this case, the EEOC dismissed one of Abercrombie’s supporting authorities as “a case addressing intentional discrimination, not religious accommodation.” Reply to Brief in Opposition 7, n. Once we granted certiorari in this case, however, the EEOC altered course and advanced the intentional-discrimination theory now adopted by the majority. The Court should have rejected this eleventh-hour request to expand our understanding of “intentional discrimination” to include merely applying a religion-neutral policy. *  *  * The Court today rightly puts to rest the notion that Title VII creates a freestanding religious-accommodation claim, ante, at 3, but creates in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim. Because I do not think that Congress’ 1972 redefinition of “religion” also redefined “intentional discrimination,” I would affirm the judgment of the Tenth Circuit. I respectfully dissent from the portions of the majority’s decision that take the contrary view. Notes 1 * Contrary to the EEOC’s suggestion, Trans World Airlines, Inc. v. Hardison , 432 U. S. 63 (1977) , did not establish that a refusal to accommodate a religious practice automatically constitutes intentional discrimination. To be sure, Hardison remarked that the “effect of ” the 1972 amendment expanding the definition of religion “was to make it an unlawful employment practice under [§2000e–2(a)(1)] for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees and prospective employees.” Id., at 74. But that statement should not be understood as a holding that such conduct automatically gives rise to a disparate-treatment claim. Although this Court has more recently described §2000e–2(a)(1) as originally creating only disparate-treatment liability, e.g., Ricci v. DeStefano , 557 U. S. 557, 577 (2009) , it was an open question at the time Hardison was decided whether §2000e–2(a)(1) also created disparate-impact liability, see, e.g., Nashville Gas Co. v. Satty , 434 U. S. 136, 144 (1977) ; General Elec. Co. v. Gilbert , 429 U. S. 125 –155 (1976) (Brennan, J., dissenting). In fact, both the employee and the EEOC in Hardison argued before this Court that the employer had violated §2000e–2(a)(1) under a disparate-impact theory. See Brief for Respondent 15, 25–26, and Brief for United States et al. as Amici Curiae 33–36, 50, in Trans World Airlines, Inc. v. Hardison , O. T. 1976, No. 75–1126 etc. In any event, the relevant language in Hardison is dictum. Because the employee’s termination had occurred before the 1972 amendment to Title VII’s definition of religion, Hardison applied the then-existing EEOC guideline—which also contained an “undue hardship” defense—not the amended statutory definition. 432 U. S.,at 76, and n. 11. Hardison ’s comment about the effect of the 1972 amendment was thus entirely beside the point.

Samantha Elauf, a Muslim woman who wears a headscarf for religious reasons, applied for a job at Abercrombie & Fitch. The assistant manager who interviewed her was concerned that her headscarf would violate the company's "Look Policy," which prohibits "caps." The manager sought guidance from the store and district managers, who directed her not to hire Elauf because her headscarf would violate the policy. The Equal Employment Opportunity Commission (EEOC) sued Abercrombie & Fitch on Elauf's behalf, arguing that their refusal to hire her violated Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination in employment. The Supreme Court ruled in favor of Elauf, holding that Abercrombie & Fitch's failure to accommodate her religious practice was a form of intentional discrimination, even if they did not have explicit knowledge of her need for an accommodation.

Property Rights & Land Use

Proprietors of Charles River Bridge v. Proprietors of Warren Bridge

https://supreme.justia.com/cases/federal/us/36/420/

U.S. Supreme Court Charles River Bridge v. Warren Bridge, 36 U.S. 11 Pet. 420 420 (1837) Proprietors of Charles River Bridge v. Proprietors of Warren Bridge 36 U.S. (11 Pet.) 420 ERROR TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS [Syllabus from pages 420-423 intentionally omitted] IN error to the Supreme Judicial Court of Massachusetts. The plaintiffs in error were a corporation created by an act of the legislature of the state of Massachusetts, passed on the 9th of March 1785, entitled 'an act for incorporating certain persons for the purpose of building a bridge over Charles river, between Boston and Charlestown, and supporting the same, during forty years.' The preamble of the act stated, 'whereas, the erecting a bridge over Charles river, in the place where the ferry between Boston and Charlestown is now kept, will be of great public utility, and Thomas Russell, Esq., and others, have petitioned this court for an act of incorporation, to empower them to build the same bridge,' &c. The act authorizes taking certain tolls, prescribed the size of the bridge, and fixed certain regulations by which it would not be permitted to impede the navigation of Charles river; and enjoined certain things to be done, by which the bridge should be kept in good order, and fitted for constant and convenient use. The fifth section of the act provided, 'that after the said toll shall commence, the said proprietors or corporation, shall annually pay to Harvard College or Univeristy, the sum of two hundred pounds, during the said term of forty years; and at the end of the said term, the said bridge shall revert to, and be the property of, the commonwealth; saving to the said college or university, a reasonable and annual compensation for the annual income of the ferry; which they might have received, had not said bridge been erected.' The bridge was erected under the authority of this act; and afterwards, on the 9th of March 1792, in an act which authorized the making a bridge from the western part of Boston to Cambridge, after reciting that the erecting of Charles River bridge was a work of hazard and public utility, and another bridge in the place proposed for the West Boston bridge, might diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise, the eighth section of the act declared, 'that the proprietors of the Charles River bridge shall continue to be a corporation and body politic, for and during the term of seventy years, to be computed from the day the bridge was first opened for passengers.' The record contained exhibits, relating to the establishment of the ferry from Charlestown to Boston, at the place where the bridge was erected; and also the proceedings of the general courts of Massachusetts, by which the ferry there became the property of Harvard College. Some of these proceedings, verbatim , were as follows: 'A Court of Assistance, holden at Boston, Nov. 9th, 1830. Present, the Gov'nr, Dep'y Gov'r, Sir Richard Saltonatall, Mr. Ludlow, Capt. Endicott, Mr. Coddington, Mr. Pinchon, Mr. Bradstreet. It is further ordered, that whosoever shall first give in his name to Mr. Gov'nr, that hee will undertake to sett upp a ferry betwixt Boston and Charlton, and shall begin the same, at such tyme as Mr. Gov'r shall appoynt: shall have 1d. for every person, and 1d. for every one hundred weight of goods hee shall so transport.' 'A court holden at Boston, November 5th, 1633. Present, the Governor, Mr. Ludlow, Mr. Nowell, Mr. Treasu'r, Mr. Coddington, S. Bradstreet. Mr. Rich. Brown is allowed by the court to keepe a fferry over Charles ryver, against his house, and is to have 2d. for every single person hee soe transports, and 1d. a piece, if there be two or more.' 'Att the Gen'all Court, holden at Newe Towne, May 6th, 1635. Present, the Gov'nr, Deputy Gov'nr, Mr. Winthrop, sen'r, Mr. Haynes, Mr. Humphrey, Mr. Endicott, Mr. Treasu'r, Mr. Pinchon, Mr. Nowell, Mr. Bradstreete and the deputies: It is ordered, that there shall be a fferry sett upp on Boston syde, by the Wynd myll hill, to transport men to Charlton and Wenesemet, upon the same rates that the fferry-men att Charlton and Wenesemet transport men to Boston.' 'A Generall Courte, held at Newtowne, the 2d day of the 9th mo. 1637. (Adjourned until the 15th, present.) Present, the Governor, Deputy Gov'nr, Mr. John Endicott, Mr. Humfrey, Mr. Bellingham, Mr. Herlakenden, Mr. Stoughton, Mr. Bradstreete and Increase Nowell: The fferry betweene Boston and Charlestowne, is referred to the Governor and Treasurer, to let at 40 l. pr. A., beginning the 1st of the 10th mo., and from thence for three years.' 'At a General Court of elections, held at Boston, the 13th of the 3d mo., A. 1640. Present, the Governor, &c. Mr. Treasurer, Mr. Samuel Sheapard and Leift. Sprague, have power to lett the ferry between Boston and Charlestown, to whom they see cause, when the time of Edward Converse is expired, at their discretion. 'At a session beginning the 30th of the 8th mo. 1644. It is ordered, that the magistrates and deputies of ye co'rte, their passage over the fferries, together with their necessary attendants, shall be free, not paying any thing for it, except at such ferries as are appropriated to any, or are rented out, and are out of the countries' hands, and there it is ordered that their passages shall be paid by ye country.' Further extract from the colony records, filed by the plfs. 'At a General Court, &c. 7th day 8th mo. The ferry betweene Boston and Charlestown is granted to the Colledge.' 'At a Generall Courte of elections, begunne the 6th of May 1646. In answer to the petition of James Heyden, with his partners, ferrymen of Charlestown, and of the satisfaction of all other ferry-men, that there may be no mistake who are freed, or should be passage free, and how long: It is hereby declared, that our honored magistrates, and such as are, or from time to time, shall be chosen to serve as deputyes at the Generall Court, with both their necessary attendants, shall be passage free over all ferryes; and by necessary attendants, wee meane a man and a horse, at all times during the term of their being magistrates or deputyes, but never intended all the familyes of either at any time, and that ye order neither expresseth nor intendeth any such thing. 'Att a third session of the Generall Courte of elections, held at Boston, the 15th of October 1650. In answer to the petition of Henry Dunster, president of Harvard Colledge, respecting the hundred pounds due from the country to the college, and rectifying the fferry rent, which belongs to the college: It is ordered, that the treasurer shall pay the president of the college the some of one hundred pounds, with two years forbearance, as is desired; and forbearance till it be paid out of this next levy, that so the ends proposed may be accomplisht; and for the ferry of Charles Towne, when the lease is expired, it shall be in the liberty and power of the president, in behalfe and for the behoofe of the College, to dispose of the said ferry, by lease, or otherwise, making the best and most advantage thereof, to his own content, so as such he disposeth it unto performe the service and keep sufficient boates for the use thereof, as the order of the court requires.' The case of the plaintiffs in error is thus stated in the opinion of the court: It appears from the record, that in the year 1650, the legislature of Massachusetts granted to the president of Harvard College 'the liberty and power' to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf, and for the behoof of the college; and that under that grant, the college continued to hold and keep the ferry, by its lessees or agents, and to receive the profits of it, until 1758. In that year, a petition was presented to the legislature, by Thomas Russell and others, stating the inconvenience of the transportation by ferries over Charles river, and the public advantage that would result from a bridge; and praying to be incorporated for the purpose of erecting a bridge in the place where the ferry between Boston and Charlestown was then kept. Pursuant to the petition, the legislature, on the 9th of March 1785, passed an act incorporating a company by the name of 'The Proprietors of the Charles River Bridge,' for the purposes mentioned in the petition. Under this charter, the company were authorized to erect a bridge 'in the place where the ferry is now kept;' certain tolls were granted, and the charter was limited to forty years from the first opening of the bridge for passengers; and from the time the toll commenced, until the expiration of the term, the company were to pay two hundred pounds, annually, to Harvard College; and at the expiration of the forty years, the bridge was to be the property of the commonwealth; 'saving, as the law expresses it, to the said college or university, a reasonable annual compensation for the annual income of the ferry, which they might have received, had not the said bridge been erected.' The bridge was accordingly built, and was opened for passengers, on the 17th June 1786. In 1792, the charter was extended to seventy years from the opening of the bridge, and at the expiration of that time, it was to belong to the commonwealth. The corporation have regularly paid to the college the annual sum of two hundred pounds; and have performed all the duties imposed on them by the terms of their charter. In 1828, the legislature of Massachusetts incorporated a company by the name of 'The proprietors of the Warren Bridge,' for the purpose of erecting another bridge over the Charles river. The bridge is only sixteen rods, at its commencement, on the Charlestown side, from the commencement of the bridge of the plaintiffs, and they are about fifty rods apart, at their termination on the Boston side. The travellers who pass over either bridge, proceed from Charlestown square, which receives the travel of many great public roads, leading from the country; and the passengers and travellers who go to and from Boston, used to pass over the Charles river bridge, from and through this square, before the erection of the Warren bridge. The Warren bridge, by the terms of the charter, was to be surrendered to the state, as soon as the expenses of the proprietors in building and supporting it should be reimbursed; but this period was not, in any event, to exceed six years from the time the company commenced receiving toll. When the original bill in this case was filed, the Warren bridge had not been built; and the bill was filed, after the passage of the law, in order to obtain an injunction to prevent its erection, and for general relief. The bill, among other things, charged, as a ground for relief, that the act for the erection of the Warren bridge impaired the obligation of the contract between the state of Massachusetts and the proprietors of the Charles river bridge; and was, therefore, repugnant to the constitution of the United States. Afterwards, a supplemental bill was filed, stating that the bridge had been so far completed, that it had been opened for travel; and that divers persons had passed over, and thus avoided the payment of the toll, which would otherwise have been received by the plaintiffs. The answer to the supplemental bill admitted that the bridge had been so far completed, that foot passengers could pass, but denied that any persons but the workmen and superintendents had passed over, with their consent. In this state of the pleadings, the cause came on for a hearing in the supreme judicial court for the county of Suffolk, in the commonwealth of Massachusetts, at November term 1829, and the court decided, that the act incorporating the Warren bridge, did not impair the obligation of the contract with proprietors of the Charles River bridge; and dismissed the complainant's bill. The complainants prosecuted this writ of error. The case was argued by Dutton and Webster , for the plaintiffs in error; and by Greenleaf and Davis , for the defendants. Dutton , for the plaintiffs.-This case comes before the court upon the bill and answer, amended bill and answer, exhibits, evidence, &c., contained in the record. The plaintiffs, in their several bills, after setting forth the grants made to them by the acts of 1785 and 1792, and their compliance with the terms and conditions of them, complain, that the defendants are about to construct, and have constructed, a bridge between Charlestown and Boston, so near to the plaintiffs' bridge as to be, in contemplation of law, a nuisance to it; and they, therefore, pray that the defendants may be enjoined, &c. The defendants justify, under the authority of an act passed on the 12th of March 1828, establishing the Warren bridge corporation. The plaintiffs allege, that this act of the legislature, under which the defendants justify themselves, impairs the obligation of a contract, and is, therefore, unconstitutional and void. The defendants, in their answer, deny this; and the issue raised by these pleadings, and the only one of which this court has jurisdiction, is, whether the said act of March 12th, 1828, does, or does not, impair the obligation of a contract. Such being the state of the pleadings, and such the only issue which this court can try, I shall endeavor to maintain this single proposition, viz: The act of the legislature of Massachusetts, passed on the 12th of March 1828, establishing the Warren bridge corporation, is repugnant to the 10th section of the 1st article of the constitution of the United States, which prohibits a state from passing any law impairing the obligation of contracts. In the discussion of this proposition, many topics will come under examination; all, however, connected with it, and all resulting in the affirmance or denial of it. By the preamble to the plaintiff's charter, which was passed on the 9th of March 1785, incorporating the plaintiffs, it appears, that the bridge is to be erected 'in the place where the ferry between Boston and Charlestown is now kept;' and by the 5th section of the act, it is provided, that 'after the said toll shall commence, the said proprietors or corporation, shall annually pay to Harvard College or university, the sum of 200 l. , during the said term of forty years.' The plaintiffs' charter, therefore, upon its face, shows that certain transactions took place between the legislature, the college and the grantees. The ferry that belonged to the college is to be extinguished, and a bridge is to be erected in its place; an obligation is imposed upon the grantees to pay to the college the sum of 200 l. annually; and there is a recognition of a right in the college to compensation for the loss of the ferry, after the plaintiffs' charter has expired. All this leads to an examination of the ferry, and its legal history, as it appears by various colonial ordinances; together with the nature and extent of such a franchise, at common law. On the 9th November 1630, the colonial government make an offer of a ferry to any one who will undertake to set it up, between Boston and Charlestown, and fix the rates of ferriage, &c. On the 5th of November 1633, Richard Brown in allowed to keep a ferry over Charles river, against his house, and the rates are there stated. It does not appear, where this ferry was, nor whether it was ever set up. On the second day of the 9th month, 1637, this ordinance was passed. 'The ferry between Boston and Charlestown is referred to the governor and treasurer to let, at 40 l. per annum, for three years.' On the 13th of the 3d month, 1640, it is referred to Samuel Shephard and others, to let the ferry between Boston and Charlestown, when the time of Edward Converse is expired, &c. On the 7th of the 8th month, the ferry was granted to the college in these words: 'The ferry between Boston and Charlestown is granted to the college.' By this ordinance, which, with others, relating to ferries, will be found in the 58th and 57th pages of the record; it appears, that the lease to Converse was about to expire, and that there was, at that time, no other ferry in existence between Boston and Charlestown. At a session of the court, held on the 30th of the 8th month, 1644, it is provided, that magistrates, with their necessary attendants, shall have free passage over all ferries that have not been granted or leased to any; and their passage shall be paid by the country. On the 6th of May 1646, an ordinance was passed, explaining the foregoing ordinance, and declaring what is intended by necessary attendants, for the satisfaction of the ferrymen; and making magistrates passage free, over all ferries. This ordinance exempts magistrates at all ferries, contrary to the act of 1644; and is the only one, during a period of 45 years, which, in the smallest degree, affects the income of the ferry. Whether the amount to be charged to the country was found to be too trifling to keep an account of, or whether the exemption at all ferries was claimed by the magistrates, after royal example, and as being the representatives of the royal authority, does not appear. It appears by the ancient charters, that the college was incorporated in May 1650. Various acts were passed, confirming the original grant to the college, both before and after the act of incorporation. By the ordinance of 1642 (Ancient Charters, p. 77), the 'revenue of the ferry between Boston and Charlestown,' was given to the college. In the act passed on the 15th October 1650, it is provided, that for the ferry to Charlestown, when the lease is expired, it shall be in the liberty and power of the president, in the behalf and for the behoof of the college, to dispose of the said ferry, by lease or otherwise, making the best and most advantage thereof, to his own content, &c. The act passed on the 18th October 1654, speaks of the 'ferry formerly granted to the college;' and the act of 27th June 1710, speaks of the 'profits and revenues of the said ferry being granted to Harvard College, in Cambridge.' Thus it appears, that the original grant of this ferry, in 1640, was confirmed in 1642, in 1650, in 1654 and in 1710. Various acts regulating ferries were passed by the colonial government, and several regulating the ferry between Boston and Charlestown. They relate to the duties of the ferrymen, the convenience of the ferry ways, the number of boats, &c. The act passed in 1781, provides, that whenever the corporation of Harvard College shall make any alteration in the rates of ferriage, they shall publish the rates by them established. In 1713, there was a project for building a bridge, where the ferry was kept, and a committee was appointed by the corporation of the college, to 'insist on the right which the college hath in and to the profits of the said ferry;' and the government, at the same time, appointed Dr. Clark, to confer with the president and fellows upon the affair of a bridge in place of the ferry. Thus, then, it appears, that the college held this ferry for 145 years, with all the common-law rights of ferries; subject only to such regulations as the colonial and state governments saw fit, from time to time, to make. First, the ferry itself was granted; afterwards, its profits, revenues, &c. If one grants the profits of his land, the land itself passeth. Comyn, tit. Grant, E. 5. In order to understand the nature and extent of this franchise, resort must be had to the common law; and this has been uniform, from the time of Henry VI. to the present time. It is also the law of this country, except in cases where it can be shown that it has been overruled by adjudged cases, or modified by state. In the Termes de la Ley 338, a ferry is called a liberty, by prescription, or the king's grant, to have a boat for a passage upon a great stream, for carrying of horses and men for reasonable toll. It is called an incorporeal hereditament, and is either founded in grant, or prescription, which supposes a grant. In the one case, the extent of the franchise is ascertained by usage; in the other, by the terms of the grant. 2 Dane's Abr. 683; Stark v. McGowan , 1 Nott & McCord 387. It may belong to the government, to a corporation, or to an individual; the property may be private, though the use is public. In 10 Petersd. 53, it is said, that these franchises, which are various, may be 'vested either in the natural person, or bodies politic; in one man, or in many; but the same identical franchise that has been granted to one, cannot be bestowed on another, for that would prejudice the former grant.' Also, 13 Vin. Abr. 513. In a note to the case of Blisset v. Hart , Willes 512, it is said: 'A ferry is publici juris; it is a franchise, that no one can erect without the king's license; and when one is erected, another cannot be erected without an ad quod damnum . If a second is erected, without license, the crown has a remedy by quo warranto; and the former grantee, by action.' If the ferry be not well repaired, it is popular, and in the nature of a highway, &c. It is to be reformed by presentment or information. This differs from the case of mills, bake-houses, &c., which are grounded on customs, and of a private nature. Hardr. 163. Every owner of a ferry must have a right to land, to take in his passengers. He need not own the soil, but he must have a right to use it. 12 East 330; 6 Barn. & Cres. 703. The general doctrine is laid down in 22 Hen. VI. 15-16. 'If I have a ferry by prescription, and another is erected so near as to impair my ferry, it is a nuisance to me; for I am bound to sustain and repair the ferry for the use of the king's lieges; otherwise, I may be grievously amerced.' In Roll. Abr. 140, Nuisance G, line 20, the same doctrine is stated with reference to a fair or market. Hale, in a note to Fitzherbert's Nat. Brev. 428, says: 'If the market be on the same day, it shall be intended a nuisance; but if it be on a different day, it shall not be so intended; and therefore, it shall be put in issue, whether it be so or not.' Citing, 11 Hen. IV. 5-6. If a ferry be erected with license, another cannot erect a ferry to the nuisance of it. Com. Dig. tit. Piscary, B. He states the same doctrine in another place: 'tit. Action on the Case for Nuisance, A.' 'So, if one erect a ferry so near my ancient ferry.' 3 Bl. Com. 3, 219; 1 Nott & McCord 387. It is the usual practice, in England, to issue the writ of ad quod damnum , before the patent for a fair or market is granted. But as the execution of this judicial process does not, and cannot, always ascertain what will be the effect of the proposed market or fair; the doctrine seems to be well settled, that in case it does prove to be injurious to any existing market or fair, the patent may be repealed, upon proof of the fact. In other words, the writ of ad quod damnum , executed, is not conclusive. 6 Mod. 229; 2 Vent. 344; 3 Lev. 220; Hale, de Port. Maris, Hargrave's Tracts 59; Com. Dig. Patent, F. 4-7; 1 Wms. Saund. note 4, p. 72; 2 Inst. 406. It is thus stated by Chitty, in his Prerogatives of the Crown, ch. 10, § 2: it is most important to remember, that the king does not grant a market or fair, without a writ of ad quod damnum being first executed; even if that be done, the crown cannot enable a subject to erect a market or fair so near to that of another person, as to affect his interest therein, &c. The owners of ferries are under liabilities and obligations, which may be enforced against them by individuals, or the public. Their franchises are declared to be publici juris; and the law gives a remedy in all cases of negligence or injury, by presentment, information or action on the case. Payne v. Partridge , 2 Salk. 718; Willes 512; 3 Salk. 198. They have also rights which can be maintained at law, by action on the case for a disturbance; by action of assize; by distress; &c. 2 Wms. Saund. 114; 4 T. R. 666; 2 Dane's Abr. 683; Bac. Abr. tit. Distress, F. pl. 6; Cro. Eliz. 710; 6 T. R. 616; Huzzey v. Field , 2 Cr. M. & R. 432. All these franchises, as of fairs, markets, ferries and bridges, are founded on good and sufficient consideration; such as the expenditure of money in establishing and maintaining them, for the convenience and safety of the public. They are all publici juris , and from the rights, liabilities and duties of which they are compounded, results the notion of property in them. The toll, or right to demand and receive money for the use and enjoyment of these franchises, of which the toll is part and parcel, is recognised as property, and protected as property, both by the law of England, and of this country. A grant of these vests in the grantee a beneficial interest, which may be demised, leased or mortgaged. Poph. 79; Moore 474; Webb's Case , 8 Co. 92; Gunning on Tolls 106, 110; 6 Barn. & Cres. 703; 5 Ibid. 875; 3 Maule & Selw. 247; 1 Crompt. & Jerv. 57; in the Exchequer, p. 400. The franchise of a bridge or turnpike may be taken on execution in payment of debt, by the law of Massachusetts. In Chadwick's Case , an action was brought at common law, and sustained by the court, for compensation for the loss of his ferry, by the erection of a bridge. 2 Dane's Abr. 686; also Judge Putnam's opinion, 7 Pick. As to the local extent of this franchise of a ferry, an attempt has been made to limit it to the ferry-ways; and the case of Ipswich v. Brown , Sav. 11, 14, is cited; where it is said, that a 'ferry is in respect of the landing-place, and not in respect of the water, that the water may be in one, and the ferry in another;' it is also said in this case, that the owner of the ferry must own the soil on both sides. This last part of the case is expressly overruled in 6 Barn. & Cres. 703. And as to the other part of the case, it means nothing more than this, that a ferry must have ferry-ways or landing places. The case in Hardr. 162, was this; one owning land on both sides of the Thames, set up a ferry, three quarters of a mile from an ancient ferry, at Brentford. A bill was brought in the exchequer to suppress it, as coming too near a monopoly. The reporter adds, sed quaere de ceo; for contrary, to the books of 22 Henry VI., and to precedents in like cases in this court. Afterwards, another bill being filed for the same matter, the court, on the 7th of April, Lord HALE presiding in it, decreed, that the new ferry should be suppressed, and that the defendants should not have liberty to use any ferry-boat to the annoyance of the plaintiff's ancient ferry. 2 Anstr. 608. In the case of the Newburgh Turnpike Company v. Miller , 5 Johns. Ch. 101, the principle is clearly stated and applied. The plaintiffs in this case, had erected a bridge, as part of their road, across the Wallkill; the defendants erected another free bridge, eighty yards distant; purchased a strip of land adjoining the bridge, and had a road laid out by commissioners as a public highway, for the purpose of avoiding the toll-gate of the plaintiffs. KENT, Chancellor, said: The quo animo is not an essential inquiry in the case; whatever may have been the intention of the defendants, the new road and bridge do directly and materially impair the use and value of the plaintiff's franchise. No rival road, bridge, ferry, or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other as materially to affect or take away its custom. It operates as a fraud upon the grant, and goes to defeat it. The consideration by which individuals are invited to expend money upon great expensive and hazardous public works, such as roads, bridges; and to become bound to keep them in constant and good repair, is the grant of a right to an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away by direct or indirect means. Also cited, Ogden v. Gibbons , 4 Johns. Ch. 150. It appears from the Ancient Charters of the colony of Massachusetts, p. 110-11, that the same notions of an exclusive right in ferries prevailed there, that have always prevailed in England. For, as early as 1641, near the time when the 'ferry between Boston and Charlestown was granted to the college,' this ordinance was passed: 'It is ordered by this court, and the authority thereof, that whosoever hath a ferry granted, shall have the sole liberty of transporting passengers,' &c. Here is a direct assertion of an exclusive right in the owners of a ferry; and is worthy of notice as a contemporaneous exposition; and can it be reasonably doubted, that Edward Converse, under his lease from the government, of 'the ferry between Boston and Charlestown,' had the sole and exclusive right of transporting passengers between those termini? All, therefore, which the plaintiffs claim in the case at bar, is an exclusive right between Boston and Charlestown; and if they have any exclusive right, it must have some local extent beyond the ferry-ways, or the planks of the bridge; otherwise, it would not be exclusive. If any one, at his pleasure, could have lawfully carried passengers from Boston to Charlestown, and landed them within two feet of the ferry-ways of Converse, he would not have had the sole right of carrying between those points. No other ferry or bridge could be erected between those termini , without 'being near, in a positive sense;' which is the form of expression in which Chief Justice PARKER lays down the rule; without being so near, in the language of Blackstone, as to draw away the custom of the elder ferry or bridge; or without producing, in the language of Chancellor KENT, ruinous competition. With this extent, therefore, the college held the ferry on the 9th of March 1785, when the act passed, making the plaintiffs a corporation for the purpose of erecting a bridge in the place where the ferry was kept; and the view we take of this transaction is this, that the corporation created by this act became the assignees, in equity, of this franchise, or it was surrendered to their use by operation of law. 2 Thomas' Co. Litt. 553; 6 Barn. & Cres. 703. A bridge, in place of the ferry over Charles river, is deemed by the legislature to be a matter of public utility; and they are disposed to grant a liberal charter to such persons as are willing to undertake so hazardous an enterprise. The college are ready to part with their ferry for an annuity, equal to their then income; and Thomas Russell and his associates, are willing to make the first experiment in this country, of throwing a bridge, 1500 feet in length, over navigable waters, for the tolls to be granted to them, for the period of forty years. The ancient ferry, then, is to be extinguished; which could not be done without the authority of the government, nor without the consent of the college. 3 Mod. 294. The petitioners are to pay 200 l. annually, to the college, for forty years, as a compensation for the loss of the ferry; and to this agreement the college became a party, by its assent given at the time, and its subsequent acceptance of the annuity. The right to keep up a ferry at this place is extinguished, but the beneficial interest of the college is not; for in the act, there is a 'saving to the college of a reasonable and annual, compensation for the annual income of the ferry.' It is said, that the government seized the franchise of the ferry. If this were so, then it passed with the grant of a right to build a bridge, 'in the place where the ferry was kept;' agreeable to the doctrine in Palmer's Case , Poph. 78; 9 Co. 26; 10 Ibid. 64-5. But there is no evidence that the government did, or intended to, seize the franchise, as private property, for public use, in the exercise of the eminent domain. There was no necessity or motive for doing this; because the petitioners for the bridge had agreed to pay the college for the surrender of their ferry for the forty years; and their act of incorporation confirmed and executed that agreement. The whole transaction shows, that it was a matter of previous arrangement between the three parties; and the terms and conditions of the bargain were made obligatory of the act. Now, it is obvious, that if the government had given the college an authority to build a bridge, 'in the place where the ferry kept;' it would have the same local extent of franchise that the ferry had. Or, if the proprietors of Charles River bridge had first purchased the ferry of the college, and afterwards had obtained a charter to build a bridge, 'in the place where the ferry was kept;' the result would have been the same. The beneficial interest vested in the owners of the ferry and of the bridge, is the same, to wit, a right to demand and receive a certain rate of toll from all persons passing from one town to the other; the place the same; the object the same; the mode only different. The power of regulating all these franchises, which are publici juris , is in the government. It is an incident of sovereignty. In the case of ferries, it extends to the number and place of the ferry-ways, the number and kind of boats, the times of putting off from each side; reaching to all those details which concern the convenience and safety of passage and transportation. In the case of a bridge, this power of regulation in the government is exerted, at the time the charter is granted. The place where the bridge is to be built; its dimensions, materials, lights, draws and other details, are prescribed and settled by the act: and the government act upon the corporation, by holding them to a strict performance of all the dutes imposed. The charter of 1785 and its extension in 1792: The first grant was of a right to build a bridge over a navigable river. It was an exercise of the sovereign power of the state over certain public rights. By the severance of the empire, and the consequent independence of the states, all public property and public rights vested in the states, as successors to the crown and government of the parent country. The power of Massachusetts, in the year 1785, was, therefore, as ample and complete over these as it had ever been before the separation. Such rights as these have always been held in England by grant or prescription, exclusively as private property; such as fisheries in arms of the sea; ferries and bridges over navigable rivers or arms of the sea, subject only to such regulations as public convenience required. In grants that abridge public rights, it is generally held, that a consideration must be shown. Hargrave's Law Tracts, ' De Jure Maris ,' 18-36; Angel on Tide Waters 106-7. In Carter v. Murcot , 4 Burr. 2162, Lord MANSFIELD says, 'on rivers not navigable, the proprietors of the adjoining land own ad filum medium aquae; not so in arms of the sea; but if he can show a right by grant, or prescription, which supposes a grant, he may have an exclusive right in an arm of the sea or navigable river.' In the following cases the same doctrine is clearly laid down. 4 T. R. 439; 2 Bos. & Pul. 472; 1 T. R. 669; 1 Mod. 105; 4 T. R. 668. Such is the law of England. It is the law of Connecticut. In 1 Conn. 382, the court say, 'that the right of fishing, by the common law, in the ocean, in arms of the sea, and in navigable rivers, below high-water mark, is common to all; and the state only can grant exclusive right. The public may grant an exclusive right of fishing in a navigable river; and if it may be granted, it may be prescribed for.' It is the law of New York. See People v. Platt , 17 Johns. 195. It is the law of Massachusetts. In 6 Mass., Chief Justice PARSONS states the common-law doctrine, and the alterations it has undergone since the first settlement of the country. Commonwealth v. Charlestown , 1 Pick. 180. With regard to riparian owners of land upon streams, not navigable, the common law has not been modified; they own, as in England, to the middle of the stream. But with regard to the owners of land bounding on the sea-shore, or arms of the sea; they own, by the law of Massachusetts, to low-water mark, where the tide does not ebb more than one hundred rods; though, by the common law, they could hold only to high-water mark, for all below belonged to the king. Yet they might hold by grant or prescription against the king. 1 Mass. 231; 17 Ibid. 289; 4 Ibid. 140; Angel on Tide Waters; 4 Mass. 522. An act of the legislature of Massachusetts, touching public property or public rights, has the same force and effect as an act of parliament in England. There is, then, no restraint or limitation upon the power of the grantor over the subject-matter of this grant; none in the constitution of Massachusetts; none in the act itself, that interferes with the possession of an exclusive right by grantees. The rule of construction applicable to this charter: It was said by a learned judge, in the court below, that the general rule of law was, that in governmental grants, nothing passed by implication. Where, I would ask, is any such general rule to be found? Not in the books, surely; nor can it be inferred from adjudged cases. All those cited in support of the rule are cases of crown or prerogative grants; and these, as strongly intimated by Chief Justice EYRE, 2 H. Bl. 500, stand on a different footing from grants by acts of parliament. But with regard even to these crown grants, where the royal prerogative is entitled to the most indulgence, and where the grant is made at the suit of the grantee, there are a variety of cases where valuable rights, privileges and franchises pass by necessary implication. Bac. Abr. tit. Prerogative, F. 2; Plowd. 366-7; Rex v. Twine , Cro. Jac. 179; 9 Co. 30; Dyer 30; Sav. 132; 1 Vent. 409; Whistler's Case , 10 Co. 64-5. The general rule is thus laid down by Chitty on Prerogative, ch. 16, § 3, p. 391. In ordinary cases, between subject and subject, the principle is, that the grant shall be construed, if the meaning be doubtful, most strongly against the grantor; who is presumed to use the most cautious words for his own advantage and security: but in the case of the king, whose grants chiefly flow from his royal grace and bounty, the rule is otherwise; and crown grants have at all times been construed most favorably for the king, where a fair doubt exists as to the real meaning of the instrument. But there are limitations and exceptions even to this rule: 1st. No strange or extravagant construction is to be made in favor of the king; if the intention be obvious, royal grants are to receive a fair and liberal interpretation. 2d. The instruction and leaning shall be in favor of the subject, if the grant show that it was not made at the solicitation of the grantee; but ex speciali gratia, certa scientia, et mero motu regis . 10 Co. 112; Com. Dig. Grant, C. 12. 3d. If the king's grants are upon a valuable consideration, they shall be construed strictly for the patentee. The grants of the king, when valid, in general, bind him, though without consideration, as subjects are bound by their grants: ch. 16, § 5. There are cases, in which it is said, that when those things, which are said to be parcel of the flowers of the crown, such as the goods of felons, waifs, estrays, &c., come into the king's possession, they are merged in the crown, and do not pass, without express words; but even these will pass, if they can be made certain by reference. The case of The Banne , which has been cited, is explained by Justice BAYLEY in this way, in the case of the Duke of Somerset v. Fogwell , 5 Barn. & Cres. 875. There is, then, no foundation in law for the supposed analogy between crown grants in England, and grants by legislative acts in this country. But if the act of 1785 were subjected to the strictest rules applicable to crown grants, it would be entitled to a liberal construction for the grantees; for it is upon a good, a valid, an adequate, and a meritorious consideration. The state of Massachusetts is as much bound by necessary implication in its grants, as individuals are. This is decided in the case of Stoughton v. Baker , 4 Mass. 522. The true notion of prerogative in this country, is well stated by PARSONS ( arguendo ), in 1 Mass. 356, as distinguished from prerogative in England. In England, prerogative is the cause of one against the whole; here, it is the cause of all against one. In the first case, the feelings, the vices, as well as the virtues, are enlisted against it; in the last, in favor of it: and therefore, here it is more important that the judicial courts should take care that the claim of prerogative should be more strictly watched. In the opinion of a learned judge in the court below, we are told, that if the king makes a grant of lands, and the mines therein contained, royal mines shall not pass: and why not? Because, says the same authority, the king's grants shall not be taken to a double intent; and the most obvious intent is, that they should only pass the common mines, which are grantable to a common person. That is, the grant shall not draw after it what can be separated, and what is not grantable to a common person, but is a special royalty, a crown inheritance: and yet this case, and others like it, are cited in support of the pretended rule, that in governmental grants, nothing passes implication. What is the consideration of the case, in the grant at bar? The grantors themselves furnish the highest evidence of its merit. In the act incorporating the proprietors of West Boston bridge, in the year 1792, they say, 'Whereas, the erection of Charles River bridge was a work of hazard and public utility, and another bridge in the place proposed for the West Boston bridge, may diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise,' &c. It was hazardous, for no attempt at that time had been made to carry a bridge over tide-waters; and so doubtful were the subscribers of its stability, that a number of them insured their interest in it. The hazard was all their own; and so great was it thought to be, that upon the breaking up of the ice, persons assembled on the shore to see it carried away. It has stood, however, against time and the elements; it has stood against everything but legislation. It was opened with processions, and every demonstration of a general rejoicing; and was considered, at the time, as an enterprise of great patriotism, as well as of utility. This charter is to receive a judicial construction, and the words of grant are to be subjected to a judicial analysis. What relations do the words raise? What rights are extinguished; what required; and what covenants are implied? In the case of Fletcher v. Peck , 6 Cranch 37, the grant in that case is said to be a contract executed; the rights of the grantor are said to be for ever extinguished; and a contract implied, never to re-assert his right; but none of these things appear upon the face of the deed. It is said, there is a mode of writing with sympathetic ink, which cannot be read till it is held up to the light. So, words of grant, must be held to the light of judicial interpretation. When the relations which the words give rise to, are unfolded, the rights that are extinguished, and the rights that are acquired, and the covenants that are implied, all become clear and legible. In examining the charter of 1785, I shall consider: 1st. What is granted by express words? 2d. What, by necessary implication? In the third section of the charter, are these words: 'And be it further enacted by the authority aforesaid, that, for the purpose of reimbursing the said proprietors the money expended, or to be expended, in building and supporting the said bridge, a toll be and hereby is granted and established, for the sole benefit of the said proprietors.' Upon the authorities already cited, and upon the strong reason of the case, these words vest, absolutely, in the grantees, a franchise, without condition and without reservation; and this franchise is property, recognised as such, and protected as such, both by the the law of England and by the law of this country. In order, then, to make this protection which the law affords, available, it must be exclusive to some extent; enough, at least, to keep down ruinous competition. All this is conferred upon and vested in the proprietors of Charles River bridge, by these few words of the charter. In 1 Crompt. & Jerv. 57, and 400, in the exchequer, it appears, that a charter was granted to the Corporation of Stamford, in 2 Ann., c. 13, with a right to take toll, without saying how much. Chief Baron ALEXANDER says, 'We think that where a grant of tolls is found in a charter, the word ought to have some meaning, and the charter some operation; and that it can receive operation only by being construed to mean a reasonable toll.' He goes on to say, 'if we were to decide against this charter, upon the principles contended for, we should shake the security of a vast mass of property, which has been enjoyed, undisturbed, for perhaps ages.' Again, it is declared expressly, that this toll shall continue for and during the period of forty years. What is the meaning of this limitation? The bridge is to remain, and be delivered to the government, in good repair, at the end of the term. If the corporation are merely tenants at will of this franchise; if the legislature can eject them at pleasure; if they can rightfully shorten the term, when they please, and as much as they please, the limitation to forty years expressed in the charter, becomes absurd and contradictory. It must, however, be construed to mean something; and it can have no reasonable or consistent meaning, but that of an absolute, unconditional grant of tolls for forty years. Again, the maintenance of the bridge, and the annuity to the college, run with the charter; and the grant of tolls is made, in express words, for these two objects. Here, then, are two obligations imposed by the charter; one to support the bridge, which amounts, upon an average, to about $5000 a year; and the other to pay to the college 200 l. a year; and a toll is granted as the means, and the only means, of fulfilling these obligations; and yet the legislature, the grantors of this charter, claim and exercise the right of wholly withdrawing these means from the corporation, by an indirect act, and leaving these obligations upon them in their full force. Does not this, if anything can, impair the obligation of a contract? Whence is derived the power or the right to do this? Is it to be found in the charter? No! That grants a toll for forty years, absolutely, without condition or reservation. What, then, is the nature of this mysterious power of the government, that can lawfully resume its own grants; destroy its own contracts; disregard the obligations of good faith; and trample upon every principle of equity and justice? In the case of Wales v. Stetson , 2 Mass. 146, Chief Justice PARSONS says, 'We are also satisfied, that the rights legally vested in this or in any corporation, cannot be controlled or destroyed, by any subsequent statute; unless a power for that purpose be reserved to the legislature, in the act of incorporation.' This case, like the one at bar, was a grant of a franchise; and here we have the solemn judgment of the supreme court of Massachusetts, upon its inviolability, in the absence of any such reserved power. In the case of the East India Company v. Sandys , 7 State Trials 556, it appears, that there was this condition inserted in the charter, 'that if it should hereafter appear to his majesty, or his successors, that that grant, or the continuance thereof, in whole or in part, should not be profitable to his majesty, his heirs and successors, or to this realm, it should, after notice &c., be void.' Thus, it appears, that even in the opinion of Lord Chief Justice JEFFREYS, no feeble supporter of royal prerogative, a charter could not be repealed or annulled, unless a power for that purpose was reserved in it to the grantor. Thus far the case at bar stands upon the very words of the grant; upon the legal and obvious construction of the act itself, without resort to those necessary implications which arise from the nature of the grant. 2. What is granted by necessary implication? The general rule of law is thus laid down in Co. Litt. 56 a , 'When the law doth give anything to one, it giveth impliedly whatsoever is necessary for the taking and enjoying the same.' Case of the Mines , 1 Plowd. 317. 'For the ore of gold and silver is the king's; and if it is, the law gives him means to come to it, and that is by digging; so that the power of digging is incidental to the thing itself.' If one grant to another all the minerals in a certain parcel of land; the grantee has a right to go upon the land, and dig, and carry away the ores. In one thing, all things following shall be included: lessee of land has a right of way on lessor's land; grantee of trees, growing in a close, may come upon the land to cut them, &c. Finch 45, Rule 100. The grant of a thing carries all things included, without which the thing granted cannot be had. Hob. 234; also Saunders's Case , 5 Co. 12; Lifford's Case , 11 Ibid. 52; and 1 Wms. Saund. 322. Upon these authorities, the only question is, are tolls necessary or essential to the enjoyment of this franchise? Just as necessary and essential as air is to the support of animal life. They are part and parcel of the franchise itself; its very essence, substance and life. What is our franchise, without tolls? It is compounded of certain rights and certain obligations. The rights are, to be a corporation, with the usual powers incident to corporations; such as the right to have a common seal; to sue and be sued; to maintain a bridge over navigable waters; to demand toll of all persons passing over the bridge, & c. The obligations are, to maintain the bridge at an expense of $5000 a year; to pay Harvard College 200 l. a year; and to deliver up the bridge in good repair, at the end of forty years. The rights are without value, utterly barren and fruitless; the obligations are oppressive and lasting as the charter. Yet a learned judge, in the court below, says, 'that a trader or innholder, has as good a right to be protected in the enjoyment of the profits of his store or inn, as the plaintiffs have to be protected in the enjoyment of their tolls.' Is a trader's shop or a taverner's license a franchise? Since the first Wednesday of March last, the Warren bridge has been free; and the necessary consequence has followed, viz., the entire destruction of the plaintiffs' franchise. One thing more remains to be done, and then the work will be finished. The attorney-general will be directed to file a quo warranto against the corporation, for a non-compliance with some of its public duties, and a decree of forfeiture of the franchise will be obtained. This must inevitably happen, unless it can be presumed, that this corporation will continue to maintain the bridge, at their own private expense, for the public accommodation. The government will then have got into their possession two bridges, without the expenditure of a dollar: one having been paid for out of the fruits of the franchise of Charles River bridge; and the other obtained by a decree of forfeiture, for not complying with its obligations. In the meantime, the proprietors of Charles River bridge may well look upon the proceedings of the government with amazement. But a few years since, and they held a property in this franchise, which cost them $300,000; and where is it now? 'They are charged with no fault, neglect of duty or breach of any condition; no judicial process has ever been issued against them; and yet, without a cent of compensation, they are stripped of this property by the mere force of legislation. By what transcendental logic, can such a result be justified, upon any principles of law, equity or good faith?' Among the various pretences that have been put forth in justification of the act complained of, is this, to wit, that the charter is nothing more than a license to obstruct navigable waters. In 15 Vin. Abr. 94, License, E, it is said, if a certain time is limited, it is not revocable, though the thing is not done. License executed is not countermandable. The same law is, if one license me and my heirs to come and hunt in his park, it is necessary for me to have this license in writing; for something passes by the license, in perpetuity; but if the license be to me, to hunt once in his park, this is good, without writing, for no inheritance passes. 11 Hen. VII. p. 9. There is a great diversity between a license in fact, which giveth an interest, and a license in fact, which giveth only an authority or dispensation; for the one is not to be countermanded, but the other is. A license is revocable unless a certain time is fixed. Sir William Webb v. Paternoster , Poph. 151; Taylor v. Waters , 1 Taunt. 374; Liggins v. Inge , 5 Moore & Payne 712. So it appears, that if a license is in writing to one and his heirs, it is not revocable; 2d. If it passes an interest, it is not revocable; and 3d. If it is for a time limited, it is not revocable. The case at bar embraces all these: it is in writing; it passes an interest; and is for a time limited. The grant to the proprietors of the Charles River bridge, both by express words and by necessary implication, vests in them absolutely, a franchise, a beneficial interest, for forty years; and this interest consists of a right to levy money, according to certain fixed rates, upon the line and course of travel between Charestown and Boston. But it is said, that a line of travel is uncertain, and cannot be defined; that it often changes, according to the exigencies of society. And this, to some extent, is doubtless true; and it is also true, that from the changes that are constantly taking place in human affairs, a bridge or ferry may be subjected to incidental injuries. It sometimes happens, that a consequential damage may be suffered by one, arising out of the lawful use of property by another. The grant of the West Boston bridge and of the canal bridge, affected in some degree the income of Charles River bridge; but these were between different termini , opening new avenues into the country, and giving better accommodation to a large amount of population. They were grants of similar franchises, called for by public exigencies; and not directly and apparently, intentionally interfering with former grants. The revival of Winnisemmit ferry has somewhat diminished the travel through Charlestown; but it is between Boston and Chelsea, and is coeval with the ancient ferry between Boston and Charlestown. Whatever damage, therefore, is suffered, arising from the changes or progress of society; from political or commercial arrangements; from the natural course of business or industry, is regarded, and must be borne, as merely incidental. But the voluntary, direct and fatal action of the government upon its own former grant, is not incidental, and does not belong to cases of consequential damage, The facts in the case at bar are peculiar, and distinguish it from all other cases of a similar nature. The abutments of the two bridges are 260 feet apart on the Charlestown side; and the avenues to them meet in Charlestown square, at the distance of about 400 feet from the abutments. On the Boston side, the abutments of the two bridges are about 900 feet apart, and the avenues to them meet in Boston, at the distance of about 1400 feet. The distance from Charlestown square to all the business parts of Boston, over these bridges, is within a few feet the same; so that the same accommodation is afforded by both bridges. Now, as all the roads leading into and from Charlestown, terminate, or cross each other, in this square, it follows, that all the travel which now goes over the Warren bridge would, with equal convenience, have gone over Charles River bridge, if that had been the only avenue between Boston and Charlestown. The new bridge has connected no new line of travel with the old; it has not shortened the distance between the two termini , nor given any other additional accommodation, than two parallel bridges give over one. Of the necessity of two bridges, some judgment may be formed from this fact: about 3000 foot passengers passed over Charles River bridge in one day, and about 750 vehicles of all descriptions, as appears by the record; about 80,000 foot passengers, and 4000 vehicles go over London bridge every day. The travel, therefore, from Charlestown to Boston is a unit; it is now, and always has been, and always must be, the same line of travel. The grant of the Warren bridge, therefore, which, while it was a toll bridge, diverted two-thirds of this travel from Charles River bridge, and since it has become free, diverts the whole, is a grant of the same franchise. It is, in its effect and operation, the entire destruction of property, held by an older title; the resumption of a grant, which this court has declared to be a contract executed; by which the rights of the grantor are for ever extinguished, and a covenant implied on his part never to re-assert his rights. But in the case at bar, the grantor has re-asserted his right over this franchise; and has thus impaired the obligation of his contract. A learned judge in the court below, in commenting upon the extent of the franchise of the bridge, remarks, that it is either confined to the planks, or in other words, has no local extent; or else, extends to the old bridge in Cambridge, a distance of some three or four miles. Now, it is a little remarkable, that the proprietors of the Charles River bridge, do not now, and never have claimed any such local extent; all they have ever claimed, or do now claim, is an exclusive right between Charlestown and Boston. Yet, in order to make the claim odious, it is represented as extending over the whole river. But how does the learned judge get at this conclusion, that the extent of this franchise is either everything or nothing? Not, surely, from the declarations of the proprietors, for they have uniformly limited their right in the manner stated; nor from the books of common law, for in them, the rule is stated with great uniformity and precision, and runs through the whole current of authorities, from Hen. VI. to the present time. The rule of the common law is, that if a rival market, bridge or ferry, is erected so near an existing one as to draw away its custom, essentially to impair its value, materially to diminish its income or profits; near in a positive sense, so near as to produce ruinous competition, &c., it shall be deemed a nuisance. But it is asked, what and where are the boundaries of these rights? And because they cannot put their finger on the precise spot in the river, where private right ends and public right begins, they have no right at all; because the common law does not, unhappily, furnish a pair of compasses to measure the exact local extent of this franchise, it has no extent at all; because it does not cover the whole river, it is confined to the width of the bridge. Does the law, or do learned judges, deal with nuisances on land in this way? How near to a dwelling-house may one establish a noisome or unwholesome manufactory? Does the common law measure the distance, and say, here it shall be deemed a nuisance; and there is shall not? And how is it to be determined, whether it be a nuisance or not, but by the fact? It is a matter of evidence, and is to be proved like any other fact. Is the atmosphere filled with a noxious effluvia? Are the comfort and value of the dwelling impaired by this establishment? Then it is a nuisance, whether it be at the distance of ten rods or half a mile. So, in the case at bar, it is the fact, rather than the distance, that is to determine whether a rival bridge is a nuisance or not. Does it greatly impair the value of the elder franchise? Does it essentially diminish its profits? Does it wholly ruin it? These are all matters of evidence; facts to be proved; and courts and juries, in the exercise of a sound discretion upon all the facts and circumstances of each particular case, will give a reasonable protection to the property in these franchises, by giving them a reasonable extent. But it is argued, that when the charter of Charles River bridge was extended for thirty years, in the year 1792, notice was given to all the world, by a legislative act, that the proprietors had no exclusive right; and that inasmuch as they took their extended charter, with this notice, it is now too late to set up any such right. The act incorporating the proprietors of the West Boston bridge, was passed on the 9th of March 1792; and in the 8th section of that act, it is enacted, that the proprietors of Charles River bridge shall continue to be a corporation and body politic, for and during the term of seventy years, to be computed from the day that said Charles River bridge was completed and opened for passengers, subject to all the conditions and regulations prescribed in the act, entitled 'an act, incorporating certain persons for the purpose of building a bridge over Charles river, between Boston and Charlestown, and supporting the same during the term of forty years; and during the aforesaid term of seventy years, the said proprietors of Charles River bridge shall any may continue to collect and receive all the toll granted by the aforesaid act for their use and benefit.' There is then a proviso, that the proprietors shall relinquish the additional toll on the Lord's day, and shall continue to pay the annuity to the college, &c. This extension of the charter of Charles River bridge was made, as set forth in the preamble to the grant. Whereas, the erection of Charles River bridge was a work of hazard and utility, and another bridge in the place proposed for the West Boston bridge, may diminish the emoluments of Charles River bridge, therefore, &c. The notice referred to, is contained in the report of a committee, to whom had been referred the petition for the West Boston bridge, and the remonstrance of Charles River bridge, and is in these words: 'The committee further report, that after attending to the memorial of the proprietors of Charles River bridge, and hearing them fully on the subject, they are of the opinion, that there is no ground to maintain that the act incorporating the proprietors for the purpose of building a bridge from Charlestown to Boston, is an exclusive grant of the right to build over the waters of that river.' Such is the opinion of a committee; and supposing it to have been adopted by the legislature, it would then be the opinion of that body, and nothing more. How, then, can this opinion affect or control the rights of the proprietors, held by them under a former grant? If, instead of being an opinion merely, it had been a declaratery act; still all the rights vested in the proprietors, by their charter of 1785, would have remained in full force and effect; and the charter of 1792 is merely a continuance of the first, with all its rights, &c., and subject to all its obligations. As this declaration of the legislature makes no part of the act of 1792, all the rights which belonged to the proprietors in 1785, belonged to them equally in 1792. If such a declaration had been inserted in the act itself, extending the term to seventy years, and the act had been accepted, the proprietors might have been bound by it. But the import and meaning of this opinion have been mistaken. It does not deny any claim made by the plaintiffs, but is entirely consistent with it. It does not deny, that the proprietors have an exclusive right between Boston and Charlestown; but does deny, that they have an exclusive right over the whole river. There was a petition before this committee for another bridge; not from Charlestown to Boston, but from Cambridge to Boston; and the committee say to the remonstrants, your exclusive right does not extend to Cambridge, a distance of two miles; it is not an 'exclusive right to build over the waters of Charles river;' but inasmuch as the proposed bridge may affect your emoluments, we recommend an extension of your charter. It was seen, that the proposed bridge would cause a consequential damage to Charles River bridge; and it was on that ground, that the proprietors appealed to the equity of the legislature; and it was on that ground alone, as they expressly declare, that the legislature granted an extension of their charter for thirty years. In the following cases, an exclusive right in ferries is fully maintained. Churchman v. Tunstal , Hardr. 162; Tripp v. Frank , 4 T. R. 666; Chadwick's Case , 2 Dane's Abr. 683. The case of Huzzey v. Field , recently decided in the exchequer, is reported in 2 Cromp. Messon & Rosc. 432; and also in the 13th No. Law Journal, 239. In this case, Lord ABINGER reviews the whole doctrine in relation to this franchise; beginning with the earliest cases, and confirming all the principles which are necessary to the support of the case at bar. The case of the Islington Market , 2 Cl. & Fin. 513, in which the opinion of the nine judges is given upon a series of questions touching the franchise of a market, put to them by the house of lords, reviews and confirms all the doctrines advanced in support of the plaintiffs' claim in this case; and shows, most conclusively, what the law of England is at this present time. The law there is, essentially and truly, now, what it was three centuries ago, in relation to all these franchises; and unless it can be shown, that this law has been overruled by adjudged cases, or modifed by statute, it is now the law of this country. Much has been said, in the course of this controversy, of monopolies, and exclusive privileges; and these have been fruitful themes of declamation. And what is a monopoly, but a bad name, given to anything for a bad purpose. Such, certainly, has been the use of the word in its application to this case. It is worth a definition. A monopoly, then, is an exclusive privilege conferred on one, or a company, to trade or traffick in some particular article; such as buying and selling sugar or coffee, or cotton, in derogation of a common right. Every man has a natural right to buy and sell these articles; but when this right, which is common to all, is conferred on one, it is a monopoly, and as such, is justly odious. It is, then, something carved out of the common possession and enjoyment of all, and equally belonging to all, and given exclusively to one. But the grant of a franchise is not a monopoly, for it is not part or parcel of a common right. No man has a right to build a bridge over a navigable river, or set up a ferry, without the authority of the state. All these franchises, whether public property or public rights, are the peculiar property of the state. They belong to the sovereign, and when they are granted to individuals or corporations, they are in no sense monopolies; because they are not in derogation of common right. But it is said, that the legislature has a right, in its discretion, to grant ferries, bridges, turnpikes, and rail-roads, whenever public convenience requires it; and that of this convenience or necessity, they are the exclusive judges. I state the proposition as broadly as it has ever been laid down, because I have no wish to avoid its just consideration. It is admitted, then, that the legislature has a general authority over these subjects; but it is nevertheless a limited authority. It is not omnipotent, like that of the British parliament, but is subjected to many restraints and limitations. A state legislature can do wrong, and has done wrong; and this court has corrected their errors, and restored the rights which had, inadvertently, of course, been invaded or taken away. The people, in forming their constitutions of government, have imposed many restraints upon the exercise of the legislative power. They have inserted in many of their constitutions, certain fundamental principles, which were intended to limit or wholly withdraw them from the power of the legislature. They cannot abridge the liberty of speech or of the press; pass ex post facto laws; suspend the writ of habeas corpus; or take private property for public use, without compensation. These limitations and restraints upon the exercise of legislative power, in Massachusetts, are imposed by its own constitution. There are restraints imposed by the constitution of the United States upon all state legislation; and one very important restraint, a disregard of of which, in the opinion of the plaintiffs, has brought this cause before this court; is, that no state shall pass any law impairing the obligation of contracts. The power conferred on this court, by the constitution of the United States, of controlling, in certain specific cases, state legislation, has given, and was intended to give, in the language of this court, 'a bill of rights to the people of each state.' The exercise of this ultimate conservative power, constitutes one of the highest functions of this court. The wise men who framed this constitution, clearly discerned, in the multiform operations of human passions and interests, the necessity for some calm controlling power; and in conferring it upon this court, they exhibited the most profound wisdom, guided by human experience. The legislative power is restrained and limited by the principles of natural justice. In the case of Calder v. Bull , 3 Dall. 388, Judge CHASE says, 'There are certain vital principles in our free republican governments, which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by positive law; or to take away that security for personal liberty or private property, for the protection whereof government was established. An act of the legislature, for I cannot call it a law, contrary to the first great principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law, in governments established on express compact, and on republican principles, must be determined by the nature of the power on which it is founded. A few instances will be sufficient to explain what I mean. A law that punishes a citizen for an innocent action, or in other words, which, when done, was in violation of no existing law; a law that destroys or impairs lawful private contracts; a law that makes a man a judge in his own case; or a law that takes property from A. and gives it to B.: it is against all reason and justice, for a people to intrust a legislature with such power; and therefore, it cannot be presumed that they have done it. The genius, the nature and the spirit of our state governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them: the legislature may enjoin, permit, forbid and punish; they may declare new crimes, and establish rules of conduct for all their citizens, in future cases; they may command what is right, and prohibit what is wrong; but they cannot change innocence into guilt, nor punish innocence as a crime; nor violate the right of an antecedent lawful private contract, or the right of private property.' In the case of Fletcher v. Peck , 6 Cranch 135, the court say, when, then, a law is in its nature a contract; when absolute rights have vested under that contract; a repeal of that law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted, whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized, without compensation. To the legislature, all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public, be in the nature of the legislative power, is well worthy of serious reflection. Regarding the practical operation and effect of the Warren bridge charter upon the rights and property of the plaintiffs, the case at bar comes clearly within the scope of the remarks cited from Dallas and Cranch. In point of fact, it takes the property of the plaintiffs, and gives it to the public. It is, in its operation, an act of confiscation. It violates all those distinctions of right and wrong, of justice and injustice, which lie at the foundation of all law, and of all government; and if men were to deal with each other as this act deals with the plaintiffs, the very frame-work of our civil polity would be broken down; all confidence would be destroyed; and all sense of security for the rights of persons and property would be lost. Again, the legislative power is restrained and limited by its own former grants. In Chitty's Prerogatives of the Crown, page 132, he says: 'It is a principle of law, that the king is bound by his own and his ancestors' grants; and cannot, therefore, by his mere prerogative, take away vested rights, immunities or privileges.' The same identical franchise which has been granted to one, cannot be granted to another. The grant of a franchise is as much a grant of property, as a grant of land; and if a grant of a franchise can be resumed or annulled, so can a grant of land. Both are portions of the public property; both vest in the grantees a property, a beneficial interest; and in both, the grant is a contract executed. Since this suit has been pending, a very important case has been decided in the supreme court of appeals in the state of Maryland. It is the case of the Canal Company v. Railroad Company , 4 Gill & Johns. 1. The canal company's was the prior grant. Surveys of the route for each of these great internal works had been made; and it was found, that they approached so near each other at a place called the Point of Rocks, that there was not room enough for both, between the rocks and the river. In making these surveys, the railroad company had preceded the other company; they had located their route; purchased and condemned the land necessary for their purpose; when their progress was arrested by an injunction, at the instance of the canal company, who found it to be impracticable to construct their canal by the side of the railroad. And the question was, which had the prior right; and the court, in a very elaborate opinion, decided it in favor of the prior grant. This case is before the court, and many of the points discussed and determined in the case, are among the important points to be decided in this. Within all these distinctions, there was, and always will be, ample room for the legislature to provide every convenience and accommodation that public exigencies may require. And this can be done, without resuming former grants, or taking private property without compensation. They might have seized the plaintiffs' franchise in the exercise of the eminent domain. All the property in the state, under whatever title it may be held, may be thus taken for public use, but upon the simple condition of making a reasonable compensation for it. The legislature, however, did not proceed, in the exercise of this high power, to provide for the public accommodation, but they took the property without paying for it. Or, they might have accepted the offer of the plaintiffs, as set forth in their memorial on the 20th page of the record. By a vote of the proprietors, the corporation offered, if the legislature would give them the necessary authority, to make the avenues to the bridge of any given width; to construct a circular draw, so that passengers should not be delayed, when vessels were passing through; to make the bridge itself as much wider as should be deemed convenient; to construct a spur bridge, and even to build a new bridge; thus submitting the whole matter to the judgment of the legisiature, and pledging themselves to do all and whatsoever they should authorize and direct them to do, in providing for the public accommodation. This offer was declined, and no reasons given; and it is admitted, that they were not absolutely bound to accept it, or to give reasons for their refusal; but it is certainly open to such inferences as the facts of the case will warrant. But it is repeated, again and again, that the legislature had found the fact, that the convenience of the public required another avenue from Charlestown to Boston. What then? Does the finding of this fact, justify any and all sorts of legislation? Is it any excuse or justification for the resumption of a franchise, for the annihilation of a vast amount of property without compensation? The fact may be made the basis of legislation, but affords no excuse for unjust or unconstitutional legislation. In the case of the Islington Market , before cited, the house of lords found the fact, that public convenience required an enlargement of the old market, or the establishment of a new one. A bill was pending for a new market, and the house of lords, instead of proceeding to pass the act, thought it proper to put a series of questions relating to the matter, to the nine judges; they inquired of the judges, what was the law; what they could do touching this market, consistently with the existing rights of others? The answers are given at large; and if the law, which is there declared to be the law of England, had been applied to the plaintiff's case, when the act establishing the Warren bridge was pending, it never would, and never could, have passed. But the legislature proceeded to authorize the bridge to be built, and granted a toll, out of which the whole expense was to be paid. Accordingly, the bridge was built, and paid for out of the tolls received. That being done, the functions of the legislature ceased. They had provided another avenue, and paid for it; and there their duty to the public ended. Was it a matter of common convenience, or of public necessity, that the government, after paying for the bridge out of the tolls, should put $20,000 a year into the public treasury, or which is the same thing, give it to the public? Is any man bold enough to vindicate the act upon this ground? With the same right, the government might have repealed the plaintiffs' charter, or passed an act requiring the tolls to be paid into the public treasury. The indirect way in which the franchise has been destroyed, does not alter the principle; for what cannot lawfully be done directly, cannot be done indirectly. The sole basis of the proceeding was, that public convenience required another bridge, and it was justified by its advocates, on this ground alone; the moment, therefore, that the government began to fill its coffers from the tolls, it lost its original character, and assumed a new one. It then became a matter of speculation and profit, and not of public convenience or necessity. After all, the government have entirely failed to accomplish their only lawful purpose, to wit, providing some further accommodation for the public travel; for there is, at this moment, but one travelled avenue between Boston and Charlestown. Since the Warren bridge was made free, all the travel is over that bridge; to which, if we now add the increase of travel for the last twelve years, and the amount drawn from the other bridges, it will be found, that the travel over this one bridge is nearly double what it ever was over Charles River bridge. Yet the inconveniences and dangers of passing over Charles River bridge, twelve years ago, were so great, that the legislature, out of tender regard for the safety of the people, granted another avenue. Now, though there is nearly twice as much travel over this new avenue, no inconvenience is experienced; and no complaint is made. The ground upon which the plaintiffs have always rested their cause, was this: that their rights and their duties were commensurate; they have always claimed an exclusive right between Charlestown and Boston; and they have always stood ready to fulfil all the obligations which that right imposed. Such is the law of England, with regard to these franchises, as it is clearly stated in the cases of Tripp v. Frank, Huzzey v. Field , already cited in relation to ferries; and the cases of Prince v. Lewis , 5 Barn. & Cres. 363, and Mosely v. Walker , 7 Ibid. 40, in relation to markets. The memorial of the plaintiffs is founded upon this reciprocity of rights and duties; and all the English cases go upon the principle, that the extent of the one, is the measure of the other. I do not go into any argument, to prove that the plaintiffs' charter is a contract; but merely refer the court to the following cases. Fletcher v. Peck , 6 Cranch 87; New Jersey v. Wilson , 7 Ibid. 164; Terrett v. Taylor , 9 Cranch 49; 4 Wheat. 516; 8 Ibid. 84; Ibid. 50. But it is said, that if the legislature of Massachusetts has taken private property for public use, without compensation, the remedy is in the courts of the state. It is possible, that the case here supposed, may happen; although it is not the case at bar. Whatever may be the abuses of legislative power; whatever injuries may be inflicted upon the rights of persons or of property; still, if the obligation of a contract is not impaired, or some one of the specific provisions of the constitution of the United States, imposing restraints and prohibitions upon the states, is not violated, this court has no jurisdiction. 2 Pet. 412-13. If property held under a grant from the state is taken, in the exercise of the eminent domain, provision for compensation is always made in the act: and in such cases, no questions can arise; as the property is taken by a paramount authority and paid for. But if property thus held, is taken, and no compensation is provided, it does give this court jurisdiction; because this grant is declared to be a contract executed; the rights of the grantor are said to be for ever extinguished, and a covenant implied, never to re-assert them. When, therefore, this property thus held, is resumed or destroyed by the grantor; the obligation of the contract is impaired, the implied covenant is broken, and the jurisdiction of this court attaches. Now, what is the aspect of the case at bar, in relation to this matter? What issues do the pleadings present for the decision of this court? The allegation in the plaintiffs bill is, that the act of 12th March 1828, is repugnant to the constitution of the United States; because it impairs the obligations of a contract. The defendants in their answer deny this; and thus the only issue is formed upon which this court can found a decree. The plaintiffs nowhere affirm, that private property has been taken for public use, by the state, in the exercise of the eminent domain; nor do the defendants allege it, nor do the court below; on the contrary, Chief Justice PARKER says, 7 Pick. 530, that there will be a decree against the plaintiffs, in order that they may avail themselves of the right secured to them by the constitution and laws, of a revision by the supreme court of the United States; where it is highly proper that this question, depending, as I think it does, mainly upon the constitution of the United States, should be ultimately decided.' The decree of the court below also asserts, that no private property has been taken for public use. It is also apparent, from the act itself, that the legislature did not intend to seize the franchise of the plaintiffs, by virtue of the eminent domain; for they made no provision, in the act, for compensation. Now, it is the settled law of Massachusetts, that in all cases where private property is taken for public use, provision for compensation must be made in the act itself. But in the case at bar, it appears, that the legislature carefully avoided the open and avowed intention of exerting this high power, confided to them by the constitution, by making provision for the compensation, only in cases where real estate should be taken. The constitution says, that where property is taken for public use, compensation shall be made; the legislature say, in this act, that where real estate is taken, compensation shall be made. Now, this franchise of the plaintiffs is not real estate, although it is property; and by this exclusion of the word property, it is most manifest, that the legislature did not intend, and did not, in fact, seize the franchise as private property, for public use. They proceeded on the ground of right to make the grant in question, without compensation; this right is denied, on the ground that it resumes or destroys a former grant, and thus impairs the obligation of a contract. This, then, presents the issue, and the only one of which this court has jurisdiction. It is admitted, that the right of eminent domain is an incident of sovereignty, and cannot be alienated. And it is also admitted, that all the property of the citizens of the state is liable to the exercise of this paramount authority. No matter by what title it is held, it is all alike subject to be taken for public use. The exercise of this power, however, is restricted by an express provision in the state constitution, that compensation shall be made. This fundamental law is inserted in the constitution of the United States, as well as in that of many of the states; and the following cases show how fully this principle has been recognised and acted upon, by the judicial tribunals of the country. 2 Dall. 304; 9 Cranch 43; 2 Pet. 655; 1 Kent's Com. 425; 2 Johns. Ch. 162; 12 Mass. 468; 7 Ibid. 395. The doctrine of consequential damages, sometimes referred to in the court below, can have no application to the case at bar; except on the ground that the grant of the Warren bridge does not impair the former grant; or if it does, that the plaintiffs are not entitled to compensation. In making the grant, it is assumed, that the legislature merely granted what was its own; and if the plaintiffs have suffered by the exercise of a lawful power, it is a case of damnum absque injuria , for which the law gives no remedy. This argument, as applied to the case in the court below, by a learned judge, assumes the whole matter in dispute, and need not, therefore, be further pursued; but I would merely ask, whether any case can be found, to which this doctrine has been applied in justification, in which the consequential injury has been not partial and incidential, but total. It has been often repeated, that the plaintiffs have received more than $1,000,000, in the course of about fifty years; and it is urged, that this is a sufficient consideration for building and maintaining the bridge; and that no injustice is done, by cutting off twenty years of the term. Even a learned judge in the court below, says, that the consideration should be in 'some measure adequate.' And is not a good, a valid, a meritorious consideration, in some measure adequate? Was it not, at the time of the contract, fully adequate? And can one of the parties rescind it now, because it has turned out to be more beneficial than was anticipated by either? I will not further trespass upon the patience of the court, by showing that an inquiry by a committee of the legislature, is not equivalent to a writ of ad quod damnum executed, which is a judicial process; because I have already shown, that, even such a process, in England, is not conclusive upon the rights of the parties. If, therefore, it were equivalent, it would settle nothing; but it has no resemblance to it, and is not worthy of further notice. Upon the validity of this act of the 12th of March 1828, this court have now to pronounce a final judgment, which must decide the title to a vast amount of property. This property has been held under a grant from the state, for nearly half a century; it has been bought and sold in open market, under the eye of the government; it has been taken in payment of debts and legacies; distributed in every form, in the settlement of estates, without notice, or even a suspicion, that the title was bad. It has been for many years, sought for as a safe and profitable investment, by guardians, trustees, charitable institutions, and such other persons as are obliged to intrust their property to the management of others, in whom they place confidence. And yet, these owners of this property, who have purchased, or taken it, at its market value, and who have not received more than the legal interest of their money, are represented as odious monopolists, exacting enormous profits upon a capital which has been repaid to them over and over again. The original stockholders are all dead; or, if any of them are still living, the property has long since passed out of their hands; but if they were now living, and holders of this property, they would not have gained more, nor so much, by their purchase, as those who bought real estate at that period, and kept it till the present time. At length, however, the grantor finds that these owners have no good title to this property; and without judicial process or inquiry, confiscates the whole to the use of the public. But the principles to be established by the judgment of the court, in this case, will decide the title to more than $10,000,000, in the state of Massachusetts alone. If that judgment shall decide, that the legislature of Massachusetts has the constitutional power to pass the act in question; what and where is the security for other corporate property? More than $4,000,000 have been invested in three rail-roads, leading from Boston, under charters granted by the legislature. The title to these franchises is no other, and no better, than that of the plaintiffs. The same means may be employed to accomplish the same ends; and who can say, that the same results will not follow? Popular prejudice may be again appealed to; and popular passions excited, by passionate declamations against tribute money, exclusive privileges, and odious monopolies; and these, under skilful management, may be combined, and brought to bear upon all chartered rights, with a resistless and crushing power. Are we to be told, that these dangers are imaginary? That all these interests may be safely confided to the equity and justice of the legislature? That a just and paternal regard for the rights of property, and the obligations of good faith, will always afford a reasonable protection against oppression or injustice? I answer all such fine sentiments, by holding up the charter of Charles River bridge; once worth half a million of dollars, and now not worth the parchment it is written upon. I have as much respect for, and confidence in, legislative bodies, as reason and experience will warrant; but I am taught by both, that they are not the safest guardians of private rights. I look to the law; to the administration of the law; and above all, to the supremacy of the law, as it resides in this court, for the protection of the rights of persons and property against all encroachment, by the inadvertent legislation of the states. So long as this court shall continue to exercise this most salutary and highest of all its functions, the whole legislation of the country will be kept within its constitutional sphere of action. The result will be general confidence and general security. I have thus attempted to satisfy the court, that by virtue of an assignment in equity, or a surrender at law, of an ancient ferry, and the act of 1785, incorporating the plaintiffs, a franchise or beneficial interest was, absolutely, and without condition or reservation, vested in them, for the time limited; and the franchise so vested is recognised as property, and protected as property, both by the law of England and of this country; that, in order to make this protection available, it must, of necessity, have some local extent, sufficient, at least, to keep down ruinous competition; or, in other words, that it must be exclusive between Charlestown and Boston. That the grants of 1785 and 1792, constituting the charter of the plaintiffs, being made on good, valid, adequate and meritorious considerations, are entitled to a liberal construction for the grantees; that these grants, according to the decisions of this court, constitute a contract; that the act of March 12th, 1828, establishing the Warren bridge corporation, impairs the obligation of this contract, by resuming this franchise, and divesting the plaintiffs of this property, without compensation: and that their only remedy is in this court, under the constitution of the United States. Greenleaf , for the defendants, argued-1st. That the present situation of the cause presented insuperable objections to any decree in favor of the plaintiffs. The Warren bridge, which is the subject of complaint, has now become the property of the commonwealth, by the terms of the original charter. The defendants were merely authorized to indemnify themselves, for the cost of the erection of the bridge, by collecting tolls, for a period not exceeding six years from the commencement. They were afterwards constituted the agents of the commonwealth, by special statues, to receive tolls for its use, two years longer; but those statutes having expired, the bridge has become free. The general objects of the plaintiffs' bill are, first, to obtain reimbursement of the tolls already diverted from their bridge, and received at the Warren bridge; and secondly, to prevent the use of the latter, as a public way. In the decision of this cause, this court will exercise no larger jurisdiction than was possessed by the supreme judicial court of Massachusetts; and will render no other decree than ought to have been rendered by that tribunal. It is well known, that the people of that state, in the grant of equity powers, have manifested great reluctance, and a decided preference for the common-law remedies; intending to preserve the jurisdiction of the common law, 'in all cases where that is capable of affording substantial and adequate relief.' 6 Pick. 397. Now, for the mere diversion of tolls, there is 'a plain, adequate and complete remedy at law,' by an action on the case; and therefore, by the rules which the courts of that state have prescribed to themselves, there is none in equity. The only ground on which this part of the claim could be sustained in equity, would be, by charging the defendants as trustees. But it has been held in Massachusetts, that the equity powers of the supreme judicial court extend only to cases expressly designated by statute (6 Pick. 395); and that no trusts were cognisable there, except those arising under deeds, and which are expressly declared in writing. Dwight v. Pomeroy , 17 Mass. 327; Safford v. Rantoul , 12 Pick. 233; Given v. Simpson , 5 Greenl. 303. The only ground, therefore, on which the court can deal with the tolls, is, that having possession of the bill for the purpose of injunction, it may extend its decree over all the incidental equities of the cause. But this court can make no decree which can relieve the complainants, because there are no parties before it capable of obeying an injunction. The bridge having become the property of the state, these defendants have neither right nor power to prevent the use of it as a way. The commonwealth is the only party whose rights are to be affected by whatever decree may be made in regard to the bridge; and no injunction can be issued against one not party to the suit. Fellows v. Fellows , 4 Johns. Ch. 25. The general doctrine of equity is, that all who are necessary to the relief, or are materially interested in the subject-matter, must be joined. Sangosa v. East India Company , 2 Eq. Cas. Abr. 170; Davoue v. Fanning , 4 Johns. Ch. 109; 2 Madd. Ch. 179. It is true, that the interest of other persons, not parties, is no valid objection, where the court can make a decree, as between those already before it, without affecting the rights of those who are not called in. Mallow v. Hinde , 12 Wheat. 193; Ward v. Arredondo , 1 Paine 410. It is also true, that if the absent parties in interest are without the jurisdiction of the court, it will, in some cases, in its discretion, proceed without them; provided their rights are separable from those of the defendants, and will not be irrevocably concluded by the decree. West v. Randall , 2 Mason 190, 196. But if the rights of such absent parties are inseparably connected with those of the parties present, no decree will be made till they are called in. Mitford's Pl. 133, 146; Wiser v. Blachly , 1 Johns. Ch. 437. And this court has declared, that it will not make a final decree upon the merits of a case, unless all the persons, whose interests are essentially affected, are made parties to the suit; though some of those persons are not within the jurisdiction of the court. Russell v. Clarke , 7 Cranch 69, 98. The fact that the absent party in interest is a sovereign state, makes no difference. The language of the court in Osborn v. United States Bank , 9 Wheat. 738, does not apply to a case like the present; but only to that of a public officer who has collected money for the state, which he still holds, and has been notified not to pay over; the constitutionality of the exaction being denied. But however that doctrine might apply to the tolls received, if that subject were cognisable in equity by the supreme judicial court of Massachusetts; it cannot apply to the bridge itself, which is real property, not belonging in equity to these plaintiffs; and is, in no sense, in the hands of the defendants. To retain jurisdiction here, is to sue the state, and virtually to effect a judicial repeal of the constitutional provision on this subject. The court, by its decree, can only affect so much of the bridge as constitutes the nuisance complained of; and this is, not the existence of the bridge, in its present position, but the use of it as a way. Such a decree these defendants cannot execute; and it, therefore, can afford the plaintiffs no relief. 2. The ferry, of which the plaintiffs claim to be assignees, extended no farther than the landing places, and was subject to the control of the state. The policy of Massachusetts, from its first settlement, has been, to retain all ferries within its own control; the ferryman having nothing but a license to take tolls, during the public will. The well-known principles and sentiments of the pilgrims, were strongly opposed to everything in the shape of monopoly. Hence, as early as 1635, after a ferry had been set up by Brown, between Boston and Charlestown, another ferry, as it is termed, but between the same landing places, was ordered to be set up, to be kept by a person, resident in Boston; clearly showing, that in the estimation of the general court, the existing ferryman had no exclusive rights there. In 1641, the limits of all ferries were expressly defined by statute, as extending from the place where the ferry was granted, 'to any other ferry-place, where ferry-boats use to land;' and in the same year, an act was passed, in the nature of a constitutional declaration, that no monopolies should be granted or allowed in in the colony. With this declaration before them, and with such principles in view, the legislature, in 1650, confirmed the ferry-rent to the college; meaning not to repeal the acts of 1641, but to permit the college to receive such tolls as might be collected at the ferry, subject to any further order of the legislature. On the same principles, successive statutes were passed, in 6 Wm. & M.; 8 Wm. III.; 4 Geo. I.; 13 Geo. I.; and 33 Geo. II.; regulating this and other ferries; and authorizing the court of sessions to set up ferries, in any place whatever, at its discretion. If, then, it be true, that the history and situation of a state may be resorted to, in order to expound its legislative intentions, as was said in Preston v. Browder , 1 Wheat. 115; and that charters are to be expounded, as the law was understood, when the charters were granted (2 Inst. 282); it was never the intention of the legislature, in permitting this ferry to be set up, to grant anything more, than the right to run boats from one landing to the other, during its pleasure, and subject to its control. The ferry-right was co-extensive only with the obligations of the boatmen; who were bound, merely to convey from one landing to the other. In the exercise of this right of the state, it has granted toll bridges, at pleasure, in the place of nearly, or quite, every ancient ferry in the commonwealth; to the utter annihilation of the ferry, and without indemnity to the ferrymen. No claim has ever been set up, except by these plaintiffs, adverse to the public right. The argument, that the ferry franchise extends so far as to put down all injurious competition, is erroneously applied in this case; as it supposes the opening of a new avenue, by the state, to be a mere private competition. The authorities on this subject apply only to a private ferry, set up without license. Yard v. Ford , 2 Saund. 172; Ogden v. Gibbons , 4 Johns. Ch. 160; Stark v. McGowen , 1 Nott & McCord 387; Newburg Turnpike Co. v. Miller , 5 Johns. Ch. 101; Blissett v. Hart , Willes 508. In the present case, the public not being accommodated, the legislature has merely done its duty in providing for the public convenience, which the plaintiffs had not the legal power to do. Mosley v. Walker , 7 Barn. & Cres. 40, 55; Macclesfield v. Pedley , 4 Barn. & Ad. 397. 3. But whatever may have been the extent of the ferry, it never passed to the plaintiffs, but was taken by the state, for public use; and was thereby extinguished, in the paramount rights of the sovereign power, by which it was resumed. 17 Vin. Abr. 83, Prerog. I. b; 4 Ibid. 163; Prerog. X. c. 5; King v. Capper , 5 Price 217; Atty. Gen. v. Marquis of Devonshire , Ibid. 269. The documents in the case negative the idea that the transaction of 1785 amounted to a purchase of the franchise from the college; the object of the tolls being declared to be not only an indemnity to the plaintiffs, but for a revenue to the college. It is no purchase from the college, because the legal evidence, a deed, is wanting. Rex v. North Duffield , 3 M. & S. 247; Peter v. Kendall , 6 Barn. & Cres. 703. 4. Neither the grant of the ferry, whatever it was, nor the plaintiffs' charter, contained anything exclusive of the public right to open a new avenue in the neighborhood of Charles River bridge; for in a public grant, nothing passes by implication. The right thus said to be parted with, is one which is essential to the security and well-being of society; intrusted to the legislature for purposes of government and general good; and such rights are never presumed to be conveyed or restricted. Nothing passes by a charter or legislative grant, except well-known and essential corporate powers, where a corporation is created; unless it is contained in express words. Rex v. Abbott of Reading , 39 Edw. III. 21; 17 Vin. Abr. 136, Prerog. E. c. 5; 8 Hen. IV. 2; Ford & Sheldon's Case , 12 Co. 2; Chancellor, &c. of Cambridge v. Walgrave , Hob. 126; Stanhop v. Bp. of Lincoln , Ibid. 243; Case of Mines , 1 Plowd. 310, 336-7; Case of the Royal Fishery of the Banne , Dav. 149, 157; Case of Customs , Ibid. 45; Atty-Gen. v. Farmen , 2 Lev. 171; Finch's Law 100; Blankley v. Winstanley , 3 T. R. 279; King v. Capper , 5 Price 258; Ibid. 269; Parmeter v. Gibbs , 10 Ibid. 456-7; Stourbridge Canal v. Wheeley , 2 B. & Ad. 792; Leeds & Liverpool Canal v. Hustler , 1 B. & Cres. 424; Dock Co. v. La Marche , 8 Ibid. 42; The Elsebe , 5 Rob. 155, 163; The Joseph , 1 Gallis. 555; Jackson v. Reeves , 3 Caines 303, 306; McMullen v. Charleston , 1 Bay 46-7; Zylstra v. Charleston , Ibid. 382; 2 Cranch 167; Wilkinson v. Leland , 2 Pet. 657; Lansing v. Smith , 4 Wend. 9. The cases where the king's grant has received a construction like a private grant, are all cases of grants of his private property; and not of things held as sovereign, in right of his crown. Upon this ground, the plaintiffs' charter gave them a franchise co-extensive with the bridge itself; it authorized them to erect a bridge, and to take tolls of such persons as might pass over it; but nothing more. 5. If a contract to that effect should be implied, it would be void for want of authority in the legislature to make such a surrender of the right of eminent domain. Every act of a public functionary is merely an exercise of delegated power, intrusted to him by the people, for a specific purpose. The limits of the power delegated to the legislature, are to be sought, not only in the constitution, but in the nature and ends of the power itself, and in the objects of government and civil society. 6 Cranch 135; 3 Dall. 387-8; 1 Bay 62. And the acts of legislators are the acts of the people, only while within the powers conferred upon them. 6 Cranch 133. Among the powers of government, which are essential to the constitution and well-being of civil society, are not only the power of taxation, and of providing for the common defence, but that of providing safe and convenient ways for the public necessity and convenience, and the right of taking private property for public use. All these are essential attributes of sovereignty, without which no community can well exist; and the same necessity requires, that they should always continue unimpaired. They are intrusted to the legislature, to be exercised, not bartered away; and it is indispensable, that each legislature should assemble, with the same measure of sovereign power, that was held by its predecessors. In regard to public property, the power of the legislature to alienate it, is conceded. The limitation now contended for, extends only to those sovereign powers which are deemed essential to the constitution of society. In regard to these, any act of the legislature, disabling itself from the future exercise of its trust for the public good, must be void; being, in substance, a covenant to desert its paramount duty to the people. Such, it is apprehended, would be a covenant not to erect a fortress on a particular tract of land sold; or not to provide ways for the public travel, however great the necessity, either in a particular place, or for a specified time. It is not necessary, that such exclusive contracts be made, in order to induce men to adventure in a new and hazardous undertaking for the public good; for, upon the positive assurance of remuneration, in some other form, capital and enterprise can always be commanded. The true distinction between those acts of future legislatures which may, and those which may not, be restrained, is conceived to lie, not in the kind particular spot, is a covenant in restraint of special legislation; yet it would manifestly be void. And by a similar enumeration and description of particular places, the right to provide railroads, bridges and canals, in every part of the state, might be alienated to individuals. The example of land exempted from taxation is not to the purpose; such exemption is presumed to be purchased by the payment of a sum in gross, instead of an annual tax, which all are bound to pay. The owner of the land does not buy up a portion of the sovereign power; he only pays off, at once, a debt which was due by instalments. Other examples are given, in the agreement not to charter another bank, and the like. But these contracts do not abridge any powers essential to civil society. The state must be governed and defended; and the people must have facilities for common travel; and to these necessities, the power of each legislature must be adequate. But the existence of a bank is not of similar necessity; it stands wholly upon considerations of policy and convenience. The existence of some limit to the exercise of powers thus delegated in trust, and their inalienable nature, is no new doctrine; but is familiar to public jurists. Domat, Pub. Law, book 1, tit, 6, § 1, par. 12, 14, 16; Puffend. de Jure Nat. et Gent. , lib. 8, cap. 5, § 7; 17 Vin. Abr. Prerog. M. b. pl. 20; Chitty on Prerog. 385; Atty-Gen. v. Burridge , 10 Price 350. The same doctrine has been recognised here, in the case of political corporations. Presbyterian Church v. City of New York , 5 Cow. 538; Goszler v. Georgetown , 6 Wheat. 593; Auburn Academy v. Strong , 1 Hopk. Ch. 278. 6. The grant of the charter of Warren bridge is no breach of any contract with the plaintiffs, they having originally accepted their charter, subject to the paramount right of eminent domain; and having, also, in 1792, accepted its extension, with a distinct submission and assent to an express assertion, on the part of the state, of a right to make new grants, at its discretion. All property held by individuals, is charged with the jus publicum , which belongs to all men. Hale, de Port. Mar. cap. 6; 10 Price 460. One branch of this jus publicum is the right of way, to be designated by the legislature. This is said to be one of the principal things which ought to employ the attention of government, to promote the public welfare and the interests of trade; and that nothing ought to be neglected to render them safe and commodious. Vatt. b. 1, ch. 9, § 101, 103; Domat, b. 1, tit. 8, § 1, 2. The power to do this, is as much inherent and inalienable, as the right of taxation; which, it is said, resides in the government, and need not be reserved expressly, in any grant of property or franchises, to individuals or corporations. Providence Bank v. Billings , 4 Pet. 560, 561, 563. Ferries, turnpikes, railroads, toll bridges and common roads, are equally public ways; differing only in the manner of their creation. Each act of location is an exercise of sovereign power; and the easement thus acquired is paid for by the people; either directly, from the public chest, or indirectly, by tolls. But the laying out of a common road has never been supposed to violate the charter of a neighboring turnpike, however it may impair its tolls; nor has the establishment of one kind of public road, whether by charter or otherwise, ever been considered as an injury, in legal contemplation, to another of a different kind. And if not to another of a different kind, why should it be to another of the same kind? If a turnpike may be rendered useless by a railroad, or a common highway, why not by another turnpike? Beekman v. Saratoga Railroad Co. , 3 Paige 45; Irvin v. Turnpike Co. , 2 P. & W. 466; Green v. Biddle , 8 Wheat. 88-9. This court has never gone so far as to hold the statute of a state void, as violating its implied contract; the cases to this point are all ones of express contract. Vanhorne v. Dorrance , 2 Dall. 320; Fletcher v. Peck , 6 Cranch 87; New Jersey v. Wilson , 7 Ibid. 164; Terrett v. Taylor , 9 Ibid. 43; Dartmouth College v. Woodward , 4 Wheat. 518; Green v. Biddle , 8 Ibid. 1. On the contrary, this court has refused to imply a contract, in a case similar in principle to the present; and has declared, that where there is no express contract, the remedy of the party was in the wisdom and justice of the legislature. Jackson v. Lamphire , 3 Pet. 289; Providence Bank v. Billings , 4 Ibid. 563; United States v. Arredondo , 6 Ibid. 729. But this point stands not on general reasoning alone. By stat. 33 Geo. II, the courts of sessions in Massachusetts were expressly authorized to establish ferries, in all places, at their discretion. This is a clear assertion of the public right to make new avenues, by water, wherever public convenience may require; and the statute was in full force in 1785, when the plaintiffs received their charter, and is to be taken into the elements of its exposition. It continued in force, in 1792, when West Boston bridge was chartered; and the same provision was revised and re-enacted in 1797, and continued in force, in 1828, when the charter of Warren bridge was granted. If, then, it was lawful to establish one kind of public avenue, by the side of the plaintiffs' bridge; it was equally lawful to establish any and every kind. If any doubts could arise on this point, it is made clear, by reference to the transactions of 1792. The plaintiffs, at that time, remonstrated against the grant of the charter of West Boston bridge, on the ground of their exclusive right; first, as purchasers of the ferry; and secondly, by their charter of 1785. The whole subject was referred to a committee of the legislature, before whom all parties were fully heard. The great question was, whether the legislature had a right, at its discretion, to make new avenues over Charles river to Boston; and whether the plaintiffs' charter gave them any exclusive privileges. The committee reported strongly in favor of the right of the state, and against the existence of any exclusive right in the plaintiffs; but recommended an extension of the term of continuance of the plaintiffs' charter, on grounds of public expediency, as a mere gratuity; and it was done. The extension of the charter, together with this contemporaneous exposition, the plaintiffs accepted in the same year; and again in 1802, without protest or objection. It is absurd, to suppose, that the legislature intended to grant exclusive privileges, in the same breath in which their existence was denied. The general principle that the legislative history of the passage of a statute furnishes no rule for its exposition, is admitted. But it applies only to the exposition of statutes as such. Private statutes, regarded as contracts, are to be expounded as contracts; in which all the res gestae , or surrounding circumstances, are to be regarded. The report of the committee, therefore, was a contemporary document between the same parties, relating to the same subject-matter; and in a case between private persons, it would be received, in equity, either to interpret or reform the agreement. If the acts of parties expound their intentions, much more a solemn transaction like this. ( Blankley v. Winstanley , 3 T. R. 279; Gape v. Handley , Ibid. 288 note; Hunter v. 15 East 100; Saville v. Robertson , 4 T. R. 720.) Cooke v. Booth , Cowp. 819, asserts the same doctrine, though its application to express covenants has been denied. The charter, extended on these principles, and coupled with such declarations, was accepted by the plaintiffs, in 1802, unconditionally, and without objection. On the application for Canal bridge, in 1807, the plaintiffs again opposed the grant, and were again heard; and the state again denied their exclusive right, and asserted its own, to open avenues at its discretion. And the plaintiffs again, in 1826, in a more solemn manner, accepted the renewed charter; without any denial of the right asserted by the state. It is objected, that the state, by an act which annihilates the plaintiffs' tolls, has virtually resumed its own grant. To this it is replied, that the principle which forbids the resumption of one's own grant, does not apply to the exercise of the eminent domain. Thus, a turnpike road may be appropriated, to make a canal. Rogers v. Bradshaw , 20 Johns. 735. It is further objected, that though the original outlays may have been reimbursed, with interest, from the tolls; yet that the act of 1828 has ruined the property of subsequent innocent stockholders, who have made their investments at a high price. But all such are purchasers with notice. The statute of 33 Geo. II., was fair notice, beforehand, of the public right to open new avenues, over waters, at discretion. This right, in regard to bridges over Charles river, was expressly asserted in 1792; it was acted upon in the subsequent grant of the Middlesex canal; it was again expressly asserted in 1807, upon the granting of the charter of the canal bridge; and was more recently acted upon in the charter of the Lowell railroad. 7. If the plaintiffs have sustained any damages, not anticipated, nor provided for, they are merely consequential, for which no remedy lies against these defendants; nor is it a case for the interference of this court; but it is only a ground of application to the commonwealth of Massachusetts. That the defendants were mere public agents, in the erection of Warren bridge, was conceded in the argument of this cause, in 6 Pick. 388. And it is equally clear, that the remedy, at common law, for the damages of which the plaintiffs complain, if the act of the defendants were unjustifiable, must have been by an action on the case, and not in trespass. For the gravamen is, not that their property has been directly invaded; but that an act has been done, in another place, in consequence of which the income of that property is reduced; their damages, therefore, are strictly consequential. In regard to such damages, the constitution of Massachusetts, art. 10, has already received an authoritative exposition, in Callender v. Marsh , 1 Pick. 418, deciding, that to those damages, it does not apply. So, in Pennsylvania, Shrunk v. Schuylkill Navigation Company , 14 Serg. & Rawle 71, 83; and in New York, Varick v. New York , 4 Johns. 53. Statutes enabling agents to effect a great and beneficial public object, ought to be benignly and liberally expounded, in favor of those agents. Jerome v. Ross , 7 Johns. Ch. 328. And they, therefore, are held not liable for any consequential damages, resulting from acts done under and within the terms of a statute. Spring v. Russell , 7 Greenl. 273; Custis v. Lane , 3 Munf. 579; Lindsay v. Charleston , 1 Bay 252; Stevens v. Middlesex Canal , 12 Mass. 468; Rogers v. Bradshaw , 20 Johns. 744-5; British Cast Plate Manufacturers v. Meredith , 4 T. R. 794; Sutton v. Clarke , 1 Marsh. 429; S. P. 6 Taunt. 29; 6 Pick. 406. It is only when agents exceed the powers conferred on them by the act, that they become trespassers. Belknap v. Belknap , 2 Johns. Ch. 463; Shand v. Henderson , 2 Dow P. C. 519. If the property is taken for public use, the state is bound to make compensation, and trespass does not lie. If it is consequentially impaired in value, by the prosecution of public works, it is damnum absque injuria , at law; and addresses itself only to the consideration of the legislature. If here is no violation of contract, the question whether a state law violates a state constitution, is not to be raised in this court. Jackson v. Lamphire , 3 Pet. 289. There are cases, in which it has been gratuitously thrown out, that the constitutional right to trial by jury extends to cases of property taken for public uses. Perry v. Wilson , 7 Mass. 393; Callender v. Marsh , 1 Pick. 418; Vanhorne v. Dorrance , 2 Dall. 304. But each of these cases stood on other grounds; and in neither of them, was this the point necessarily in judgment. In other cases, it has been held, that this constitutional right applies only to issues of fact, in the ordinary course of civil and criminal proceedings. Livingston v. New York , 8 Wend. 85; Beekman v. Saratoga and Schenectady Railroad Company , 3 Paige 45. No state has gone so far as to hold, that the money must be paid, before the title of the owner is divested. On the contrary, in Massachusetts, in the location of roads, the title of the owner is divested, as soon as the return is accepted; though the amount of compensation may be litigated for years. In Kentucky, in certain cases, a private bond is held sufficient to effect a similar purpose ( Jackson v. Winn , 4 Litt. 327); and in Pennsylvania, it is effected by the mere giving of a right of action; whether against the state ( Evans v. Commonwealth , 2 Serg. & Rawle 441; Commonwealth v. Shepard , 3 P. & W. 509); or against a private corporation. Bertsch v. Lehigh Coal and Navigation Company , 4 Rawle 130. Now, the faith of the state, pledged expressly in its constitution, is at least as valuable as any right of action, whether against an individual, or the state itself; and ought to be equally effectual to divest the title of the owner. The general principle of public law is, that any private property may be taken for public use, or may be destroyed, or private rights sacrificed, whenever the public good requires it. This eminent domain extends over all the acquisitions of the citizen, and even to his contracts and rights of action. Grotius, de Jure Belli, &c. , lib. 2, c. 14, § 7; and lib. 3, c. 19, §§ 7, 14, 15; and c. 20, § 7; Vatt. b. 1, c. 20, § 244; Puffend. de Jure Nat. &c. , lib. 8, c. 5, § 7; Bynkershoeck, Quaest. lib. 2, c. 15, ¶2, 3, 6, 10; 3 Dall. 245. All these writers agree, that compensation ought to be made; but no one has intimated that the taking is not lawful, unless the compensation is simultaneously and especially made or provided for. On the contrary, they all suppose, that the property is first taken, and afterwards paid for, when, and as soon as, the public convenience will permit; and this, without regard to the urgency of the cause for which it was taken; nor, whether in war or peace. It is obvious, that in a large proportion of the public exigencies, the compensation must necessarily be provided for, after the property is taken. Commonwealth v. Fisher , 1 P. & W. 465. Our constitutional provisions on this subject, seem nothing more than express recognition of the right to compensation; and were probably inserted, in consequence of the arbitrary impressments of property, made during the war of the revolution. 1 Tucker's Bl. Com. part 1, app'x, 305. The passage in 1 Bl. Com. 138-9, amounts only to this, that the legislature obliges the party to sell, and fixes the price. 4 T.R. 797. But the constitution applies to property directly taken, and not to cases where its value is only consequentially impaired; and so it has been expounded by Massachusetts, in her general road laws, and in all her charters for public ways, whether bridges, roads or canals. The residue of the subject of eminent domain, not having been touched by the constitution, remains among the great principles of public law, having an imperative force on the honor and conscience of the sovereign; and the objection is not to be tolerated, in a court of law, that a sovereign state, in the exercise of this power, will not do what justice and equity may acquire. Tippets v. Walker , 4 Mass. 597; Commonwealth v. Andre , 3 Pick. 224; 2 Dall. 445. If Massachusetts has taken the property of the plaintiffs for public use, her honor is solemnly pledged, in her constitution, to make adequate compensation. If their rights have been sacrificed, for higher public good, the laws of nations equally bind her to restitution. From these obligations she could not seek to escape, without forfeiting her caste , in this great family of nations. Her conduct in this matter has been uniformly dignified and just. The plaintiffs have never yet met her, except in the attitude of stern and uncompromising defiance. She will listen with great respect, to the opinion and advice of this honorable court; and if her sovereign rights were to be submitted to arbitration, there is, doubtless, no tribunal to whose hands she would more readily confide them. If she has violated any contract with the plaintiffs, let them have ample reparation by a decree. But if not, and they are merely sufferers by the ordinary vicissitudes of human affairs, or by the legitimate exercise of her eminent domain, let it be presumed here, that a sovereign state is capable of a just regard to its own honor, and that it will pursue, towards its own citizens, an enlightened and liberal policy. Let it not be said, that in the American tribunals, the presumption and intendment of law is, that a state will not redeem its pledges, any further than it is compelled by judicial coercion; that it is incapable of discerning its true interests, or of feeling the force of purely equitable considerations; and that its most solemn engagements are worth little more than the parchment on which they are written. Let such a principle be announced from this place, and it is easy to foresee its demoralizing effects on our own community. But proclaim it to Europe, and we shall hear its reverberations, in tones louder than the thundering echoes of this capitol; with the bitter taunt, that while the unit monarch of the old world, is the dignified representative of national honor, the monarch multitude of the new, is but the very incarnation of perfidy. Davis , also of counsel for the defendants.-I approach this case with unaffected diffidence and distrust of my capacity to aid my employers, or enlighten the court. It has been long pending; has excited great interest; has drawn to its investigation, the intellect and learning of many distinguished men and eminent jurists. The whole ground has been so thoroughly explored, that little is left untouched which is worthy of examination, or can excite curiosity. If others had not exhausted the subject, my worthy and learned associate has brought such untiring industry into the case, that nothing remains to me, but a method of my own, less perfect than his; and a mere revision of the subject under this arrangement. Both parties are corporations; both created by the state legislature; both claim rights across a navigable river; both, therefore, claim something from the eminent domain of the state. The plaintiffs claim to be first in time, and for that reason, to override the defendants' title. They assert an exclusive right over the river; which greatly affects the public, as well as the defendants. The question to be decided is, therefore, one of grave moment; because it involves great interests and rights in Massachusetts, and possibly, principles which may affect the prosperity and convenience of other densely populated communities. The value of property on the part of the plaintiffs has been stated, here, to be $500,000. Their bridge, costing originally about $46,000, has grown into this importance, from the large annual income, having yielded to the proprietors, as the plaintiffs state, over $1,200,000; and advanced from 100 l. a share, to $2000. The question in one form is, has the commonwealth so parted with its sovereign right over this river, and vested it in the plaintiffs, that they shall continue these exactions, and the public be without further accommodation, whatever may be the inconveniences, until their charter expires; and for ever after, if the plaintiffs have the right to the ferry, as they contend; for upon their view of the case, the ferry will revert to the college, and the tolls be continued, after the charter of the bridge company expires. If the people of the commonwealth have thus parted with their sovereign rights to corporators, and are thus tied down, so that new ways cannot be opened for their accommodation, it is matter of profound regret. The learned counsel for the plaintiffs, in opening the case, seemed studious to have it understood by the court, that the actual parties in interest, are the plaintiffs and the commonwealth; and I have no objection to this view of the case; for the public interest, I agree, far transcends in importance the property involved. The public, therefore, may be said to stand on one side, and the plaintiffs on the other. On one side, then, are the rights to private property, sacred and inviolable, so far as they can be established; but claimed in the form of a burdensome tax on the public, and therefore, entitled to no favor beyond strict right. On the other, stands the public, complaining that they are the tributaries to this great stock of private wealth, and subjected to inconveniences still more burdensome, from the want of suitable accommodations for intercommunication across the river, if this bridge is to be shut up; and denying that such claims of exclusive right can be justly or lawfully set up by the plaintiffs. This public, in the argument, has been represented as devoid of natural justice, selfish, avaricious, tyranical. Some things are certain, in this conflict of opinion. We all know that the sole control and power over this navigable water, was once in the public. It was theirs, and how far have they been divested of it? If it has gone out of the public, and is in the plaintiffs; they must show to what extent, and show it clearly; for such rights, as I shall prove, do not pass by presumption, but upon some decided expression of public assent. The loss of tolls, which has been earnestly dwelt upon, has no tendency to prove it. The great increased value of the bridge, has no tendency to prove it. The severe hardship, which has been a prominent feature of the argument, does not prove it. All these matters are by no means inconsistent with the right to establish other ways across the river; and therefore, only prove that the plaintiffs are making less money, not that their rights are invaded. I will then examine their allegations in the bill, and the arguments by which they claim to establish their conclusions. I. They set up an exclusive right to the travel between Boston and Charlestown, come from where it may. 2. They aver, that the act of 1828, under which the defendants claim, is incompatible with, and repugnant to, their vested rights, and doth impair the obligations of contract; and is, therefore, void, by the constitution of the United States. 3. They aver that the legislature is restrained from revoking or annulling its own grant, or divesting title, except where it takes property for public use; and then it can only do it under the provisions of the bill of rights of the commonwealth, which requires, that compensation shall be made in such cases; and they further aver, that their property is taken, and no provision for compensation is made, and therefore, the act of 1828 is void. The case has been chiefly argued under the second and third heads. The first raises a question under the constitution of the United States. That instrument provides in the fifth amended article, that no state shall pass a law impairing the obligation of contracts. The plaintiffs call the act of 1785, under which they claim, a contract; and argue, that the act of 1828 impairs their grant, and as it is done by legislation of the state, the act of 1828 is void. The second raises a question under the tenth article of the bill of rights of Massachusetts; a question very proper for the courts of Massachusetts; but as I shall contend, not brought here by this writ of error; but finally settled there, and beyond the reach of this jurisdiction, as the bill of rights does not, and cannot, constitute any part of the act of 1785, and therefore, is no part of the supposed contract. These two issues do not entirely harmonize in another respect. One denies absolutely the right to take for public use, the property of the plaintiffs, because the state cannot, even in the exercise of its eminent domain, divest this right of property. The other admits the right to take for public use, by making compensation. I shall examine both, and the arguments urged in support of them. To make out these issues, they contend: 1. That they are the grantees of the college, in and to the ferry between. Boston and Charlestown. 2. That the state authorized the erection of their bridge, by the act of 1785; in which there is an implied covenant not to divert the travel, by new ways. 3. That these two titles vest in them a control over Charles river, to exclude injurious competition, which right they hold to be irrevocable; but if revocable, then the act which authorizes the interference must provide compensation for all loss occasioned by the diversion of travel. In examining these positions, I shall-1. Deny that they are the grantees of the college, or have any interest in the ferry. 2. I shall deny that they have any covenant or engagement, express or implied, by the act of 1785, authorizing them to claim damages for a diversion of travel by a new and authorized way; and shall also attempt to prove that no legislative body can perpetually alienate its sovereignty in regard to making ways for the public convenience; so that a new way may not, at any time, when the public exigency demands it, be laid over any property whatever, whether belonging to individuals, or to corporations created by legislative acts, and whether it be real estate or a franchise, unless the state has agreed, in express terms, to exempt such property. 3. I shall maintain, that the power to provide ways for the public, resides, of necessity, always, in the commonwealth; is part of the sovereignty; and all property is held subject to the exercise of that right; which is a condition annexed to all title to property, whether derived from the state, or from individuals. 4. I shall maintain, that taking property in pursuance of this sovereign right, is not, in itself, an act impairing the obligation of contracts, but consistent with it; for the property is held subject to this right; and all the party can demand, is compensation, under the bill of rights. 5. I shall maintain, that this court has no jurisdiction over the question of compensation for property taken for a way; unless the party can show that he holds it under the state, and the state has expressly agreed not to take it for that purpose, without providing compensation; for in all other cases, the party relies on our bill of rights, and this court is not the tribunal to expound that instrument. In maintaining these positions, I am constrained to examine most of the grounds assumed in the very elaborate argument of the opening counsel; though I have a conviction which I cannot surrender, that all this labor upon the ferry will be a useless effort, for the plaintiffs can never succeed in establishing any kind of equitable or legal claim to it. Following, however, the order designated, I will first look to this ferry, and inquire-1. What rights belonged to the ferry? 2. Are these rights vested in the plaintiffs? 3. If they are, do they tend to establish the claim now set up over the waters of the river? This ferry lies in grant, and we must go to the ancient colonial ordinances, to ascertain its extent, and the probable meaning and intent of the colonial government, which is to be gathered from them. They are as follows:-- Orders relating to Charlestown ferry, extracted out of the old book in the council chamber, Anno 1630. It is further ordered, that whosoever shall first give in his name to Mr. Gouvernour, that he will undertake to set up a ferry between Boston and Charlestown, and shall begin the same, at such time as Mr. Gouvernour shall appoint, shall have one penny for each person, and one penny for every hundred weight of goods he shall so transport. Page 65. 1631. Edward Converse hath undertaken to set up a ferry betwixt Boston and Charlestown, for which he is to have two pence for every single person, and one penny a piece, if there be two or more. Page 80. 1633. Mr. Richard Brown is allowed by the court to keep a ferry over Charles river, against his house, and is to have two pence for every single person he so transports, and one penny a piece, if there be two or more. Page 105. 1635. It is ordered, that there shall be a ferry set up on Boston side, by Windmill Hill, to transport men to Charlestown and Winnesimet, upon the same rates that the ferry-men at Charlestown and Winnesimet transport men to Boston. Page 150. 1637. The ferry between Boston and Charlestown is referred to the governor and treasurer, to let, at forty pounds per annum, beginning the first of the tenth month, and from thence for three years. Page 204. 1638. Edward Converse appearing, was admonished to be more careful of the ferry, and enjoined to man two boats, one to be on the one side, and the other on the other side, except the wind were so high that they were forced to put four men to man one boat, and then one boat to serve, only he is enjoined to pay Mr. Rawson's fine, and so is discharged. Page 223. 1640. Mr. Treasurer, Mr. Samuel Shepherd and Lieut. Sprague have power to let the ferry between Boston and Charlestown, to whom they see cause, when the time of Edward Converse is expired, at their discretion. Page 276. 1640. The ferry between Boston and Charlestown is granted to the college. Page 288. Such are the principal acts or ordinances of the court of assistants, and the general court, in regard to this ferry; and I shall ask the court to gather the intent of these public functionaries from this record, and the contemporaneous history. In 1630, the colony, under the distinguished, and I may say, illustrious, John Winthrop, governor, came over; and not being satisfied with Salem, where their predecessors had located, they came up to the head of the bay, or to what is now the harbor of Boston. Here they found the peninsula of Charlestown, formed by Charles river on the west and south-west, and Mystic river on the north-east, projecting into the harbor from the northwest to the south-east; and the peninsula of Boston projecting towards it from the south-west to the north-east, and formed by Charles river on the north and west; which spreads above the point into a large basin, discharging itself between these peninsulas and the bay or harbor of Boston, on the other side. Winthrop, with his friends, occupied these two peninsulas; and in Boston, was established under him, the colonial government of the company, which, in truth, was only a company of adventurers in trade and speculation, so far as the charter went. Out of this humble beginning, has sprung the commonwealth, and, I might almost say, this federal government itself. Thus situated, intercommunication between these two places was indispensable; and hence it is, that while the smokes of only a few log cabins ascended from the spot where a great city and a large town have since risen up, the subject of a ferry came thus early under consideration. And in giving construction to these simple ordinances, it is a fair inquiry, whether the colonists were providing for present emergencies-means suitably adapted to that end; or were, as the plaintiffs, contend, making a perpetual exclusive grant of the right of travel over Charles river, for all time to come. The first act, in 1630, makes no grant to any one, but proposes to have a ferry 'set up.' In 1631, a ferry was set up by Edward Converse, and the toll established. In 1633, Richard Brown is allowed to keep a ferry over Charles river, against his house, &c. Here is the first evidence of a specific location, 'over the river against his house;' that is, what they call a ferry, was over or across the river, from bank to bank, opposite to Brown's house-a way merely. In 1635, a ferry was set up from Windmill hill, in Boston, to Chelsea; and another from Boston to Charlestown, to run on the same line or way as the one already set up, only it was to belong to Boston, instead of Charlestown. Thus, one ferry was granted upon another; if these ordinances are to be treated as perpetual grants, and if the word ferry carries a franchise, then one franchise upon another. They show rather what is intended by the words set up , and that they simply authorized the running of a boat from place to place. In the first act, any person giving in his name, was to set up a ferry; Converse did set it up. The thing set up, then, was not by public act, but by individual act. This shows the limited sense in which the word ferry is used. After the location, in 1833, it is called the ferry . In 1637, the ferry is referred to the governor and treasurer to let. Mr. Savage testifies, that he had seen the original, or what he believed to be such, of a memorandum of agreement, or lease, in this year, signed by Converse, which begins thus: 'The governor and treasurer, by order of the general court, did demise to Edward Converse, the ferry between Boston and Charlestown, to have the sole transporting of passengers and cattle from one side to the other, for three years,' &c. Now, the demise is of 'the ferry between Boston and Charlestown,' but he is to have the sole transporting, &c. The term ferry , as then understood (for this instrument is in the handwriting of the governor), did not carry any sole or exclusive right to travel and transportation; but it was necessary to insert other strong and express terms, to convey that right. This is another proof that the word had not the enlarged signification now given to it. In 1640, the treasurer, Mr. Sprague and Mr. Shepherd, were authorized to let the ferry. Thus, far, there had been but two kinds of action on the part of the colony; first, to establish a ferry, and second, to lease and regulate it. There were plainly no privileges or exclusive rights appended to it, but they speak of it as a thing to be set up by another; and when leased, they gave for a limited period, certain well-defined privileges to go with it; but those privileges were not embraced in what was called the ferry, but stood separate and distinct from it, and were at an end with the lease. In the same year, 1640, the record says, 'The ferry between Boston and Charlestown is granted to the college.' This is the charter-the whole title of the college. What, by fair construction, is granted? The ferry-nothing more-the thing set up. No privileges such as are specifically enumerated in the lease of Converse-no line of travel, such as is now claimed-no covenant not to divert travel, or not to establish other ways, or not to impair the income. There is nothing which looks at such privileges. It is a ferry-a naked ferry. What is a ferry? All the books, Tomlin, Dane, Woolrych, Petersdorff, &c., define it to be a highway, and the word, ex vi termini , means no more. The term ferry , therefore, in and of itself, implies no special privileges, such as are often connected with a ferry by special grant or prescription. The colonists so understood it; and in making a charitable gratuity to the college, had no purpose of placing the control of the ferry, or the waters of the river, beyond their reach. The income, they doubtless meant, should go to the college; but they actually retained the possession and management till 1650, and always determined the rate of tolls, and how the public should be accommodated. The doctrine of ferries, as found in the English books, and applied to this case, is full of confusion and uncertainty; so much so, that the plaintiffs have, under it, varied and remodelled their claims of right; reducing them from the whole river, to the travel between Boston and Charlestown; and before I have done, I shall ask them again, what is the extent of their claim, and where the authority which defines that extent? Let us look at the cases, and see how the doctrine stands. 1. The old class of cases, in which is found the doctrine that 'you cannot impair my franchise or my ferry,' and 'I may exclude all injurious competition;' and which has been many times repeated in the argument, with great apparent approbation; asserts rights which I will show cannot be maintained in England, or anywhere, at this day; the monopoly is too bold for even a government of privileges. There was, therefore, a necessity for narrowing down a doctrine so repugnant to all improvement, and so inconvenient to all who had occasion to travel. The principle was, if one owning an old ferry, could show that a new ferry or way, however remotely, diverted travel, or caused a diminution of tolls, an action would lie, and the new ferry or way was held a nuisance. This gave rise to the doctrine set up in Yard v. Ford , 2 Saund. 172, Blissett v. Hart , Willes 508; and in the case of Sir Oliver Butler , 3 Lev. 320. Here, the distinction was taken, and appears since to have been adhered to, that one setting up a ferry, without license from the king, would be liable for any injury happening to an old ferry thereby; whereas, if he had first obtained a license, he would not have been liable. Those who acted under a license, were placed on a different footing from those who acted without, although the license was procured without paying any compensation to the old ferry. A careful analysis of these cases will produce this result. The conclusion then is, that under a license, granted after an ad quod damnum , a ferry may be continued, though injurious, so far as to entitle the owner of an old ferry to damage, if no license had been granted. The cases of Blissett v. Hart , and Sir O. Butler , fully maintain this conclusion. The ad quod damnum , which gives, of course, no damage, has been manifestly used to evade the rigorous old rule, and to narrow down the franchises of ferries, markets, &c., under a return upon such writs, that new ferries, or new markets may be granted, because the public need them, and the old ones will not be greatly injured thereby. The reporter, in Butler's Case , alleges, that the new market was granted, because the public convenience demanded it. It is, I agree, absurd to return no damage, when there is damage. But if this be not so, why is a license a protection? for if a ferry is, where it does no injury, then it needs no protection. The idea of protection, therefore, necessarily implies, that without the license, the party would be liable, because he does injury. The process of ad quod damnum and license, is, therefore, used as a shield against the liability, and to cut down this kind of franchise. Next came the doctrine in Tripp v. Frank , 4 T. R. 666, which struck more effectually at the doctrine of the old ferry franchises, and brought them into comparatively circumscribed limits. The plaintiff, claiming all the travel from Kingston to Barton on the Humber, sued the defendant for transporting persons from Kingston to Barrow, some distance below Barton, on the same side of the river. The travel from Kingston to Barrow, had usually passed through Barton, and therefore, went by the plaintiff's ferry. He prescribed and established his right to all the travel between Kingston and Barton; and maintained, that under the old authorities, which forbid the right to set up injurious competition, or to impair the ferry of another, he was entitled to damage; for if the defendant had not transported passengers directly to Barrow, they would have passed over to Barton, in the plaintiff's boats, and therefore, he lost his toll. His line of travel, as it is here called, was broken, and a part of it diverted. But the court nonsuited the plaintiff, on the ground, that he had only an exclusive right between Kingston and Barton. They disregarded the circumstance, that his accustomed travel was lessened, and his tolls diminished. This, therefore, was an unequivocal inroad upon the doctrine, that one shall not set up injurious competition against another, or impair his ferry; for it is undeniable, that the toll was diminished, and the value of the ferry lessened. The franchise which formerly reached all injurious competition, was here limited to an exclusive right between the two towns where the landing places were. This was a most material modification of the old doctrine; and was so considered in a late case in the court of exchequer by Baron PARKE. The next case of importance, for I pass over many where the learning of the courts has been put in requisition, is a late case in the court of exchequer, reported in 2 Cr. M. & R. 432; and introduced to the notice of the court by the plaintiff's counsel. Here, again, the learned barons took time to advise and consider what the law relating to ferries was. After a fresh research, it is declared, that the franchise consists in an exclusive right between place and place, town and town, ville and ville; and the competition must be brought to bear on these points, or it is lawful. Hence, the defendant was justified in landing a person at Hobbs's Point, a place intermediate between Nayland and Pembroke, though near the latter place, and the passenger was going to Pembroke. This was no infringement of plaintiff's ferry between Nayland and Pembroke. This is the case, as I remember it from a hasty perusal. What are we to gather from it? Would a ferry from London to Southwark, across the Thames, be from place to place, town to town, or ville to ville, so that the vast population on each bank could have no other accommodation? What connection have the arbitrary lines of towns, or cities or parishes, with the public travel or the public accommodation? From one county to another, in most of the United States, is from place to place; for these are the smallest political organized communities in many states. Two counties may stretch up and down a river, upon opposite banks, many miles; and is any ferry to have an exclusive franchise, the whole of the distance, because the two places stretch so far? This, and all the authorities cited, are only so many proofs of a constant struggle on the part of the courts, to ascertain what the franchise of a ferry is in law; and to bring it down to more limited dimensions than the old cases assigned to it. Am I not justified, then, in declaring, that the doctrine is manifestly confused and vacillating; and that the courts, without much seeming ceremony, have modified the law to suit the temper of the times, and to appease the just complaints of the public. But if the law is to undergo change, I prefer it should be in our own courts, and adapted to our condition. Let it be done here, instead of in king's bench, or the exchequer. This, however, is not the course to pursue, for it furnishes no safe and sound principle to rest upon. It seems to me, if we analyze prescription, on which all these English rights rest, for all the cases of ferries will be found to lie in prescription; we shall find a ground of interpretation of right, which will be satisfactory, and show that these cases have no tendency to establish the doctrine contended for by the plaintiffs. They cite them to prove that a ferry has, as appurtenant to it, a franchise which excludes injurious competition from the waters above and below it. I have already shown, that the term ferry has no such extended signification; and I will now show, that these cases do not conflict with that position, and that they furnish nothing to aid this notion of constructive and implied rights; but every ferry is limited strictly to what is granted, without the aid of implication. Prescription and grants in writing, differ only in the mode of proof. The writing proves its own contents, and the extent of the grant is gathered from the terms employed to express the meaning. Prescription is allowed to take the place of a writing supposed to be lost. Equity permits the party to produce evidence, to prove what he has claimed, what he has enjoyed, and how long; and if the period of enjoyment be sufficient, the law presumes that he had a writing which has been lost, that would, by its contents, prove a grant co-extensive with the proof. In the case of Tripp v. Frank , for example, the plaintiff proved that he had an exclusive right to transport all travellers passing between Kingston and Barton. The law, therefore, presumed, that if his written title could have been produced in court, it would, in so many words, have given him such an exclusive right. Cases of prescription, therefore, afford no countenance to implied or constructive rights; but stand on precisely the same footing as titles which lie in writing. Usage can never enlarge or diminish title, for one is not obliged to exercise all his rights, to preserve them; nor does usurpation, in theory, enlarge right. The usage only goes to show what the law supposes to have been written. Before, then, the plaintiffs can use these cases of prescription to establish implied franchises, they must show that the lost title is not to be held to be commensurate with the proof; but something is implied, beyond what is supposed to be written. This they will find it difficult to accomplish. It follows, from this, if I am correct in the reasoning adopted, that ferries, eo nomine , have no particular privileges belonging to them. They are what authors define them to be, water highways; and each franchise is more or less extensive, according to the terms of the grant creating it. It may be very limited or very broad. The confusion in the English cases, does not arise from any uncertainty in this principle; but from the uncertainty of proof, where the right lies in prescription. With these explanations, which I fear have been unnecessarily minute, I come to the inquiry: what was granted to the college? And I answer, the ferry; the same thing set up in 1681, by Converse; the way over the river, againt the house of Brown, established in 1633; a road from bank to bank; for this all a ferry over the river means. It was an accommodation adapted to a few inhabitants in the wilderness. If the franchise was broader, where does it extent to? The terms of the grant indicate no privileges up or down stream. Will the plaintiffs tell us, where their bounds are? Do they know? Is there any rule of implication which assigns them any privileges which they can define? If there is, then, I call on them to put down the boundaries; to show the court the limits. It is not enough, to show that the terms of the grant, if literally and strictly construed, may, under possible circumstances, render their property of little or no value. This only proves they may have made a bad contract, but has no tendency to establish in them undefined and unmeasured rights. Let it be remembered, that the plaintiffs, in 1792, remonstrated against the grant of West Boston bridge, alleging that it would divert half their tolls; and the opening counsel said, they got compensation for the erection of this bridge, which was from Cambridge Port to Boston. Again, they remonstrated against Canal bridge, alleging it interfered with their franchise, and this ran from Lechmere's Point to Boston. Now they say, their franchise does not reach either of these bridges, but is limited to Boston and Charlestown; and the case of Huzzey v. Field , is quoted to sustain it. This is certainly proof, very conclusive, that the law had been so uncertain, that the plaintiffs have not been able to show the extent of their own rights, as they understand them, or to make uniform claims. Understanding the old cases as I have represented them, they asserted the right to arrest all injurious competition; and as the English courts have cut down the privilege of franchise, from time to time, so their claims have diminished, till they lie between Boston and Charlestown alone. But it is said, the franchise must be reasonable; and what it reasonable? They deemed it reasonable to assert an exclusive privilege, and to deny the right to open any new ways over the tide-water of Charles river which might divert any travel which would otherwise reach them. Opposition to all new bridges has been deemed reasonable. But why is any enlargement of the grant reasonable? What you give to the ferry, you take from the public; and the public cannot spare it, without inconvenience. In a word, is it reasonable, or right, to traverse the regions of conjecture in this matter? To make laws which shall assign boundaries to this franchise, when the plaintiffs can show no manner of title to what they set up? They urge that Warren bridge is a clear interference, because it takes away their tolls. So is West Boston and Canal bridges, for the same reason; for the travel would go over the plaintiffs' bridge, if these competitors were away. The proof is no more decisive in the Warren, than in the other bridges. The diversion of travel is not evidence of wrong. The English cases cited, clearly show that; see Tripp v. Frank . The wrong, if any, consists in invading the plaintiffs' grant. And I again ask them, if they affirm, as they do, that we are on it, to point out its bounds. Show us some certain evidence that we are trespassers; you once contended that West Boston bridge would be a nuisance, because it would, as it did, take half your travel; you urged the same argument against Canal bridge, which had the same effect; but you now admit them both to be lawful, because they are not on your franchise. This admission not only proves that you are uninformed as to the rights you claim, but that a great portion of your accustomed travel may be lawfully diverted. I, therefore, again repeat, that the diversion of travel is, of itself, no evidence of a trespass on your rights. You must, therefore, produce some other proof that your franchise reaches our bridge, than the loss of tolls. You do not show it by the terms of the grant, nor by any established rule of construction, which authorizes such an implied right. It is not the business of courts to make or alter contracts, but to interpret them. Is there anything in the words, 'the ferry between Boston and Charlestown is granted to the college,' which looks like granting an exclusive control over Charles river, or any part or portion of it, except the way or line of that ferry? I shall hereafter adduce conclusive proof to show, that in England, contracts of this character are rigidly construed in favor of the public, and against corporators. No countenance is given to implication, beyond what is made manifest by the clearest and most explicit terms. Stourbridge Canal Co. v. Wheeley , 2 Barn. & Ad. 792. The franchise of the ferry, then, which has been interposed against all improvements across Charles river, when brought to the scrutiny of law, will be found to be a very limited right, confined to the path of the boats across the river. This reasoning is strongly corroborated by the condition of the colony, at the time of the establishment of the ferry, as I have already suggested. As a further proof of public sentiment, the colonists, in 1641, almost simultaneously with the grant to the college, and before it took effect (for the college was not incorporated till 1650), passed an act prohibiting all monopolies, except for inventions. The great and wise policy of Massachusetts, in respect to free highways, was established in 1639; and with modifications, has been continued to this time. Anc. Ch. 126, 267; Laws of Mass. 178, ch. 67. Under these acts, a power to construct free ways has at all times been exercised so largely, that Massachusetts owes to it the best roads that can be found in any state in the Union; and they have, at all times, been established, regardless of turnpikes, bridges, canals, railways or any other improvements. The consequence has been, as is well known, that many of the turnpikes have been abandoned to the public. Such has been the action of public sentiment, and such its results; and this is the first instance in which the right to establish new ways has been questioned. All these considerations lead to one conclusion, which is, that neither the language of the grant, nor the grant current of public opinion, give any countenance to the claims set up by the plaintiffs, founded on this ferry, for an exclusive franchise extending up and down the river. The late lamented and distinguished chief justice of Massachusetts, in his opinion, in 7 Pick., in this case, expresses his convictions strongly on this point; that the ordinance did not give an exclusive right between the two towns, to the ferry and in construing it, that the contemporaneous history ought to be considered, as it tends to explain the probable intent of the colony. If, then, the court confine themselves to the language and the existing circumstances, both of the country and the college, at the times of adopting the several ordinances, they will probably arrive at the following conclusions, as distinctly indicated in the case. The colonists meant to establish a ferry, suited to the then emergencies of the country; but not to establish a broad franchise. They needed a public seminary for the education of youth, and found, by the income of this ferry, they could aid this object. They, therefore, meant to secure the revenue of the ferry, as a gratuity to the college, but nothing more. And while they did this, they intended to retain in themselves the unqualified right to control, manage, regulate and govern the ferry at pleasure. To make the income much or little; and to make just such provision for the public travel as they might deem expedient. This is the conclusion which is forced upon the mind, by reading the numerous acts upon the subject. The college was then esteemed the child of the government; and that government manifestly considered itself standing in that relation, with the power to exercise parental authority. Now, what effect the court will give to this state of things, in law, remains to be seen; but there is little difficulty in understanding the actual relation of the parties. One thing, I apprehend, however, is clear; namely, that neither the ordinances, nor the history, afford any evidence of an intent to create such a franchise as is now claimed. If, therefore, the plaintiffs have this ferry right, it cannot aid their present claims. They grasp at too much-all the river; or if not, they can assign no limits, either by the law or the facts. The public is not to be deprived of its sovereignty over a navigable river, upon such indefinite, uncertain pretensions. But suppose, we are erroneous in all this reasoning, in regard to the franchise of ferries; then I propose another objection for the solution of the plaintiffs. The doctrine applicable to ferries, belongs to ferries alone, among highways. It is feudal in its origin, and has never been applied to turnpikes, bridges, canals, railways, or any other class of public ways. I have attentively observed the progress of this case, and the learning and laborious research of the plaintiffs brought to its aid. No books, ancient or modern, seem to be left unexplored. Even foreign periodicals, fresh from the press, are on the table; and yet they have shown the court no case where this doctrine which they set up, has been applied to any class of ways, except to ferries. The Chesapeake and Ohio Canal Company v. Baltimore and Ohio Railroad Company , in Gill & Johnson, has been quoted; but surely not for the purpose of showing an exclusive franchise, for these works are allowed to run side by side, actually infringing upon each other, though direct competitors. England is covered with canals, railways, bridges, &c.; but not a case has been adduced, applying this doctrine to them; and the honor of extending a feudal right to such works is saved for the courts here, if it is to be maintained at all. These feudal rights are well known to have originated in the very spirit of cupidity; which aggregated to itself all privileges which increased the mass of wealth in the feudal lords, at the expense of the public. These rights grew up to be law, from the force of circumstances; but it is hardly worth while, at this day, to enlarge such provisions, or to push ourselves ahead of Great Britain, in giving sanction to them. Under this notion of special privileges, the same doctrine extended to mills, markets, &c. Whoever had a market or a mill might keep down injurious competition. We have clearly thrown the law as to markets and mills overboard; for no such privileges exist in Massachusetts: and the doctrine of constructive franchises in ferries ought to follow. It is emphatically the doctrine of privilege against public right; I speak of those vague, indefinite appendants and appurtenants which are said to belong to ferries, by construction and implication; not of what is granted in terms, or by necessary and irresistible implication. This doctrine ought not to be received, unless it is the imperative law of the land, and can be shown to be so, beyond all doubt; and this the plaintiffs have failed to establish. I come now to a very important inquiry in regard to this ferry. Are the plaintiffs the owners of the right, be it what it may? If they are not, it is a question of no importance, whether the franchise is broad or narrow. The facts here, will, if I do not mistake their character, relieve the court from all embarrassment. I agree with the plaintiffs' counsel, that the commonwealth has the power and the right to take any property for public use; and therefore, also agree with them, that she had a right to take the ferry for the site of a bridge. How could the plaintiffs controvert this proposition, when their bridge is on the ferry ways, and the ferry path under it? But it by no means follows, if the commonwealth had the right to take for the public use a franchise, that she has granted it to the plaintiffs. This must depend on proof. Let us see, what the franchise is claimed to be, and what has been done with it. It is asserted by the plaintiffs, that the franchise was an exclusive right to transport persons, &c., between Boston and Charlestown. This is an interest issuing from the realty. It is a possessory right, so far as the right to exclude transportation across the river goes; though I am aware that it is incorporeal. I seems to me, therefore, by the laws of Massachusetts that it could only be transferred by deed. Anc. Ch. 18; Laws, 1783, ch. 37. Courts of equity have no power to construe away these provisions. But the plaintiffs have no deed. Again, they have no vote or act of the college corporation, or any of its officers, implying any purpose or thought of conveying this interest. Again, the plaintiffs produce no vote or act of their own, evincing any desire on their part to become the owners of the ferry. The petition for their charter is among the papers, and it does not even name the college; but passing over its head, as not worth regarding, it asks for the right to build a bridge 'in the place where the ferry is now kept.' There is nothing in the cases to show, that the thought of owning the ferry, ever entered the minds of the petitioners. They had no difficulty in demanding a grant of the ferry-ways themselves, for the site of a bridge, without proposing any compensation for it. Those great and sacred private rights, which now figure so largely in this case, seem to have been no serious obstacle to the introduction of a more convenient way; but a change of interest has, probably, wrought a change of opinion. There is, then, no evidence of any purpose on the part of the college to sell, or of the plaintiffs to buy; and if the property has been transferred, it has been done, without the act or the assent of either party. This would seem difficult, if not impossible; still, it is strenuously insisted upon, because the act of 1785 requires the plaintiffs to pay out of their tolls 200 l. a year to the college. This, it is said, is a good consideration, and draws after it, in equity, the title to the ferry franchise. The conclusion is not apparent from the premises. If being required to pay 200 l. a year, makes them the owners of the ferry; then why is not the corporation of West Boston bridge an owner, for they are required to pay 400 l. a year to the college? Canal bridge would also come in for a share, as they too, if my memory serves me, were required to pay something. The plaintiffs would probably object to these copartners. But is there any foundation for this pretended consideration? Who has paid it? Let the facts answer! The legislature granted a toll for passing the bridge, so liberal, not to say extravagant, that for an outlay of $46,000, the plaintiffs have received a return of over $1,200,000, as they admit; and their shares, which cost 100 l. , have been sold for $2000. The 200 l. a year have, therefore, been paid by a tax upon the public travel, collected by the plaintiffs, under the authority of the legislature. The tolls appear to have been set very high, to cover this expense, and to give the plaintiffs an early indemnity; as the public might have occasion to make new ways, and diminish the amount of travel. This contingency was doubtless in view, when the rates were established. There can, therefore, be no reasonable ground for saying the plaintiffs have ever paid a cent of compensation. It would be extraordinary, if they, without and conveyance, or any purpose to convey, and without any consideration, could set up a title to a valuable property. But they suggest further, that the state has conveyed the ferry franchise to them. The act of 1785 will be searched in vain for the intimation of any such purpose. Moreover, the state has no power to take the property of one, and convey it to another. They may condemn so much as is necessary for public use, but nothing more. To test this matter, suppose, the bridge were taken away, can the plaintiffs set up a ferry? I think no one can hesitate what answer to give. They are authorized to maintain a bridge, and no other kind of way. The conclusion of he matter is, that the legislature authorized the plaintiffs to set up a bridge upon the ferry-ways, and took upon themselves to quiet the college, which neither assented or dissented, but relied on the commonwealth, which had always been its great patron and protector, that eventual injustice should not be done to it. The learned judges, three to one, reached, substantially, this result, in Massachusetts. It is, therefore, plain, that the plaintiffs are not grantees of the ferry, and have not, and never had, any interest therein. The ferry franchise, therefore, whatever it may be, is of no importance to the decision of this case, as the plaintiffs can claim nothing under it. The plaintiffs having failed to show any contract in regard to the ferry, and the legislature having passed no law touching the ferry, for the act of 1828 does not name or allude to it; nothing has been done by the state to impair the obligation of a contract, or to violate the constitution of the United States. The discussion, however, may not be wholly useless, as some principles have been examined, that are applicable to other parts of the case. I shall now proceed to examine the act of 1785, under which the plaintiffs acquire the right to build the bridge, and all other rights which they have. This act is so barren in those provisions which are necessary for a feudal franchise, that a great effort has been made to build up a claim upon the vague doctrine of ferry rights. Nothing is more reluctantly surrendered than inordinate profits. The provisions of this act are, substantially, as follows: § 1, creates a corporation: § 2, provides for its organization: § 3, gives a toll for forty years: § 4, relates to the dimensions, &c., of the bridge: § 5, gives 200 l. a year to the college: These are all the provisions. They had a right granted for what they asked, namely, to erect a bridge in the place where the ferry was then kept, and to take toll of such as passed over. This is all the franchise provided for in the act; there is not a word about any other rights and exclusive privileges. Nothing restraining the power to make new bridges; no covenant, that there shall be no diminution of travel, or diversion of it; no line of travel guarantied-nothing said of the travel between the two towns; not a word about making compensation, if any of their property should be taken for public use. You will look in vain for any such provisions; and if the plaintiffs have any such rights, growing out of this act, they must be implied, for they are not secured by express stipulations. Here, the question recurs, what is the rule of construction applicable to such acts? I shall ask attention to but one authority: the case of Stourbridge Canal Co. v. Wheeley , 2 Barn. & Ad. 792, to which I have referred. Lord TENTERDEN says: Such an act, that is, an act of parliament incorporating the plaintiffs to make a canal, is a bargain between the public and the adventurers, the terms of which are contained in the act. He affirms, that the rule of construing such acts is well established to be in favor of the public, and against the adventurers; which is exactly opposed to the rule so elaborately laid down by the learned counsel in this case. His lordship distinctly and emphatically declares, that whatever is doubful or ambiguous, or whatever is capable of two constructions, must be construed favorably for the public, and against the adventurers. This case seems to run on all four with the one under consideration, in many of its features-both sets of plaintiffs are corporators, created by acts of legislation; both own ways, and each claims a franchise. The general characteristics are, therefore, alike; and clearly the rules of law applicable to both, and regarding the construction of the charters, ought to be alike; and if so, the plaintiffs can take nothing but what is clearly and distinctly granted to them, either in words, or by plain and necessary inference. The question, then, arises, is it a necessary and irresistible inference, from the terms of this act-a thing so plain as to admit of no doubt-that the legislature did intend to grant to the plaintiffs a roving franchise, to which they can assign no limits; which, in 1792, was above West Boston bridge, but is now limited to Boston and Charlestown? If the plaintiffs cannot give body and shape to the thing to be inferred, if they cannot assign to it limits; in a word, if they cannot tell what it is; how can it be said to be either a plain or a necessary inference? It can neither be the one nor the other; and the very doubt thrown over it, forbids the making of the inference, according to the principles so clearly asserted by Lord TENTERDEN. Implication cannot go beyond what is certain and irresistibly necessary; especially, where an act is capable of an obvious construction, consistent with its general purpose, without such implication. This act is of that character. The legislature granted the right to construct and maintain a bridge, and to take tolls for forty years; but this right of taking toll does not go beyond the privilege of demanding it of such persons as voluntarily pass over. This is all that is guarantied, and these rights have not been touched. Whether another bridge should be erected, so near as to divert the travel, is a matter which they did not bind themselves not to do, but retained in themselves the right to exercise their discretion, as they pleased; in case, in their judgment, the public needed new accommodations. They asserted the right, and diverted nearly half the travel, when West Boston bridge was set up; again, when Canal bridge was set up; again, when Prison Point bridge was set up; and lastly, when Warren bridge was erected. The commonwealth has, nevertheless, exercised this power sparingly; and only when pressed by strong emergencies. The plaintiffs asked, in their petition, to be indemnified for their expenses, and they have been suffered to go on, until they have been remunerated in a most princely manner. The commonwealth having, at all times, the right to set up interfering bridges, has foreborne to do it, in a most becoming spirit of liberality, and little merits the denunciations now loaded upon her. Such seems to me to be the plain import, and the obvious meaning of the act, and no forced construction or implication is necessary, to ascertain the rights of the parties. The plaintiffs seem to suppose, a diversion of travel is an invasion of their property. This is a mistake. They have no property in travel, for nobody is obliged to travel over their bridge; and they now admit, that bridges may be erected anywhere, except between Boston and Charlestown, however much travel they may divert. They affirm that a grant of toll for forty years means nothing, unless it be absolute and unconditional, securing the travel. Might it not be granted on the express condition that other bridges should be erected, if deemed expedient? Not granting away a power, is equivalent to retaining it; and the legislature never surrendered the right to build new bridges. The plaintiffs have, therefore, enjoyed their privileges, subject to this right. Their tolls have been diminished; but neither by wrong, nor any violation of their rights under the act; nor has any injustice been done to the corporation, as I purpose to prove, before I leave this point. But they again claim a reasonable construction. Why is not this construction reasonable? The plaintiffs make less money; but are they not indemnified? Would it be more reasonable, to permit them to exact an endless tribute, and to subject the public to other great inconveniencies and delays in their business? What were the large tolls granted for, unless to give a speedy indemnity, that the public might have new accommodations, when needed? What would be the plaintiffs's judgment of what is reasonable? They told you, in 1792, it was an unqualified control over all the important portion of the river. You must not, they said, impair our bridge. Any construction would be deemed unreasonable, which should diminish the toll. Again, it is said, there are stockholders who are great sufferers, having bought in at $2000 a share. I will not deny this, for I am uninformed as to the holders of stock; but I will prove that this consideration is entitled to little weight, even in equity; for I will show that the commonwealth gave the most unequivocal notice, to all persons, of her construction of the act of 1785; and when she renewed it in 1792, she placed upon record a solemn and public legislative declaration, that she acknowledged no such rights vested by that act, as are claimed here. In 1792, Oliver Wendall and others petitioned for leave to erect what is called West Boston bridge, about a mile above the plaintiffs' bridge. The plaintiffs sent in their remonstrance, objecting, that it would impair their property, by reducing their tolls one-half. The petition and remonstrance were committed to a joint committee of both houses, who heard evidence and counsel in behalf of the parties; and after a most full investigation, they reported in favor of the new bridge. This report was so amended by the two houses, as eventually to contain all the provisions of the act of 1792; and in this form, is was accepted by both houses. In this report, thus adopted as the basis of this law, is contained this declaration:-'There is no ground to maintain, that the act incorporating the proprietors for the purpose of building a bridge from Charlestown to Boston, is an exclusive grant of the right to build over the waters of that river; but considering the erection of Charles River bridge was a work of magnitude and hazard, and that great benefits have arisen to the public from the success of that enterprise,' &c.; 'it is reasonable and proper, that a further time of thirty years be granted to said proprietors, to receive and collect, for their benefit, the toll now established by law for passing said bridge,' &c. The legislature being apprised of the broad claim set up, on the trial before the committee, took this occasion to say, in connection with the extended grant of tolls, that the plaintiffs had no such rights; and that in giving the extension, they meant to give countenance to no such thing, but simply to reward, most liberally, a commendable spirit of enterprise. When the charter of the defendants was granted, in 1828, the forty years had expired; and the plaintiffs had entered upon the extended period provided for, by the act of 1792, or the charter of West Boston bridge company. This declaration, and the passage of this law, being concurrent acts, the meaning of the legislature cannot be mistaken. They put their explicit denial, upon the right to raise implied covenants not to erect new bridges; and declare, that they extend the right of tolls, because, among other reasons, the plaintiffs had no such exclusive privilege. The plaintiffs have accepted the provision for them in the act of 1792; claim the benefits of it, and plainly ought to be bound in equity by this exposition. It was a distinct notice to all persons, who were, or might be, concerned in the property, that the denial of the right of the state to make new bridges, would not be regarded; and whatever might, by construction, be their privileges, under the act of 1785, its renewal in 1792, was on condition, that no such pretension against the power of the state should be set up. It has been said, that this is only found in the report, and is not, therefore, obligatory. But to this, I answer, that the report was the subject of distinct, deliberate legislation, in both branches. It was accepted by both, acting in their constitutional capacity; it is part of the records and files. The law is only an echo of it, embodying the matter in the accustomed forms of legislation. We offer this report, not to explain away or to alter any provisions of the act, but to refute an inference made on presumption; to negative an implied engagement which is attempted to be enforced; to show that the legislature did not mean what the plaintiffs attempt to force upon us by construction; and, most assuredly, it is competent for this purpose; it is competent to overthrow a presumption which it positively refutes. It is, therefore, conclusive upon the plaintiffs; and has the same restraining effect on their presumptions, that it would have if it had been embodied in the act. How can they, then, show the effect of it? The counsel replies, that they do not claim a franchise extending to West Boston bridge, for they only claim between Boston and Charlestown; and there is no distinct larger claim set up in their remonstrance of 1792. If they did not consider the West Boston project an interference, why did they remonstrate; and why represent that it would take away half their travel, and ask a refusal of the grant desired by the petitioners? But suppose, if you can, that they really did not mean to assert that such a bridge would be an interference, the declaration, which is an answer to the remonstrance, only becomes the more pointed and explicit; for it is then saying, in so many words, you have no exclusive rights between Boston and Charlestown, and we admonish you of it, and renew your charter, with the express understanding that you are to so consider it. View it, then, in any aspect in which it may be presented, and the declaration still stands unshaken, and cannot be construed away. It clings everywhere, as a condition of the renewal, not to be explained away. What right, then, have the purchasers of stock to complain? They are bound to notice the terms of the charter, and to regard its provisions; and surely, ought not to demand relief from an inconsiderate or rash contract, at the expense of the public. But the court has been asked, with considerable emphasis, if the plaintiffs would have accepted a charter, with power left in the legislature to erect bridges at pleasure? The answer has already been given. They did accept it, after all the deliberation they saw fit to make, and with this unequivocal notice before them. We ask, in turn, if the legislature would have granted to any company such privileges as they claim, if the privileges had been set forth in plain and intelligible language in the act? Would they have given an exclusive right over the river to any body? The answer is again at hand. No sooner were such claims set up, than they denied their validity, and refused to recognise them. They again, in 1807, when Canal Bridge company was incorporated, renewed the declaration against them, in a formal manner; and again, when Warren bridge was established. They have, at all times, earnestly protested against all such claims. The views of the legislators and of the people are not doubtful on this point; they have not misled the plaintiffs by silence, or for a moment favored their pretensions. But much is said of the hardship. Their property, which is of great value, it is said, is rendered worthless; it has been taken from them and given to others. Here the plaintiffs mistake their rights, and reason from false premises. They suppose, they had a property in the public travel, when they had none. There cannot be any property in public travel, because no one is under any obligation to pay toll, unless he passes the bridge, and that is an optional act. If the act of 1785 imposes no restrictions upon the legislature, and they had a right to authorize the new bridge; then nothing is taken from the plaintiffs, if all the travel passes over it. All that can be said is, that while the legislature forbore to exercise its lawful rights, they made a vast deal of money, by an exclusive enjoyment; and now they make less, not because anything is taken from them which was theirs by contract or grant, but because a lawful competition is set up. Their case of hardship differs in nothing from those of frequent occurrence. Suppose, A. sells to B. a tavern, having a large custom, and makes conveyance. A. then erects another house near by, and the custom follows him, whereby B. is ruined. B. has no remedy, unless A. has covenanted expressly not to do this act. Again, one has a tavern, store or other place of business, dependent on public travel for its custom; a new road is established, which diverts all travel from it, and renders this property worthless; the owner has no remedy, but must bear the loss with what patience he may. These are matters of frequent occurrence; and present cases of much greater hardship than the plaintiffs are called upon to endure; for they have reaped too rich harvests to be great sufferers. The owners of real estate on the avenues to their bridge, will, if the travel is discontinued, or greatly impaired, probably, suffer more severely than the plaintiffs; but what remedy have they? The plaintiffs, therefore, if they should hereafter receive less tolls, will be in no extraordinary position. It will doubtless turn out that their property is far from worthless, as it may be applied to other uses. But what if there is hardship? Is that to be relieved, by making a new contract here, or by altering an old one? Shall the commonwealth, to relieve the plaintiffs, be made a party to stipulations that she never entered into? This would be more unjust, than any losses or inconveniences which can occur to the plaintiffs. Presumptions got up to relieve hardship, are too often the parents of the greatest injustice. The plaintiffs seem to think it is incredible, that any of the large privileges which they have enjoyed, should rest on the forbearance of the commonwealth. They treat the idea that they should hold anything at her will, as preposterous. To be at the mercy of the state is absurd; and so irreconcilable with just reasoning, that it is not to be entertained, in giving construction to this act of 1785. We must arrive, they think, at any conclusion but this; though the very terms of the act force us into this position. Either the state or the plaintiffs have the control of this river; and whoever has, excludes the other from a sole enjoyment. In order to free themselves from control, the plaintiffs would bring the state to their feet, and place her at their mercy. This would be the measure of justice meted out by their construction. I will leave it to the court to determine, which would be the most becoming posture, and which would best subserve the ends of public justice-to place the plaintiffs at the mercy of the state, or the state at their mercy. They demand, when they say they have a right to exclude injurious competition, that the travel shall be arrested on the north bank of the river, and driven by circuitous and inconvenient ways over their bridge, and shall, in addition, pay tribute perpetually; not to indemnify for the enterprise, but to add to the mass of wealth already accumulated. If the state is tied down to this burden, be it so; but let us see decisive proof of it. Let it not be by presumptions or implications. If the plaintiffs wish for equity, let them do equity; that is a first principle. Let them frankly admit, that they had notice of the limited terms on which their act was renewed in 1792; and not try to shut that all-important fact out of sight. The honor of the state is untarnished, and her reputation fully vindicated. There has been much false rumor in this matter; much mistake and unjust imputation. The state has made no attempt to resume her grants, or to seize private property, by violent and revolutionary measures, for public use. She has not acted arbitrarily, illiberally or ungenerously toward any one; but, on the contrary, has forborne to use her lawful power, until she saw those who had done a valuable public service, not only reimbursed, but enriched in a manner surpassing all ordinary acquisitions. She then listened to the demand of the public for further accommodations, and not till then. There is no blot upon her escutcheon, nor stain on her garments, in this matter. In proof of this, I fearlessly assert, that the counsel are mistaken when they say, that a decision in favor of the defendants will be fatal to future enterprise. This case has stood decided in their court for several years, and the history of Massachusetts can exhibit no period that will compare with it in investments for internal improvements. Confidence in the integrity and good faith of the state never stood higher, nor did capitalists ever go forward with greater resolution and courage. I feel, therefore, justified in affirming, that the honor and faith of the state is untarnished, and she stands blameless in her conduct. I come, then, to the conclusion, for all these reasons, that the act of 1785 is incapable of the construction put upon it by the plaintiffs: That its meaning is plain, and it gives no franchise beyond the bridge: That in 1792, this construction was given to it by the legislature, and it was then extended thirty years, upon condition that it should be so construed: That the stockholders can complain of no injustice, for $46,000 has returned them over $1,200,000; and if any one is a loser, by giving a great price for the stock, he must impute it to his negligence, in not regarding the construction given by the legislature to the act: That the rule adopted by the legislature, and the rule of the common law, are concurrent; and therefore, if the notice should be ruled out of the case, it will not change the result. All this, I contend, is in full accordance with the policy of the state. 1st. Her system of free road laws has, at all times, been active, and by its operation has rendered many turnpikes worthless. 2d. The statute books will show that numerous bridges have been granted, at or near old ferries, without compensation. 3d. Railways and canals have been granted, in many directions, regardless of old franchises, or of their injurious consequences to old lines of travel; but of this more hereafter. Since, therefore, nothing is taken from the old bridge by the law of 1828, but the proprietors are left in full possession and enjoyment of everything granted to them; and since their only complaint is of a diversion of travel, and a consequent diminution of tolls, I am not able to perceive, that they have any contract which have been violated, or had its obligation impaired: and therefore, the constitution of the United States has not been violated. The act of 1828 does not rescind, alter or modify any of the provisions of the act of 1785; but leaves the plaintiffs in the full enjoyment of them, and in the undisturbed control of their bridge. I will now answer, more particularly, some of the arguments of the learned counsel. Most of the reasoning is founded on premises which will fail, if we have sound views of the law; or is designed to overthrow positions which we have never assumed. He says, for example, that the legislature has no power to resume a grant. Our answer is, that they have not attempted it; and therefore, that question is not raised in the case. We contend for no such power. What they claim as their property was never granted to them; and the mistake is, that they do not own what they suppose has been taken away. They must establish their title, before they talk about the resumption of grants, and the taking away of their property. They must remember, that this right of property is the very matter in litigation; and one of the great points to be settled is, whether they show any title that can stand the test of legal scrutiny. If they do, we do not claim it, without an equivalent. It is said, the franchise is to be ascertained by the facts, and is to be reasonable. It seems to me, that it is to be ascertained, as Lord TENTERDEN says, by the terms of the bargain; and these are to be found in the act. What is deemed reasonable, we have seen, is co-extensive with the selfish desires of making money. When the plaintiffs depart from the act, they can find no standard for what is reasonable. To-day, the exclusive claim is between Boston and Charlestown; yesterday, it embraced Canal bridge; and the day before, West Boston bridge. If the plaintiffs can show no rule to settle reasonable limits, how can they hope the court will relieve them from the embarrassment? When we go in search of what is not apparent in the act, we grope in the dark; and hence, the well-established rule laid down in Stourbridge Canal Company v. Wheeley , that you shall not build up claims on presumption. The plaintiffs could find no authority to rest upon for making Boston and Charlestown the boundaries of their franchise, until they fell upon the late case, in the exchequer, of Huzzey v. Field . What assurance have we, when the law as to ferries shall again come under consideration, that it will not receive a new modification, and their franchise then take new boundaries? But again, another and different rule is laid down by the counsel, which undoubtedly is considered reasonable; though in its application it rests on quite different principles. The counsel, in treating of what is reasonable, asks, how do you settle what is a nuisance, where the air is corrupted? Not by bounds, not by distance or measure; but wherever the noxious atmosphere is, there is the nuisance: so with the plaintiffs' case, where the injury is, there is the nuisance; whatever takes away their tolls, invades their franchise; for this is the injury of which they complain. This view brings us back at once to the old doctrine 'you shall not impair my franchise;' and proves in the most conclusive manner, that all the bridges above theirs are nuisances, for the travel which passes over them would chiefly go over their bridge, if the others were closed up. It is too plain, that the learned counsel, in his able argument, has, whenever he has expounded the law, or undertaken to show what is reasonable, fallen back upon this rule, as the only resting-place he can find. He began, by saying, what is reasonable must be ascertained by the facts; and ended by saying, that the only fact necessary to be inquired into, is, does the injury complained of, lessen the tolls? If it does, it impairs the franchise, and is a nuisance. If this is to be the end of the inquiry, the reasonableness or unreasonableness of the franchise set up, is not a matter of investigation. The inquiry is not into that fact, but whether the tolls are diminished. And, I think, this will be found to be the only standard the plaintiffs have ever set up. Indeed, if you admit that some injury may be lawfully done, where is the limit? Let us then dismiss this wandering inquiry after a reasonable franchise, and go back to the act of 1785, and hold to that, instead of building up a new contract; for the plaintiffs have professedly ceased to claim a right to put down all competition that lessens their tolls. It is admitted, says the counsel, that the legislature has the control over public ways; and their judgment, as to the necessity for them, is final and conclusive. But he adds, that it is not like the British parliament, omnipotent, for this court has a right to correct its errors. The power of this court, allow me to say, also, is not omnipotent; and it can acquire no jurisdiction over an act of the legislature, unless such act impairs the obligation of contract. I may add, speaking it with great deference and respect, that while I repose great confidence in this tribunal, I feel no cause for distrust in those of our commonwealth. I, therefore, do not feel that we are unsafe, without such a corrective; as we, in truth, are safe, in most matters upon which our courts adjudicate. I can see no more impropriety or hazard in resting final jurisdiction there, than here; for I am not aware of any proneness there to error or excess, which demands a corrective. Indeed, it cannot be desirable, nor it is the purpose of the federal constitution, to carry this jurisdiction over the constitutions and laws of the states. The system would manifestly be insupportable; and I shall, before I leave the case, attempt to show, that the jurisdiction of this court does not reach this case, because it falls exclusively within the constitution and laws of Massachusetts. I shall endeavor to make it appear, even if property has been taken for public use, it is no violation of contract to do it; and the question of compensation must be decided, finally, by our own court. Again, the learned counsel says, 'the legislature is limited by the principles of natural justice;' and I agree that it ought to be, and that it ought not to take property without compensation; but the constitution of the United States nowhere gives this court a right to inquire, whether the legislature, and the state courts have disregarded the principles of natural justice. I would respectfully ask, if this court is to be the corrective in such cases? But I am not willing the reproach of violating the principles of natural justice, should rest on the state. Did the state ask the plaintiffs to build the bridge? Did she ask them to accept the act, after it was made a law? They sought the privilege, and accepted the act, after taking all the time they desired to consider its provisions; and have had, and may continue to have, the full benefit of them. The supposed violation of natural justice does not consist in interfering with the provisions of the act; but in refusing to recognise claims not enumerated in it-rights unauthorized by it-privileges not intended to be granted. We cannot find in the act certain provisions of which they claim the benefit. It is a violation of natural justice, to refuse them the right to add what they please to the act? Again, they state to the court, to prove their disposition to accommodate the public, that they proposed to the legislature to enlarge the bridge and the avenues, and to make other alterations, to meet the public emergencies; and so they did: but is it not too plain, that this offer came when they must have known it could not be accepted? They had contested the right to build a new bridge, again and again, before committees, and the legislature. The corporation voted to make the proposals, on the 25th of February, and the law was approved on the 12th of March following. There is little doubt, therefore, that they were made, after the report of the committee, and during the pendency of the bill before the legislature. It is hardly reasonable to suppose, that propositions made, thus apparently with reluctance, and in that late stage of the proceeding, could be any otherwise viewed, than as measures for delay-than as counter-plans to defeat the measure. But whether that be so or not, they came too late. But further, it seems, they considered themselves as having no authority to erect suitable accommodations for the public. They could not enlarge the bridge, nor the avenues, if insufficient for the travel, without a grant of power from the legislature. Is this consistent with the claim of exclusive right over the river? If the court will look into the cases quoted, in regard to markets, it would be found, that the public are under no obligation to respect the franchise, unless suitable accommodation for the business is afforded; and that the exclusive right, and the obligation, go together. Is it true, that the plaintiffs hold this exclusive privilege, and yet have no power to open a way suited to the public travel? Does not this limitation of power prove a limited franchise? Their power to enlarge does not reach beyond the planks of the bridge; and why? Because the act of 1785 will carry them no further. By what rule, then, will it carry their franchise further? If they can imply a franchise; then may they imply a power to enlarge, but this I think they will not venture upon, since they admit, the act of 1785 gives no countenance to it. These are some of the leading arguments which remained unnoticed, and I shall not detain the court longer in pursuing this kind of inquiry, for I shall occupy more of their time, if I follow out the various positions taken, in an argument of nearly three days, than I think myself justified in consuming. I will, therefore, pass to the next great division of the case, which constitutes, in the pleadings, the second issue. If we are right in the legal positions we have assumed, our labor here is unnecessary, for the plaintiffs have no case; but as we cannot know how the minds of the court will run in this matter, we must investigate the point. The question is, if property has been taken for public use, under the act of 1828, and no compensation has been made, is it a violation of the rights of the plaintiffs, so as to impair the obligation of contract, and thus conflict with the constitution of the United States? I shall contend, that whatever may be the constitution and laws of Massachusetts, and whatever obligations they may impose on the legislature, to provide compensation, where property is taken for public use; the omission to do it, in the act of 1828, is no violation of a contract, which impairs its obligation, within the meaning of the constitution of the United States; and therefore, this court has no jurisdiction in the matter. To establish this conclusion, I shall attempt to maintain the following positions: 1. That the power to provide public highways, is an attribute of sovereignty, necessarily residing at all times in a state. This is apparent; for without this power, all intercommunication would be interrupted, and each person confined in matter of right to his own estate. It is an element of sovereignty, as much as the power of taxation; and political organization cannot exist without it. 2. This power necessarily implies the right to take private property for public use. The territory of a state is owned by individuals, and roads must run over this territory; therefore, they cannot be authorized, against consent, with the right to appropriate private property to public use. The alternative is, that the government must have this power, or the public can have no roads. 3. All property in Massachusetts, including franchises, is held and enjoyed, subject to this right of sovereignty, resting upon it as an incumbrance. I know of no property in the state exempted from his liability; and in Commonwealth v. Breed , 4 Pick. 460, the court allege, that it has always been taken, when needed, be it what it may; and mentions, as illustrative of the extent of this right, that the legislature have, at pleasure, obstructed navigable rivers, which are public highways. The plaintiffs' bridge was built upon the very ways of the ferry, and the court in 7 Pick. considers this as lawful. This right is co-existent with the colony, and so far as my knowledge extends, has never been questioned. The legislature are the sole and final judges of the necessity of taking property in this manner; on the ground, that it is their duty, as the representatives of the people, to provide for the public wants. Ibid. 4. As this right to provide ways lies among the elements of government, and has always been exercised, and asserted in its broadest terms; it follows, that the right to take private property for this purpose, is equally broad; and that the mere taking and appropriation of it to public use, can never, of itself, impair the obligation of contract, or violate the constitution of the United States; for the fundamental laws of the state authorize the taking, and all property is always held on condition that it may be so taken and applied. The right rests as an incumbrance upon it, as much as the right of taxation. This principle is sustained, if it needs authority, in Providence Bank v. Billings , 4 Pet. 514; where it is said, in substance, that if a franchise be taxed to its ruin, by the very power that created it, this is no violation of contract, for the right to tax is an abiding public right covering all property. To refuse to make compensation, may violate the constitution of Massachusetts, but not of the United States. The right to make war, to impose embargoes and non-intercourse acts, to change public policy, to regulate intercourse with foreign countries, and to do and perform many other things-all which may subject the people to great hazards and losses-has never, and can never, be questioned, whatever may be their influence upon trade or individual property. But however disastrous such acts may be, and whatever losses may be sustained, the citizens are without remedy. These mutations make one poor, and another rich; but they are incident to the social and political condition of mankind. Public policy, and public laws, cannot be made to bear upon all alike. New ways, for example, must be provided. In doing this, the property of one, which is not touched, is nearly ruined, by being abandoned by the travel, while that of another is benefited by the passage of the new way over it. But all who hold property, hold it subject to the right to make these changes, for the public good demands it; and the right to do it, must, I think, stand unquestioned. It is one of those attributes of sovereignty, which must be constantly exercised; and such property, be it what it may, must be taken, as is necessary to meet the exigencies of the public for ways. It is plain, therefore, that no property is exempt from this liability to be taken, unless the state has agreed to exempt it; and it may well be doubted, whether the legislature of a state has any authority to bind the state to a contract to exempt property from this liability beyond the pleasure of the state. This power bears a strong resemblance to the taxing power; and in Providence Bank v. Billings the right to perpetually exempt property from taxation, is considered doubtful. If the sovereign right to make roads, can be alienated as to a small territory, it may be as to a large; and thus the state might, by legislative power, be dispossessed of one of its most necessary and essential powers for ever. The sovereignty of a state seems to me to be an unfit matter for bargain and sale, in perpetuum; and hence, the right is acknowledged, whenever the public exigency demands it, to lay new ways over ways already granted, as in the case before us, by compensating for the property taken. When a way is laid over property, but two questions can arise; is the property exempt from liability to this public burden? and is compensation provided for such as is taken for public use? The first of these questions is not raised in this; for it is not urged, that the defendants' bridge touches anything exempt from being taken for public use. The second, as I have intimated, I shall, by and by, attempt to prove, does not fall within this jurisdiction, but belongs to the local courts. The plaintiffs raise another question, which I must first consider, for it meets me here in its natural order: they allege, that the act of 1828 impairs the obligation of contract, and therefore, violates the constitution of the United States; and this they must establish, before they can give this court jurisdiction. I come, therefore, to the fifth inquiry, has the state agreed to make compensation to the Charles River bridge company, for the privilege of running another bridge or way across the river, which diminishes their tolls? If the state has made such a contract, let her abide by it; if not, then let the plaintiffs show some right to bring us here. No such provision can be found in the act of 1785; nor is there anything in the act, which would lead one to suppose, that any such purpose, was, or could have been, within the intent or meaning of the legislature. It would, therefore, be a forced, unnatural inference. But under the rule of construction applicable to such acts, I deny the right of the court to raise an implication, which is not a clear and necessary inference from the terms of the act. If the inference be at all doubtful, or if the act is fairly capable of another construction, then the implication cannot be raised. I submit to the court, with much confidence, that such an obligation does not spring naturally from the language or general tenor of the act; and one can scarcely fail to be confirmed in that opinion, when he turns to the bill of rights, prefatory to the constitution of Massachusetts; and there finds, in the 10th article, provision made for compensation in cases where property is taken for public use. The plaintiffs, if they thought of the matter at all, doubtless relied on this provision in the fundamental law. They had no motives, then, for other provisions in the act; for the constitution of the United States was not made or ratified till 1789, four years subsequent to the passage of the act of 1785. It seems to me hardly to admit of a doubt, that when the act of 1785 was passed, all relied on the bill of rights for indemnity, in case public emergency called for an appropriation of the franchise for public use. This being the state of things, I will inquire, first, what provision has been made to satisfy the constitution of Massachusetts? and second, whether that of the United States has been violated? On the first point, I will only add to what has been said, that I shall not contend, that where property is taken for public use, the bill of rights does not impose a peremptory obligation to compensate for it. The act of 1828 provides an indemnity for all real estate taken for the bridge. The plaintiffs complain, that a part of their franchise is taken. What is it? An incorporeal hereditament, but issuing from real estate-a right to exclude other interfering ways. Now, if they have such a right spreading over the river, in the nature of an easement, and can show that the new bridge is within their limits, why is not a sufficient remedy provided by the act? Is it because they cannot define this franchise, or give any reasonable account of its dimensions, that they omitted to put in their claim for damages? If the new bridge does not touch this right, then, by the laws of Massachusetts, they can have no claim for damage, however much they may suffer. The doctrine is well settled in Callender v. Marsh , and many other cases; and the rules applied to the bill of rights are these: Where property is actually taken for public use, there the party injured may have his damage. Where property is not touched, however much the owner may suffer, he has, under the bill, no remedy, for nothing is taken for public use; and it is damnum absque injuria; what is merely consequential, is, therefore, without remedy. If the right of exclusion does not reach up the river, above the new bridge, then the defendants are not liable, whatever may be the diversion of tolls; for they do not touch the property of the plaintiffs. I have shown, I trust, very clearly, that a diversion of tolls is not necessarily, of itself, any invasion of the plaintiffs' rights. They admit this, because they now admit that Canal bridge and West Boston bridge were both lawfully erected, and yet both diverted tolls to the extent of travel over them. Nothing is more plain, than that they have no property in the travel, or any line of travel; for if they had, these diversions from their line would be aggressions upon their rights. There cannot be a property in what one neither has in possession, nor any right to reduce to possession. The plaintiffs can compel no one to go over their bridge. The injury, therefore, which the plaintiffs sustain, if any, is because the defendants have come within the limits of their franchise, and erected a bridge, and caused a diversion of toll, which, under these circumstances, must be unlawful. Our answer to this is, that they have utterly failed to establish any such exclusive right or title, as the act of 1785 gives no countenance to it; and they are forbid making such an unnecessary and unnatural implication of right. The damage which they suffer, then, is merely consequential, and falls within the principles of the case of Callender v. Marsh , 1 Pick. 416. But suppose, we are erroneous in this reasoning, and the new bridge actually falls within their exclusive right, and thus becomes unlawfully injurious; how is the case brought within the jurisdiction of this court? I repeat, the plaintiffs must show a violation of the constitution of the United States, before they can make this jurisdiction attach. They allege, that the act of 1828, being an act of the state, impairs the obligation of a contract, and therein violates the constitution of the United States; because it forbids the making of such a law. But what contract does it impair? What obligation does it violate? I have heard much discussion about the injuries sustained by the plaintiffs, in consequence of the act of 1828; but have they pointed out the contract, or the obligation of a contract, which has been violated? If so, where is it? The contract, if any, is the act of 1785. It is a contract with the state itself; but this, in no respect, changes the character of the case; for the constitution is no more applicable to a contract with the state, than to any other contract. What has the state undertaken to do, which it has refused to do? What has it agreed not to do, which it has done? I hope the court will look into the act, and see if they can find any provision there which has been violated. The state authorized the erection and continuance of a bridge, and the right to take toll, during the period of seventy years. It has not revoked, annulled or altered any of these powers. It has not disturbed their possession or right to take toll; it has not altered a letter of the act. But it is urged, that the state has authorized the erection of a bridge which greatly diminishes the tolls; and this is true; and the question here is, did she agree not to do it, in and by the acts of 1785 or 1792? If so, point out the agreement. The state, it is admitted on all hands, has an undoubted right to make new bridges, even if they do destroy the franchises of other bridges; but when she takes property for public use, she must compensate for the damage. And where arises the obligation to do this? Not in the act of 1785 or 1792, but in the bill of rights; here lies the obligation, and nowhere else. There is nothing in the act of 1785 in regard to the duty of compensation. The question here arises, is the bill of rights a part of the contract? If it is not, I humbly contend, that this court cannot entertain jurisdiction, for its jurisdiction reaches only the constitution and laws of the United States; and this case cannot be brought under that constitution, unless a contract can be shown, which is impaired by the act of 1828. The laws and constitutions of the states belong solely to the state courts to expound. Jackson v. Lamphire , 3 Pet. 280. The bill of rights is part of the constitution of Massachusetts; and is not, and cannot be, any part of a contract, unless expressly made so by agreement. The laws of a state may be used to expound and explain, but never to supersede or to vary a contract. Ogden v. Saunders , 12 Wheat. 213; 3 Story's Com. 249. If this provision of the bill of rights should be added to the act of 1785, it would both supersede and vary the contract from what it now is. These principles seem to be settled, beyond question. I consider it also well settled, that a contract with a state stands on ground in no respect differing from all other contracts; and the constitution of the United States has, in its provisions, no reference specially to such contracts. The state is bound by no higher obligation to abstain from violating its own contracts by law, than to abstain from violating all other contracts. All citizens stand on the same footing in this respect, with the same measure of redress, and the same extent of rights. If the bill of rights can be engrafted upon this contract as a condition, because it was a public law, of which all must take notice, when the act of 1785 was passed; then, for the same reason, it becomes a condition of every contract; and whoever has his property taken for public use, may appeal to this court, and it would thus open its jurisdiction to revise a very extensive branch of jurisprudence, hitherto considered as exclusively belonging to the states. Is the court prepared for this? Did the framers of the constitution anticipate it? Will the public be satisfied with it? Not only matters of this kind will be brought here, but many other things. Why may not one who claims a right to vote in Massachusetts, and is denied the privilege, claim that the obligation of contract is impaired, for his right rests on the constitution? Why may not all officers whose qualifications, prescribed by the constitution, are drawn in question, and the rights they claim denied to them, come here for redress? Why may not a judge, who is legislated out of office, by taking away his salary, appeal to this court? Such a construction would open an alarming jurisdiction, and make this court preside over the constitution and laws of the states, as well as those of the United States; for this would be the result of making the constitution a part of contracts; the road laws alone, would take more than the whole time of the court. But I will not dwell on this aspect of the case, for this pretension has not been set up; and I am sure, the decisions of this court are decisive of the question. What then becomes of the jurisdiction, even admitting that the act of 1828 did violate the bill of rights? Is it not plain, that no contract or obligation of a contract is impaired, and therefore, that the constitution of the United States does not reach the case? The courts of Massachusetts have acted upon the matter, and whether for good or evil, right or wrong, their decision is final. I might add, that where property is taken for public use, it is not taken under, or by virtue of, any contract, but in the necessary exercise of a great and essential element of sovereignty. It is a right that necessarily rides over all property, and can never be questioned. It is the duty of every government to make compensation, where it is taken; and Massachusetts has made what she deems adequate and suitable provision, by her fundamental law, and it is no part of the business of this government to inquire into the sufficiency or insufficiency of that provision, nor what exposition is put upon it by her courts. The thing does not lie in contract, but in public law; and this court has never gone further than to declare private acts, contracts. Public acts, in the nature of things, cannot be contracts, but a rule of action. This case, therefore, bears little, if any resemblance to Fletcher v. Peck, New Jersey v. Wilson , or Dartmouth College v. Woodward . In all these cases, and in all the others quoted, the parties affected held rights under private acts, which the states of Georgia, New Jersey and New Hampshire attempted, respectively, to repeal, after rights had vested. The question raised in each case was, whether a state, where it had conveyed property and rights to an individual, could annul its own act. If a state, for example, conveys land to an individual, nothing can be more absurd, than to suppose it can annul its title and resume the property; for such grants are irrevocable. So also, in the case of Sturges v. Crowninshield , it was decided, that if one promises to pay money to another, a state cannot, by a law, release him from his contract, without payment. In all these cases, there is a manifest impairing of the obligation of contract; for the whole benefit is taken away, and the contract abrogated. But in this case, it is admitted, that the state has a right to take any property whatever, for highways; and, that the franchise of Charles River bridge is as liable as any other property to be seized for this purpose. The taking, therefore, for public use, is no wrong. It is no violation of the act of 1785, for it has always been held under that act, subject to this right. If it has been taken, therefore, that act is both right and lawful; for it is consistent with the contract, instead of a breach of it. The only matter which can be complained of, is, that no compensation has been made. This right to compensation does not spring up under the contract, but is derived from public law. The bill of rights alone gives it; and on that alone can the claim be sustained, if sustained at all. Over that branch of law, I repeat, this court has no jurisdiction, and redress must be sought in the tribunals of Massachusetts, and in no other place. Such is the necessary result, if property has been taken. On this point, therefore, we discover no error which can be corrected here. But the plaintiffs are in no worse condition, and have no higher claim to indemnity, than a large class of citizens who suffer by public improvements. Railroads, perhaps, generally, supersede the highways near them; and render stages, wagons and other property, to a great extent, less valuable. They frustrate the views, and lessen the income of all who depend on the public travel for patronage and support. The business of large communities, and the value of real estate, is seriously diminished, but there could be no indemnity for such losses. It is a mere misfortune, for such persons have no right over, or interest in, the public travel, which can be the subject of legal claim. The public convenience demands such improvements, and they are not to be obstructed from such causes. I must be permitted, before I leave this subject, to declare distinctly, that it is no part of my purpose to urge any change or modification of the laws; nor to advance the opinion, that the strong arm of the public may seize individual property, and sacrifice it to the public convenience. I am aware, that much has been said of this case; and that it has been said, there is no ground for the defence to standon, short of a revolution of principles which will unsettle private rights, and subject them to public caprice. I am not unconscious of the dangers which surround such doctrines; and I am equally sensible of the folly of urging vested rights, as they are denominated, to such extremes as to make them felt as grievous burdens, and onerous inconveniences, by the public. Many of the feudal institutions which still have acknowledged force in England, have been repudiated there; and I cannot think, there is much wisdom in attempting to engraft any of them upon our institutions, beyond where they have been distinctly recognised to be the law of the land. But while I say this, I am fully impressed with the vital importance of giving steady, unceasing protection to private rights. The great elements of public liberty lie in the firm protection of private rights. The great end of political association, in a free government, is to obtain a firm, unwavering protection of our persons and honest earnings. If a government fails to do this, it is of little value; for we scarcely want it for any other purpose. Liberty consists chiefly in freedom from arbitrary restraint and exactions; and no one can feel more sincerely anxious for the preservation of these great principles, than I do. I am fully sensible, that the constitution and the laws are the shield under which we take shelter. They are our place of refuge-the sanctuary to which we must cling, if we would preserve public liberty. I am not, therefore, for laying rude hands upon them; I am not for tearing away these great barriers of right. I wish it, therefore, to be distinctly understood, that I place our case within the pale of the law, and invoke no violence in its aid. I ask for no new principles or rules, but for a fair and just exposition of the laws; and this, I know, is all we shall obtain. Our case stands on what is called, by this court, a contract; and I only contend that this contract, when construed by the rules of law, as I understand them, after careful research and consideration, will sustain no such exclusive rights and privileges as the plaintiffs claim. I see no great constitutional question involved in this matter; for it is not a matter of constitutional law, whether the act of 1785 gives a wide, or a narrow franchise, but a simple inquiry into the meaning of that act. The case involves nothing else. If I do not mistake the weight of authority, I have shown that, in England, such grants are strictly construed, in favor of the public. This is the rule in a grant of privileges and monopolies; and I hope the public here is entitled to as favorable a consideration. All I ask is, that this rule shall be applied to the act of 1785. It is due to public justice, and public policy, that it should be. I can see no objection to it, while I do see much to object to in the opposite course. I have never had but one opinion in this matter, and all investigation has tendered to strengthen it. Some may suffer by a decision in favor of the defendants, and this I regret; but it affords no reason whatever, for establishing unsound rules of construction, or for denying to the public the accommodation of a lawful way. Webster , for the plaintiffs in error,(a) stated, that the question before the court was one of a private right, and was to be determined by the fair construction of a contract. Much had been said, to bring the claims of the plaintiffs in error into reproach. This course of remark does not affect their right to their property, if this court shall consider that property has been taken from them by proceedings which violate a contract; and in a case where this court has a constitutional right to interpose for its protection and restoration. It is said, that the proprietors of Charles River bridge have been repaid for the advances made by them in building the bridge. But this is not the question upon which the court has to decide; it is a question of contract; and if so, where is the necessity to inquire whether the plaintiffs have laid out a million, or nothing? If there was a contract, the question is not, what was the amount of profit to be derived from it, but what were its provisions; however advantageous to those with whom it was made. It is a contract for the annual receipt of tolls, for a specified period of time; and it is said, the state, which, by its law, brought the company into existence, by allowing these tolls, may break the contract, because the amount of the tolls is large; and by a legislative act, say, that, for a portion of the time granted, the contract shall not be in force! The case has been argued before; once in the superior court of the state of Massachusetts, and once in this court; and without any disrespect to the counsel who argued it before the present hearing, it has been exhibited on new and enlarged grounds. It has been said, in the argument, that the right of eminent domain cannot be granted away by a legislative act; and if granted, the same may be resumed, against the express terms of the grant. The necessity of the existence of this right in a sovereign state, has been asserted to be shown, by a reference to many cases; as the grant of a right to construct a turnpike, which, if it gave an exclusive right of making all communications between two places, to a corporation, or to an individual, would operate to prevent the introduction of improved modes of intercourse, as by railroads; and thus be most extensively injurious to the interests and stay, to a fatal extent, the prosperity of the community. The plaintiffs in error deny this position. They hold, that the obligation of a contract is complete; and that other means than by its violation, may protect the interests of the community. Such a violation of a contract would be fatal to the confidence of the governed in those who govern; and would destroy the security of all property, and all rights derived under it. The localities of the two bridges, the Charles River bridge, and the Warren bridge, are well understood by the court. They accommodate the same line of travel, and either of them furnishes all the convenience, and all the facilities the line of travel requires. That one is sufficient, is shown by the fact, which is not denied, that since the Warren bridge has become free, all travellers pass over it, and no tolls are received by the proprietors of the Charles River bridge. When the act authorizing the Warren bridge was passed, and the company was about to erect the bridge, the plaintiffs applied to the superior court of Massachusetts for an injunction to prevent the work going on. This was refused, on the ground that nothing had been done by the company which presented the question of the unconstitutionality of the law. Before the Warren bridge was in the actual receipt of tolls, the bill now before the court was filed; and afterwards, a supplement bill, the proprietors of the Warren bridge being in the actual receipt of tolls; claiming that the charter under which they acted was a violation of the contract of the state, with the proprietors of the Charles River bridge, and was, therefore, against the constitution of the United States. The case is now before this court, on this question. It is said, that Boston has many of such bridges as that constructed by the plaintiffs. This must necessarily be so; Boston is an exception in the ocean; she is almost surrounded by the waters of the sea, and is approached everywhere, but in one part, by a bridge. It is said, that those numerous bridges have given rise to no litigation. This is so, but the just inference is, that by no one of these has a right been interfered with. In fact, in all the cases where rival bridges, or bridges affecting prior rights, have been put up, it is understood, that there have been agreements with those who were or might be affected by them. This was the case with West Boston bridge. It was purchased by those who sought to make a free bridge which would interfere with it. It has been said, in argument, that the ferry franchise, which was the property of Harvard College, was seized by the legislature, when they authorized the erection of the Charles River bridge. But this was not so. A compensation was allowed for the use of the franchise, or its interruption; and no objection was ever made to it by that institution. The just inference is, that a previous agreement had been made with the college; and that the sum annually paid by the proprietors of Charles River bridge, was entirely satisfactory to that corporation. Mr. Webster then went into an examination of the circumstances which had attended the erection of other bridges from the main land to Boston; and he contended, that in all the cases, compensation had been made to those who were injuriously affected by them. In the case of the Cambridge bridge, the legislature, in the act authorizing it, extended the charter of the proprietors of the Charles River bridge, as a compensation for the erection of another bridge. This was a compensation for the tolls taken by diverting the line of travel. In none of these cases, was there an appeal to prerogative, and to its all-superseding powers. The history of the Warren bridge exhibits an entirely different state of things. It was undertaken on different principles, and under a different temper. It began with a clamor about monopoly! It was asserted, that the public had a right to break up the monopoly which was held by the Charles River bridge company; that they had a right to have a free bridge. Applications were frequently made to the legislature, on those principles, and for that purpose, during five years, without success; and the bill, authorizing the bridge, when it was first passed by the legislature of Massachusetts, was rejected by the veto of the governor. When the charter was actually granted, it passed the legislature by a majority of as many members as there were hundreds in the body. If it had not been for the provision in the constitution of the United States, under which the plaintiffs now ask for the protection of this court, it is believed, the law would not have been enacted. Members of the legislature consented to the law, on the ground, that if it interfered with chartererd rights, this court would set it aside. The argument was, that if the law was a violation of the charter, it would be of no avail. Thus it passed. But since its passage, there is an appeal to the right of eminent domain to sustain it. It is said, take care! You are treading on burning embers! You are asking to interfere with the rights of the state to make railroads, and modern improvements, which supersede those of past times by their superiority! You prevent the progress of improvements, essential to the prosperity of the community! It would then appear, that the existence of the provision of the constitution of the United States, which this court is now called upon to apply, has been the whole cause of the injury done to the plaintiffs, by the passage of the law authorizing the Warren bridge. But for the belief that the rights of plaintiffs would be restored, by the appeal to that provision, the law would not have existed. The learned gentleman who first argued the case for the defendants, went the whole length of asserting the power of the legislature to take away the grant, without making compensation. The other gentleman asks, if the plaintiffs are not yet satisfied with exactions on the public? What are exactions? They are something unjust. The plaintiffs have taken tolls for passing the bridge; but this they had a right to do by their charter. It is said, the tolls were oppressive; but is it oppression, when the right was given by the charter to take them, as the stipulated income for capital laid out under the charter? It is said, that the public are on one side, and the plaintiffs are on the other; that if the case is decided one way, a thousand hands will be raised, to one, should the decision be different; but this is not correct. The public sentiment, in this case, is not on one side. It is not with the defendants. The representatives of Boston never voted for the Warren bridge; they thought there were existing vested rights, which ought not to be disregarded. The city of Boston would have purchased the right of the Charles River bridge, if they had been asked. The property, or stock in the bridge, was dispersed through the community; it was not a monopoly. The honor of Massachusetts will stand unblemished in this controversy. The plaintiffs impute no dishonor to her, or to her legislature. Massachusetts only wants to know if the law in favor of the Warren bridge, has infringed upon the vested rights of the plaintiffs; and if this is so, she will promptly make compensation. The plaintiffs say, the act authorizing the Warren bridge has violated the constitution of the United States; and if this court shall so declare, the state of Massachusetts will do full justice to those who have been injured by her authority. The counsel for the defendants have said, that the plaintiffs have sustained no loss but that of their golden prospects. They have lost all their property; a property worth $300,000 before the new bridge was built, and now not worth $30. The rights of the plaintiffs are no monopoly. They are the enjoyment of the property for which they had paid in advance; and which, by a contract made by the law, they were entitled to enjoy for twenty years yet to come. They are called rapacious monopolists, when they claim to hold what they have purchased. Those who have assailed this property, have taken it from them-have taken all from them, without compensation. Where, and with whom, is the rapacity to be found in the transaction? The provisions of the law of Massachusetts against monopolies, are taken from the English statutes of James I. They were so taken, for it follows that statute in terms, and contains the same exceptions in favor of useful inventions. Thus, the Massachusetts law is the same with that of England, which has never been considered as extending to such cases as this before the court. The language of the law is 'monopolies;' but this is a 'franchise,' and not a monopoly; and thus the clamor which was raised has no application to the property of the plaintiffs in error. It is unjust, and without application. The record presents the only questions in the case. What are they? The original bill was filed in 1828, and after the answer of the defendants was put in, the amended bill was filed, only to put in issue the questions of law and fact presented in the original bill. The courts of Massachusetts proceeded in this case according to the equity rules of this court; and this case is fully exhibited, so that the whole of the issues of law can be decided here. The original bill founded the rights of the plaintiffs: 1st. On the act of the legislature of Massachusetts of 1785. 2d. On the purchase, by the plaintiffs, of the ferry-right, which had belonged to Harvard College. 3d. On the consideration paid for the charter to build the bridge, and the prolongation of the charter for twenty years, by the act of 1792. The plaintiffs say, the act for the erection of the Warren bridge violates the constitution of the United States; and that the act takes the property of the plaintiffs for public use, without making compensation for it. They rest on their charter. The defendants, in their answer, do not say the property has been taken for public use, but they rest on their charter: and they say, that the legislature had a right to pass the act, as it does not infringe the property of the complainants. This presents the question, whether the constitution of the United States is violated? There is no other issue made on this record. This state of the pleadings excludes much of the matter which has been presented by the counsel for the defendants. They do not present the question of eminent domain. The plaintiffs might have presented that question, in the court of Massachusetts. They might have said, that their property was taken by the law, for public use; and was taken under the right of eminent domain. This would have been a Massachusetts question; and one which could not have been brought before this court. It is admitted, that if the legislature of Massachusetts takes private property for public use, under the power of eminent domain, this court cannot take cognisance of the case. If the case had been so put, before the superior court of Massachusetts, that court could have decided, that the complainants were entitled to compensation, and that the defendants were bound to make it. It is the law of this court, that the parties must be confined to the questions on the record. The only issue here is, the question whether the defendants have infringed the rights of the plaintiffs, and have violated the constitution of the United States. While this case was in progress through the courts of Massachusetts, and depending in this court, it appeared that one-half of the tolls of the plaintiffs' bridge was taken away. New the whole tolls are gone! This has occurred since the Warren bridge has become a free bridge. The legislature of Massachusetts have given to the plaintiffs the right to the franchise of a bridge at Charlestown; and the question is, whether this is such a right as that it can be violated or infringed? The franchise is a thing which lies in grant, and is, therefore, a contract; and if, by the charter to the Warren bridge, it has been infringed, it comes within the prohibition of the constitution relative to contracts. The question is, whether the plaintiffs had such a franchise? This is the only question in the record. A preliminary objection to the right of this court to proceed in this case, has been made, on the suggestion, that the case is one against the state of Massachusetts; as the state of Massachusetts is now the only party interested in the cause, the bridge having become her property; and it is said, against the state, this court can grant no relief. A state cannot be brought into this court, in a suit by individuals, or a corporation. The state is not a party to the cause. The bill is against the persons who built the Warren bridge; and it is from them relief is sought and required; and those persons stand as trespassers, if the law, under which the acted, is unconstitutional. But after a suit is lawfully commenced, it goes on against all who afterwards make themselves parties to it. There is no effect on the rights of the plaintiffs, by a change of this kind, as a wrongdoer cannot excuse himself by parting with his property. The plaintiffs ask a decree against the proprietors of the Warren bridge, John Skinner and others; and a decree is asked against no others. The question which is raised by the objection to the jurisdiction of this court in this case, is, whether the court can proceed in a case in which a state has an interest? This cannot be asserted with success. If such were the law, the exclusion of jurisdiction would extend to all cases of lands granted by the United States; for in cases of such grants, if no title has been given, the United States are bound to make compensation. Such a doctrine would overrule the judicial structure of the government, and prevent the administration of its most important functions. This question has been decided in this court, in the case of Osborn v. Bank of the United States , 9 Wheat. 557. This is precisely the same question with that in the case referred to. The state of Ohio claimed the money in the hands of Osborn, as a tax on the funds of the Bank of the United States, imposed by an act of the legislature of the state. The state of Massachusetts claims the tolls of the bridge, derived from a law of the state. This court, in the case cited, expressly declare it to be one in which the state is a party. So, in Fletcher v. Peck , where Georgia had declared a deed given by the state for lands, void; but the parties to the case were those on the record, although the decision directly vacated the proceedings of the legislature of Georgia, yet the court had jurisdiction. In this case, no judgment will be pronounced against the state of Massachusetts. On these pleadings, if the constitutional question were out of the case, could any action of the court affect the state? She is, in fact, no party in this cause. She cannot be a party, to blow up a suit, and not be subjected to its final result. Suppose, a state should coin money, congress would not prohibit its being done; it is prohibited by the constitution, and a law could not do more. Could the law be carried into effect? Proceedings under it would be brought before this court, by an action against the agents of the state, or by a suit against the party issuing it, or making a contract for the money so coined. If you cannot, by a suit against an individual, question the unconstitutional acts of a party, the whole of the powers of the constitution, upon its great and vital provisions for the preservation of the government, are defeated. It has been said, the court can do no justice to the parties who have sought its protection, because the superior court of Massachusetts has only a limited jurisdiction in cases of equity. It is admitted, that the equity jurisdiction of the courts of Massachusetts is limited; but it has all the jurisdiction over the subject, to which its powers extends, as any other court of equity. The law of Massachusetts gives full equity powers to the court, in all cases which are made subject to its jurisdiction. 6 Pick. 395. The law of 1827 gave this jurisdiction in all cases of waste and nuisance. This bill prays for general relief. This court may abate the nuisance, and decree a repayment of the tolls; and do all in the case, that, according to law and equity, may appertain to it. In equity, a court may enjoin against the nuisance, and decree a compensation. But all this discussion about the power of the court of Massachusetts to make a suitable decree, has no place here. This court can, in their decree, declare, whether the act of 1828 does impair the contract of 1785. This is all the court can do; and it is nothing to them, what will be done in the case, by the court to which the case will be remanded. In conformity with the provisions of the judiciary act of 1789, this court remands a case, when further proceedings are necessary in the court from which it may have been brought; when nothing else is required in that court, this court will give a final judgment. In this case, the court are bound down by the record, to the single question of the validity of the law, under which the defendants acted. To proceed to the main questions in the cause: 1. The plaintiffs claim to set up a bridge, exclusively, between Boston and Charlestown; or, if they are not entitled to this, they claim to put down all such other bridges as interfere with the profits and enjoyments of their privileges. It is not contended, that the tormini include or exclude all within the place. Every person must keep so far off, as not to do a direct mischief to the plaintiffs' rights. The plaintiffs say, that the ferry-right gave them the privilege of excluding rivals. That by the charter, they have a franchise which gives them rights, which cannot be violated by the proceedings of a subsequent legislature. It is in vain to attempt to derive anything from the ferry-right, if it is what the defendants say it is. They say that a ferry is a path over a river; and that the English law relating to ferries never was in force in Massachusetts. This position is denied by the plaintiffs. In support of this assertion, they give a bead-roll of ferries which have been taken away; and bridges built where they before existed. This is statement. The law of Massachusetts has always been the common law of England. Is there any authority for the contrary, in any of the decisions of her courts? There may be such, but it is hoped not, and it is believed not. Have the ancient fathers of the profession of the law-the Parsons, the Sedgwicks, the Danes, taught other doctrine? Has the contrary been sustained by these men-by their opinions? In the case referred to by the counsel for the defendants, a distinguished lawyer of Massachusetts allowed a ferry-right according to the common law of England. Every judge in Massachusetts has held a ferry-right to be an indefeasible inheritance-a vested right, like any other property. Let us see, if this is not the fact. But before this is done, a reference will be made to acts in the early history of Massachusetts, which are on the record. There is a grant of a ferry for twenty-one years. 'At a generall corte held at Boston, 7th day of 8th month, 1641. It is ordered, that they that put boats between Cape Ann and Annisquam, shall have liberty to take sufficient toale, as the court shall think meete.' Is this the grant merely of a path across the river? So also, there is a grant of an inheritance in a ferry, on condition that it shall be submitted to the general court. This grant is contemporaneous with the grant of the ferry over Charles river. 'At a generall corte of election, at Boston, the 10th of the 3d month, A. 1648. Upon certain information given to this generall corte, that there is no fferry kept upon Naponset ryver, between Dorchester and Braintree, whereby all that are to pass that way, are forced to head the river, to the great prejudice of townes that are in those partes, and that there appears no man that will keepe it, unlesse he be accommodated with house, land and a boate, at the charge of the country: It is therefore ordered, by the authority of this corte, that Mr. John Glover shall, and hereby hath, full power given him, either to grant it to any person or persons, for the tearme of seaven yeares, so it be not in any way chargeable to the country, or else to take it himselfe and his heires, as his own inheritance for ever; provided, that it be kept in such a place, and at such a price, as may be most convenient for the country, and pleasant to the general courte.' In the record, there is a copy of a grant of a bridge over Charles river, near Watertown; the terms of which are, on the condition of making the bridge, the tolls are granted for ever. This was in 1670. This is the early statute law of Massachusetts. The later acts of the legislature are of the same character. The instances of such legislation were cited from 7 Pick. 446-8, 511, 521, 523. In all these cases, the judges hold the common law of England as to ferries to be the law of Massachusetts; and that a ferry is an indefeasible interest, and a franchise and property. Mr. Webster then stated a number of cases, in which, when a bridge had been erected in a place of an existing ferry, compensation had been made to the owners of the ferry. He insisted, that upon these authorities, a ferry was as much a property, as much the object of legal protection, as anything known to the laws of the land. The plaintiffs obtained their property as a purchase of some extent up and down the river. It is not required now to determine how far the purchase extended; for the rival bridge erected by the defendants, is alongside of the Charles River bridge, and is an interruption to the profits derived from it. It is not necessary now to fix the limits of the franchise. That the interference is direct and certain, is not denied. Difficulties may arise hereafter in fixing these limits, but it is not necessary to go to a distance to establish them, before a certain, and admitted inference, shall be examined. It is submitted, that, in London, no bridge has been erected over the river, without compensation having been made to those whose interests may have been injured. The evidence of this will be found in many works on the subject. Those treatises show the minute attention of the British parliament, in all cases in which private rights may be affected by the enactment of a statute. All persons who may be interested, have notice from parliament of the application; and compensation is made, where any injury is done. It is said, that the distinguished honor of maintaining principles which will arrest the progress of public improvements, is left to the plaintiffs in this case. This is not so. All that is asked, is, that the franchise shall be protected. Massachusetts has not made any improvement of her own, although she has subscribed liberally to those which have been undertaken by individuals and corporations. In all these cases, private rights have been respected; and except in the case now before the court, Massachusetts has kept her faith. Recent and previous acts by her legislature show this. In every case, but this, compensation has been made in the law, or provided for. The plaintiffs do not seek to interrupt the progress of improvements, but they ask to stay revolution; a revolution against the foundations on which property rests; a revolution which is attempted on the allegation of monopoly: we resist the clamor against legislative acts which have vested rights in individuals, on principles of equal justice to the state, and to those who hold those rights under the provisions of the law. It is true, that before the legislature, the rights of the plaintiffs were examined, and still the Warren bridge charter was given; but the decision of a committee of the legislature was not a judicial action. The plaintiffs have a full right to come before this court, notwithstanding their failure before the legislature. In reply to some remarks of the counsel of the defendants, Mr. Webster stated, that the proceedings in England under writs of ad quod damnum , did not affect private rights. The writ of ad quod damnum issues for the honor of the king. It issues before a grant is made, and for the protection of the king. Private persons may claim the protection of the law in favor of their rights, notwithstanding such a proceeding. Questions of nuisance, are always questions of fact, and must be tried by a jury; but no jury can assess the amount of injury, until the facts are ascertained. These principles are sustained in 3 Bl. Com. 219. Is it the liberal construction of charters to interrupt them against the rights of individuals-against the enactments of the law? The course has been, to construe them in favor of the grantees, and to enlarge their provisions for his benefit. The whole of the course is changed, if an opposite principle is adopted. But the plaintiffs ask no more than a fair judicial construction of the law; no more is required, but what they are entitled to, under a judicial interpretation of it. It has been said, in the argument for the defendants, that although the holder of a franchise may maintain an action against a stranger who interferes with it, without a license; he may not, against one who has a license from the state. This is without authority. If he can claim against a stranger, it is because of his property in the franchise, and this will protect him in proceeding against any one. This right is complete against all, and the state can give no privilege to interfere with it. In the case of Bonaparte v. Camden and Amboy Railroad Company , Mr. Justice BALDWIN, sitting in the circuit court of New Jersey, says: 'The privilege of exemption of the principal is not communicated to the agent, though the principal is a state which cannot be sued at law or in equity; and the agent, a public officer acting in execution of the law of the state, and the subject-matter of the suit was money actually in their treasury, in the custody of the defendant for the use of the state.' Bald. 217. The proprietors of the Charles River bridge purchased the ferry franchise from Harvard college, and it became their property, for the purpose of erecting a bridge upon its site, with all the rights and advantages to be derived from it. It was purchased, and the consideration for it was the annual payment of the sum of 200 l. This, by the charter, was to be absolutely paid; and no accident to the bridge, no deficiency of tolls, will excuse the non-payment of the sum so stipulated to be paid. Suppose, while the bridge was building, it had been profitable to use the ferry, would not the tolls have belonged to the proprietors of the Charles River bridge? There is no ground to suppose, the college meant to retain anything out of the franchise. Nothing appears, which will authorize the supposition, that the state meant to take a transfer of the franchise, or any part of it; and allowed the use of it to the bridge, to the extent of putting up the abutments, at the places where the ferry was carried on. The bridge is the successor of the college, in the franchise; the company purchased it, to its full extent, and the state, by the charter, ratified the purchase. The erection of the bridge was an undertaking of great hazard, and the result of the effort to construct it, was considered exceedingly doubtful. It cannot, therefore, be supposed that the franchise was to be diminished, and its enjoyment to be limited. Nothing of this is expressed, and nothing so unreasonable can be implied. It is in evidence, on the record, that the college was a party to the building of the bridge. The president stated, that the college had assented to it. According to the course of decisions in Massachusetts, the franchise was an indefeasible inheritance. In that state, the management of ferries was with the general court. As to this franchise, from 1640 to 1785, it was respected by the local authorities of Middlesex and Sussex. It would then appear, that it was held under a legislative grant, which transcended all other rights. The franchise which was obtained from the college, was not extinguished by compact; and it cannot, therefore, be disturbed by any action of the legislature. It is deemed important, and is the truth of the case, to consider the rights of the Charles River bridge company, in connection with those of the college. The college had, and still have, an interest in it; and the use of the franchise by the company is essential to all the purposes, and to more than those for which it was held by the college. The pontage furnished by the bridge, was the substitute for the passage by the ferry; and it was not, therefore, only for location at the place where the bridge was built, that the rights of the college were obtained; all the privileges enjoyed as a part of the ferry franchise were acquired. When the bridge was put up on the same place as the ferry had been, and for all the ends of the ferry, it is but just and reasonable, that the extent of the right shall be in the hands of the bridge company, equal to that which it was when held by the college. The views which have been taken, fully show that the state of Massachusetts made, in the full and rightful exercise of her legislative powers, a grant to the proprietors of the Charles River bridge, and the grant was a contract. As such, by no subsequent legislation, could it be impaired; a right vested, cannot be divested. Cited, 2 Dall. 297, 304; 9 Cranch 52; Green v. Biddle , 8 Wheat. 1; Fletcher v. Peck , 6 Cranch 136. If a power of revocation existed, it was no contract. The state cannot make such a contract; as the power of revocation is incompetent to will the existence of a contract. Can a stronger case be imagined, than that which gave rise to the controversy in Fletcher v. Peck? The contract had been made in fraud; in morals, it was just to burn it; in policy, it was equally so, as a large part of the domain of the state of Georgia was granted for no adequate consideration. But this court decided, in that case, that the legislature of Georgia had no power to annul the grant; and the grant was maintained by the judgment of this court. The difficulty in which this case in involved, and upon which the defendants expect success, arises from considering two things alike, which are different. The power of making public grants, because the interests of the community require they should be made, and the right of eminent domain. Where property is taken for public purposes, compensation is given; this is the exercise of eminent domain. The legislature are not the judges of the extent of their powers; and the question now before the court is, whether they had the power which has been exercised in this particular case. By the act of the legislature, authorizing the Warren bridge, two injuries were done to the plaintiffs: first, by the damage they sustained from a rival bridge; secondly, the infringement of their right of pontage. The toll had been originally granted for forty years, and this excluded rivalship. By the interruption of the receipt of their full tolls, the proprietors of the bridge sustained heavy losses; and by the erection of the Warren bridge, now a free bridge, their beneficial right of pontage has been destroyed. In these, have the contract of the state of Massachusetts been broken. Thus the case is entirely within the provision of the constitution of the United States. What is the meaning of the assertion, that in a grant by a government, nothing passes by implication? How is it, in grants of land? Does a patent from the United States carry less than a grant by an individual? They are the same-a grant of 'land' carries 'mines.' The principle, that nothing passes by implication, arose in early times, when the grants of the crown were greater than now; when they were made to favorites, and the power was abused and when their extravagance induced courts to restrain them to their words. Hence the insertion of mero motu' 'certa scientia: hence the principle, that the grant of one thing shall not carry another. The doctrine that nothing can be carried by implication in a royal grant, does not apply to grants by parliament, or of franchises (2 H. Bl. 500): no case but one from 2 Barn. & Ald. 792, has been cited, to sustain the position. That case is not authority here. But if the whole of that case is taken together, it is in favor of the plaintiffs in this cause. The decision is right; although there is too much strictness in some of the opinions of Lord TENTERDEN. Franchises are complex in their nature, and all that may be necessary for their enjoyment, must pass with them, although things separate do not pass; whatever is incident to them, does not require implication, to pass such incidents. Thus, the grant of the ferry to the college, gave the right to take tolls; to keep boats: cited, 1 Nott & McCord 393. It has been said, that this may be good law as to individuals, but that it will not operate in the case of a state: authorities for this position are required. If a grantee of a franchise can sustain an action against an individual, for an injury to his property, or an interference with his property, why may he not, against the grantee of the government, who thus interposes? The case is stronger against the government, than against a stranger. The government has received the consideration for the grant; and there is an implied obligation to protect the enjoyment of it. Ferries are property. They may be seized for rent; they may be devised by will; they may be sold: and yet it is said, the government may take them away from their proprietors, for their grantors. Let us see some principle which will allow such property to be taken; and which yet regards private property, and respects private rights and public faith. The right of a ferry carries tolls; and it also carries, for its protection, the principles of justice and of law, that the grantee may keep down injurious competition. It is vain to give him one, without the other; both must be given, or none is given. The grant is intended as a benefit, as a remuneration for risks, and for advances of capital, not as a mere name. The ordinary means of compensation for such advances are not sufficient; the franchise necessarily implies exclusive and beneficial privileges. It was under this law of ferries, the plaintiffs took their charter. They considered, that under it, they held the whole extent of the ferry franchise. There was then but one ferry between Charlestown and Boston. It had the whole ferry-rights, and this they acquired; this they have paid for. If a grant refers to another grant, it carries all which is contained in both. But suppose, there had been no reference to any other; it would carry the same rights, and to the same extent, or more. The expense of erecting a bridge, and keeping it in order, is much greater than that attending the setting up and keeping in order a ferry. The promotion of public accommodation is no reason for taking away a privilege, held under a legal grant. It cannot be done unjustly to the rights of others; these rights must be respected. The income derived from these rights shall not be diminished. Suppose, the bridge had been erected, without an act of the legislature to authorize it; would a subsequent act protect it? How can a grant to A. be lawfully impaired, or injuriously affected, by a subsequent grant to B., which interferes with the enjoyment of the prior grant? Once granted, always granted. What position would a judicial tribunal assume, that would construe a grant differently, according to the parties to it. Can you raise an implication against it, and not do so against the government? Implication is construction-construction is meaning and when a thing is in the deed, it is the meaning, and force and purpose of the instrument. If the parties are changed, these cannot be changed. To allow another bridge to be built, was to take away the tolls of the first bridge. In support of the position, that this was a violation of the rights of the plaintiffs, the opinions of all the judges of the court of Massachusetts, from which the case is brought, are appealed to. They all say, that the charter granted by the legislature is binding on it, and cannot be impaired; and they say, that, to whatever extent the grant goes, it must be supported. 2 Mass. 146. But the Warren bridge does impair the charter, for it takes away the tolls. What then becomes of the reserved rights of the legislature? This is a solemn adjudication of the court of Massachusetts. Then, there is no reservation. There is implication in government grants. This has been so held in Massachasetts. 4 Mass. 522. It is also the law of this court. Dartmouth College Case , 4 Wheat. 518. The court below held, in this case, that whatever was granted belonged to the grantee; that the ferry at Charlestown was granted to the college, and that the law of England relating to ferries, prevails in Massachusetts; that nothing can be taken for public use, without compensation; that public grants are always to be so construed as to convey what is essential to the enjoyment of the thing granted, and cannot be superseded, or the grant impaired. In support of these positions, Mr. Webster read parts of the opinions of the judges of the superior court of Massachusetts, delivered in this case. The proposition is stated, that grants of the character of this which is held by the plaintiffs, contain a power of revocation. This cannot be. Being grants, they cannot be treated or considered as mere laws; being grants, they are contracts. In this case, the grant was intended to be beneficial to the grantees, and it contained a covenant that it should continue for forty, and afterwards for seventy years. For this a consideration was paid, and is now paid, to the public, by the large expenditure for constructing the bridge; to Harvard college, by the sum of 200 l. annually. But the legislature have now done everything to make the grant unproductive-to deprive the holders of all advantage from it. Necessarily, the grant to the proprietors of the Charles River bridge contained a guarantee of their enjoyment of the privileges contained in it. Any other construction would be against every principle upon which the rights of property, derived from public acts, rests. Suppose, after the grant of a ferry, with a right to take tolls, and the establishment of it by the grantee, at the expense of boats, a free ferry had been erected at the same place, or so contiguous as to destroy the profits of the first ferry, by a ruinous competition; would this be proper? It is said, that still the right to take tolls remains in the first franchise. This is true; and it is then inquired, what injury has been done? No franchise, it is said, is taken away; all the rights granted remain; the tolls remain. It is true, the counsel for the defendants admit that all will pass over the free ferry; but yet they say the toll-dish of the first grantees is not touched by the hands of those who have opened the free ferry; the notice of the rates of tolls to be paid, yet remains. But to all this the plaintiffs oppose the simple fact. Under the plaintiffs' grant of a franchise, they possess the constitutional right to keep down all competition, during the whole time of the charter. This has been established by an unbroken chain of authorities, for many years; and this applies to all grants alike, here, as well as in England. It is a franchise; and every dollar of toll taken at the Warren bridge, since its erection, and the temporary use as a toll bridge, is a part of the legal and proper profits of our franchise; and thus the guarantee, conveyed in grant (as guarantees are interpreted by the Massachusetts courts), has been broken. Mr. Webster then went into a further examination of the argument of the counsel for the defendants, and into a notice of the observations which had fallen from them in the defence. The plaintiffs, it is said, have received compensation enough; their profits have been already very large; they have had a reasonable compensation. This is not so. Nothing is reasonable but the fulfilment of the contract; it is not reasonable, that one party should judge for themselves, as to compensation; and depart from the terms of the contract, which is definite and plain in its meaning. There was no extinction, it is argued, of the franchise. The answer is, that the act authorizing the second bridge expressly extends the charter, adding thirty years to it; and recites the consideration the public had received for the same. In this, there is a guarantee that the state shall pass no law to impair the contract. It is not true, that we can have no property in the line of travel, if by that, is meant, in the franchise granted by Gov. Winthrop and others, the right of transporting passengers from Boston to Charlestown. The franchise is valuable, because the transportation was concentrated at the points at which the plaintiffs' bridge was erected. The construction of the grant to us, which we demand, it is said, is not valuable. The plaintiffs say otherwise, and the issue is with this court. It is held up as a cause of alarm, that the plaintiffs claim a perpetual right to this franchise; and that when the charter of their bridge has expired, they will fall back upon their claim to the ferry. We do no such thing. When that time comes, it becomes the property of the state again. Theirs then it is, 'King, Cawdor, Glamis, all?' And it were to have been wished, that the defendants could have been content to wait until that time had arrived. The analogies of the rights of a tavern, a street, a mill, &c., have been put in the course of the argument for the defence. But all these were false analogies; they were not franchises; not in the grant of the government. Then, there is a long argument, based on the alleged policy of Massachusetts, in regard to public highways. There is nothing, Mr. Webster argued, in the situation of such matters, in that state, requiring the adoption of any particular line of policy. The roads are numerous and excellent, and no trouble is experienced in maintaining them so. There are no cases requiring any peculiar policy, nor any great or broad power to be exercised over them. This particular case, formed an exception to the usual caution exercised by Massachusetts, is legislating upon matters of this kind. Ever since this act passed, nay, within these two years, the legislature has granted a charter to a company for the erection of 'The Hancock Free Bridge,' near the West Boston bridge, from Boston to Cambridge; between that avenue and Canal bridge, lower down. The act prescribes the width; the obligation to attend the draw, &c.; makes the bridge a free one; the corporation to keep it in order, &c. For all this, they look for their compensation in the advanced value of their contiguous property. And in this very act, that corporation are directed to make compensation to all owners of real estate, whose property is liable to injury by the erection of the said bridge; appraisers are to be appointed, according to a mode pointed out in the act, and if not made according to their appraisement, then by the decision of a jury of the country. And a section of the act provides, that its provisions are to be void, if, before a certain period, the proprietors of the West Boston bridge shall sell out their bridge, according to the estimate of appraisers to be appointed by the parties. The language is, if such proprietors, 'will sell out their bridge and franchise.' Now, can this be set off by metes and bounds, as required of us, in relation to our 'franchise?' And so much for the 'policy' and understanding of the legislature of Massachusetts, as to franchises! Again, it is pretended and argued, that the plaintiffs have not always been uniform in the interpretation of their own rights. On the contrary, answered Mr. Webster, this same right was set up, on building the bridge, to the franchise of the ferry, and was then acknowledged; and the same principle has ever since been recognised and acted upon, by the legislature, and by the plaintiffs. And there was one other subject, which, though it had no bearing upon the case at bar whatever, had been made a great deal of, in the argument of defendants' counsel. Some observations upon it had been advanced, by way of connecting it with the case, of so novel a kind, as to require, however, some notice. And this was, that in chartering the Warren bridge, the legislature did but exercise its power over the eminent domain of the state. This power is described as being inalienable, and that the state cannot abandon it; nor by its own covenant or grant, bind itself to alienate or transfer it in any way. That it cannot tie up its hands in any wise, in regard to its eminent domain. In the course of the arguments for the defendants, one of their honors (Mr. Justice STORY), had put a case to the learned counsel (Mr. Greenleaf), like the following: Suppose, a railroad corporation receive a charter at the hands of the state of Massachusetts, in which an express provision was inserted, that no other road should be granted, during the duration of the charter, within ten miles of the proposed road. The road is built and opened. Did he hold, that, notwithstanding that covenant, a subsequent legislature had the power to grant another road, within five rods of the first, without any compensation, other than the faith, thus given by their charter, of the state of Massachusetts? And the learned counsel had replied that he did so say, and did so hold! This struck him, as it must have struck the court, as most startling doctrine. Mr. Greenleaf here stated, that in such a case, the faith of the state of Massachusetts was pledged to indemnify the parties, by making full compensation for whatever property the state might take, and for all the injury which should be done to private rights. It would not be presumed by this court, that the faith of the state would be broken. Mr. Webster proceeded to say, that the first question he wished to put, in relation to the position of the defendants' counsel, was, how can this power of eminent domain, as thus construed, be limited to the two sides, merely, of the road? Why should it not fall upon the road itself, and no compensation follow to the grantees? It is all alike part and parcel of the same 'eminent domain.' And so, in the case at bar, if that power gives the right to erect another bridge beside our own, why does it not give an equal right to take the latter, also? Eminent domain is a part of sovereignty, and resides in the sovereign-in the people; what portion of it is granted to the legislature, belongs to them; and what is not granted, remains with the people. Is not the power of eminent domain as well restricted as any other power? It is restricted by the constitution of the state, which contains a surrender of it to the government erected by that constitution. It may be as well regulated and restrained by provisions in the constitution, as any other power originally in the people; and its exercise must be according to such provisions. It is necessary to have a clear idea of what this same power of eminent domain actually is. What, then, do the counsel for the defendants mean, when they say that the state cannot transfer its eminent domain? They certainly do not mean its domains, its territory, its lands? And here he cited the case of the government land in the west and north-west, as a proof that that could not be the meaning of the counsel. They were the eminent domain, in one sense, of the country; and in that sense, the government can and does pass them away. But the other sense was, the power, rule, dominion of the state over its territory. These two ideas must not be blended in this investigation. The power of the state over its eminent domain, means the power of government over property, public or private, under various rules and qualifications. What is meant by the government's inability to part with its eminent domain? It can part with the thing, and reserve the power over it, to the extent of those qualifications already adverted to. Taking public or private property for public benefit, by the state, is an exercise of the power of the state over its eminent domain; but granting a franchise is not an exercise of that power. Cited, Vatt. p. 173, § 244; p. 70, § 45. The legislature may grant franchises. This is done by its sovereign power. What may it do with those franchises? What power has it over them, after they have been granted? It may do just what it is limited to do, and nothing more. It is restrained by the same instrument which gave it existence from doing more. The question is, what restrictions on this power are found in the constitution of Massachusetts; and by a reference to it, the limitation of legislative powers will be found. The power may be exercised by taking property, on paying for it. In the constitution, it is expressly declared, that property shall not be taken by the public, without its being paid for. In Baldwin's Circuit Court reports, it is said, that it is incident to the sovereignty of every government, that it may take private property for public use; but the obligation to make compensation is concomitant with the right. Bonaparte v. Camden and Amboy Railroad Company , Bald. 220. How, then, can this ground, which has been taken for the defendants, be maintained? The whole pleadings show, that the right of eminent domain was not involved in this case, when before the court of Massachusetts. It is too late now to present it. There is no allegation, that the property of the plaintiffs have been taken, and compensation made for it. The defendants seem to say, that if the property of the proprietors of the Charles River bridge has been taken under the right of eminent domain, the case is without a remedy. But this is denied. The taking under the privilege of eminent domain, is limited by the provision, that compensation shall be made. Nor is it true, that the legislature may not part with a portion of its right of eminent domain. Thus, in Wilson's Case , the right to tax lands in the state of New Jersey, was surrendered by the legislature. State of New Jersey v. Wilson , 7 Cranch 164. In conclusion, Mr. Webster said, the plaintiffs have placed their reliance upon the precedents and authority established by this honorable court, in the course of the last thirty years, in support of that construction which secured individual property against legislative assumption: and that they now asked the enlightened conscience of this tribunal, if they have not succeeded in sustaining their complaint, upon legal and constitutional grounds: if not, they must, as good citizens of this republic, remain satisfied with the decision of the court. TANEY, Ch. J., delivered the opinion of the court. The questions involved in this case are of the gravest character, and the court have given to them the most anxious and deliberate consideration. The value of the right claimed by the plaintiffs is large in amount; and many persons may, no doubt, be seriously affected in their pecuniary interests, by any decision which the court may pronounce; and the questions which have been raised as to the power of the several states, in relation to the corporations they have chartered, are pregnant with important consequences; not only to the individuals who are concerned in the corporate franchises, but to the communities in which they exist. The court are fully sensible, that it is their duty, in exercising the high powers conferred on them by the constitution of the United States, to deal with these great and extensive interests, with the utmost caution; guarding, so far as they have the power to do so, the rights of property, and at the same time, carefully abstaining from any encroachment on the rights reserved to the states. It appears, from the record, that in the year 1650, the legislature of Massachusetts granted to the president of Havard College 'the liberty and power,' to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf, and for the behoof, of the college; and that under that grant, the college continued to hold and keep the ferry, by its lessees or agents, and to receive the profits of it, until 1785. In the last-mentioned year, a petition was presented to the legislature, by Thomas Russell and others, stating the inconvenience of the transportation by ferries, over Charles river, and the public advantages that would result from a bridge; and praying to be incorporated, for the purpose of erecting a bridge in the place where the ferry between Boston and Charlestown was then kept. Pursuant to this petition, the legislature, on the 9th of March 1785, passed an act incorporating a company, by the name of 'The Proprietors of the Charles River Bridge,' for the purposes mentioned in the petition. Under this charter, the company were empowered to erect a bridge, in 'the place where the ferry was then kept;' certain tolls were granted, and the charter was limited to forty years from the first opening of the bridge for passengers; and from the time the toll commenced, until the expiration of this term, the company were to pay 200l., annually, to Harvard College; and at the expiration of the forty years, the bridge was to be the property of the commonwealth; 'saving (as the law expresses it) to the said college or university, a reasonable annual compensation, for the annual income of the ferry, which they might have received, had not the said bridge been erected.' The bridge was accordingly built, and was opened for passengers on the 17th of June 1786. In 1792, the charter was extended to seventy years from the opening of the bridge; and at the expiration of that time, it was to belong to the commonwealth. The corporation have regularly paid to the college the annual sum of 200l. and have performed all of the duties imposed on them by the terms of their charter. In 1828, the legislature of Massachusetts incorporated a company by the name of 'The Proprietors of the Warren Bridge,' for the purpose of erecting another bridge over Charles river. This bridge is only sixteen rods, at its commencement, on the Charlestown side, from the commencement of the bridge of the plaintiffs; and they are about fifty rods apart, at their termination on the Boston side. The travellers who pass over either bridge, proceed from Charlestown square, which receives the travel of many great public roads leading from the country; and the passengers and travellers who go to and from Boston, used to pass over the Charles River bridge, from and through this square, before the erection of the Warren bridge. The Warren bridge, by the terms of its charter, was to be surrendered to the state, as soon as the expenses of the proprietors in building and supporting it should be reimbursed; but this period was not, in any event, to exceed six years from the time the company commenced receiving toll. When the original bill in this case was filed, the Warren bridge had not been built; and the bill was filed, after the passage of the law, in order to obtain an injunction to prevent its erection, and for general relief. The bill, among other things, charged as a ground for relief, that the act for the erection of the Warren bridge impaired the obligation of the contract between the commonwealth and the proprietors of the Charles River bridge; and was, therefore, repugnant to the the constitution of the United States. Afterwards, a supplemental bill was filed, stating that the bridge had then been so far completed, that it had been opened for travel, aud that divers persons had passed over, and thus avoided the payment of the toll, which would otherwise have been received by the plaintiffs. The answer to the supplemental bill admitted that the bridge has been so far completed, that foot passengers could pass; but denied, that any persons but the workmen and the superintendents had had passed over, with their consent. In this state of the pleadings, the cause came on for hearing in the supreme judicial court for the county of Suffolk, in the commonwealth of Massachusetts, at November term 1829; and the court decided, that the act incorporating the Warren bridge, did not impair the obligation of the contract with the proprietors of the Charles River bridge, and dismissed the complainants' bill; and the case is brought here by writ of error from that decision. It is, however, proper to state, that it is understood, that the state court was equally divided upon the question; and that the decree dismissing the bill, upon the ground above stated, was pronounced by a majority of the court, for the purpose of enabling the complainants to bring the question for decision before this court. In the argument here, it was admitted, that since the filing of the supplemental bill, a sufficient amount of toll had been reserved by the proprietors of the Warren bridge to reimburse all their expenses, and that the bridge is now the property of the state, and has been made a free bridge; and that the value of the franchise granted to the proprietors of the Charles River bridge, has by this means been entirely destroyed. If the complainants deemed these facts material, they ought to have been brought before the state court, by a supplemental bill; and this court, in pronouncing its judgment, cannot regularly notice them. But in the view which the court take of this subject, these additional circumstances would not in any degree influence their decision. And as they are conceded to be true, and the case has been argued on that ground, and the controversy has been for a long time depending, and all parties desire a final end of it; and as it is of importance to them, that the principles on which this court decide should not be misunderstood; the case will be treated, in the opinion now delivered, as if these admitted facts were regularly before us. A good deal of evidence has been offered, to show the nature and extent of the ferry-right granted to the college; and also to show the rights claimed by the proprietors of the bridge, at different times, by virtue of their charter; and the opinions entertained by committees of the legislature, and others, upon that subject. But as these circumstances do not affect the judgment of this court, it is unnecessary to recapitulate them. The plaintiffs in error insist, mainly, upon two grounds: 1st. That by virtue of the grant of 1650, Harvard College was entitled, in perpetuity, to the right of keeping a ferry between Charlestown and Boston; that this right was exclusive; and that the legislature had not the power to establish another ferry on the same line of travel, because it would infringe the rights of the college; and that these rights, upon the erection of the bridge in the place of the ferry, under the charter of 1785, were transferred to, and became vested in 'The Proprietors of the Charles River Bridge;' and that under, and by virtue of this transfer of the ferry-right, the rights of the bridge company were as exclusive in that line of travel, as the rights of the ferry. 2d. That independently of the ferry-right, the acts of the legislature of Massachusetts, of 1785 and 1792, by their true construction, necessarily implied, that the legislature would not authorize another bridge, and especially, a free one, by the side of this, and placed in the same line of travel, whereby the franchise granted to the 'Proprietors of the Charles River Bridge' should be rendered of no value; and the plaintiffs in error contend, that the grant of the ferry to the college, and of the charter to the proprietors of the bridge, are both contracts on the part of the state; and that the law authorizing the erection of the Warren bridge in 1828, impairs the obligation of one or both of these contracts. It is very clear, that in the form in which this case comes before us (being a writ of error to a state court), the plaintiffs, in claiming under either of these rights, must place themselves on the ground of contract, and cannot support themselves upon the principle, that the law divests vested rights. It is well settled, by the decisions of this court, that a state law may be retrospective in its character, and may divest vested rights, and yet not violate the constitution of the United States, unless it also impairs the obligation of a contract. In Satterlee v. Matthewson , 2 Pet. 413, this court, in speaking of the state law then before them, and interpreting the article in the constitution of the United States which forbids the states to pass laws impairing the obligation of contracts, uses the following language: 'It (the state law) is said to be retrospective; be it so. But retrospective laws which do not impair the obligation of contracts, or partake of the character of ex post facto laws, are not condemned or forbidden by any part of that instrument' (the constitution of the United States). And in another passage in the same case, the court say: 'The objection, however, most pressed upon the court, and relied upon by the counsel for the plaintiff in error, was, that the effect of this act was to divest rights which were vested by law in Satterlee. There is, certainly, no part of the constitution of the United States, which applies to a state law of this description; nor are we aware of any decision of this, or of any circuit court, which has condemned such a law, upon this ground, provided its effect be not to impair the obligation of a contract.' The same principles were re-affirmed in this court, in the late case of Watson and others v. Mercer , decided in 1834 (8 Pet. 110): 'As to the first point (say the court), it is clear, that this court has no right to pronounce an act of the state legislature void, as contrary to the constitution of the United States, from the mere fact, that it divests antecedent vested rights of property. The constitution of the United States does not prohibit the states from passing retrospective laws, generally, but only ex post facto laws.' After these solemn decisions of this court, it is apparent, that the plaintiffs in error cannot sustain themselves here, either upon the ferry-right, or the charter to the bridge; upon the ground, that vested rights of property have been divested by the legislature. And whether they claim under the ferry-right, or the charter to the bridge, they must show that the title which they claim, was acquired by contract, and that the terms of that contract have been violated by the charter to the Warren bridge. In other words, they must show, that the state had entered into a contract with them, or those under whom they claim, not to establish a free bridge at the place where the Warren bridge is erected. Such, and such only, are the principles upon which the plaintiffs in error can claim relief in this case. The nature and extent of the ferry right granted to Harvard College, in 1650, must depend upon the laws of Massachusetts; and the character and extent of this right has been elaborately discussed at the bar. But in the view which the court take of the case before them, it is not necessary to express any opinion on these questions. For, assuming that the grant to Harvard College, and the charter to the bridge company, were both contracts, and that the ferry-right was as extensive and exclusive as the plaintiffs contend for; still they cannot enlarge privileges granted to the bridge, unless it can be shown, that the rights of Harvard College in this ferry have, by assignment, or in some other way, been transferred to the proprietors of the Charles River bridge, and still remain in existence, vested in them, to the same extent with that in which they were held and enjoyed by the college, before the bridge was built. It has been strongly pressed upon the court, by the plaintiffs in error, that these rights are still existing, and are now held by the proprietors of the bridge. If this franchise still exists, there must be somebody possessed of authority to use it, and to keep the ferry. Who could now lawfully set up a ferry, where the old one was kept? The bridge was built in the same place, and its abutments occupied the landings of the ferry. The transportation of passengers in boats, from landing to landing, was no longer possible; and the ferry was as effectually destroyed, as if a convulsion of nature had made there a passage of dry land. The ferry, then, of necessity, ceased to exist, as soon as the bridge was erected; and when the ferry itself was destroyed, how can rights which were incident to it, be supposed to survive? The exclusive privileges, if they had such, must follow the fate of the ferry, and can have no legal existence without it; and if the ferry-right had been assigned by the college, in due and legal form, to the proprietors of the bridge, they themselves extinguished that right, when they erected the bridge in its place. It is not supposed by any one, that the bridge company have a right to keep a ferry. No such right is claimed for them, nor can be claimed for them, under their charter to erect a bridge; and it is difficult to imagine, how ferry-rights can be held by a corporation, or an individual, who have no right to keep a ferry. It is clear, that the incident must follow the fate of the principal, and the privilege connected with property cannot survive the destruction of the property; and if the ferry-right in Harvard College was exclusive, and had been assigned to the proprietors of the bridge, the privilege of exclusion could not remain in the hands of their assignees, if those assignees destroyed the ferry. But upon what ground can the plaintiffs in error contend, that the ferry-rights of the college have been transferred to the proprietors of the bridge? If they have been thus transferred, it must be by some mode of transfer known to the law; and the evidence relied on to prove it, can be pointed out in the record. How was it transferred? It is not suggested, that there ever was, in point of fact, a deed of conveyance executed by the college to the bridge company. Is there any evidence in the record, from which such a conveyance may, upon legal principle, be presumed? The testimony before the court, so far from laying the foundation for such a presumption, repels it, in the most positive terms. The petition to the legislature, in 1785, on which the charter was granted, does not suggest and assignment, nor any agreement or consent on the part of the college; and the petitioners do not appear to have regarded the wishes of that institution, as by any means necessary to insure their success. They place their application entirely on considerations of public interest and public convenience, and the superior advantages of a communcation across Charles river, by a bridge, instead of a ferry. The legislature, in granting the charter, show, by the language of the law, that they acted on the principles assumed by the petitioners. The preamble recites, that the bridge 'will be of great public utility;' and that is the only reason they assign, for passing the law which incorporates this company. The validity of the character is not made to depend on the consent of the college, nor of any assignment or surrender on their part; and the legislature deal with the subject, as if it were one exclusively within their own power, and as if the ferry-right were not to be transferred to the bridge company, but to be extinguished, and they appear to have acted on the principle, that the state, by virtue of its sovereign powers and eminent domain, had a right to take away the franchise of the ferry; because, in their judgment, the public interest and convenience would be better promoted by a bridge in the same place; and upon that principle, they proceed to make a pecuniary compensation to the college, for the franchise thus taken away: and as there is an express reservation of a continuing pecuniary compensation to the college, when the bridge shall become the property of the state, and no provision whatever for the restoration of the ferry-right, it is evident, that no such right was intended to be reserved or continued. The ferry, with all its privileges, was intended to be for ever at an end, and a compensation in money was given in lieu of it. The college acquiesced in this arrangement, and there is proof, in the record, that it was all done with their consent. Can a deed of assignment to the bridge company, which would keep alive the ferry-rights in their hands, be presumed, under such circumstances? Do not the petition, the law of incorporation, and the consent of the college to the pecuniary provision made for it, in perpetuity; all repel the notion of an assignment of its rights to the bridge company, and prove that every party to this proceeding intended, that its franchises, whatever they were, should be resumed by the state, and be no longer held by any individual or corporation? With such evidence before us, there can be no ground for presuming a conveyance to the plaintiffs. There was no reason for such a conveyance; there was every reason against it; and the arrangements proposed by the charter to the bridge, could not have been carried into full effect, unless the rights of the ferry were entirely extinguished. It is, however, said, that the payment of the 200 l. a year to the college, as provided for in the law, gives to the proprietors of the bridge an equitable claim to be treated as the assignees of their interest; and by substitution, upon chancery principles, to be clothed with all their rights. The answer to this argument is obvious. This annual sum was intended to be paid out of the proceeds of the tolls, which the company were authorized to collect. The amount of the tolls, it must be presumed, was graduated with a view to this incumbrance, as well as to every other expenditure to which the company might be subjected, under the provisions of their charter. The tolls were to be collected from the public, and it was intended, that the expense of the annuity to Harvard College should be borne by the public; and it is manifest, that it was so borne, from the amount which it is admitted they received until the Warren bridge was erected. Their agreement, therefore, to pay that sum, can give them no equitable right to be regarded as the assignees of the college, and certainly, can furnish no foundation for presuming a conveyance; and as the proprietors of the bridge are neither the legal nor equitable assignees of the college, it is not easy to perceive, how the ferry franchise can be invoked in aid of their claims, if it were even still a subsisting privilege, and had not been resumed by the state, for the purpose of building a bridge in its place. Neither can the extent of the pre-existing ferry-right, whatever it may have been, have any influence upon the construction of the written charter for the bridge. It does not, by any means, follow, that because the legislative power of Massachusetts, in 1650, may have granted to a justly-favored seminary of learning, the exclusive right of ferry between Boston and Charlestown, they would, in 1785, give the same extensive privilege to another corporation, who were about to erect a bridge in the same place. The fact that such a right was granted to the college, cannot, by any sound rule of construction, be used to extend the privileges of the bridge company, beyond what the words of the charter naturally and legally import. Increased population, longer experience in legislation, the different character of the corporations which owned the ferry from that which owned the bridge, might well have induced a change in the policy of the state in this respect; and as the franchise of the ferry, and that of the bridge, are different in their nature, and were each established by separate grants, which have no words to connect the privileges of the one with the privileges of the other, there is no rule of legal interpretation, which would authorize the court to associate these grants together, and to infer that any privilege was intended to be given to the bridge company, merely because it had been conferred on the ferry. The charter to the bridge is a written instrument which must speak for itself, and be interpreted by its own terms. This brings us to the act of the legislature of Massachusetts, of 1785, by which the plaintiffs were incorporated by the name of 'The Proprietors of the Charles River Bridge;' and it is here, and in the law of 1792, prolonging their charter, that we must look for the extent and nature of the franchise conferred upon the plaintiffs. Much has been said in the argument of the principles of construction by which this law is to be expounded, and what undertakings, on the part of the state, may be implied. The court think there can be no serious difficulty on that head. It is the grant of certain franchises, by the public, to a private corporation, and in a matter where the public interest is concerned. The rule of construction in such cases is well settled, both in England, and by the decisions of our own tribunals. In the case of the Proprietors of the Stourbridge Canal v. Wheeley and others , 2 B. & Ad. 793, the court say, 'the canal having been made under an act of parliament, the rights of the plaintiffs are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases, is now fully established to be this-that any ambiguity in the terms of the contract, must operate against the adventurers, and in favor of the public, and the plaintiffs can claim nothing that is not clearly given them by the act.' And the doctrine thus laid down in abundantly sustained by the authorities referred to in this decision. The case itself was as strong a one as could well be imagined, for giving to the canal company, by implication, a right to the tolls they demanded. Their canal had been used by the defendants, to a very considerable extent, in transporting large quantities of coal. The rights of all persons to navigate the canal, were expressly secured by the act of parliament; so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable. Yet, as they only used one of the levels of the canal, and did not pass through the locks; and the statute, in giving the right to exact toll, had given it for articles which passed 'through any one or more of the locks,' and had said nothing as to toll for navigating one of the levels; the court held, that the right to demand toll, in the latter case, could not be implied, and that the company were not entitled to recover it. This was a fair case for an equitable construction of the act of incorporation, and for an implied grant, if such a rule of construction could ever be permitted in a law of that description. For the canal had been made at the expense of the company; the defendants had availed themselves of the fruits of their labors, and used the canal freely and extensively for their own profit. Still, the right to exact toll could not be implied, because such a privilege was not found in the charter. Borrowing, as we have done, our system of jurisprudence from the English law; and having adopted, in every other case, civil and criminal, its rules for the construction of statutes; is there anything in our local situation, or in the nature of our political institutions, which should lead us to depart from the principle, where corporations are concerned? Are we to apply to acts of incorporation, a rule of construction differing from that of the English law, and, by implication, make the terms of a charter, in one of the states, more unfavorable to the public, than upon an act of parliament, framed in the same words, would be sanctioned in an English court? Can any good reason be assigned, for excepting this particular class of cases from the operation of the general principle; and for introducing a new and adverse rule of construction, in favor of corporations, while we adopt and adhere to the rules of construction known to the English common law, in every other case, without exception? We think not; and it would present a singular spectacle, if, while the courts in England are restraining, within the strictest limits, the spirit of monopoly, and exclusive privileges in nature of monopolies, and confining corporations to the privileges plainly given to them in their charter; the courts of this country should be found enlarging these privileges by implication; and construing a statute more unfavorably to the public, and to the rights of community, than would be done in a like case in an English court of justice. But we are not now left to determine, for the first time, the rules by which public grants are to be construed in this country. The subject has already been considered in this court; and the rule of construction, above stated, fully established. In the case of the United States v. Arredondo , 8 Pet. 738, the leading cases upon this subject are collected together by the learned judge who delivered the opinion of the court; and the principle recognised, that in grants by the public, nothing passes by implication. The rule is still more clearly and plainly stated in the case of Jackson v. Lamphire , 3 Pet. 289. That was a grant of land by the state; and in speaking of this doctrine of implied covenants, in grants by the state, the court use the following language, which is strikingly applicable to the case at bar: 'The only contract made by the state, is the grant to John Cornelius, his heirs and assigns, of the land in question. The patent contains no covenant to do, or not to do, any further act in relation to the land; and we do not feel ourselves at liberty, in this case, to create one by implication. The state has not, by this act, impaired the force of the grant; it does not profess or attempt to take the land from the assigns of Cornelius, and gave it to one not claiming under him; neither does the award produce that effect; the grant remains in full force; the property conveyed is held by his grantee, and the state asserts no claim to it.' The same rule of construction is also stated in the case of Beaty v. Lessee of Knowler , 4 Pet. 168, decided in this court in 1830. In delivering their opinion in that case, the court say: 'That a corporation is strictly limited to the exercise of those powers which are specifically conferred on it, will not be denied. The exercise of the corporate franchise being restrictive of individual rights, cannot be extended beyond the letter and spirit of the act of incorporation.' But the case most analogous to this, and in which the question came more directly before the court, is the case of the Providence Bank v. Billings , 4 Pet. 514, which was decided in 1830. In that case, it appeared, that the legislature of Rhode Island had chartered the bank, in the usual form of such acts of incorporation. The charter contained no stipulation on the part of the state, that it would not impose a tax on the bank, nor any reservation of the right to do so. It was silent on this point. Afterwards, a law was passed, imposing a tax on all banks in the state; and the right to impose this tax was resisted by the Providence Bank, upon the ground, that if the state could impose a tax, it might tax so heavily as to render the franchise of no value, and destroy the institution; that the charter was a contract, and that a power which may in effect destroy the charter is inconsistent with it, and is impliedly renounced by granting it. But the court said, that the taxing power was of vital importance, and essential to the existence of government; and that the relinquishment of such a power is never to be assumed. And in delivering the opinion of the court, the late chief justice states the principle, in the following clear and emphatic language. Speaking of the taxing power, he says, 'as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the state to abandon it does not appear.' The case now before the court is, in principle, precisely the same. It is a charter from a state; the act of incorporation is silent in relation to the contested power. The argument in favor of the proprietors of the Charles River bridge, is the same, almost in words, with that used by the Providence Bank; that is, that the power claimed by the state, if it exists, may be so used as to destroy the value of the franchise they have granted to the corporation. The argument must receive the same answer; and the fact that the power has been already exercised, so as to destroy the value of the franchise, cannot in any degree affect the principle. The existence of the power does not, and cannot, depend upon the circumstance of its having been exercised or not. It may, perhaps, be said, that in the case of the Providence Bank, this court were speaking of the taxing power; which is of vital importance to the very existence of every government. But the object and end of all government is to promote the happiness and prosperity of the community by which it is established; and it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created. And in a country like ours, free, active and enterprising, continually advancing in numbers and wealth, new channels of communication are daily found necessary, both for travel and trade, and are essential to the comfort, convenience and prosperity of the people. A state ought never to be presumed to surrender this power, because, like the taxing power, the whole community have an interest in preserving it undiminished. And when a corporation alleges, that a state has surrendered, for seventy years, its power of improvement and public accommodation, in a great and important line of travel, along which a vast number of its citizens must daily pass, the community have a right to insist, in the language of this court, above quoted, 'that its abandonment ought not to be presumed, in a case, in which the deliberate purpose of the state to abandon it does not appear.' The continued existence of a government would be of no great value, if, by implications and presumptions, it was disarmed of the powers necessary to accomplish the ends of its creation, and the functions it was designed to perform, transferred to the hands of privileged corporations. The rule of construction announced by the court, was not confined to the taxing power, nor is it so limited, in the opinion delivered. On the contrary, it was distinctly placed on the ground, that the interests of the community were concerned in preserving, undiminished, the power then in question; and whenever any power of the state is said to be surrendered or diminished, whether it be the taxing power, or any other affecting the public interest, the same principle applies, and the rule of construction must be the same. No one will question, that the interests of the great body of the people of the state, would, in this instance, be affected by the surrender of this great line of travel to a single corporation, with the right to exact toll, and exclude competition, for seventy years. While the rights of private property are sacredly guarded, we must not forget, that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Adopting the rule of construction above stated as the settled one, we proceed to apply it to the charter of 1785, to the proprietors of the Charles River bridge. This act of incorporation is in the usual form, and the privileges such as are commonly given to corporations of that kind. It confers on them the ordinary faculties of a corporation, for the purpose of building the bridge; and establishes certain rates of toll, which the company are authorized to take: this is the whole grant. There is no exclusive privilege given to them over the waters of Charles river, above or below their bridge; no right to erect another bridge themselves, nor to prevent other persons from erecting one, no engagement from the state, that another shall not be erected; and no undertaking not to sanction competition, nor to make improvements that may diminish the amount of its income. Upon all these subject, the charter is silent; and nothing is said in it about a line of travel, so much insisted on in the argument, in which they are to have exclusive privileges. No words are used, from which an intention to grant any of these rights can be inferred; if the plaintiff is entitled to them, it must be implied, simply, from the nature of the grant; and cannot be inferred, from the words by which the grant is made. The relative position of the Warren bridge has already been described. It does not interrupt the passage over the Charles River bridge, nor make the way to it, or from it, less convenient. None of the faculties or franchises granted to that corporation, have been revoked by the legislature; and its right to take the tolls granted by the charter remains unaltered. In short, all the franchises and rights of property, enumerated in the charter, and there mentioned to have been granted to it, remain unimpaired. But its income is destroyed by the Warren bridge; which, being free, draws off the passengers and property which would have gone over it, and renders their franchise of no value. This is the gist of the complainant; for it is not pretended, that the erection of the Warren bridge would have done them any injury, or in any degree affected their right of property, if it had not diminished the amount of their tolls. In order, then, to entitle themselves to relief, it is necessary to show, that the legislature contracted not to do the act of which they complain; and that they impaired, or in other words, violated, that contract, by the erection of the Warren bridge. The inquiry, then, is, does the charter contain such a contract on the part of the state? Is there any such stipulation to be found in that instrument? It must be admitted on all hands, that there is none; no words that even relate to another bridge, or to the diminution of their tolls, or to the line of travel. If a contract on that subject can be gathered from the charter, it must be by implication; and cannot be found in the words used. Can such an agreement be implied? The rule of construction before stated is an answer to the question: in charters of this description, no rights are taken from the public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey. There are no words which import such a contract as the plaintiffs in error contend for, and none can be implied; and the same answer must be given to them that was given by this court to Providence Bank. The whole community are interested in this inquiry, and they have a right to require that the power of promoting their comfort and convenience, and of advancing the public prosperity, by providing safe, convenient and cheap ways for the transportation of produce, and the purposes of travel, shall not be construed to have been surrendered or diminished by the state; unless it shall appear by plain words, that it was intended to be done. But the case before the court is even still stronger against any such implied contract, as the plaintiffs in error contend for. The Charles River bridge was completed in 1786; the time limited for the duration of the corporation, by their original charter, expired in 1826. When, therefore, the law passed authorizing the erection of the Warren bridge, the proprietors of Charles River bridge held their corporate existence under the law of 1792, which extended their charter for thirty years; and the rights, privileges and franchises of the company, must depend upon the construction of the last-mentioned law, taken in connection with the act of 1785. The act of 1792, which extends the charter of this bridge, incorporates another company, to build a bridge over Charles river; furnishing another communication with Boston, and distant only between one and two miles from the old bridge. The first six sections of this act incorporate the proprietors of the West Boston bridge, and define the privileges, and describe the duties of that corporation. In the 7th section, there is the following recital: 'And whereas, the erection of Charles River bridge was a work of hazard and public utility, and another bridge in the place of West Boston bridge may diminish the emoluments of Charles River bridge; therefore, for the encouragement of enterprise,' they proceed to extend the charter of the Charles River bridge, and to continue it for the term of seventy years from the day the bridge was completed; subject to the conditions prescribed in the original act, and to be entitled to the same tolls. It appears, then, that by the same act that extended this charter, the legislature established another bridge, which they knew would lessen its profits; and this, too, before the expiration of the first charter, and only seven years after it was granted; thereby showing, that the state did not suppose, that, by the terms it had used in the first law, it had deprived itself of the power of making such public improvements as might impair the profits of the Charles River bridge; and from the language used in the clauses of the law by which the charter is extended, it would seem, that the legislature were especially careful to exclude any inference that the extension was made upon the ground of compromise with the bridge company, or as a compensation for rights impaired. On the contrary, words are cautiously employed to exclude that conclusion; and the extension is declared to be granted as a reward for the hazard they had run, and 'for the encouragement of enterprise.' The extension was given, because the company had undertaken and executed a work of doubtful success; and the improvements which the legislature then contemplated, might diminish the emoluments they had expected to receive from it. It results from this statement, that the legislature, in the very law extending the charter, asserts its rights to authorize improvements over Charles river which would take off a portion of the travel from this bridge and diminish its profits; and the bridge company accept the renewal thus given, and thus carefully connected with this assertion of the right on the part of the state. Can they, when holding their corporate existence under this law, and deriving their franchises altogether from it, add to the privileges expressed in their charter, an implied agreement, which is in direct conflict with a portion of the law from which they derive their corporate existence? Can the legislature be presumed to have taken upon themselves an implied obligation, contrary to its own acts and declarations contained in the same law? It would be difficult to find a case justifying such an implication, even between individuals; still less will it be found, where sovereign rights are concerned, and where the interests of a whole community would be deeply affected by such an implication. It would, indeed, be a strong exertion of judicial power, acting upon its own views of what justice required, and the parties ought to have done, to raise, by a sort of judicial coercion, an implied contract, and infer it from the nature of the very instrument in which the legislature appear to have taken pains to use words which disavow and repudiate any intention, on the part of the state, to make such a contract. Indeed, the practice and usage of almost every state in the Union, old enough to have commenced the work of internal improvement, is opposed to the doctrine contended for on the part of the plaintiffs in error. Turnpike roads have been made in succession, on the same line of travel; the later ones interfering materially with the profits of the first. These corporations have, in some instances, been utterly ruined by the introduction of newer and better modes of transportation and travelling. In some cases, railroads have rendered the turnpike roads on the same line of travel so entirely useless, that the franchise of the turnpike corporation is not worth preserving. Yet in none of these cases have the corporation supposed that their privileges were invaded, or any contract violated on the part of the state. Amid the multitude of cases which have occurred, and have been daily occurring, for the last forty or fifty years, this is the first instance in which such an implied contract has been contended for, and this court called upon to infer it, from an ordinary act of incorporation, containing nothing more than the usual stipulations and provisions to be found in every such law. The absence of any such controversy, when there must have been so many occasions to give rise to it, proves, that neither states, nor individuals, nor corporations, ever imagined that such a contract could be implied from such charters. It shows, that the men who voted for these laws, never imagined that they were forming such a contract; and if we maintain that they have made it, we must create it by a legal fiction, in opposition to the truth of the fact, and the obvious intention of the party. We cannot deal thus with the rights reserved to the states; and by legal intendments and mere technical reasoning, take away from them any portion of that power over their own internal police and improvement, which is so necessary to their well-being and prosperity. And what would be the fruits of this doctrine of implied contracts, on the part of the states, and of property in a line of travel, by a corporation, if it would now be sanctioned by this court? To what results would it lead us? If it is to be found in the charter to this bridge, the same process of reasoning must discover it, in the various acts which have been passed, within the last forty years, for turnpike companies. And what is to be the extent of the privileges of exclusion on the different sides of the road? The counsel who have so ably argued this case, have not attempted to define it by any certain boundaries. How far must the new improvement be distant from the old one? How near may you approach, without invading its rights in the privileged line? If this court should establish the principles now contended for, what is to become of the numerous railroads established on the same line of travel with turnpike companies; and which have rendered the franchises of the turnpike corporations of no value? Let it once be understood, that such charters carry with them these implied contracts, and give this unknown and undefined property in a line of travelling; and you will soon find the old turnpike corporations awakening from their sleep, and calling upon this court to put down the improvements which have taken their place. The millions of property which have been invested in railroads and canals, upon lines of travel which had been before occupied by turnpike corporations, will be put in jeopardy. We shall be thrown back to the improvements of the last century, and obliged to stand still, until the claims of the old turnpike corporations shall be satisfied; and they shall consent to permit these states to avail themselves of the lights of modern science, and to partake of the benefit of those improvements which are now adding to the wealth and prosperity, and the convenience and comfort, of every other part of the civilized world. Nor is this all. This court will find itself compelled to fix, by some arbitrary rule, the width of this new kind of property in a line of travel; for if such a right of property exists, we have no lights to guide us in marking out its extent, unless, indeed, we resort to the old feudal grants, and to the exclusive rights of ferries, by prescription, between towns; and are prepared to decide that when a turnpike road from one town to another, had been made, no railroad or canal, between these two points, could afterwards be established. This court are not prepared to sanction principles which must lead to such results. Many other questions, of the deepest importance, have been raised and elaborately discussed in the argument. It is not necessary, for the decision of this case, to express our opinion upon them; and the court deem it proper to avoid volunteering an opinion on any question, involving the construction of the constitution, where the case itself does not bring the question directly before them, and make it their duty to decide upon it. Some questions, also, of a purely technical character, have been made and argued, as to the form of proceeding and the right to relief. But enough appears on the record, to bring out the great question in contest; and it is the interest of all parties concerned, that the real controversy should be settled, without further delay: and as the opinion of the court is pronounced on the main question in dispute here, and disposes of the whole case, it is altogether unnecessary to enter upon the examination of the forms of proceeding, in which the parties have brought it before the court. The judgment of the supreme judicial court of the commonwealth of Massachusetts, dismissing the plaintiffs' bill, must, therefore, be affirmed, with costs. McLEAN, Justice. This suit in chancery was commenced in the suprime court of Massachusetts, where the bill was dismissed, by a decree pro forma , the members of that court being equally divided in opinion; and a writ of error was taken to this court, on the ground, that the right asserted by the complainants, and which has been violated, under the charter of the respondents, is protected by a special provision in the federal constitution. The complainants' right is founded on an act of the legislature of Massachusetts, passed March 9th, 1785, which incorporated certain individuals, and authorized them to erect a bridge over Charles river, a navigable stream between Boston and Charlestown, and an amendatory act, passed in 1791, extending the charter thirty years. As explanatory of this right, if not the ground on which it in part rests, a reference is made to an ancient ferry, over the same river, which was held by Harvard College; and the right of which was transferred, it is contended, in equity, if not in law, to the bridge company. The wrong complained of, consists in the construction of a new bridge, over the same river, under a recent act of the legislature, within a few rods of the old one, and which takes away the entire profits of the old bridge. The act to establish the Charles River bridge required it to be constructed within a limited time, of certain dimensions, to be kept in repair, and to afford certain specified accommodations to the public. The company were authorized to charge certain rates of toll; and they were required to pay, annually, 200 l. to Harvard College. The first charter was granted for forty years. The facts proved in the case show that a bridge of the description required by the act of 1785, was constructed within the time limited; that the annual payment has been made to the college; and that, in every other respect, the corporation has faithfully performed the conditions and duties enjoined on it. It is contended, that the charter granted to the respondents, violates the obligation of that which had been previously granted to the complainants; and that, consequently, it is in conflict with that provision of the constitution which declares, that no 'state shall pass any law impairing the obligation of contracts.' In the investigation of this case, the first inquiry which seems naturally to arise is, as to the nature and extent of the right asserted by the complainants. As early as the year 1631, a ferry was established across Charles river, by the colonial government of Massachusetts Bay. In 1640, the general court say, 'that the ferry is granted to the college.' From this time, the profits of the ferry were received by the college, and it was required, by various statutes, under certain penalties, to keep certain boats, &c., for the accommodation of the public. This duty was performed by the college; and it continued to occupy the ferry until the Charles River bridge was constructed. From the above act of the general court, and others which have been shown, and the unmolested use of the ferry for more than 140 years, by the college, it would seem, that its right to this use had received all the sanctions necessary to constitute a valid title. If the right was not founded strictly on prescription, it rested on a basis equally unquestionable. At the time this ferry was established, it was the only public communication between Boston and Charlestown. These places, and especially the latter, were then small; and no greater accommodation was required than was afforded by the ferry. Its franchise was not limited, it is contended, to the ferry-was; but extended to the whole line of travel between the two towns. It cannot be very material to inquire, whether this ferry was originally public or private property; or whether the landing places were vested in the college, or their use only, and the profits of the ferry. The beneficial interest in the ferry was held by the college, and it received the tolls. The regulation of the ferry, it being a matter of public concern, belonged to the government. It prescibed the number of boats to be kept, and the attendance necessary to be given; and on a failure to comply with these requisitions, the college would have been subjected to the forfeiture of the franchise, and the other penalties provided by statute. Was this right of ferry, with all its immunities, transferred to the Charles River bridge company? It is not contended, that there is any express assignment of this right, by deed or otherwise; but the complainants claim, that the evidence of the transfer is found in the facts of the case. Before the charter was granted, the college was consulted on the subject; as soon as the bridge was constructed, the use of the ferry ceased; and the college has regularly received from the complainants the annuity of 200 l. This acquiescence, it is contended, taken in connection with the other facts in the case, goes to establish the relinquishment of the right to the ferry, for the annual compensation required to be paid under the charter. That there was a substitution of the bridge for the ferry, with the consent of the college, is evident; but there seems to have been no assignment of the rights of the ferry. The original bridge charter was granted for forty years; at the expiration of which period, the property of the bridge was to revert to the commonwealth, 'saving to the college a reasonable and annual compensation for the annual income of the ferry, which they might have received, had not said bridge been erected.' Had the bridge been destroyed by fire or otherwise, there was no investiture of right to the ferry in the complainants, that would have enabled them to keep up the ferry, and realize the profits of it. On the destruction of the bridge, the college, it is presumed, might have resumed all the rights and responsibilities attached to the ferry. At least, it is very clear, that these rights and responsibilities would not have devolved on the complainants. They stipulated to afford a different accommodation to the public. If, then, these rights could not have been claimed and exercised by the complainants, under such circumstances; how can they be considered as enlarging, or in any way materially affecting, the franchise under the charter of 1785? That the franchise of a ferry, at common law, and in the state of Massachusetts, extends beyond the landing places, is very clear from authority. 10 Petersd. 53; 13 Vin. 513; Willes 512 Note; 12 East 330; 6 Barn. & Cres. 703; Year Book, Hen. Vi. 22; Roll. Abr. 140; Fitzh. 428 n; Com. Dig. Market, C. 2; Piscary, B.; Action on the Case, A.; 3 Bl. Com. 219; 1 Nott & McCord 387; 2 Saund. 172; 6 Mod. 229; 2 Vent. 344; 3 Lev. 220; Com. Dig. Patent, F. 4-7; 2 Saund. 72, n. 4; 2 Inst. 406; Chit. Prerog. 12, ch. 3; 10, ch. 2; 3 Salk. 198; Willes 512; 4 T. R. 666; Saund. 114; Cro. Eliz. 710. The annuity given to the college was a compensation for the profits of the ferry; and shows a willingness by the college to suspend its rights to the ferry, during the time specified in the act. And if, indeed, it might be construed into an abandonment of the ferry, still it was an abandonment to the public, on the terms specified, for a better accommodation. The bridge was designed not only to answer all the purposes of the ferry, but to enlarge the public convenience. The profits contemplated by the corporators, were not only those which had been realized from the ferry, but such as would arise from the increased facilities to the public. If there was no assignment of the ferry franchise to the complainants, its extent cannot be a matter of importance in this investigation; nor is it necessary to inquire into the effect of an assignment, under the circumstances of the case, if it had been made. There is no provision in the act of incorporation, vesting the company with the privileges of the ferry. A reference is made to it merely with the view of fixing the site of the bridge. The right and obligations of the complainants must be ascertained by the construction of the act of 1785. This act must be considered in the light of a contract, and the law of contracts applies to it. In one sense, it is a law, having passed through all the forms of legislation, and received the necessary sanctions; but it is essentially a contract, as to the obligation imposed by it, and the privileges it confers. Much discussion has been had at the bar, as to the rule of construing a charter or grant, and many authorities have been referred to on this point. In ordinary cases, a grant is construed favorable to the grantee, and against the grantor. But it is contended, that in governmental grants, nothing is taken by implication. The broad rule, thus laid down, cannot be sustained by authority. If an office be granted by name, all the immunities of that office are taken by implication. Whatever is essential to the enjoyment of the thing granted, must be taken by implication. And this rule holds good, whether the grant emanate from the royal prerogative of the king, in England, or under an act of legislation, in this country. The general rule is, that 'a grant of the king, at the suit of the grantee, is to be construed most beneficially for the king, and most strictly against the grantee;' but grants obtained as a matter of special favor of the king, or on a consideration, are more liberally construed. Grnats of limited political powers are construed strictly. Com. Dig. tit. Grant, E. 5; 2 Dane's Abr. 683; Stark v. McGowan , 1 Nott & McCord 387; Poph. 79; Moore 474; 8 Co. 92; 6 Barn. & Cres. 703; 5 Ibid. 875; 3 M. & S. 247; Hargrave 18-23; Angel on Tide Waters 106-7; 4 Burr. 2161; 4 T. R. 439; 2 Bos. & Pul. 472; 1 T. R. 669; 1 Conn. 382; 17 Johns. 195; 3 M. & S. 247; 6 Mass. 437; 1 Ibid. 231; 17 Ibid. 289; Angel 108; 4 Mass. 140, 522; Plowd. 336-7; 9 Co. 30; 1 Vent. 409; Cro. Jac. 179; Dyer 30; Saville 132; 10 Co. 112; Com. Dig. Grant, 9, 12; Bac. Abr. tit. Prerog. 2; 5 Barn. & Cres. 875; 1 Mass. 356. Where the legislature, with a view of advancing the public interest by the construction of a bridge, a turnpike-road, or any other work of public ntility, grants a charter, no reason is perceived, why such a charter should not be construed by the same rule that governs contracts between individuals. The public, through their agent, enter into the contract with the company; and a valuable consideration is received in the construction of the contemplated improvement. This consideration is paid by the company, and sound policy requires, that its rights should be ascertained and protected, by the same rules as are applied to private contracts. In the argument, great reliance was placed on the case of the Stourbridge Canal v. Wheeley and others , 2 Barn. & Ald. 792. The question in this case was, whether the plaintiffs had a right to charge toll in certain cases; and Lord TENTERDEN said, 'the canal having been made under the provisions of an act of parliament, the rights of the plaintiff are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction in all such cases, is now fully established to be this-that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public; and the plaintiffs can claim nothing which is not clearly given to them by the act.' This is relied on to show, that nothing is taken, under such a grant, by implication or inference. His lordship says, the right must be clearly given-he does not say expressly given, which would preclude all inference. In another part of the same opinion, his lordship says, 'Now, it is quite certain, that the company have no right, expressly given, to receive any compensation, except the tonnage paid for goods carried through some of the locks on the canal, or the collateral cuts; and it is, therefore, incumbent upon them to show that they have a right, clearly given, by inference, from some of the other clauses.' May this right be shown by inference; and is not this implication? The doctrine laid down in this case, is simply this: that the right to charge the toll, must be given expressly, or it must be clearly made out by inference. Does not this case establish the doctrine of implication, as applied to the construction of grants? Is it not the right to pass by-laws incident to a corporation? A right cannot be claimed by a corporation, under ambiguous terms; it must clearly appear to have been granted, either in express term, or by inference, as stated by Lord TENTERDEN. A corporate power to impose a tax on the land of the company, as considered in the case of Beaty v. Lessee of Knowler , 4 Pet. 168, must, in its nature, be strictly construed; and so, in all cases where corporate powers-in the nature of legislation, are exercised. In that case, the directors were authorized to impose a tax, under certain circumstances; and the court held, that they had no power to impose the tax, under other circumstances. Charles river being a navigable stream, any obstructions to its navigation, by the erection of a bridge, or any other work, would have been punishable, unless authorized by law. By the act of 1785, the complainants were authorized to build the bridge, elect their officers, &c., and charge certain rates of toll. The power to tax passengers, was the consideration on which the expense of building the bridge, lighting it, &c., and keeping it in repair, was incurred. The grant, then, of tolls, was the essential part of the franchise. That course of reasoning which would show the consideration to consist in anything short of this power to tax, and the profit arising therefrom, is too refined for practical purposes. The builders of the bridge had, no doubt, a desire to increase the public accommodation; but they looked chiefly to a profitable investment of their funds; and that part of the charter which secured this object, formed the consideration on which the work was performed. But it is said, there was no exclusive right given; and that, consequently, the legislature might well cause another bridge to be built, whenever, in their opinion, the public convenience required it. On the other hand, it is insisted, that the franchise of the bridge was as extensive as that of the ferry; and that the grant of this franchise having been made by the legislature, it had no power to grant a part of it to the new bridge. That this part of the case presents considerations of great importance, and of much difficulty, cannot be denied. To inquire into the validity of a solemn act of legislation is, at all times, a task of much delicacy; but it is peculiarly so, when such inquiry is made by a federal tribunal, and relates to the act of a state legislature. There are cases, however, in the investigation of which such an inquiry becomes a duty; and then no court can shrink, or desire to shrink, from its performance. Under such circumstances, this duty will always be performed with the high respect due to a branch of the government, which, more than any other, is clothed with discretionary powers, and influenced by the popular will. The right granted to the Charles River bridge company, is, in its nature, to a certain extent, exclusive; but to measure this extent, presents the chief difficulty. If the boundaries of this right could be clearly established, it would scarcely be contended by any one, that the legislature could, without compensation, grant to another company the whole, or any part of it. As well might it undertake to grant a tract of land, although an operative grant had been previously made for the same land. In such a case, the second grant would be void, on the ground, that the legislature had parted with the entire interest in the premises. As agent of the public, it has passed the title to the first grantee; and having done so, it could convey no right by its second grant. The principle is the same in regard to the question under consideration. If the franchise granted to the complainants extended beyond the new bridge, it was as much above the power of the legislature to make the second grant, as it would be to grant a part of a tract of land for which a patent had been previously and regularly issued. The franchise, though incorporeal, in legal contemplation, has body and extension; and having been granted, is not less scrupulously guarded by the principles of law, than an interest in the soil. It is a substantive right in law, and can no more be resumed by the legislature, when once granted, than any other right. But would it not be unsafe, it is suggested, for the judicial authority to interpose and limit this exercise of legislative discretion? The charter of the Warren bridge, it is said, was not hastily granted; that all the circumstances of the case, year after year, were duly examined by the legislature; and at last, the act of incorporation was passed, because, in the judgment of the legislature, the public accommodation required it; and it is insisted, that the grant to the complainants was necessarily subject to the exercise of this discretion. It is, undoubtedly, the province of the legislature to provide for the public exigencies, and the utmost respect is always due to their acts; and the validity of those acts can only be questioned judicially, where they infringe upon private rights. At the time the Charles River bridge was built, the population of Boston and Charlestown was small in comparison with their present numbers; and it is probable, that the increase has greatly exceeded any calculation made at the time. The bridge was sufficient to accommodate the public; and it was, perhaps, believed, that it would be sufficient, during the time limited in the charter. If, however, the increased population and intercourse between these towns and the surrounding country, required greater accommodation than was afforded by the bridge, there can be no doubt, that the legislature could make provision for it. On the part of the complainants' counsel, it is contended, if increased facilities of intercourse between these places were required by the public, the legislature was bound in good faith to give the option to the Charles River bridge company, either to enlarge their bridge, or construct a new one, as might be required. And this argument rests upon the ground, that the complainants' franchise included the whole line of travel between the two places. Under this view of their rights, the company proposed to the legislature, before the new charter was granted to the respondents, to do anything which should be deemed requisite for the public accommodation. In support of the complainants' right, in this respect, a case in referred to in 7 Barn. & Cres. 40; where it is laid down, that the lord of an ancient market may, by law, have a right to prevent other persons from selling goods in their private houses, situated within the limits of his franchise; and also to 5 Barn. & Cres. 363. These cases show, that the grant to the lord of the market is exclusive; yet, if the place designated for the market is made too small by the act of the owner, any person may sell in the vicinity of the market, without incurring any responsibility to the lord of the market. Suppose, the legislature had passed a law requiring the complainants to enlarge their bridge, or construct a new one, would they have been bound by it? Might they have not replied to the legislature, we have constructed our bridge of the dimensions required by the charter; we have, therefore, provided for the public all the accommodation which we are bound to give? And if the legislature could not require this of the complainants, is it not clear, that they cannot assert an exclusive claim to the advantages of an enlarged accommodation? In common with our citizens, they submitted propositions to the legislature, but they could urge no exclusive right to afford any accommodation beyond what was given by their bridge. When the Charles River bridge was built, it was considered a work of great magnitude. It was, perhaps, the first experiment made to throw a bridge of such length over an arm of the sea; and in the construction of it, great risk and expense were incurred. The unrestricted profits contemplated, were necessary to induce or justify the undertaking. Suppose, within two or three years after the Charles River bridge had been erected, the legislature had authorized another bridge to be built alongside of it, which could only accommodate the same line of travel. Whether the profits of such a bridge were realized by a company or by the state, would not the act of the legislature have been deemed so gross a violation of the rights of the complainants, as to be condemned by the common sense and common justice of mankind? The plea, that the timbers or stone of the new bridge did not interfere with the old one, could not, in such a case, have availed. The value of the bridge is not estimated by the quantity of timber and stone it may contain, but by the travel over it. And if one-half or two-thirds of this travel, all of which might conveniently have passed over the old bridge, be drawn to the new one, the injury is much greater than would have been the destruction of the old bridge. A re-construction of the bridge, if destroyed, would secure to the company the ordinary profits; but the division or destruction of the profits, by the new bridge, runs to the end of the charter of the old one. And shall it be said, that the greater injury, the diversion of the profits, may be inflicted on the company, with impunity; while for the less injury, the destruction of the bridge, the law would give an adequate remedy? I am not here about to apply the principles which have been long established in England, for the protection of ancient ferries, markets, fairs, mills, &c. In my opinion, this doctrine, in its full extent, is not adapted to the condition of our country. And it is one of the most valuable traits in the common law, that it forms a rule of right, only in cases and under circumstances adapted to its principles. In this country, there are few rights founded on prescription. The settlement of our country is comparatively recent; and its rapid growth in population, and advance in improvements, have prevented, in a great degree, interests from being acquired by immemorial usage. Such evidence of right is found in countries where society has become more fixed, and improvements are in a great degree stationary. But without the aid of the principles of the common law, we should be at a loss how to construe the charter of the complainants, and ascertain their rights. Although the complainants cannot fix their franchise, by showing the extent of the ferry-rights; yet, under the principles of the common law, which have been too long settled in Massachusetts, in my opinion, to be now shaken, they may claim their franchise beyond the timbers of their bridge. If they may go beyond these, it is contended, that no exact limit can be prescribed. And because it may be difficult, and perhaps, impracticable, to designate with precision the exact limit, does it follow, that the complainants' franchise is as narrow as their bridge? Is it more difficult to define, with reasonable certainty, the extent of this right, than it is, in many other cases, to determine the character of an offence against the laws, from established facts? What shall constitute a public or private nuisance? What measure of individual wrong shall be sufficient to convict a person of the latter? And what amount of inconvenience to the public shall constitute the former? Would it be more difficult to define the complainants' franchise, than to answer these questions? And yet public and private nuisances are of daily cognisance in courts of justice. How have ferry-rights, depending upon the same principles, been protected for centuries, in England? The principles of the common law are not applied with that mathematical precision, of which the principles of the civil law are susceptible. But if the complainants' franchise cannot be measured by feet and inches, it does not follow, that they have no rights. In determining upon facts which establish rights or wrongs, public as well as private, an exercise of judgment is indispensable; the facts and circumstances of each case are considered, and a sound and legal conclusion is drawn from them. The bridge of the complainants was substituted for the ferry; and it was designed to accommodate the course of travel between Boston and Charlestown. This was the view of the legislature, in granting the charter, and of the complainants, in accepting it. And if it be admitted, that the great increase of population has required the erection of other bridges than that which is complained of in this suit, over this arm of the sea, that can afford no protection to the defendants. If the interests of the complainants have been remotely injured by the construction of other bridges, does that give a license to the defendants to inflict on them a more direct and greater injury? By an extension of the complainants' charter, thirty years, an indemnity was given and accepted by them for the construction of the West Boston bridge. The franchise of the complainants must extend a reasonable distance above and below the timbers of their bridge. This distance must not be so great as to subject the public to serious inconvenience, nor so limited as to authorize a ruinous competition. It may not be necessary to say, that for a remote injury, the law would afford a remedy; but where the injury is ruinous, no doubt can exist on the subject. The new bridge, while tolls were charged, lessened the profits of the old one about one-half, or two-thirds; and now that it is a free bridge by law, the tolls received by the complainants are merely nominal. On what principle of law, can such an act be sustained? Are rights acquired under a solemn contract with the legislature, held by a more uncertain tenure than other rights? Is the legislative power so omnipotent in such cases, as to resume what it has granted, without compensation? It will scarcely be contended, that if the legislature may do this, indirectly, it may not do it directly. If it may do it through the instrumentality of the Warren bridge company, it may dispense with that instrumentality. But it is said, that any check to the exercise of this discretion by the legislature, will operate against the advance of improvements. Will not a different effect be produced? If every bridge or turnpike company were liable to have their property wrested from them, under an act of the legislature, without compensation, could much value be attached to such property? Would prudent men expend their funds in making such improvements? Can it be considered as an injurious check to legislation, that private property shall not be taken for public purposes, without compensation? This restriction is imposed by the federal constitution, and by the constitutions of the respective states. But it has been urged, that the property of the complainants has not been taken, as the tolls in anticipation cannot be denominated property. The entire value of the bridge consists in the right of exacting toll. Is not this right property, and cannot its value be measured? Do not past receipts and increased intercourse, afford a rule by which future receipts may be estimated? And if the whole of these tolls are taken, under an act of the legislature, is not the property of the complainants taken? The charter of the complainants has been compared to a bank charter, which implies no obligation on the legislature not to establish another bank in the same place. This is often done; and it is contended, that for the consequential injury done the old bank, by lessening its profits, no one supposes that an action would lie, or that the second charter is unconstitutional. This case bears little or no analogy to the one under consideration. A bank may wind up its business, or refuse its discounts, at the pleasure of its stockholders and directors. They are under no obligation to carry on the operations of the institution, or afford any amount of accommodation to the public. Not so with the complainants. Under heavy penalties, they are obliged to keep their bridge in repair, have it lighted, the gates kept open, and to pay 200 l. annually to the college. This the complainants are bound to do, although the tolls received should scarcely pay for the oil consumed in the lamps of the bridge. The sovereign power of the state has taken the tolls of the complainants, but it has left them in possession of their bridge. Its stones and timbers are untouched, and the roads that lead to it remain unobstructed. One of the counsel in the defence, with emphasis, declared, that the legislature can no more repeal a charter, than it can lead a citizen to the block. The legislature cannot bring a citizen to the block; may it open his arteries? It cannot cut off his head; may it bleed him to death? Suppose, the legislature had authorized the construction of an impassable wall, which encircled the ends of the bridge, so as to prevent passengers from crossing on it. The wall may be as distant from the abutments of the bridge as the Warrenbridge. Would this be an infringement of the plaintiffs' franchise? On the principles contended for, how could it be so considered? If the plaintiffs' franchise is limited to their bridge, then they are not injured by the construction of this wall; or, at least, they are without remedy. This wall would be no more injurious to the plaintiffs than the free bridge. And the plaintiffs might be told, as alleged in this case, the wall does not touch your bridge. You are left in the full exercise of your corporate faculties. You have the same right to charge toll as you ever had. The legislature had the same right to destroy the plaintiffs' bridge by authorizing the construction of the wall, as they had by authorizing the construction of a free bridge. In deciding this question, we are not to consider what may be the law on this subject in Pennsylvania, Maryland, Virginia or Ohio; but what it is in Massachusetts. And in that state, the doctrine has been sanctioned, that associations of men to accomplish enterprises of importance to the public, and who have vested their funds on the public faith, are entitled to protection. That their rights do not become the sport of popular excitement, any more than the rights of other citizens. The case under consideration forms, it is believed, a solitary exception to this rule; whether we look to the action of the legislature, or the opinions of the distinguished jurists of the state, on the bench, and at the bar. The expense of keeping up the bridge, and paying the annuity to the college, is all that is left by the state to the complainants. Had this been proposed, or anything which might lead to such a result, soon after the construction of the complainants' bridge, it is not probable, that it would have been sanctioned; and yet it might as well have been done then as now. A free bridge then, could have been no more injurious to the plaintiffs than it is now. No reflection is intended on the commonwealth of Massachusetts, which is so renowned in our history, for its intelligence, virtue and patriotism. She will not withhold justice, when the rights of the complainants shall be established. Much reliance is placed on the argument, in the case reported in 4 Pet. 560, in which it was decided, that a law of the state of Rhode Island, imposing a tax upon banks, is constitutional. As these banks were chartered by the state, it was contended, that there was no implied obligation on the legislature not to tax them. That if this power could be exercised, it might be carried so far as to destroy the banks. But this court sustained the right of the state to tax. The analogy between the two cases is not perceived. Does it follow, because the complainants' bridge is not exempt from taxation, that it may be destroyed, or its value greatly impaired by any other means? The power to tax extends to every description of property held within the state, which is not specially exempted; and there is no reason or justice in withholding from the operation of this power, property held directly under the grant of the state. The complainants' charter has been called a monopoly; but in no just sense can it be so considered. A monopoly is that which has been granted without consideration; as a monopoly of trade; or of the manufacture of any particular article, to the exclusion of all competition. It is withdrawing that which is a common right, from the community, and vesting it in one or more individuals, to the exclusion of all others. Such monopolies are justly odious, as they operate not only injuriously to trade, but against the general prosperity of society. But the accommodation afforded to the public by the Charles River bridge, and the annuity paid to the college, constitute a valuable consideration for the privilege granted by the charter. The odious features of a monopoly do not, therefore, attach to the charter of the plaintiffs. The 10th article of the declaration of rights in the constitution of Massachusetts provides: 'Whenever the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor.' And in the 12th article, it is declared, that, 'no subject shall be deprived of his property, immunities, privileges or estate, but by the judgment of his peers or the law of the land.' Here is a power, recognised in the sovereignty, and as incident to it, to apply private property to public uses, by making for it a just compensation. This power overreaches every other, and must be exercised at the discretion of the government; and a bridge, a turnpike-road, a tract of land, or any other property, may be taken, in whole or in part, for public purposes, on condition of making compensation. In the case of Chadwick v. The Proprietors of the Haverhill Bridge , reported in Dane's Abr. 683, it appears, that a bridge was built under a charter, within forty yards of the plaintiff's ferry, and over the same water. By an act of the legislature, commissioners were authorized to ascertain the damages sustained by the plaintiff; but he preferred his action at law, which was prosecuted, and adequate damages were recovered. It is true, this matter was referred to arbitrators; but they were men of distinguished legal attainments and great experience; and they, after determining that the plaintiff could sustain his action, assessed the damages. This award was sanctioned by the court. Under the circumstances of this case, at least as great a weight of authority belongs to it, as if the decision had been made by a court on the points involved. The case presented by the complainants is much stronger than Chadwick's; and if he was entitled to reparation for the injury done, no doubt can exist of the complainants' right. In the extension of the national road through the state of Ohio, a free bridge was thrown across a stream, by the side of a toll bridge, which had some ten or fifteen years of its charter to run. The new bridge did not in the least obstruct the passage over the old one; and it was contended, that as no exclusive right was given under the first grant, the owner of the toll bridge was entitled to no compensation. It was said, on that occasion, as it has been urged on this, that the right was given, subject to the discretion of the legislature, as to a subsequent grant; and that the new bridge could not be objected to by the first grantee, whether it was built under the authority of the state or federal government. This course of reasoning influenced a decision against the claimant, in the first instance; but a reconsideration of his case, and a more thorough investigation of it, induced the proper authority to reverse the decision, and award an indemnity for the injury done. The value of the charter was estimated, and a just compensation was made. This, it is true, was not a judicial decision, but it was a decision of the high functionaries of the government, and is entitled to respect. It was dictated by that sense of justice which should be felt on the bench, and by every tribunal having the power to act upon private rights. It is contended by the respondents' counsel, that there was not only no exclusive right granted in the complainants' charter, beyond the timbers of the bridge; but the broad ground is assumed, that the legislature had no power to make such a grant; that they cannot grant any part of the eminent domain, which shall bind a subsequent legislature. And a number of authorities were cited to sustain their position: 1 Vatt. ch. 9, § 101; 4 Litt. 327; Domat, book 1, tit. 6, § 1; 17 Vin. 88; Chit. on Prerog. 81; 10 Price 350; Puff. ch. 5, § 7; 5 Cow. 558; 6 Wheat. 593; 20 Johns. 25; Hargrave's Law Tracts 36; 4 Gill & Johns. 1. If this doctrine be sustainable, as applied to this case, it is not perceived, why an exception should be made in favor of the plaintiffs, within the timbers of their bridge. It is admitted, that their grant is good to this extent; and if the legislature may grant a part of the eminent domain to this extent, why may it not go beyond it? If it may grant any part of the eminent domain, must not the extent of the grant be fixed at its discretion? In what other mode can it be determined, than by a judicial construction of the grant? Acts of incorporation, when granted on a valuable consideration, assume the nature of contracts; and vested rights under them are no more subject to the legislative power than any other vested rights. In granting the charter to the Charles River bridge company, the legislature did not divest itself of the power to grant similar charters. But the thing granted passed to the grantee, and can no more be resumed by the legislature, than it can resume the right to a tract of land which has been granted. When land is granted, the state can exercise no acts of ownership over it, unless it be taken for public use; and the same rule applies to a grant for a bridge, a turnpike-road, or any other public improvement. It would assume a bold position, to say, that a subsequent legislature may resume the ownership of a tract of land, which had been granted at a preceding session; and yet the principle is the same in regard to vested rights, under an act of incorporation. By granting a franchise, the state does not divest itself of any portion of its sovereignty; but to advance the public interests, one or more individuals are vested with a capacity to exercise the powers necessary to attain the desired object. In the case under consideration, the necessary powers to construct and keep up the Charles River bridge were given to Thomas Russell and his associates. This did not withdraw the bridge from the action of the state sovereignty, any more than it is withdrawn from land which it has granted. In both cases, the extent of the grant may become a question for judicial investigation and decision; but the rights granted are protected by the law. It is insisted, that as the complainants accepted the extension of their charter in 1792, under an express assertion of right by the legislature to make new grants at its discretion, they cannot now object to the respondents' charter. In the acceptance of the extended charter, the complainants are bound only by the provisions of that charter. Any general declarations, which the legislature may have made, as regards its power to grant charters, could have no more bearing on the rights of the complainants, than on similar rights throughout the state. There was no reservation of this power in the prolonged charter, nor was there any general enactment on the subject. Of course, the construction of the charter must depend upon general and established principles. It has been decided by the supreme court of New York, that unless the act making the appropriation of private property for public use, contain a provision of indemnity, it is void. Where property is taken under great emergencies, by an officer of the government, he could hardly be considered, I should suppose, a trespasser; though he does not pay for the property, at the time it is taken. There can be no doubt, that a compensation should be provided for, in the same act which authorizes the appropriation of the property, or in a contemporaneous act. If, however, this be omitted, and the property be taken, the law unquestionably gives a remedy adequate to the damages sustained. No government which rests upon the basis of fixed laws, whatever form it may have assumed, or wherever the sovereignty may reside, has asserted the right, or exercised the power, of appropriating private property to public purposes, without making compensation. In the 4th section of the act to establish the Warren bridge, there is a provision, that the corporation shall make compensation for any real estate that may be taken for the use of the bridge. The property of the complainants, which was appropriated under the new charter, cannot strictly be denominated real estate; and consequently, this special provision does not reach their case. In this respect, the law must stand as though no such provision had been made. But was the complainants' property appropriated, under the charter granted to the respondents, for particular purposes? If the new bridge were deemed necessary, by the legislature, to promote the general convenience, and the defendants were consequently authorized to construct it, and a part of the plaintiffs' franchise were granted to the defendants; it was an appropriation of private property for public use. It was as much an appropriation of private property for public use, as would have been an appropriation of the ground of an individual, for a turnpike or a railroad, authorized by law. By the charter of the Warren bridge, as soon as the company should be reimbursed the money expended in the construction of the bridge, the expenses incurred in keeping it up, and five per cent. interest, per annum, on the whole amount, the bridge was to become the property of the state; and whether these sums should be received or not, it was to become public property, in six years from the time it was completed. The cost of construction, and the expenses, together with the five per cent. interest, have been reimbursed, and in addition, a large sum has been received by the state from the tolls of this bridge. But it is now, and has been since March last, it is admitted, a free bridge. In granting the charter of the Warren bridge, the legislature seem to recognise the fact, that they were about to appropriate the property of the complainants for public uses, as they provide, that the new company shall pay annually to the college, in behalf of the old one, 100 l . By this provision, it appears, that the legislature has undertaken to do what a jury of the country only could constitutionally do-assess the amount of compensation to which the complainants are entitled. Here, then, is a law which not only takes away the property of the complainants, but provides, to some extent, for their indemnity. Whether the complainants have availed themselves of this provision or not, does not appear, nor is it very material. The law in this respect, does not bind them; and they are entitled to an adequate compensation for the property taken. These considerations belong to the case, as it arises under the laws and constitution of Massachusetts. The important inquiry yet remains, whether this court can take jurisdiction, in the form in which the case is presented. The jurisdiction of this court is resisted, on two grounds. In the first place, it is contended, that the Warren bridge has become the property of the state, and that the defendants have no longer any control over the subject; and also, that the supreme court of Massachusetts have no jurisdiction over trusts. The chancery jurisdiction of the supreme court of Massachusetts, is admitted to be limited; but they are specially authorized, in cases of nuisances, to issue injunctions; and where this ground of jurisdiction is sustained, all the incidents must follow it. If the law incorporating the Warren bridge company was unconstitutional, on the ground that it appropriated to public use the property of the complainants, without making compensation, can there be any doubt, that the supreme court of Massachusetts had jurisdiction of the case? And having jurisdiction, is it not clear, that the whole matter in controversy may be settled by a decree, that the defendants shall account to the complainants for moneys received by them after they had notice of the injunction. It is also insisted, that the state is the substantial party to this suit, and, as the court has no jurisdiction against a sovereign state, that they can sustain no jurisdiction against those who act as agents under the authority of a state. That if such a jurisdiction were asserted by this court, they would do indirectly, what the law prohibits them from doing directly. In the case of Osborn v. Bank of the United States , 9 Wheat. 733, this court says, 'the circuit courts of the United States have jurisdiction of a bill in equity, filed by the Bank of the United States for the purpose of protecting the bank in the exercise of its franchises, which are threatened with invasion and destruction, under an unconstitutional state law; and as the state itself cannot be made a defendant, it may be maintained against the officers and agents of the state who are appointed to execute such law.' As regards the question of jurisdiction, this case, in principle, is similar to the one under consideration. Osborn acted as the agent, or officer, of the state of Ohio, in collecting from the bank, under an act of the state, a tax or penalty unconstitutionally imposed; and if, in such a case, jurisdiction could be sustained against the agent of the state, why can it not be sustained against a corporation, acting as agent, under an unconstitutional act of Massachusetts, in collecting tolls which belong to the plaintiffs? In the second place, it is contended, that this court cannot take jurisdiction of this case, under that provision of the federal constitution, which prohibits any state from impairing the obligation of contracts, as the charter of the complainants has not been impaired. It may be necessary to ascertain, definitely, the meaning of this provision of the constitution; and the judicial decisions which have been made under it. What was the evil against which the constitution intended to provide, by declaring, that no state shall pass any law impairing the obligation of contracts? What is a contract, and what is the obligation of a contract? A contract is defined to be an agreement between two or more persons to do or not to do a particular thing. The obligation of a contract is found in the terms of the agreement, sanctioned by moral and legal principles. The evil which this inhibition on the states was intended to prevent, is found in the history of our revolution. By repeated acts of legislation, in the different states, during that eventful period, the obligation of contracts was impaired. The time and mode of payment were altered by law; and so far was this interference of legislation carried, that confidence between man and man was well nigh destroyed. Those proceedings grew out of the paper system of that day; and the injuries which they inflicted were deeply felt in the country, at the time the constitution was adopted. The provision was designed to prevent the states from following the precedent of legislation, so demoralizing in its effects, and so destructive to the commercial prosperity of a country. If it had not been otherwise laid down, in the case of Fletcher v. Peck , 6 Cranch 125, I should have doubted, whether the inhibition did not apply exclusively to executory contracts. This doubt would have arisen as well from the consideration of the mischief against which this provision was intended to guard, as from the language of the provision itself. An executed contract is the evidence of a thing done; and it would seem, does not necessarily impose any duty or obligation on either party to do any act or thing. If a state convey land which it had previously granted, the second grant is void; not, it would seem to me, because the second grant impairs the obligation of the first, for, in fact, it does not impair it; but because, having no interest in the thing granted, the state could convey none. The second grant would be void in this country, on the same ground that it would be void in England, if made by the king. This is a principle of the common law; and is as immutable as the basis of justice. It derives no strength from the above provision of the constitution; nor does it seem to me to come within the scope of that provision. When we speak of the obligation of a contract, the mind seems necessarily to refer to an executory contract; to a contract, under which something remains to be done, and there is an obligation on one or both of the parties to do it. No law of a state shall impair this obligation, by altering it in any material part. This prohibition does not apply to the remedy, but to the terms used by the parties to the agreement, and which fix their respective rights and obligations. The obligation, and the mode of enforcing the obligation, are distinct things. The former consists in the acts of the parties, and is ascertained by the binding words of the contract. The other emanates from the law-making power, which may be exercised at the discretion of the legislature, within the prescribed limits of the constitution. A modification of the remedy for a breach of the contract, does not, in the sense of the constitution, impair its obligation. The thing to be done, and the time of performance, remain on the face of the contract, in all their binding force upon the parties; and these are shielded by the constitution, from legislative interference. On the part of the complainants, it is contended, that on the question of jurisdiction, as in reference to any other matter in controversy, the court must look at the pleadings, and decide the point raised, in the form presented. The bill charges, that the act to establish the Warren bridge, purports to grant a right repugnant to the vested rights of the complainants, and that it impairs the obligation of the contract between them and the commonwealth; and, being contrary to the constitution of the United States, is void. In their answer, the respondents deny that the act creating the corporation of the Warren bridge, impairs the obligation of any contract set forth in the bill of the complainants. The court must look at the case made in the bill, in determining any questions which may arise; whether they relate to the merits or the jurisdiction of the court. But in either case, they are not bound by any technical allegations or responses, which may be found in the bill and answer. They must ascertain the nature of the relief sought, and the ground of jurisdiction, from the tenor of the bill. In this case, the question of jurisdiction under the constitution is broadly presented; and must be examined free from technical embarrassment. Chief Justice PARKER, in the state court, says, in reference to the charter of the complainants, 'the contract of the government is, that this right shall not be disturbed or impaired, unless public necessity demand; and if it shall so demand, the grantees shall be indemnified.' Such a contract, he observes, 'is founded upon the principles of our constitution, as well as natural justice; and it cannot be impaired, without a violation of the constitution of the United States: and I think, also, it is against the principles of our state constitution.' In the conclusion of his opinion, Mr. Justice PUTNAM says, in speaking of the defendants' charter, 'it impairs the obligation of the grants before made to the plaintiffs; it takes away their property, for public uses, without compensation, against their consent, and without a provision for a trial by jury; it is therefore void.' Mr. Justice WILDE and Mr. Justice MORTON did not consider the new charter as having been granted either in violation of the constitution of the state, or of the United States. In their decree, the court say, 'that no property belonging to the complainants was taken and appropriated to public use, within the terms and meaning of the 10th article of the declaration of rights prefixed to the constitution of this commonwealth.' This decree can, in no point of view, be considered as fixing the construction of the constitution of Massachusetts, as it applies to this case. The decree was entered, pro forma , and is opposed to the opinion of two members of the court. But if that court had deliberately and unanimously decided, that the plaintiffs' property had not been appropriated to public use, under the constitution of Massachusetts; still, where the same point becomes important, on a question of jurisdiction, before this court, they must decide for themselves. The jurisdiction of this court could, in no respect, be considered as a consequence of the decision of the above question by the state court, in whatever way the decree might have been entered. But no embarrassment can arise on this head, as the above decree was made, as a matter of form, to bring the case before this court. To sustain the jurisdiction of this court, the counsel for complainants place great reliance upon the fact, that the right, charged to be violated, is held directly from the state; and they insist, that there is an implied obligation on the state, that it will do nothing to impair the grant. And that, in this respect, the complainants' right rests upon very different grounds from other rights in the community, not held by grant directly from the state. On the face of the complainants' grant, there is no stipulation that the legislature will do nothing that shall injure the rights of the grantees; but it is said, that this is implied; and on what ground, does the implication arise? Does it arise from the fact, that the complainants are the immediate grantees of the state? The principle is admitted, that the grantor can do nothing that shall destroy his deed; and this rule applies as well to the state as to an individual. And the same principle operates with equal force on all grants, whether made by the state or individuals. Does an implied obligation arise on a grant made by the state, that the legislature shall do nothing to invalidate the grant, which does not arise on every other grant or deed in the commonwealth? The legislature is bound by the constitution of the state, and it cannot be admitted, that the immediate grantee of the state has a stronger guarantee for the protection of his vested rights against unconstitutional acts, than may be claimed by any other citizen of the state. Every citizen of the state, for the protection of his vested rights, claims the guarantee of the constitution. This, indeed, imposes the strongest obligation on the legislature not to violate those rights. Does the legislature give to its grantee, by virtue of its grant, an additional pledge that it will not violate the constitution of the state? Such an implication, if it exist, can scarcely be considered as adding anything to the force of the constitution. But this is not, it is said, the protection which the complainants invoke. In addition to their property having been taken without compensation, they allege, that their charter has been impaired by the Warren bridge charter; and on this ground, they ask the interposition of this court. The new charter does not purport to repeal the old one, nor to alter it in any material or immaterial part. It does not, then, operate upon the complainants' grant, but upon the thing granted. It has, in effect, taken the tolls of the complainants and given them to the public. In other words, under the new charter, all that is valuable under the charter of the complainants has been appropriated to public use. It is urged, that the legislature did not intend to appropriate the property of the complainants; that there is nothing in the act of the legislature, which shows an intention by the exercise of the eminent domain, to take private property for public use; but that, on the contrary, it appears the Warren bridge charter was granted in the exercise of a legislative discretion, asserted and sustained by a majority of the legislature. In this charter, provision is made to indemnify the owners of real estate, if it should be taken for the use of the bridge; and the new company is required to pay, in behalf of the Charles River bridge company, one-half of the annuity to the college. This would seem to show an intention to appropriate private property, if necessary, for the establishment of the Warren bridge; and also an intention to indemnify the complainants, to some extent, for the injury done them. There could have been no other motive than this, in providing that the new company should pay the hundred pounds. But the court can only judge of the intention of the legislature by its language; and when, by its act, the franchise of the complainants is taken, and, through the instrumentality of the Warren Bridge company, appropriated to the public use, it is difficult to say, that the legislature did not intent to do, what in fact it has done. Throughout the argument, the counsel for the complainants have most ably contended, that their property had been taken and appropriated to the public use, without making compensation; and that the act was, consequently, void, under the constitution of Massachusetts. If this be the character of the act; if, under its provisions, the property of the complainants has been appropriated to public purposes; it may be important to inquire, whether it can be considered as impairing the obligation of the contract, within the meaning of the federal constitution. That a state may appropriate private property to public use, is universally admitted. This power is incident to sovereignty, and there are no restrictions on its exercise, except such as may be imposed by the sovereignty itself. It may tax, at its discretion, and adapt its policy to the wants of its citizens; and use their means for the promotion of its objects under its own laws. If an appropriation of private property to public use impairs the obligation of a contract, within the meaning of the constitution, then every exercise of this power by a state is unconstitutional. From this conclusion, there is no escape; and whether compensation be made or not, cannot vary the result. The provision is not, that no state shall pass a law impairing the obligation of contracts, unless compensation be made; but the power is absolutely inhibited to a state. If the act of the state come within the meaning of the provision, the act is void. No condition which may be annexed to it, no compensation that can be made, can give it validity. It is in conflict with the supreme law of the land, and is, therefore, a nullity. Can a state postpone the day fixed in an obligation for payment, or provide, that a bond for the payment of money shall be discharged by the payment of anything else than money? This no one will contend can be done, because such an act would clearly impair the obligation of the contract; and no compensation, which the state could give, would make the act valid. The question is asked, whether the provision implied in the constitution of Massachusetts, that private property may be taken, by making compensation, is not impliedly incorporated in every contract made under it; and whether the obligation of the contract is not impaired, when property is taken by the state, without compensation? Can the contract be impaired, within the meaning of the federal constitution, when the action of the state is upon the property? The contract is not touched, but the thing covered by the contract is taken, under the power to appropriate private property for public use. If taking the property impair the obligation of the contract, within the meaning of the constitution, it cannot be taken on any terms. The provision of the federal constitution, which requires compensation to be made, when private property shall be taken for public use, acts only upon the officers of the federal government. This case must be governed by the constitution of Massachusetts. Can a state, in any form, exercise a power over contracts, which is expressly prohibited by the constitution of the Union? The parties making a contract may embrace any conditions they please, if the conditions do not contravene the law, or its established policy. But it is not in the power of a state, to impose upon contracts which have been made, or which may afterwards be made, any condition which is prohibited by the federal constitution. No state shall impair the obligation of contracts. Now, if the act of a state, in appropriating private property to public use come within the meaning of this provision, is not the act inhibited, and, consequently, void? This point would seem to be too plain for controversy. And is it not equally clear, that no provisions contained in the constitution of a state, or in its legislative acts, which subject the obligation of a contract to an unconstitutional control of the state, can be obligatory upon the citizens of the state? If the state has attempted to exercise a power which the federal constitution prohibits, no matter under what form the power may be assumed, or what specious pretexts may be urged in favor of its exercise, the act is unconstitutional and void. That a state may take private property for public use, is controverted by no one. It is a principle which, from the foundation of our government, has been sanctioned by the practice of the states, respectively; and has never been considered as coming in conflict with the federal constitution. This power of the state is admitted in the argument; but it is contended, that the obligation of the contract has been impaired, as the property of the complainants has been taken, without compensation. Suppose, the constitution of Massachusetts provided, that no land should be sold for taxes, without valuation, nor unless it shall sell for two-thirds of its value, due notice being given in some newspaper; and suppose, a law of the legislature should direct land to be sold for taxes, without a compliance with these requisites; would this act impair the obligation of the grant by which the land is held, within the meaning of the constitution? The act would be clearly repugnant to the state constitution, and, consequently, all proceedings under it would be void; but it would not be repugnant to the constitution of the Union. And how does this case differ, in principle, from the one under consideration? In both cases, the power of the legislature is unquestionable; but, by the constitution of the state, it must be exercised in a particular manner; and if not so exercised, the act is void. Now, if, in either case, the obligation of the contract under which the property is held is impaired, then it must follow, that every act of a state legislature which affects the right of private property, and which is repugnant to the state constitution, is a violation of the federal constitution. Can the construction of the federal constitution depend upon a reference to a state constitution, and by which the act complained of is ascertained to be legal or illegal? By this doctrine, the act, if done in conformity to the state constitution, would be free from objections under the federal constitution; but if this conformity do not exist, then the act would not be free from such objection. This, in effect, would incorporate the state constitution in, and make it a part of the federal constitution. No such rule of construction exists. Suppose, the legislature of Massachusetts had taken the farm of the complainants for the use of a poor-house, or an asylum for lunatics, without making adequate compensation; or if, in ascertaining the damages, the law of the state had not been strictly pursued; could this court interpose its jurisdiction, through the supreme court of the state, and arrest the power of appropriation? In any form in which the question could be made, would it not arise under the constitution of the state, and be limited between citizens of the same state to the local jurisdiction? Does not the state constitution, which declares that private property shall not be taken for public purposes, without compensation, afford a safe guarantee to the citizens of the state against the illegal exercise of this power; a power essential to the wellbeing of every sovereign state, and which is always exercised under its own rules? Had an adequate compensation been made to the complainants, under the charter of the Warren bridge, would this question have been raised? Can any one doubt, that it was in the power of the legislature of Massachusetts to take the whole of the complainants' bridge for public use, by making compensation? Is there any power that can control the exercise of this discretion by the legislature? I know of none, either in the state or out of it; but it must be exercised in subordination to the provisions of the constitution of the state. And if it be not so exercised, the judicial authority of the state only, between its own citizens, can interpose and prevent the wrong, or repair it in damages. In all cases where private property is taken by a state for public use, the action is on the property; and the power, if it exist in the state, must be above the contract. It does not act on the contract, but takes from under it vested rights. And this power, when exercised by a state, does not, in the sense of the federal constitution, impair the obligation of the contract. Vested rights are disturbed, and compensation must be made; but this is a subject which belongs to the local jurisdiction. Does this view conflict with the established doctrine of this court? A reference to the points adjudged will show that it does not. The case of Satterlee v. Mathewson , 2 Pet. 380, presented the following facts. Satterlee was the tenant of Mathewson, who claimed, at the time of the lease, under a Connecticut title, in Luzerne county, Pennsylvania. Afterwards, Satterlee purchased a Pennsylvania title for the same land. An ejectment was brought by Mathewson for the land, and the court of common pleas decided, that as Satterlee was the tenant of the plaintiff, he could not set up a title against his landlord. On a writ of error, this judgment was reversed by the supreme court, on the ground, that the relation of landlord and tenant could not exist under a Connecticut title. Shortly afterwards, the legislature of Pennsylvania passed a law, that, under such a title, the relation of the landlord and tenant should exist, and the supreme court of the state having decided that this act was valid, the question was brought before this court by writ of error. In their opinion, the court say: 'We come now to the main question in the cause. Is the act which is objected to, repugnant to any provision of the constitution of the United States? It is alleged, to be particularly so, because it impairs the obligation of the contract between the state of Pennsylvania and the plaintiff, who claims under her grant, &c.' The grant vested a fee-simple in the grantee, with all the rights, privileges, &c. 'Were any of these rights disturbed or impaired by the act under consideration? It does not appear from the record, that they were in any instance denied, or ever drawn in question.' The objection most pressed upon the court was, that the effect of this act was to divest rights which were vested by law in Satterlee. 'There is certainly no part of the constitution of the United States,' the court say, 'which applies to a state law of this description; nor are we aware of any decision of this, or any circuit court, which has condemned such a law, upon this ground, provided its effect be not to impair the obligation of the contract.' And the court add, that in the case of Fletcher v. Peck , it is nowhere intimated, that a state statute, which divests a vested right, is repugnant to the constitution of the United States. There is a strong analogy between this case and the one under consideration. The effect of the act of Pennsylvania was, to defeat the title of Satterless, founded upon the grant of the state. It made a title valid which, in that very case, had been declared void by the court, and which gave the right to Mathewson, in that suit, against the prior grant of the state. And this court admit, that a vested right was divested by the act; but they say, it is not repugnant to the federal constitution. The act did not purport to effect the grant, which was left, with its covenants, untouched; but it created a paramount right, which took the land against the grant. In the case under consideration, the Warren bridge charter does nor purport to repeal, or in any way affect, the complainants' charter. But, like the Pennsylvania act in its effects, it divested the vested rights of the complainants. Satterlee was not the immediate grantee of the state; but that could not affect the principle involved in the case. He claimed under the grant of the state, and the fact that there was an intermediate grantee between him and the state, could not weaken his right. In the case of Fletcher v. Peck , 6 Cranch 87, the legislature of Georgia attempted to annul its own grant. The law under which the first grant was issued, was attempted to be repealed; and all grants under it were declared to be null and void, by the second act. Here, the state acted directly upon the contract; and the case comes within the rule, that to impair the obligation of the contract, the state law must act upon the contract. The act of the legislature complained of, in the case of Sturges v. Crowninshield , 4 Wheat. 122, had a direct bearing upon the contract. The question was, whether under the bankrupt law of of New York, a debtor was discharged from his obligation by a surrender of his property. And so, in the case of Trustees of Dartmouth College v. Woodward , Ibid. 518, the question was, whether the legislature could, without the consent of the corporation, alter its charter in a material part, it being a private corporation. In the case of Terrett v. Taylor , 9 Cranch 52, the uncontroverted doctrine is asserted, that a legislature cannot repeal a statute creating a private corporation, and thereby destroy vested rights. The case of Green v. Biddle , 8 Wheat. 1, has also been cited to sustain the jurisdiction of the court in this case. The court decided, in that case, that the compact, which guarantied to claimants of land lying in Kentucky, under titles derived from Virginia, their rights, as they existed under the laws of Virginia, prohibited the state of Kentucky from changing those rights. In other words, that Kentucky could not alter the compact. And when this court were called on to give effect to the act of Kentucky, which they considered repugnant to the compact, they held the provisions of the compact paramount to the act. After a careful examination of the questions adjudged by this court, they seem not to have decided in any case, that the contract is impaired, within the meaning of the federal constitution, where the action of the state has not been on the contract. That though vested rights have been divested, under an act of a state legislature, they do not consider that as impairing the grant of the state, under which the property is held. And this, it appears, is the true distinction; and the one, which has been kept in view in the whole current of adjudications by this court, under the above clause of the constitution. Had this court established the doctrine, that where an act of a state legislature affected vested rights, held by a grant from the state, the act is repugnant to the constitution of the United States, the same principle must have applied to all vested rights. For, as has been shown, the constitution of a state gives the same guarantee of their vested rights to all its citizens, as to those who claim directly under grant from the state. And who can define the limit of a jurisdiction founded on this principle? It would necessarily extend over the legislative action of the state; and control, to a fearful extent, the exercise of their powers. The spirit of internal improvement pervades the whole country. There is, perhaps, no state in the Union, where important pnblic works, such as turnpike roads, canals, railroads, bridges, &c., are not either contemplated, or in a state of rapid progression. These cannot be carried on, without the frequent exercise of the power to appropriate private property for public use. Vested rights are daily divested by this exercise of the eminent domain. And if, in all these cases, this court can act as a court of supervision for the correction of errors, its power may be invoked in numberless instances. If to take private property impairs the obligation of the contract under which it is held, this court may be called to determine, in almost every case where the power is exercised, as well where compensation is made, as where it is not made. For, if this court can take jurisdiction on this ground, every individual whose property has been taken, has a constitutional right to the judgment of this court, whether compensation has been made in the mode required by the constitution of the state. In ascertaining the damages, the claimant has a right to demand a jury, and that the damages shall be assessed in strict conformity to the principles of the law. To revise these cases, would carve out for this court a new jurisdiction, not contemplated by the constitution, and which cannot be safely exercised. These are considerations which grow out of our admirable system of government, that should lead the judicial tribunals both of the federal and state governments to mutual forbearance, in the exercise of doubtful powers. The boundaries of their respective jurisdictions can never, perhaps, be so clearly defined, on certain questions, as to free them from doubt. This remark is peculiarly applicable to the federal tribunals, whose powers are delegated, and consequently, limited. The strength of our political system consists in its harmony; and this can only be preserved, by a strict observance of the respective powers of the state and federal government. Believing that this court has no jurisdiction in this case; although I am clear that the merits are on the side of the complainants; I am in favor of dismissing the bill, for want of jurisdiction. BALDWIN, Justice. In this case, I entirely concur in the judgment of the court, as well as the reasongs given in the opinion delivered by the chief justice: my only reason for giving a separate opinion is, to notice some matters not referred to in that opinion, which I am not willing should pass without expressing mine upon them. The course of the argument, and the nature of several questions involved in the case, gives them an importance deserving attention, from these and other considerations, which I cannot overlook. The first question which arises in this cause, is an objection to the jurisdiction of the court below, made by the appellees, on the ground of the want of proper parties; and that the state of Massachusetts, being now the owners of the bridge, pursuant to the terms of the charter to the defendants, no suit could be sustained which can affect their interest in it. On an inspection of the record, the case is one which does not admit of this objection, if it was well founded otherwise. The bill was filed in June, and the pleadings closed in December 1828, so that we have no judicial knowledge of any matters which have arisen since; confining itself, as the court must do, to the pleadings of the cause, and the decree of the court below, we can notice nothing not averred in the bill or answer, nor act on any evidence which does not relate to them. An injunction is prayed for by the plaintiffs, to restrain the defendants from erecting a bridge over Charles river, pursuant to their charter in the act of 1828, which they allege to be a violation of their rights, by impairing the obligation of previous contracts made by the state with the plaintiffs. When the pleadings closed, the defendants had not completed the bridge complained of; they were then the only persons who had any present interest in it; they were constructing it for their own benefit, and were to have the sole and exclusive use of it, till by the terms of the charter, it became the property of the state; they were, therefore, the proper, and the only parties against whom a bill for an injunction could then be sustained. If, then, the plaintiffs were, in June 1828, entitled to a decree restraining the erection of the bridge, their right cannot be affected by any matter pendente lite , nor by any reversionary right, which may have accrued to the state. The case must be decided, as it ought to have been decided in December 1828, and the only question before the court below, on the pleadings and exhibits, was on the right of the plaintiffs to the only remedy prayed, which was an injunction; that court had jurisdiction between the parties to the suit, to decide the question of right between them, but could go no further than to grant the injunction against the erection of the bridge, because the bill avers no matter arising subsequent to December 1828. Whether, on an amended, a supplemental, or an original bill, a decree can be rendered for an account of tolls received, and for the suppression of the bridge, is a question which can arise only after a reversal of the decree now appealed from, and such a state of pleading as will bring subsequent matters before the court below. It has also been objected, that the plaintiffs have a perfect remedy at law, if their case is such as is set forth in the bill, and therefore, cannot sustain a suit in equity. If this case came up by appeal from a circuit court, the question might deserve serious consideration; but as the courts in Massachusetts derive their equity jurisdiction from a state law, it becomes a very different question. The supreme court of that state is the rightful expositor of its laws (2 Pet. 524-5); and having sustained and exercised their jurisdiction over this case, as one appropriate to their statutory jurisdiction in equity, it will be considered as their construction of a state law, to which this court always pays great, and generally, conclusive, respect. Our jurisdiction over causes from state courts, by the 25th section of the judiciary act is peculiar; no error can be assigned by a plaintiff in error, except those which that act has specified, and the court can reverse for no other. It may be a very different question, whether the defendant in error may not claim an affirmance, on any ground which would entitle him to a decree below, which it is unnecessary to consider, as these objections to the jurisdiction cannot be sustained. The next question is one vital to the plaintiffs' case, if decided against them, which is, whether a charter to a corporation is a contract, within the tenth section of the first article of the constitution, which prohibits a state from passing any law impairing the obligation of a contract; or whether this prohibition applies only to contracts between individuals, or a state and individuals. As this question is not only an all-important one, arising directly and necessarily in the case, but in one view of it, is the whole case which gives the plaintiffs a standing in this court, it will be next considered. In this country, every person has a natural and inherent right of taking and enjoying property, which right is recognised and secured in the constitution of every state; bodies, societies and communities have the same right, but inasmuch as on the death of any person without a will, his property passes to his personal representative or heir, a mere association of individuals must hold their real and personal property subject to the rules of the common law. A charter is not necessary to give to a body of men the capacity to take and enjoy, unless there is some statute to prevent it, by imposing a restriction or prescribing a forfeiture, where there is a capacity to take and hold; the only thing wanting is the franchise of succession, so that the property of the society may pass to successors instead of heirs. Termes de la Ley 123; 1 Bl. Com. 368-72. This and other franchises are the ligaments which unite a body of men into one, and knit them together as a natural person (4 Co. 65 a ); creating a corporation, an invisible incorporeal being, a metaphysical person (2 Pet. 223); existing only in contemplation of law, but having the properties of individuality (4 Wheat. 636), by which a perpetual succession of many persons are considered the same, and may act as a single individual. It is the object and effect of the incorporation, to give to the artificial person the same capacity and rights as a natural person can have, and when incorporated either by an express charter or one is presumed from prescription, they can take and enjoy property to the extent of their franchises as fully as an individual. Co. Litt. 132 b; 2 Day's Com. Dig. 300; 1 Saund. 345. It bestows the character and properties of individuality on a collective and changing body of men (4 Pet. 562), by which their rights become as sacred as if they were held in severalty by natural person. Franchises are not peculiar to corporations, they are granted to individuals, and may be held by any persons capable of holding or enjoying property; a franchise is property, a right to the privilege or immunity conferred by the grant; it may be of a corporeal or incorporeal right, but it is a right of property, or propriety, in the thing to which it attaches. Franchises are of various grades, from that of a mere right of succession to an estate in land, to the grant of a County Palatine, which is the highest franchise known to the law; the nature and character whereof is the same, whether the grant is to one or many. Corporations are also of all grades, and made for varied objects; all governments are corporations, created by usage and common consent, or grants and charters which create a body politic for prescribed purposes; but whether they are private, local or general, in their objects, for the enjoyment of property, or the exercise of power, they are all governed by the same rules of law, as to the construction and the obligation of the instrument by which the incorporation is made. One universal rule of law protects persons and property. It is a fundamental principle of the common law of England, that the term freemen of the kingdom, includes 'all persons,' ecclesiastical and temporal, incorporate, politique or natural; it is a part of their magna charta (2 Inst. 4), and is incorporated into our institutions. The persons of the members of corporations are on the same footing of protection as other persons, and their corporate property secured by the same laws which protect that of individuals. 2 Inst. 46-7. 'No man shall be taken,' 'no man shall be disseised,' without due process of law, is a principle taken from magna charta , infused into all our state constitutions, and is made inviolable by the federal government, by the amendments to the constitution. No new principle was adopted, in prohibiting the passage of a law by a state, which should impair the obligation of a contract; it was merely affirming a fundamental principle of law, and by putting contracts under the protection of the constitution, securing the rights and property of the citizens from invasion by any power whatever. It was a part of that system of civil liberty which 'formed the basis whereon our republics, their laws and constitutions, are erected, and declared, by the ordinance of 1787, to be a fundamental law of all new states.' This was the language of the congress, 'And in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall in any manner interfere with, or affect, private contracts, or any agreements, bona fide and without fraud, previously formed.' (1 U.S. Stat. 52.) This ordinance was passed during the session of the convention which framed the constitution, several of the members of which were also members of congress; it was, therefore, evidently in their view, and may justly be taken as a declaration of the reasons for inserting this prohibitory clause. As an important contemporaneous historical fact, it also shows, that the convention intended to make the prohibition more definite, less extensive in one respect, and more so in another, than in the ordinance. Omitting the words 'in any manner interfere with or affect,' the words 'impair the obligation of,' were substituted; the word private was omitted, so as to extend the prohibition to all 'contracts,' public or private: as 'the constitution unavoidably deals in general terms' (1 Wheat. 326), marks only great outlines, and designates its general objects (4 Ibid. 407), no detail was made, no definition of a contract given, or exception made. No one can doubt, that the terms of the prohibition are not only broad enough to comprehend all contracts, but that violence will be done to the plain meaning of the language, by making any exception, by construction; it must, therefore, necessarily embrace those contracts, which grant a franchise or property to individuals or corporations, imposing the same restraints on states, as were imposed by the English constitution on the prerogative of the king, which devolved on the states by the revolution. See 4 Wheat. 651; 8 Ibid. 584-8. The king has the 'prerogative of appointing ports and havens;' the 'franchise of lading and discharging has been frequently granted by the crown,' from an early period. 'But though the king had a power of granting the franchise of ports and havens, yet he had not the power of resumption, or of narrowing or contracting their limits, when once established.' 1 Bl. Com. 264. It would be strange, if the free citizens of a republic did not hold their rights by a tenure as sacred as the subjects of a monarchy; or that it should be deemed compatible with American institutions, to exclude from the protection of the constitution, those privileges and immunities which are held sacred by the laws of our ancestors. We have adopted them, as our right of inheritance, with the exception of such as are not suited to our condition, or have been altered by usage or acts of assembly. No one, I think, will venture the assertion, that it is incompatible with our situation, to protect the corporate rights of our citizens, or that, in any state, there is either a usage or law which makes them less sacred then those held by persons who are not members of of a corporation. No one can, in looking throughout the land, fail to see, that an incalculable amount of money has been expended, and property purchased, on the faith of charters and grants, or contemplate their violation by a law, which will not, some day, take his possessions from him, by an exercise of power, founded on a principle which applies to all rights. If a state can revoke its grant of property or power to a subordinate corporation, there can be no limitation; there is no principle of law, or provision of the constitution, that can save the charter of a borough, a city, a church or a college, that will not equally save any other; of consequence, if all cannot be protected, none can be. The federal government itself is but a corporation, created by the grant or charter of the separate states; if that is inviolable by the power of a state, each of its provisions is so; each state, in its most sovereign capacity, by the people thereof, in a convention, have made it a supreme law of the state, paramount to any state constitution then in existence, or which may be thereafter adopted. The state has made an irrevocable restriction on its own once plenary sovereignty, which it cannot loosen, without the concurrence of such a number of states, as are competent to amend the constitution. So far as such restriction extends, the state has annulled its own power, by a surrender thereof for the public good; if a state can remove that restriction on its own legislative power, and do the thing prohibited, it can also remove the restriction on its sovereignty, by revoking the powers granted to congress. The property and power of the federal government, are held by no other or stronger tenure, than the land or franchises of a citizen or corporation; both rights were inherent in the people of a state, who have made grants, by their representatives, in a convention, directly by their original power, or in a legislative act, made by the authority delegated in their state constitution. But the grants thus made are as binding on the people and the state, as if made in a convention; they are the contracts of the state, the obligation of which the people have declared, shall not be impaired by the authority of a state; it shall not 'pass any law,' which shall have such object in view, or produce such effect. An act of a convention is the supreme law of the state; an act of the legislature is a law subordinate; both, however, are laws of the state, of binding authority, unless repugnant to that law which the state has, by its own voluntary act, in the plenitude of its sovereignty, made paramount to both, and declared that its judges, 'shall be bound thereby,' anything to the contrary notwithstanding. Each state has made the obligation of contracts a part of the constitution, thus saving and confirming them, under the sanction of its own authority; no act, therefore, can violate the sanctity of contracts, which cannot annul the whole constitution; for it is a fundamental principle of law, that whatever is saved and preserved by a statute, has the same obligation as the act itself. This principle has been taken from the magna charta of England, and carried into the great charter of our rights of property. By magna charta , c. 9, and 7 Ric. II., it is enacted, 'that the citizens of London shall enjoy all their liberties, notwithstanding any statute to the contrary.' By this act, the city may claim liberties by prescription, charter or parliament, notwithstanding any statute made before. 4 Inst. 250, 253; 2 Ibid. 20-1; 5 Day's Com. Dig. 20, London, M.; Harg. Law Tr. 66-7. The constitution goes further, by saving, preserving and confirming the obligation of contracts; and notwithstanding any law passed after its adoption; and this confirmation, being by the supreme law of the land, makes a contract as inviolable, even by a supreme law of a state, as the constitution itself. From the beginning of the revolution, the people of the colonies clung to magna charta , and their charters from the crown; their violation was a continued subject of complaint. See 1 Journ. Cong. 27-8, 40-1, 60, 108, 143, 154, 167, 178; one of the grievances set forth in the declaration of independence is, 'for taking away our charters,' &c. One of the causes which led to the Engligh revolution was, 'They have also invaded the privileges, and seized on the charters of most of those towns that have a right to be represented by their burgesses in parliament; and have secured surrenders to be made of them, by which the magistrates in them have delivered up all their rights and privileges, to be disposed of at the pleasure of those evil counsellors,' &c. 10 Journ. Commons, 2 b. In the language of congress, 'the legislative, executive and judging powers, are all moved by the nod of a minister; privileges and immunities last no longer than his smiles; when he forwns, their feeble forms dissolve.' 1 Journ. 59-60. 'Without incurring or being charged with a forfeiture of their rights, without being heard, without being tried, without law, without justice, by an act of parliament, their charter is destroyed, their liberties violated, their constitution and from of government changed; and all this, upon no better pretence, than because in one of their towns, a trespass was committed on some merchandise, said to belong to one of the companies, and because the ministry were of opinion, that such high political regulations, were necessary to compel due subordination, and obedience to their mandates.' 1 Journ. 41. Such were the principles of our ancestors, in both revolutions; they are consecrated in the constitution framed by the fathers of our government, in terms intended to protect the rights and property of the people, by prohibiting to every state the passage of any law which would be obnoxious to such imputations on the character of American legislation. The reason for this provision was, that the transcendent power of parliament devolved on the several states by the revolution (4 Wheat. 651), so that there was no power by which a state could be prevented from revoking all public grants of property or franchise, as parliament could do. Harg. L. Tr. 60-61; 4 Wheat. 643, 651. The people of the states renounced this power; and as an assurance that that they would not exercise it; or if they should do so inadvertently, that any law to that effect should be void; the constitution embraces all grants, charters and other contracts affecting property, places them beyond all legislative control, and imposes on this court the duty of protecting them from legislative violation. 6 Cranch 136; 4 Wheat. 625. In the same sovereign capacity in which the people of each state adopted the constitution, they pledged their faith that the sanctity of the obligation of contracts should be inviolable; and to insure its performance, created a competent judicial power, whom they made the final arbiter between their laws and the constitution, in all cases in which there was an alleged collision between them. These principles have been too often, and too solemnly, affirmed by this court, to make any detail of their reasoning or opinions necessary. In Fletcher v. Peck , they were applied to a grant of land by a state to individuals, made by the authority of a state law, which was afterwards repealed (6 Cranch 127); in New Jersey v. Wilson , to an immunity from taxation granted to a tribe of Indians (7 Ibid. 164); in Terrett v. Taylor , to a religious society (9 Ibid. 43, &c.); in Dartmouth College v. Woodward , to a literary corporation. 4 Wheat. 636. In all these cases, state laws which violated the grants and charters which conferred private or corporate rights, were held void, under the prohibition in the constitution; the court holding, that as it contained no exception in terms, none could be made by construction; the language being clear of all ambiguity, it extended to corporations as well as individuals. 8 Wheat. 480-90, passim . But while the court repudiates all constructive exceptions to the prohibition, it equally repudiates its application to constructive contracts; it will preserve the immunity from taxation, when it is granted in terms, as in 7 Cranch 164; yet they will not raise an immunity by implication, 'where there is no express contract.' 4 Pet. 563. There can be no difficulty in understanding this clause of the constitution; its language is plain, and the terms well defined, by the rules of law; the difficulty arises by the attempts made to interpolate exceptions on one hand, so as to withdraw contracts from its operation; and on the other hand, to imply one contract from another, to make each implied contract the parent of another, and them endeavor to infuse them all into the constitution, as the contract contained in the grant or charter in question. If human ingenuity can be thus exerted, for either purpose, with success, no one can understand the constitution as it is; we must wait till it has been made, by such construction, what such expounders may think it ought to have been, before we can assign to its provisions any determinate meaning. In the rejection of both constructions, and following the decisions of this court, my judgment is conclusively formed-that the grants of property, of franchise, privilege or immunity, to a natural or artificial person, are alike confirmed by the constitution; and that the plaintiffs are entitled to the relief prayed for in their bill, if they have otherwise made out a proper case. In tracing their right to its origin, they found it on a grant to Harvard College, by the general court, or colonial council, in 1640, of the ferry between Boston and Charlestown, which had belonged to the colony from its first settlement. In 1637, the governor and treasurer were authorized to lease this ferry for three years, at 40 l. a year, under which authority, they made such a lease, and gave an exclusive right of ferry between the two towns, though they were not authorized to do more than lease the ferry. The lease expired in 1640, when the ferry reverted to the colony, and was granted to the college, by no other description than 'the ferry between Boston and Charlestown,' which the plaintiffs contend, was a grant in perpetuity of the exclusive right of ferriage between the two towns, and from any points on Charles river, at the one or the other. All the judges in the court below, as well as the counsel on both sides, agree, that the common law as to ferries was adopted and prevails in Massachusetts; this part of the case then must depend on what were the rules and principles of that law, in their application to such a grant at the time it was made. It is an admitted principle, that the king, by his prerogative, was vested with the right of soil and jurisdiction over the territory within which he constituted, by his charter, the colonial government; their grants had the same validity as his, and must be construed by the same rules which regulate prerogative grants. See 1 Pick. 182, &c. As the king, by his charter, put the colonial government in his place, they held the right in and over the arms of the sea, navigable rivers, and the land in the colony, for the benefit of the people of the colony, as a public trust, not as a private estate; the people of the colony had the right of fishing, navigating and passing freely in and over the public waters, subject to such grants of franchise or property as might have been made, or which should be made in future. But as any grant of a private right in or over public property, is necessarily an abridgment of the public right, to the extent of such grants, the law looks on them with great watchfulness, and has prescribed rules for their construction, founded on a proper regard to the general interest. The prerogative of the king is vested in him as necessary for the purposes of society; it extends to all things not injurious to his subjects, but 'stretcheth not to the doing of any wrong' (1 Bl. Com. 237-9); the objects for which it is held and exercised, are for the good of the subject, and the benefit of the commonwealth, and not his private emolument. It is a part of the common law (2 Inst. 63, 496); confined to what the law allows, and is for the public good (Hob. 261); and the increase of the public treasure. Hard. 27; 2 Vent. 268. The king is the universal occupant of the public domain, which he may grant at pleasure (11 Co. 86 b; 9 Pet. 748; Cowp. 210); but his grants are voidable, if they are against the good of the people, their usual and settled liberties, or tend to their grievance (2 Bac. Abr. 149; Show. P. C. 75); holding it for the common benefit as a trust, his prerogative is the guardianship of public property, for the general interest of his subjects. This is the reason why the king has a prerogative, in the construction of his grants, by which they are taken most strongly in his favor and against the grantee, because they take from the public whatever is given to an individual; whereas, the grants of private persons are taken by a contrary rule, because the public right is not affected by them. From a very early period, it was the policy of the law of England, to protect the public domain from the improvident or illegal exercise of the royal prerogative in making grants, and to secure to pious and charitable institutions, the benefit of donations made directly to them, or for their use, by rules of construction appropriate to each kind of grants, which were a part of the common law. These rules were affirmed by statutes, in order to give them a more imposing obligation; these statutes were passed in 1323-24. By the 17 Edw. II., stat. 1 c. 15, it is enacted, that 'When our lord the king giveth or granteth land or a manor, with the appurtenances, without he make express mention in his deed or writing, of knights' fees, advowsons of churches, and dowers when they fall, belonging to such manor or land, then, at this day, the king reserveth to himself such fees, advowsons and dower; albeit, that among other persons, it hath been observed otherwise;' 1 Ruff. 182-3. By the 17 Edw. II., called the statute of templars, it was declared, that the and donations for charitable purposes, should be held, 'so always that the godly and worthy will of the foresaid givers be observed, performed and always religiously executed as aforesaid.' Keble's Stat. 86-7. Subsequent statutes have prescribed the same rule, whereby it has ever since been a fundamental principle of the law of charities, that the will of the donor should be the standard of construction in relation to all such gifts or grants (8 Co. 131 b; 10 Ibid. 34 b; 3 Ibid. 3 b; 7 Ibid. 13 a ); putting them on the footing of a will, in which the intention of the testator prevails over the legal interpretation of the words. Both classes of cases are exceptions to the general rules of construing private grants. They rest, however, on the strongest grounds of reason, justice and sound policy, applicable alike to England and this country. In cases of charities, the rule has been most liberally applied by this court, as it has in England, in the construction of statutes and grants, in favor of donations to them (4 Wheat. 31, &c.; 9 Cranch 43, 331; 3 Pet. 140, 480; 9 Wheat. 455, 64; 2 Pet, 580, 585); so of dedications of property to public use, or the use of a town (12 Wheat. 582; 6 Pet. 436-7; 10 Ibid. 712-13); the rules of which are essentially different from those which relate to grants from one person to another, or laws for private benefit. In cases of grants by the king, in virtue of his prerogative, then the rule prescribed by the statute of prerogative has ever been a fundamental one in England, 'that nothing of prerogative can pass, without express and determinate words.' Hob. 243; Hard. 309-10; Plowd. 336-7. In 1830, it was laid down in the house of lords, as clear and settled law, that the king's grants shall be taken most strongly against the grantee, though the rule was otherwise as to private grants (5 Bligh P. C. 315-16); this rule was never questioned in England, and has been adopted in all the states, as a part of their common law. This rule is a part of the prerogative of the crown, which devolved on the several states by the revolution (4 Wheat. 651); and which the states exercise to the same extent as the king did, as the guardians of the public, for the benefit of the people at large. It is difficult to assign a good reason, why public rights should not receive the same protection in a republic as in a monarchy, or why a grant by a colony or state, should be so construed as to impair the right of the people to their common property, to a greater extent in Massachusetts, than a grant by the king would in England. But the grant of this ferry, in 1640, was only a prerogative grant, by colonial authority, which derived solely from the charter of the king, and not by act of parliament, could rise no higher than its source in his prerogative, nor could it pass, by delegated authority, what would not pass in the same words, by original grant from the king; consequently, the grant must be construed as if he had made it. If, however, there could be a doubt on this subject, by the general principles of the common law, as adopted in that colony, there were reasons peculiar to it, which would call for the most rigid rules of construing grants of any franchise, or right of any description, on the waters or shores of the rivers and arms of the sea, within its boundaries. In 1641, the general court adopted an ordinance, which was a declaration of common liberties, providing that riparian owners of land on the sea or salt water, should hold the land to low-water mark, if the tide did not ebb and flow more than one hundred rods; though this ordinance expired with the charter of the colony, there has been, ever since, a corresponding usage, which is the common law of the state to this day. 4 Mass. 144-5; 6 Ibid. 438; 17 Ibid. 148-9; 1 Pick. 182, &c. The riparian owner of land in Charlestown 'may, whenever he pleases, inclose, build and obstruct to low-water mark, and exclude all mankind' (1 Mass, 232): it is, therefore, a necessary conclusion, from the nature and extent of the riparian right that grants of land on Charles river must be construed by the rules of prerogative grants. Any construction which would extend them beyond the limits described in the grant, must take from the adjoining riparian owner a right which is exclusively in him; it cannot then ever have been the law of Massachusetts, that the grant of the ferry, in general terms, between two opposite points on the shore of Charles river, which is an arm of the sea, and salt water, would give any right beyond the landings. Had the grant been definite, of the landings, describing them by metes and bounds, with the right of ferriage over the river, its construction must be the same as a general grant, for it could, in neither case, be extended, so as to give a right of landing on another man's soil. Independent, however, of any considerations of this kind, the law of Massachusetts on the subject of the construction of grants, has been settled by the repeated decisions of its supreme court, and is thus laid down by Chief Justice PARSONS, in language which meets this case on all points: 'Private statutes made for the accommodation of particular citizens or corporations, ought not to be construed to affect the rights or privileges of others, unless such construction results from express words, or necessary implication.' 4 Mass. 145. In case of a deed from A. to B., the court gave it a strict and technical construction, excluding all the land not embraced by the words of the description (6 Mass. 439-40; s. p. 5 Ibid. 356): 'where a tract of land is bounded on a street or way, it does not extend across the street or way, to include other lands and flats below high-water mark.' 17 Mass. 149. In grants by towns, no land passes by implication, 'unless the intention of the parties to that effect, can be collected from the terms of the grant' (2 Pick. 428); 'nothing more would pass than would satisfy the terms' (3 Ibid. 359); 'in the absence of all proof of ancient bounds, the grant must operate according to the general description of the estate granted.' 6 Ibid. 176. 'By the common law, it is clear, that all arms of the sea, coves, creeks &c., where the tide ebbs and flows, are the property of the sovereign, unless appropriated by some subject, in virtue of a grant, or prescriptive right which is founded on the supposition of a grant' (6 Pick. 182); 'the principles of the common law were well understood by the colonial legislature.' 'Those who acquired the property on the shore, were restricted from such a use of it, as would impair the public right of passing over the water.' 'None but the sovereign power can authorize the interruption of such passages, because this power alone has the right to judge whether the public convenience may be better served by suffering bridges to be thrown over the water, than by suffering the natural passages to remain free.' Ibid. 184. By the common law, and the immemorial usage of this government, all navigable waters are public property, for the use of all the citizens, and there must be some act of the sovereign power, direct or derivative, to authorize any interruption of them.' 'A navigable river is, of common right, a public highway, and a general authority to lay out a new highway must not be so extended as to give a power to obstruct an open highway, already in the use of the public.' Ibid. 185, 187. From these opinions, it would seem, that the interest of the riparian owners and of the public, would require for their protection the application of such a rule of construing legislative grants of any right in or over the waters of the colony, as would confine them to the description, so that nothing should pass that was not embraced in its terms, and no right be impaired, further than the words of the law had done it. The supreme court of Massachusetts have not shown any sensibility as to the rules of construing grants, because they may be called 'prerogative' rules, or in permitting the state to avail itself of prerogative rights. 6 Pick. 415. This prerogative rule has been adopted in New York, without any fear that it was incompatible with the policy of a republic. 'It is an established rule, that when a grant is susceptible of two constructions, that should be adopted which is most favorable to government;' 3 Caines 295; per THOMPSON Justice, 'It is a general rule of law, that in the exposition of governmental grants, that construction, when the terms are inexplicit, shall be adopted, which is least favorable to the grantee.' p. 303. LIVINGSTON, Justice, 'The idea of rolling out the patent, to the extent of four miles from every part of the plains, is literally impracticable, and when so modified as to be practicable, it would give too difficult and inconvenient a shape for location, and in a case of a location, vague and doubtful, it would be stretching the grant over all surrounding patents, to an unreasonable degree. A construction more convenient and practicable, better answering the words of the grant, more favorable to the rights of the crown, and to the security of adjoining patents, ought to be preferred.' p. 306. KENT, Chief Justice, 'No property can pass, as a public rule, but what was ascertained and declared' (1 Johns. Cas. 287); a road will not pass by general words thrown in at the end of the metes and bounds in a sheriff's deed.' Ibid. 284, 286; S. P. 13 Johns. 551. 'Such construction will be given as will give effect to the intention of the parties, if the words they employ will admit of it; utres majis valeat quam pereat .' 7 Johns. 223. But when the description includes several particulars, necessary to ascertain the estate to be conveyed, none will pass except such as will agree to every description. 'Thus, if a man grant all his estate in his own occupation, in the town of W., no estate can pass, except what is in his own occupation, and is also situate in that town.' Ibid. 224. 'A right to fish in any water, gives no power over the land' (citing Saville 11); 'nor will prescription, in any case, give a right to erect a building on another's land. This is a mark of title and of exclusive enjoyment, and it cannot be acquired by prescription.' 2 Johns. 362. 'A mere easement may, without express words, pass, as an incident to the principal object of the grant, but it would be absurd to allow the fee of one piece of land, not mentioned in the deed, to pass as appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries.' Thus, where land was granted on each side of a public road, by such description as included no part thereof, and the road was afterwards discontinued, the grantee has no right to any part of the site of the road. 15 Johns. 452, 455. This court has not departed from these rules, in expounding grants to corporations. 'In describing the powers of such a being, no words of limitation need be used; they are limited by the subject.' 'But if it be intended to give its acts a binding efficacy, beyond the natural limits of its power, and within the jurisdiction of a distinct power, we should expect to find in the language of the incorporating act, some words indicating such intention.' 6 Wheat. 442. 'It ought not to be so construed as to imply this intention; unless its provisions were such as to render the construction inevitable.' Ibid. 443. The act must contain words indicating such intention, and 'this extensive construction must be essential to the execution of the corporate power.' Ibid. 445. 'It is an obvious principle, that a grant must describe the land to be conveyed, and that the subject granted must be identified by the description given of it in the instrument itself.' 3 Pet. 96. 'Whatever the legislative power may be, its acts ought never to be so construed, as to subvert the rights of property, unless its intention to do so shall be expressed in such terms as to admit of no doubt, and to show a clear design to effect the object.' 2 Wheat. 203. Where a piece of ground in Charlestown was purchased by the United States for a navy yard, with the assent of Massachusetts, by the following description, 'one lot of land, with the appurtenance ,' &c., it was held, that an adjacent street did not pass, as there was no intention expressed that it should pass; the term appurtenances received a strict, legal, technical interpretation. The court recognise the English rule, as laid down in 15 Johns. 454, and refer with approbation to a case decided in Massachusetts, in which it was held, that by the grant of a grist-mill with the appurtenances, the soil of a way, immemorially used for the purpose of access to the mill, did not pass, although it might be considered as a grant of the easement, for the accommodation of the mill. 10 Pet. 53-4; 7 Mass. 6. In this opinion, delivered in 1836, we find the rule prescribed by the statute of prerogative, recognised by this court, as it had been in the supreme courts of New York and Massachusetts, as to a grant of land, with the appurtenances; which, with the other opinions herein referred to, would be deemed conclusive evidence of the law, on any other question than one involving the application of the clause of the constitution, against impairing the obligation of contracts. But if this consideration is to have any weight in the construction of a grant by a government, it ought to operate so as to exclude any broader construction than the words thereof import; not only because it may abridge the rights of riparian owners, and the public rights of property, but for a still stronger reason-that every grant is a contract, the obligation whereof is incorporated in the constitution, as one of its provisions. Of consequence, the legislature is incompetent to resume, revoke or impair it, let their conviction of its expediency or public convenience be what it may. It is, therefore, the bounden duty of a court, not to make a grant operate by mere construction, so as to annul a state law which would be otherwise valid, and make a permanent irrevocable sacrifice of the public interest, for private emolument, further than had been done by the terms of the grant. Such has been the uniform course of this court. 'The question whether a law be void for its repugnance to the constitution, is, at all times, a question of much delicacy, which ought seldom or ever to be decided in the affirmative, in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy its station, could it be unmindful of the obligations which that station imposes. But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the constitution and the law should be such, that the judges feel a clear and strong conviction of their incompatibility with each other.' 6 Cranch 128. 'On more than one occasion, this court have expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared, that in no doubtful case, would it pronounce a legislative act to be contrary to the constitution.' 4 Wheat. 625. 'It has been truly said, that the presumption is in favor of every legislative act, and that the whole burden of proof lies on him who denies its constitutionality.' 12 Ibid. 436. From these principles, it follows, tha no legislative grant can be held void, on account of its alleged violation of a former grant, which is not definite in its object, the thing granted, and its extent; if it is so imperfectly described, as to leave it doubtful whether the subject-matter of both grants is the same, the doubt operates conclusively in favor of the power of the legislature to make the second grant. This consideration alone necessarily leads to the rule for construing public grants of property or franchise, even more strictly than in England; the reason exists in the provision of the constitution, which prohibits any legislative violation of the obligation of a contract; whereas, in England, parliament can revoke or annul a grant of property or power, as the several states could, before they adopted the constitution.' 4 Wheat. 628, 651. It is, however, not necessary, for the purposes of this case, to hold the plaintiffs to any other rules of construction, than those laid down by this court in 6 Pet. 738, to which the court has referred in their opinion. These rules were extracted from the adjudged cases in England, in this and the highest state courts, as unquestionable principles which were deemed too firmly established to be shaken. Yet the rule thus established, is attempted to be put down, by calling it 'the royal rule of construction.' See 6 Pet. 752. The prerogative rule, and one incompatible with republican institutions. To remarks of this kind, I have no reply. It suffices for me, that I find the settled doctrine of this court, to be supported by a uniform current of authority, for five hundred years, without contradiction; it sufficed also for the majority of the court in this case, to refer to the case in 6 Pet. 638, as to the rules of construing public grants, it not being deemed necessary to lay down the qualifications which applied to particular cases, which are noticed in that opinion. In the argument of this case, the counsel on either side deemed that case worthy of a reference, nor is it noticed in the dissenting opinion, in which the general principle laid down is assailed; yet a most singular course has been pursued in relation to the opinion delivered, in which that principle was sanctioned by six of the judges. The cases referred to, the principles laid down, the very expressions of the court, have been carefully extracted from that case, and applied to this, in order to impress upon the profession, the belief that the court had intended to establish a less liberal rule of construing public grants, than the English decisions would warrant. Whether this course has been pursued, in ignorance of that opinion, or under an expectation, that it was not, or will not be read, is immaterial; it is a duty due to the profession and the court, that their principle should be known. I, therefore, subjoin an extract, to prevent further misapprehension of their meaning. 'A government is never presumed to grant the same land twice. 7 Johns. 8. Thus, a grant, even by act of parliament, which conveys a title good against the king, takes away no right of property from any other; though it contains no saving clause, it passes no other right than that of the public, although the grant is general of the land. 8 Co. 274 b; 1 Vent. 176; 2 Johns. 263. If land is granted by a state, its legislative power is incompetent to annul the grant and grant the land to another; such law is void. Fletcher v. Peck , 6 Cranch 87, &c. A state cannot impose a tax on land, granted with an exemption from taxation ( New Jersey v. Wilson , 7 Ibid. 164); nor take away a corporate franchise. Dartmouth College v. Woodward . 4 Wheat. 518. Public grants convey nothing by implication; they are construed strictly in favor of the king. Dyer 362 a; Cro. Car. 169. Though such construction must be reasonable, such as will make the true intention of the king, as expressed in his charter, take effect, is for the king's honor, and stands with the rules of law. 4 Com. Dig. 428, 554, G. 12; 10 Co. 65. Grants of the strongest kind, ex speciali gratia, certascientia, et mero motu ,' do not extend beyond the meaning and intent expressed in them, nor, by any strained construction, make anything pass, against the apt and proper, the common and usual, signification and intendment of the words of the grant, and passes nothing but what the king owned. 10 Co. 112 b; 4 Ibid. 35; Dyer 350-1, pl. 21. If it grant a thing in the occupation of B., it only passes what B. occupied; this in the case of a common person, a fortiori , in the queen's case. 4 Co. 35 b; Hob. 171; Hard. 225. Though the grant and reference is general, yet it ought to be applied to a certain particular, as in that case to the charter to Queen Caroline- id certum est quod certum reddi potest . 9 Co. 30 a; S. P. 46 a , 47 b . When the king's grant refers in general terms to a certainty, it contains as express mention of it as if the certainty had been expressed in the same charter. 10 Co. 64 a . A grant by the king does not pass anything not described or referred to, unless the grant is as fully and entirely as they came to the king, and that ex certa scientia , &c. Dyer 350 b; 10 Co. 65 a; 2 Mod. 2; 4 Com. Dig. 546, 548. Where the thing granted is described, nothing else passes, as 'those lands.' Hard. 225. The grantee is restrained to the place, and shall have no lands out of it, by the generality of the grant referring to it; as of land in A., in the tenure of B., the grant is void if it be not both in the place and tenure referred to. The pronoun illa refers to both necessarily, it is not satisfied till the sentence is ended, and governs it till the full stop. 2 Co. 33; S. P. 7 Mass. 8-9; 15 Johns. 447; 6 Cranch 237; 7 Ibid. 47-8. The application of this last rule to the words de illas ,' in the eighth article, will settle the question, whether its legal reference is to lands alone, or to 'grants' of land. The general words of a king's grant shall never be so construed as to deprive him of a greater amount of revenue than he intended to grant, or to be deemed to be to his or the prejudice of the commonwealth. 1 Co. 112-13 b . 'Judges will invent reasons and means to make acts according to the just intent of the parties, and to avoid wrong and injury which by rigid rules might be wrought out of the act.' Hob. 277. The words of a grant are always construed according to the intention of the parties, as manifested in the grant, by its terms, or by the reasonable and necessary implication, to be deduced from the situation of the parties and of the thing granted, its nature and use. 6 Mass. 334-5; S. & R. 110; 1 Taunt. 495, 500, 502; 7 Mass. 6; 1 Bos. & Pul. 375; 2 Johns. 321-2; 6 Ibid. 5, 10; 11 Ibid. 498-9; 3 East 15; Cro. Car. 17, 18, 57, 58, 168, 169; Plowd. 170 b; 7 East 621; Cowp. 360, 363; 4 Yeates 153.' United States v. Arredondo , 6 Pet. 738-40. On these rules, principles and cases, I formed my opinion in this case, after the first argument, and now feel a perfect confidence that they fully sustain it; willing to stand before the profession in this attitude, I will not be forced into any other, by any omission of a duty, however unpleasant. With this extract before them, the profession can now determine, whether the court has impugned or affirmed the true principles of law, on the construction of public grants, by prerogative or legislative power, of any portion of public property held as a trust for the benefit of all the people of a colony or state. The grant of the ferry is in these words, 'the ferry between Boston and Charlestown is granted to the college.' That there was but one ferry between those places, is admitted; its location had been previously fixed by the general court, at certain points, in the resolutions which they had passed from time to time; those had been the only landings, to and from which passengers had been taken, so that the term, 'the ferry,' was, in itself, a perfect and complete description thereof. It had been leased to Converse, and a clause was inserted in the case, that he was to have, for three years, 'the sole transporting of cattle and passengers;' but this right expired with the lease, when the ferry reverted to the colony, unincumbered with any condition whatever; so that they might make such grant of it, as they pleased. Had the grant to the college been, 'as fully as the same had been held by Converse,' it would have afforded some evidence of intention to have made it exclusive; but no principle is better settled, than that when the words 'as fully and entirely as it came to the hands of the king,' are omitted, nothing passes which is not specially described. See 6 Pet. 739, and cases cited. The expired lease to Converse, then, can have no effect on the grant, as matter of law; so far as it indicates intention, it is adverse to the plaintiffs, for when an exclusive right was intended, it was given in express terms; whereas, this grant is, the ferry, illa , that ferry, which had been established and kept up for ten years previously, at certain landings. This pronoun 'the,' or ' illa ,' is necessarily descriptive of the place, by direct reference to the ferry, as located in fact and long occupation. Ferry is a term of the law, perfectly defined, and a grant of 'the ferry,' 'that ferry,' has the same effect as a grant of 'that land,' 'those lands,' by which nothing else can pass but those which are referred to in words of description, by metes, bounds or occupation. In ascertaining the meaning and effect of the grant of a ferry, we must necessarily look to the ownership of the landing-places, whether it is in the grantee of the ferry or in the public. We must also look to the ownership of the bed of the river, over which the right is granted. If the river is private property, a grant of a ferry to the owner of the bed and both sides thereof, is necessarily exclusive, to the extent of his property; the public have no rights thereto, and no man has a right to land thereon, without his permission. All that the owner acquires by the grant, is the franchise of exacting a toll, for the right of passing over his own property, the extent of which is limited thereby. The toll is for the use of his landing, his boats, and passing over his land, to and from them, which excludes every construction of the grant, by which it would interfere with the right of another. 4 Burr. 2165. A grant of a ferry over a pnblic river, 'is a liberty by prescription, or the king's grant, to have a boat for passage upon a great stream, for carrying of horses and men, for a reasonable toll.' Termes de la Ley 223. It is, to its extent, a diminution of the public right, incumbering public property by the grant of a franchise of exacting toll for passing over it in his boats. If the landings on a public river, or an arm of the sea, are owned by the king, the grant of a ferry includes the right of landing on the shore, or in a public highways, as well as the franchise of toll. But the king cannot grant to A. a ferry between the landing-places of another, for the ferry is in respect to the landings, which must be owned by the public or the grantee of the ferry (Sav. 11, 14); or he must have the consent of the owner to use them. 1 Yeates 167-9; 9 S. & R. 32. This principle is said to have been overruled in two late cases; on examination, however, they affirm it. In 12 East 336, 346, a question arose, how a tax should be assessed on a ferry, on which the king's bench decided, that it should be assessed on the landings, as the local, visible, tangible evidence of the property in a ferry. In 6 B. & Cr. 703, the rule as laid down in Saville, was considered, when, so far from overruling it, the two judges who gave an opinion, declared the rule to be, that it was sufficient, if the grantee of the ferry had a right to use the landing-places, though he did not own them, so that the only difference between the cases is, between the owning the landings in fee, and a right to use them, under a lease or other consent of the owner. But if, in these or any other modern cases, the doctrine laid down in Saville had been expressly overruled, it would not have had a retrospective effect to 1640, and changed the nature of the grant of this ferry. Massachusetts would, I think, not have recognised the power of English judges, at this day, to alter the rights of property, held by this ancient charter. A mere grant of a ferry, by general terms, must, from its nature, be confined to the landing-places, and the route through the water between them; because, if extended farther, it must interfere with the rights of riparian owners, and the common right of every one to pass and repass on a public river or an arm of the sea. To extend the franchise, by implication, to a place where the grantee has neither the right of landing, or the franchise of exacting toll for passage, is also a restraint on the king, against granting a concurrent franchise to a riparian owner, on public landings or the ends of roads leading to public waters, as he may think necessary for the public good. Hence, it has been an established principle of the common law, from magna charta to the present time, that the public right in and over all navigable rivers and arms of the sea, continues, till an appropriation of some part is made by grant, on good consideration, or reasonable recompense by the grantee. 1 Ruff. 8, c. 30; 2 Inst. 58; 1 Mod. 104; Willes 268; 1 Salk. 357. A general grant by the king, of land in a royal haven, or which is covered by the sea, passes only the spot which is definitely granted, or which has been identified by a possession under the grant; and what is not described in the grant, or located by possession, is presumed to have been abandoned. Though the grant was made in 1628, and its general terms were broad enough to embrace the place in controversy, the burden of showing a title to the particular spot, was thrown on the claimant. 2 Anst. 614; 10 Price 369, 410, 453; 1 Dow P. C. 322. The rule that public grants pass nothing by implications, has been most rigidly enforced as to all grants of toll for ferries, bridges, wharves, quays, on navigable rivers and arms of the sea, of which there cannot be stronger illustrations than in the cases which have arisen on the customs of London, and other places which impose tolls of various descriptions. By magna charta , the customs of London and other cities are confimed, which has always been held to give to those customs the force of acts of parliament; yet these customs have always been held void, so far as they imposed a toll at any place where the city had not a right to demand them, or for a service or accommodation not performed or afforded, according to the precise terms of the custom. Hob. 175-6; 1 Mod. 48; 1 Vent. 71; 1 T. R. 233; 1 Mod. 104-5. So it is, where a toll is demandable by an express grant, by custom or prescription, on a public highway, in a public port, or for the use of public property, which is termed toll thorough , because the party claiming it is presumed to have had no original right to the place where he demands toll. He must, therefore, show not only his right to toll, by custom, prescription or grant, but must show some consideration for it, some burden on himself some benefit to the public, or that he, or those under whom he claims, had once a right to the locus in quo , which had been commuted for the toll, and this consideration must be applied to the precise spot were toll is claimed. Cro. Eliz. 711; 2 Wils. 299; 3 Burr. 1406; 1 T. R. 660; 4 Taunt. 137; 6 East 458-9; 4 T. R. 667. A claim of toll at a place where no toll has been granted, or where no consideration for it exists, is void by magna charta and the statute of Westminster, which prohibit all evil tolls; such as are exacted where none are due, exacting unreasonable toll where reasonable only is due, or claiming toll thorough , without fair consideration or reasonable recompense to the public. 2 Inst. 219. Toll traverse , or a toll demanded for passing on or over the private property of the claimant, or using it in any other way, is of a different description; being founded on the right which every man has to the exclusive enjoyment of what is exclusively his private property, its use by others is a sufficient consideration for the exaction of toll. Mo. 575; 2 Wils. 299; Cowp. 47-8. But whenever toll is exacted for the passage over a public water, the nature of it changes; its foundation not being property, it rests on a grant or prescription, and if the toll is unreasonable, the grant is void. 2 Inst. 221-2. The grantee must have the ownership or usufruct of the locus in quo (1 Yeates 167; 9 S. & R. 32), and within reasonable bounds; a prescription for a quay half a mile in length is not good, unless the vessels unlade at the wharf; the court say, 'he may as well prescribe to the confines of France.' 1 T. R. 223; 1 Mod. 104. The right of ferry is a franchise which cannot be set up, without the license of the king (Harg. L. Tr. 10); or prescription (5 Day's Com. Dig. 361-7; Hard. 163; Willes 512; 1 Mott & McCord 394); 'rights of ferry on the waters of the public are not favored;' they come too near a monopoly, and restrain trade. Hard. 163. 'Courts are exceedingly careful and jealous of these claims of right, to levy money upon a subject; these tolls began and were established by the power of great men.' 2 Wils. 299. A legislative grant of a ferry, with a landing in a public road, the soil whereof is not owned by the grantee, is void (9 S. & R. 32); a charter to a turnpike corporation does not authorize them to erect a toll-gate on an old road, unless specially authorized, or it is necessary to give a reasonable effect to the statute (2 Mass. 142-6; 4 Ibid. 145-6); a town must show property in the land to low-water mark, to authorize them to regulate its use under a law. 6 Johns. 135. The consideration of grants of ferries, is the obligation to provide and keep up proper accommodations for the public (22 Hen. VI. 15; 6 East 459; S. P. 1 Ves. jr. 114); the right is commensurate with the duty, and both must exist at the place where toll is exacted for passing. 4 T. R. 667-8; 1 Mass. 231. As the right to the landings, or their use, is indispensable to the right to a ferry, a right to land at one place is not an incident, and cannot be made an appurtenance to a right to land at another place, even by the express words of the grant, according to the law of this court, unless some other words are added, by way of description, besides appurtenances. Land cannot be appurtenant to land, nor can one corporeal or incorporeal thing be incident or appurtenant to another thing of the same nature; the incident must attach to the principal thing. 10 Pet. 54, and cases cited. The principal thing is that which is of the higher and most profitable service; the incident is something of a lower grade, which passes as appendant or appurtenant to the principal thing, without the words cum pertinentibus . Co. Litt. 307 a . The grant of a thing carries all things included, without which the thing granted cannot be had; that ground is to be understood of things incident and directly necessary (Hob. 234); so that a man may always have the necessary circumstances, when he hath a title to the principal thing. Plowd. 16; Ibid. 317; Co. Litt. 56 a . A parcel severed from a manor, does not pass by a grant of the entire manor, unless where the severance is merely by a lease for years. An advowson appendant does not pass by the word appurtenances, as a part of the thing granted; it will pass where the grant is made with the additional words, 'as fully and entirely as they came to the hands of the king, and with his certain knowledge,' but not without these words. 10 Co. 65; Dyer 103 b; Plowd. 6, 350 b; Ibid. 18; 2 Mod. 2; 4 Day's Com. Dig. 546-8. When the word appurtenances is in the grant, there must be an intention manifested by other words, so that the court can be enabled to give them their intended effect, and hold them to pass what had been occupied, or used, with the thing directly granted. Plowed. 170-1; 11 Co. 52; Cro. Jac. 170, 189; Dyer 374; 7 East 621; Cowp. 360; Cro. Car. 57-8. This is the rule in cases of private grants of land, which are taken most strongly against the grantor and in favor of the grantee, which has never been questioned; a fortiori , it must apply to public grants, and it follows conclusively, that where a grant by the king, or a colony, omits even the word appurtenances, it will not pass a right which would not pass by that word alone. There is, however, another unquestioned rule, more directly applicable to the grant of a ferry, than the mere grant of land, or a substance to which a thing of the same substance cannot be appendant or appurtenant. 'But the grant of a franchise, a liberty, a particular right, on land or water, passes nothing more than the particular right. Co. Litt. 4 b; 4 Day's Com. Dig. 416, 542; 2 Johns. 322. The grant of a franchise carries nothing by implication. Harg. L. Tr. 33. Every port has a ville , and the grant of the franchise of a port shall not extend beyond the ville , because the court cannot notice it any further ex offcio , though they will award an inquest in some cases, to ascertain the extent. Harg. L. Tr. 46-7. Ancient grants and charters are construed according to the law at the time they were made. 2 Inst. 282; 4 Day's Com. Dig. 546, 419; Co. Litt. 8 b , 94 b; 9 Co. 27-8. The location of a patent 160 years old, shall not be extended beyond the actual possessio pedis under it; its boundaries must be ascertained by possession, and not the words; every doubt ought to be turned against the party who seeks to extend them. 7 Johns. 5, 10, 14. 'It is undoubtedly essential to the validity of every grant, that there should be a thing granted, capable of being distinguished from other things of the same kind.' 7 Wheat. 362. A toll by prescription is better than by grant (2 Inst. 221); so is a franchise of a port, because the extent is according to the prescription (Harg. L. Tr. 33); but it must be confined to the subject-matter and the ancient use. 1 Wils. 174; 6 East 215; 7 Ibid. 198; 2 Conn. 591; S. P. Willes 268; 4 T. R. 437; 2 H. Bl. 186. Under a charter for the erection of a road, canal or bridge, the corporation must confine their action within the precise limits designated; any deviation from the route prescribed makes them trespassers. Cowp. 77; 2 Dow P. C. 519, 524. The law is the same, though the road or canal is the property of the public, and constructed for general benefit (20 Johns. 103, 739; 7 Johns. Ch. 332, 340); the definition of a road is, 'the space over which the subject has a right to pass' (2 T. R. 234); beyond which there is no road; so of a canal, bridge or ferry, with a grant of toll for passing; the nature and object of the grant in prescribing bounds is necessarily a limitation; nor does it make any difference, whether the toll is demanded in virtue of a direct grant, or one presumed by prescription, where there is no consideration existing at the precise point where toll is exacted, as is evident from the reason of the rule; 'because it is to deprive the subject of his common right and inheritance to pass through the king's highway, which right of passage was before all prescription.' Mo. 574-5; Plowd. 793; 2 Wils. 299. If toll thorough is prescribed for, for passing through the streets of a town, the party must show the streets which he was bound to keep in repair, and that the passage was through such streets. 2 Wils. 299. It would be easy to add references to other cases, but as the principles settled in those already cited, have for centuries been the established law of England, and the received law of all the states, since their settlement, it is evident, that no construction can be given to this grant, which will make it pass the exclusive right of ferriage between Boston and Charlestown. It can have no analogy to cases of donations to charities, unless it shall be held to be a charitable act to roll out the grant (in the words of Chief Justice KENT, 3 Caines 306) to the extent of some miles of the shores of a great river, so as create a monopoly of the right of passage, and prevent the legislature from promoting the public welfare, by the grant of a concurrent ferry. On the first argument of this case, it was contended, that the grant extended one-third of an ancient day's travel, a dieta , or seven miles from the landings on each side of the river, which would be twenty-eight miles; this extravagant pretension was abandoned at the last argument, so that it is unnecessary to test its validity. But the plaintiffs still insist, that their grant must be so extended as to prevent any injurious competition for the toll due for passage of boats between the places, at ferries contiguous, or so near as to diminish their profits, and also to secure to them the whole line of travel to the landings on each side of the river. This is the ground on which they ask an injunction to prevent the unisance, by the erection of another bridge, and a decree of suppression, if it should be erected; because, claiming under the ferry grant, the franchise thereby granted is imparted to the bridge to its full extent. In considering this position, I will first examine the authorities on which it is attempted to be supported. In the Year Book, 22 Hen. VI. 14-15, PASTON, J., said, 'And the law is the same, if I have, from ancient time, a ferry in a ville , and another should set up another ferry on the same river, near to my ferry, so that the profits of my ferry are diminished, I may have against him an action on the case.' That this has been the received law ever since, is not to be questioned; but in its application to the present ferry grant, there are two important differences to be considered. The rule applies only to ancient ferries; that is, ferries by prescription, or a presumed grant; next it applies to ferries in a ville , which is thus defined: ' Ville is sometimes taken for a manor, and sometimes for a parish or a part of it' (Cow. L. Inst.); 'a tithing or town' (1 Bl. Com. 114); 'consisting of ten families at least' (5 Day's Com. Dig. 249; 2 Str. 1004, 1071); 'the out part of a parish, consisting of a few houses, as it were separate from it.' 3 Toml. L. Dict. 746 b: see Co. Litt. 115 b. From the nature of such a ferry, the rule applies only within these places; it never has been applied in England, to ferries on arms of the sea, between two places on its shores; the doctrine was expressly repudiated in Tripp v. Frank , 4 T. R. 667, where there was exclusive right of ferry by prescription, across the Humber, between Kingston and Barton, the profits of which were diminished by the defendant's ferry from Kingston to Barrow. It could not apply in this country, where the right of ferry exists only by legislative grant, and where we have no such subdivisions as correspond to a ville in England. Our towns, boroughs and cities are laid off by established lines, without regard to the regulations of Alfred, or the number of families or houses requisite to compose a hamlet, a ville , a part of a manor, or parish. The inhabitants of these villes did not own the land they occupied; they held under the lord of the manor, in whom the right of ferry was vested, as the owner of the soil, and a grant of the franchise by prescription. The tenant of that part to which it attached by prescription, being obliged to provide and maintain boats, &c., was protected against competition by the other tenants of the ville , who held under the same lord. It was a part of the tenure by which the land was held, that the tenants should pass at the ferry; should grind the corn raised on the same land, at the lord's mill, or that of his tenant, so that the profits of the ancient mill should not be impaired to their injury. 22 Hen. VI. 14-15, by PASTON, J. The rule, of course, could have no application beyond the ville or manor, in which there existed such privity of tenure; the nature of the right is incompatible with the jus publicum in public waters, or private rights of property held independently of the lord of the manor. Hence, we find no case arising in England, in which this right has been sustained, on any other ground than tenure, which is a conclusive reason against the application of the rule to any case in this country, where no such tenure exists, or can exist, as in English manors. The plaintiffs have considered the grant of a ferry as analogous to that of a fair or market, and have relied on cases in which damages have been recovered for erecting rival fairs or markets; but these cases admit of the same answer as those of ferries by prescription within manors; they grow out of feudal tenures, are founded on feudal rights, and are wholly unknown in this country, either by grant or prescription. Markets and fairs, however, differ from other franchises; the grant or prescription extends, ex vi termini , to seven miles or the dieta . F. N. B. 184 n.; 3 Bl. Com. 219; 2 Saund. 171-2. The word 'near' refers to the dieta , in case of a rival fair or market; and to the ville , in case of a ferry; if it is beyond, no action lies. 3 Bl. Com. 219. In cases where the action is sustained, it is not on the right of property; it must be an action on the case for consequential damages, arising from an unlawful act which injures another; if the act is lawful, no action lies; one may erect a mill near the ancient mill of another, because he is not bound to keep it in repair (22 Hen. VI. 14), unless a special custom is alleged and found, as in 2 Vent. 291-2. Any man may keep a ferry for his own use, between his own landings, within the limits of a ferry by prescription, or the king's manor (Harg. L. Tr. 6, 73), but if he do it for toll, without license, he usurps a public franchise, and is finable, on a presentment, or quo warranto (Ibid. 73), he is not bound to keep up his boats, and as he does not share the burdens, he shall not have the benefit of the franchise (3 Bl. Com. 219), and the act being illegal, when done 'without lawful authority or warrant,' it is a nuisance, and case lies for damages consequent upon it (1 Mod. 69; 2 Saund. 172-4; Bull. N. P. 76), but the action does not lie, if the act, though unlawful, was not an interference with the right of the other, and within the limits of his prescription. Harg. 47. The king alone can prosecute for a purpresture, or an usurpation on the Jus publicum of a franchise, burdensome to the subjects generally (Harg. L. Tr. 85; 2 Johns. Ch. 283; 18 Ves. 217-19), if it is outside the limits of an ancient ferry, a grant of the franchise, if fairly made, gives a complete right to the enjoyment of the franchise which none can disturb (Willes 508), because none but the king can interfere. There is no case, where the grant of a new ferry or other franchise has been held void, on the sole ground of its interfering with the profits of an old one. Chapman v. Flaxmann , was on a special custom laid and found, that all the inhabitants of the manor which belonged to the plaintiff, were bound to grind at his mills; the defendant occupied a messuage in the manor, and erected a mill, to the plaintiff's injury, who recovered damages on the ground of the custom. 2 Vent. 291-2. In Butler's Case , the suit was to repeal a patent for a market at C., reciting that there was an ancient market within half a mile, and that the patent was obtained on an ad quod damnum , executed by surprise, and without notice, to the great damage of the former market, all of which was admitted by a demurrer, and the patent was repealed. 2 Vent. 344; 3 Lev. 220, 223. The suit was by the king, at the relation of the inhabitants of Rochester, and the patent avoided, on the ground, that 'the king has an undoubted right to repeal a patent wherein he is deceived, or his subjects prejudiced,' that it was jure regio by the common law (3 Lev. 221-2; but it is not asserted in any part of the case, that the patent was repealable, on the ground of the right of the relators to an exclusive market, or that they had any remedy otherwise than at the suit of the king. In the report of the case, in Levinz, it appears, that the city of Rochester was held of the king by a fee-farm rent of twelve pounds per annum, the effect of which was to make the citizens thereof the fee-farm tenants of the king; as such they were privileged suitors, and entitled to redress, when other tenants are not, which will explain the cases cited from Hardres, decided in the exchequer, on bills in equity, to suppress rival ferries, mills and markets. In Churchman v. Tunstall , the plaintiff was the farmer of a common ferry, time out of mind, at a fee-farm rent; the defendant owned the land on both sides of the Thames, and set up a ferry, within three-fourths of a mile of plaintiff's ferry, to his prejudice. The court dismissed the bill, 'because it came too near a monopoly and restrained trade, and because no precedent was shown in point. The case of a beam that had been urged, was of a beam in the king's own manor.' Hard. 162-3. In Green v. Robinson and Wood , there was a custom in a manor, held by the king in fee-farm, that all the tenants and resiants thereof should grind at the lord's mill and not elsewhere; the defendant had erected another mill, outside of the manor, near the old mill, by reason whereof, many of the tenants left the lords mill, to his great prejudice; the bill was for the demolishing the new mill. The court (HALE, ATKINS, TURNER) said, that it was lawful for any tenant to set up a mill upon his own ground, out of the manor, but not within the manor; they would prohibit him from pursuading the tenants to grind at his mill, or fetching grist out of the manor thereto, but could not decree the mill to be destroyed, unless erected within the king's manor, to the prejudice of his mill. No precedents were shown, and the bill was dismissed, but without prejudice to the right of the lord of the manor. Hard. 174-5. In White and Snoak v. Porter , one of the plaintiffs was a copyhold tenant for life, the other, a purchaser of the inheritance of land in the king's manor, held under a fee-farm rent, who filed their bill for the suppression of a rival mill, erected within the manor. It was decreed, that the defendant should not take away or withdraw any grist from the old mill; but his mill was not decreed to be demolished, for that can be done in the king's own case only, or in the case of his patentee, who is entitled to the privilege of this court (of exchequer), 'And it was also held in this case, that to compel all the tenants within the king's manor, to grind at the king's mill, is a personal prerogative of the king's, which no other lord can have, without tenure, custom or prescription. But it will extend to a fee-farm, because it is for the king's advantage. And that the custom in this case does not go to the estate, but to the thing itself, and runs along with the mill, into whose hands soever it comes, that the suit here must be as debtor and accountant only, because the copyholder for life is not liable to the fee-farm. And if two join, as they do here, where one of them is, and the other is not, liable to the fee-farm, that is irregular, unless that other be a privileged person. Hard. 177-8. In the Mayor, &c. v. Skelton , the bill was for demolishing a mill, near to a manor of the king's, which was granted to the plaintiffs in fee-farm, whose mill was prejudiced by the one erected by the defendant. A search was directed to be made for precedents, but none could be found, and the court held, that a mill, not within the king's manor, could not be demolished, where there was no tenure nor custom, whereby the inhabitants are bound to grind at the king's mill. Hard 184-5. Two cases which involve the same principle, are reported by Lord HALE, in his Treatise de Portibus Maris . The town of New Castle on Tyne v. Prior to Tinmouth , and the City of Bristol v. Morgan et al. Both places were within the king's manors, and were held by fee-farm rent, the plaintiffs were, therefore, privileged suitors, and having made out their case, they obtained decrees for the demolishing the erections complained of, which were within the town and city, among which there was a ferry; upon which Lord HALE remarks, 'Upon these records, these things are to be noted and collected, viz: 1. In fact, these places (in which the erections were demolished) were within the respective ports of Bristol and New Castle, and between the port-town and the sea. 2. That an erection of houses, or places of receipt for mariners, contiguous to, or near to, the water of that part, between the port and the sea, is an injury to the port-town, a forestalling of it, and a prejudice to the customs. 3. That it may, therefore, be demolished by decree or judgment.' 'But if it had not these circumstances, it had been otherwise. 1. If it had been built contiguous to the port-town, it should not have been demolished; and upon that account, the buildings below the town do continue, and are not within the reasons of these judgments. 2. If it had been built above the port, it should not have been subject to such a judgment, for it is, in that case, no forestall between the port and the sea, and so no nuisance to the port-town, as a port-town. 3. If the building had been out of the extent of the port, as if it had been built three or four miles below the ville , it had not been within the reason of either of these judgments, nor might it have been demolished, for it could not be a nuisance to the port.' Harg. L. Tr. 79, 83. In these and all other cases where rival ferries have been suppressed by decrees in the court of exchequer, they are suits by the king, or his fee-farm tenants, who, by being his debtors and accountants, are entitled to the same privileges of personal prerogative as the king himself, and may sue in the exchequer, as privileged persons. But no decree for a suppression will be rendered in any case, unless the erection is within the king's manor, and no restraint will be put upon the rival mill or ferry, if there is no tenure, custom or prescription, which gives an exclusive right to the plaintiff, to compel the tenants of the manor to resort to his mill, &c. It has been contended by the plaintiffs, that the case in Hardr. 162, was overruled, and a contrary principle established afterwards, for which a reference is made to the argument of the attorney-general, in 2 Anstr. 608, and the opinion of the Chief Baron, in p. 416; but on a close examination of the cases, there will be found no discrepancy between the first and second decisions of the case of Churchman v. Tunstall . As reported in Hardr. 162, the plaintiff sued in the exchequer, as 'a farmer of a common ferry, at Brentford, in Middlesex, at a fee-farm rent; the ferry was a common ferry, time out of mind, and he laid in his bill, that no other person ought to erect any other ferry, to the prejudice of his, &c.' He did not lay the ferry to be within the king's manor, nor allege himself to be a fee-farm tenant of the king; he was, therefore, not a privileged suitor in the exchequer, so as to be able to avail himself of the personal prerogative of the king. The ferry was also laid to be a common ferry. In the case afterwards brought, the plaintiff sued 'as tenant of an ancient ferry under the crown' (Anstr. 608); on which the Chief Baron, in referring to the decisions of Lord HALE, remarks: 'But the cases cited, and those which Lord HALE has given us, in his Treatise de Portibus Maris , clearly prove, that where the king claims and proves a right to the soil, where a purpresture and nuisance have been committed, he may have a decree to abate it.' Attorney-General v. Richards , Anstr. 616. This remark reconciles all the cases which have been referred to, showing that where the court of exchequer interferes to suppress any rival erection as a nuisance, it is where the locus in quo is the property of the crown, and the suit is brought by him, or his tenants, who sue in his right. Such was the case in Anstruther; the nuisance complained of was 'the erection of a wharf in Portsmouth harbor, which prevented vessels from sailing over the spot, or mooring there,' &c.; it was abated, on the ground of the property being in the king, and the erection being to the injury of the public. In such cases, the court of exchequer acts on an information by the attorney-general, or at the suit of the king's patentee, or fee-farm tenant; but this is a proceeding peculiar to that court. A court of equity never grants an injunction against a public nuisance, without a previous trial by jury, as it would, in effect, be tantamount to the conviction of a public offence. Harg. L. Tr. 85; 18 Ves. 217, 219; 19 Ibid. 617, 620; 2 Johns. Ch. 283. Where a patent is repealed in chancery, on a scire facias , it is at the suit of the king, on the ground, that he was deceived, and his subjects thereby injured; but there is no case where a court of chancery has ever decreed the prostration of a mill, of a ferry, or other erection, on the sole ground of its diminishing the profits of an ancient one, or the want of power in the king to grant a concurrent franchise, at any place not within the limits of one held by grant, custom or prescription. Taking, then, the cases relied on by the plaintiffs, as they are reported in the books, they not only fail to support their position, but directly overthrow it. The principles established are equally fatal to their right to recover damages for the consequential injury, by an action on the case, or to suppress any rival ferry, by an assize of nuisance at law, or a bill for an injunction or suppression in equity. They must, in either case, show in themselves a right of property or possession in the place where a rival ferry is established, or a special custom, compelling the inhabitants of Boston and Charlestown to cross at their ferry, or they can have no standing in any court, even if they were privileged suitors, in virtue of the personal prerogative of the king, as the fee-farm tenants of a royal manor. As the plaintiffs do not sue in this, or any analogous character, by special privilege, it is unnecessary to show, that they cannot be relieved, in the character in which they sue, on any principle laid down in the case from Levinz, or those cited from Hardres and Anstruther. An explanation of these cases was necessary, because they have been pressed, with confidence, as in point of the present, and for another reason; when explained, they show, that to bring the plaintiffs' case within them, it is required, that they sue by the highest and most odious prerogative of the crown; that which is personal to the king for his private advantage, in his demesne lands. It was also proper as an argumentum ad hominem , to those who feel any sensibility in adopting the royal or prerogative rule of construing public grants, so as to impair the public interest, by no constructive extention of them, to any public property not described expressly, or included by the necessary implication of its terms. With this explanation, it will not be difficult to ascertain which kind of royal prerogative is most congenial to our republican institutions; that which is personal, within a royal manor, and enjoyed for private profit, or that which is a trust for the whole kingdom, and for the benefit of all its subjects; and whether the majority or minority of the court have properly applied the principle of the common law of ferries, which was adopted in Massachusetts, as the law of the colony, in 1640, when the grant was made. The case of Chadwick v. The Haverhill Bridge has been pressed, as evidence of the law of Massachusetts, not as the decision of any court, but as expressing the opinion of one eminent lawyer who brought the action, and of another who decided it as an arbitrator. Though I entertain the most profound respect for the professional character of both the gentlemen alluded to, I cannot, as a judge, found my judgment on any opinion expressed by either, because not given under judicial responsibility. There can be but few cases, in which the mere opinion of counsel ought to be taken as authority in any court; but in this court, testing the validity of a state law, by the rules which are imperative upon us, I feel forbidden to defer my settled opinion on the law of the case, to that of any individual, however eminent. There is no task more difficult or invidious, than to decide who were those eminent and distinguished members of the profession, in former times, or who now are, to whose opinions a court of the last resort ought to pay judicial deference, and who were and are not deserving of such pistinguished notice. Judges would incur great hazard, in making the selection, and would form their opinions by very fallible standards, if they looked beyond the state law on which the case arises, the provision of the constitution which applies to it, and the appropriate rules and principles which have been established by judicial authority. It is a risk which I will not incur, on any question involving the constitutionality of a state law; for if the case shall be so doubtful, that any man's opinions, either way, which are not strictly judicial and authoritative, would turn the scale, I would overlook them, and decide according to the settled rule of this court: that in every case, the presumption is, that a state law is valid, and whoever alleges the contrary, is bound to show and prove it clearly. In obedience to this rule, I cannot recognise, in any private opinions of any description, by whomsoever, or howsoever, expressed or promulgated, any authority for rebutting such presumption. No more salutary rule was ever laid down by this court, or impressed on its members, in plainer language, than what is used by the late chief justice in the cases cited; nor can there be any rule in favor of the most strict observance of which, there can be any reasons which operate with such a weight of obligation on the court at this ought. There is no court in any country which is invested with such high powers as this: the constitution has made it the tribunal of the last resort, for the decision of all cases in law or equity arising under it. The 25th section of the judiciary act has made it our duty to take cognisance of writs of error from state courts, in cases of the most important and delicate nature. They are those only in which the highest court of a state has adjudged a state law to be valid, notwithstanding its alleged repugnance to the constitution, a law or a treaty of the United States. When this court reverses the judgment, they overrule both the legislative and judicial authority of the state, without regard to the character or standing, political or judicial, of the individual members of either department; surely, then, it is our most solemn duty, not to found our judgment on the opinions of those who assume to decide on the validity of state laws, without any official power, sanction or responsibility. If we defer to political authority, there can be none higher than the three branches of the legislative power; if to judicial authority, the highest is the solemn judgment of the members of the court, in which is vested the supreme judicial power of the state. There is another still higher consideration, which arises from the effect of a final judgment of this court under the 25th section: it is irreversible; it is capable of no correction or modification, save by an amendment to the constitution; it must be enforced by the executive power of the Union, and the state must submit to the prostration of its law, and its consequences, however severe the operation may be. That the case ought to be clear of any reasonable doubt in the mind of the court, either as to the law, or its application, is a proposition self-evident; and there are no cases to which the rule applies with more force, than to those which turn on the obligation of contracts. If we steadly adhere to it, as a fundamental rule, that the judgment of the supreme court of a state, on the validity of its statutes, shall stand affirmed, until it is proved to be erroneous, the effect would be most important on constitutional questions, and lead to a course of professional and judicial opinion, which would soon assign to all the now doubtful parts of the constitution, a definite and established meaning. The plaintiffs have also relied on the opinion of the late learned chancellor of New York, in 4 Johns. 160 and 5 Ibid, 111-12, in which he puts the case of a rival ferry set up so near an old one as to diminish its profits, and refers to the rule laid down in F. N. B. 184; Bro. Abr., Action on the Case, pl. 56; tit. Nuisance, pl. 12; 2 Roll. Arb. 140; 3 Bl. Com. 219; 2 Saund. 172; and which is taken from the 22 Hen. VI. 14, 15. In putting this case as an illustration of those then before him, this great jurist stated the proposition in general terms merely, without that precision which he adopts as to the points directly presented, and he has deduced a rule much broader than the cases warrant, when closely examined. For the purposes of the cases then under consideration, the broad rule laid down might well be applied to the grants contained in the laws of the state on which the cases turned, as a safe guide to their construction. But when a question depends on the law, as established by the adjudged cases and old writers of standard and adopted authority, we must take it from the books themselves. Having already reviewed the cases in detail, from the 22 Hen. VI., and stated my conclusions from them, I submit their correctness, without further remarking upon the rules prescribed, in relation to the extent of the rights of ferry. I would have remained satisfied with what has been already said, if there had not been these expressions in the opinions in 4 Johns. Ch. 160-1: 'It would be like granting an exclusive right of ferriage between two given points, and then setting up a rival ferry, within a few rods of those very points, and within the same course and line of travel. The common law contained principles applicable to this very case, dictated by a sounder judgment, and a more enlightened morality.' After a reference to the rule laid down from the books which are cited, the opinion proceeds: 'The same rule applies, in its spirit and substance, to all exclusive grants and monopolies. The grant must be so construed as to give it due effect, by excluding all contiguous and injurious competition.' As these propositions are supported by an authority which cannot be too highly respected, and is difficult to oppose with success, I feel bound to support the negation of them, by a reference to cases and books which would have been deemed unnecessary, but for this opinion. In Harg. L. Tr. 83, it has been seen, that Lord HALE uses the word contiguous to a port-town, in contradistinction to within it, and most distinctly negatives the idea, that a contiguous ferry or other erection would be demolished, however injurious it might be. In his opinions as chief baron of the exchequer, in the cases cited, he decided upon the same principle. The authority of his treatise de Portibus Maris is universally admitted, as the best evidence of the law, as it was understood in his time, in which he says, 'It is part of the jus regale , to erect public ports; so, in special manner, are the ports and the franchises thereof.' Harg. L. Tr. 53-4. 'A port hath a ville , or city or borough,' keys, wharves, cranes, warehouses and other privileges and franchises. Ibid. 46, 77. 'If a man hath portum maris , by prescription or custom, it is as a manor; he hath not only the franchise but the very water and soil within the port.' Ibid. 33. 'Every port is a franchise or liberty, as a market or a fair, and much more.' It has, of necessity, a market and tolls incident; it cannot be erected without a charter of prescription (Ibid. 50-1); or if it is restrained, it cannot be extended or enlarged in any other way. Ibid. 52. Where it is by a custom or prescription, the consideration is the interest of the soil both of the shore and town, and of the haven wherein the ships ride, and the consequent interest of the franchise or liberty, which constitute the port in a legal signification; which are acquirable by a subject by prescription, without any formality (Ibid. 54); and in ordinary usage and presumption they go together. Ibid. 33. The extent of the port depends on the prescription or usage; the court cannot take notice of its extent, farther than the ville or town at its head, that gives it its denomination; if any further extension is alleged, it is ascertained by the venire facias de vicineto portus . Ibid. 47, 70. The difference between a port by charter, and by custom or prescription, is thus illustrated: 'If the king, at this day, grant portum maris de S. , the king having the port in point of interest, as well as in point of franchise, it may be doubtful, whether, at this day, it carries the soil or only the franchise, because it is not to be taken by implication.' 'But surely, if it were an ancient grant, and usage had gone along with it, that the grantor had also the soil; this grant might be effectual to pass both, for both are included in it.' Harg. 33; s. p. Cowp. 106. The difference between an ancient grant, and one made at this day, is this: If made beyond legal memory, and in terms so general and obscure, as not to be any record pleadable, but ought to have the aid of some other matter of record, within time of memory, or some act of allowance or of confirmation; they shall now be allowed only to the extent of such allowance or confirmation, and shall be construed according to the law when it was made, and the ancient allowance on record (9 Co. 28 a ); or prescription will be taken as evidence of the existence of a grant, and to supply its presumed loss by the lapse of time (Bl. Com. 274; 2 Ibid. 265); though the record is not produced, or proof adduced of its being lost, a jury will presume the grant (Cowp. 110-11); but if thegrant is within time of memory, and wants no allowance, confirmation or presumption, to give it effect, it is pleadable, without showing either. 9 Co. 28. This is called a grant at the present day; an ancient grant is by prescription. When a grant of the franchise of a port by prescription, or an ancient grant of an ancient port, is thus made out, in imports the incident franchises of markets, fairs, ferries, keys, wharves, landings, &c., and the toll for each; and the franchise is supposed to have been founded on the right of soil in fee-simple, for no prescription can be founded on any less estate. 2 Bl. Com. 265. As tenant in fee of soil and franchise, to the extent of the port, no right of property can be of a higher grade, or be entitled to a higher degree of protection by the law; the fee of the soil is a greater right than a mere liberty or franchise in or over it; the principal franchise of a port is higher and more important than any of the incidental franchises. When once established, the king cannot resume them, narrow, or confine their limits (1 Bl. Com. 264); for the crown hath not the power of doing wrong, but merely of preventing wrong from being done. Ibid. 154. But however high and sacred these ancient grants of soil and franchise are, they are not protected from grants by the king, which may diminish their profits by injurious and contiguous competition; the contrary doctrine is laid down by Lord HALE, and there cannot be found in the common law, a case or dictum to the contrary. 'If A. hath a port in B., and the king is pleased to erect a new port, hard by that, which it may be is more convenient for merchants, though it be a damage to the first port, so that there be no obstruction of the water, or otherwise, but that ships may, if they will, arrive at the former port, this, it seems, may be done; but then this new port must not be erected within the precincts of the former:' 'he may erect a concurrent port, though near another, so it be not within the proper limits of the former, as shall be shown in the case of Hull and Yarmouth, hereafter.' Harg. 60, 61-6, 71. 'But it cannot be erected within the peculiar limits, by charter or prescription, belonging to the former port, because that is part of the interest of the lord of the former port. Neither can the first port be obstructed, or wholly defaced, or excluded for arrival of ships, but by act of parliament, or the consent of the owners of the ancient port.' Ibid. 60, 61. 'If a subject, or the king's fee-farmer has a port at R., by prescription or charter, and the king grants that no ships shall arrive within five miles, he cannot within that precinct, erect, de novo , a port, to the prejudice of the former, though he might have done it, without this restrictive clause; but by this inhibition, this precinct is become, as it were, parcel of the precinct of the port.' Ibid. 61; s. p. 66-7. Both of the ferries of Yarmouth and Hull, were held under the crown, at a fee-farm rent. Ibid. 61, 68. So that they united the highest rights of property, with all the privileges which devolved on them, in virtue of the personal prerogative of the king, and by the force of his grant. Yet neither availed them to prevent injurious and contiguous competition, by the erection of a concurrent and rival port. Ibid. 70. If the king own the port, he may license the erection of a new wharf, 'whereof there are a thousand instances.' Ibid. 85. The king's tenants cannot set up a port. Ibid. 51, 73. A subject who claims a port by prescription, must own the shores of the creek or haven, and the soil; 'but he hath not thereby the franchise of a port, neither can he so use or employ it, unless he hath had that liberty, time out of mind, or by the king's charter;' 'he cannot take toll or anchorage there, for that is finable by presentment, or quo warranto .' Ibid. 54, 73. In these unquestioned principles of law, we find its rules which define the nature and extent of all franchises on the shores or waters of public rivers, havens or arms of the sea, which can be enjoyed by an individual or a corporation. If it is by prescription, or an ancient grant, it is founded on an existing right of property in fee; the consideration for the presumed grant of tolls is for passing over or using private property, and the franchise is of a toll traverse, which, from its nature, is exclusive to the extent of the private ownership, which is defined by the possession and usage, which constitute the title by prescription. If the right to property is prescriptive, but the franchise is granted by a charter, within legal memory, which is in existence, is pleadable, and is or can be produced, then, as nothing passes by implication, the court ex officio , can look only to the charter for the extent of the franchise; if it is alleged, that it has had a greater extent by usage, an inquest goes to ascertain the fact. In this case, too, the franchise being a toll traverse, the jury may find it to the extent of the usage under the charter, and the right of property by prescription, so far as they unite. But when there is no existing right of property, except that which is the jus publicum , a grant of toll for its use, or passage over it, to any subject, is the franchise of toll thorough, or toll on a public highway, which is void, whether by prescription or the king's charter, unless for good consideration or reasonable recompense, which must be made to appear to have existed at the time of the grant, and to have been continued so long as toll is exacted. In such case, the franchise is never extended by any implication or construction, but is confined to the precise place where the consideration exists; and so far from the usage of exacting toll at any other spot being evidence of a right, it is finable on indictment or quo warranto . The customs of London to the contrary, though by their confirmation by magna charta , they have the force of acts of parliament, are illegal and void as usurpations on the public right, and injurious to the people at large; and even the king's fee-farm tenants, in his own manors, are not exempted from the rule. An evident consequence of these principles is, that the king may grant a concurrent franchise, contiguous, or near to the place where a former one exists, either by charter or prescription, if it is not within its precise limits. Whenever he shall deem it necessary for the public good, it is his right by prerogative, his power is discretionary, which the law will not control, unless it is so exercised as to prejudice the right of property existing previously. So long as its possession and use is left to the proprietor, the law does not notice the mere diminution of profits of an existing franchise on a public river, or an arm of the sea, by the erection or a rival franchise beyond its limits; the competition is beneficial to the public, by the increased accommodation afforded, and a diminution of toll exacted. In deciding on prerogative or legislative grants, the court can look only to the power and right by which they are made; questions of policy, expediency or discretion, are not judicial ones; if necessity or public good brings a power into action, the court cannot judge of its degree or extent. 4 Wheat. 143. It 'would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.' Ibid. 423. The same rule applies to all officers or tribunals in whom a discretionary power is invested by law, without any appeal or supervisory power in any other tribunal being provided; their acts done in the exercise of an honest and sound discretion, can be invalidated only by fraud in the party who claims under them, or an abuse or excess of authority in the depository of the power. 6 Pet. 729; 1 Cranch 170-1; 2 Pet. 412; 4 Ibid. 563; 2 Ibid. 167; 20 Johns. 739-40; 2 Dow P. C. 521, &c.; 10 Pet. 477-8. That the power of the king over navigable rivers and arms of the sea is plenary, is undoubted; the power is vested in him for the public good, and it is his duty to so exercise it; he may make an exclusive grant of a franchise, or may make concurrent grants, at his discretion, subject to the qualifications stated. He may grant a monopoly, on proper consideration, but his grant of a franchise is not an exclusive one per se; it must be so in terms, or it is limited to the precise place and object; and the king is at liberty to make concurrent grants at his pleasure. The power of the king is thus declared by Lord THURLOW: 'The king may, if he pleases, grant licenses to twenty new play-houses, and may give liberty to erect them in Covent Garden and Drury Lane, close to those which are established (1 Ves. jr. 114); but he adds, 'but would it be right to do so?' This is matter of discretion, which is referred to the chancellor, as the keeper of the king's conscience, who, after hearing the case, advises the granting or refusing the patent as he may think just, as may be seen in the case Ex parte O'Reilly , 1 Ves. jr. 113, 130. The ancient mode, on an application for a grant, was to sue out a writ of ad quod damnum , on which an inquest was held, and on the return of the inquisition, the grant was made or denied; but it may be dispensed with by a clause of non obstante in the patent. F. N. B. 226. The grant is, therefore, valid, without the writ, but is voidable by the king on a scire facias , if it is injurious to another, on the ground of the king having been deceived. 3 Lev. 222. But the grant could not be annulled in a collateral action between A. and B., otherwise, there would be no necessity of resorting to chancery, to repeal it by a scire facias at the suit of the king; this is always issued on the application of a party, by petition, setting forth the injury he sustains by the grant. It only remains to apply the foregoing principles to the case of an ancient ferry in a ville , as a test of the rights of the owner by the common law. Such a ferry is by prescription; the franchise is founded on the property in the landings, it can rest on no other right; the right of property is in the lord of the fee, and the franchise is in him as a toll traverse , to the extent of the local custom or prescription, but no further, even in the king's manors, or in favor of his fee-farm tenants. The position in the Year Book, 22 Hen. VI., goes no further; no writer of authority has asserted that the owner of such a ferry has any right beyond the ville or manor, which is the line and boundary of the right of soil, and no adjudged case has sanctioned such doctrine. There is no case or principle in the common law, which gives any color for the assertion, that the franchise of an ancient ferry is more protected against injurious and contiguous competition, than the higher franchise of a port; the doctrine of Lord HALE, and the cases in Hardr. 163, &c., are to the point, that contiguous competition, by the diminution of the profits of an ancient ferry, is a damnum absque injuria . Nor in the whole body of the law, is there expressed a doubt, that the king may grant a concurrent franchise of any description, which does not extend within the limits of an existing one. Let these principles be applied to the present case. Charles river is an arm of the sea, the colony owned a ferry over it, together with the landing places, till 1640, and held possession of it by their tenants; the soil of the adjacent shores of the river was owned by the colony, or its grantees; the rights of riparian owners extended to low watermark, or one hundred rods on the flats, on each side. All pretence, therefore, of any right in the college, by prescription, or the presumption of any ancient grant which had been lost, is wholly out of the question; the grant made in 1640, 'is a grant made at this day;' it is pleadable, it is produced from the record, and the court can notice it ex officio . It is the grant of a ferry on a public highway; the franchise is of a toll thorough , the very nature whereof precludes any extension of it by implication or construction, beyond its precise limits, and the very spots at which the consideration for the grant exists; any exaction of toll at any other points, is the usurpation of a franchise, which, so far from giving a right, subjects the grantee to a fine. Taking the common law to have been, from its first settlement, the law of Massachusetts, its oldest and best settled rules are, in my mind, conclusive against the pretensions of the plaintiffs in virtue of the ferry grant. That they ought to be applied in their utmost strictness, against any construction of colonial grants which tend to create monopolies by implication, is, I think, the policy and spirit of all our institutions, and called for by every consideration of public interest. The proposition that a grant within legal memory, of toll thorough, on an arm of the sea, over a public highway, of a ferry which had been occupied by the public at defined and described landings, would make it unlawful for the king to grant a concurrent ferry at other landings, would shock the sense of the profession in England, as subversive of the law. Such a proposition, as to the grant of such a franchise in these states, would be still more monstrous; because, if sustained, it would not only subvert its common and statute law, but, by infusing such a grant into the constitution, all legislative discretion would be annihilated for ever, and a monopoly created by implication and mere construction, which no power in the state or federal government could limit. I have confined my opinion in this case to the grant of the ferry by the colony, thinking it important that the principles which apply to such grants, should be more fully explained than they had been. As the grants to the plaintiffs by the acts of the legislature, in 1785 and 1792, I can have nothing to add; the view taken by the court, in their opinion, is, to my mind, most lucid and conclusive; supported alike by argument and authority, it has my unqualified concurrence in all the results which are declared. This cause was argued at a former term of this court, and having been then held under advisement by the court for a year, was, upon a difference of opinion among the judges, ordered to be again argued: and has accordingly been argued at the present term. The arguments of the former term were conducted with great learning, research and ability; and have been renewed, with equal learning, reserch and ability, at the present term. But the grounds have been, in some respects, varied; and new grounds have been assumed, which require a distinct consideration. I have examined the case with the most anxious care and deliberation, and with all the lights which the researches of the year, intervening between the first and last argument, have enabled me to obtain; and I am free to confess, that the opinion which I originally formed, after the first argument, is that which now has my most firm and unhesitating conviction. The argument at the present term, so far from shaking my confidence in it, has at every step served to confirm it. In now delivering the results of that opinion, I shall be compelled to notice the principal arguments urged the other way; and as the topics discussed and the objections raised have assumed various forms; some of which require distinct, and others, the same answers; it will be unavoidable, that some repetitions should occur in the progress of my own reasoning. My great respect for the counsel who have pressed them, and the importance of the cause, will, I trust, be thought a sufficient apology for the course which I have, with great reluctance, thought it necessary to pursue. Some of the questions involved in the case are of local law. And here, according to the known principles of this court, we are bound to act upon that law, however different from, or opposite to, the jurisprudence of other states, it either is, or may be supposed to be. Other questions seem to belong exclusively to the jurisdiction of the state tribunals, as they turn upon a conflict, real or supposed, between the state constitution and the state laws. The only question, over which this court possesses jurisdiction in this case (it being an appeal from a state court and not from the circuit court) is, as has been stated at the bar, whether the obligation of any contract, within the true intent and meaning of the constitution of the United States, has been violated, as set forth in the bill. All the other points argued, are before us only as they preliminaries and incidents to this. A question has, however, been made as to the jurisdiction of this court to entertain the present writ of error. It has been argued, that this bridge has now become a free bridge, and is the property of the state of Massachusetts; that the state cannot be made a party defendant to any suit to try its title to the bridge; and that there is no difference between a suit against the state directly, and against the state indirectly, through its servants and agents. And in further illustration of this argument, it is said, that no tolls can be claimed in this case, under the notion of an implied trust; for the state court has no jurisdiction in equity over implied trusts, but only over express trusts; and if this court has no jurisdiction over the principal subject-matter of the suit, the title to the bridge, it can have none over the tolls, which are but incidents. My answer to this objection will be brief. In the first place, this is a writ of error from a state court, under the 25th section of the judiciary act of 1789, ch. 20; and in such a case, if there is drawn in question the construction of any clause of the constitution of the United States, and the decision of the state court is against the right or title set up under it, this court has a right to entertain the suit, and decide the question, whoever may be the parties to the original suit, whether private persons, or the state itself. This was decided in the case of Cohens v. State of Virginia , 6 Wheat. 264. In the next place, the state of Massachusetts is not a party on the record in this suit, and therefore, the constitutional prohibition of commencing any suit against a state, does not apply; for that clause of the constitution is strictly confined to the parties on the record. So it was held in Osborn v. Bank of the United States , 9 Wheat. 738; and in the Commonwealth Bank of Kentucky v. Wister , 2 Pet. 319, 323. In the next place, it is no objection to the jurisdiction, even of the circuit courts of the United States, that the defendant is a servant or agent of the state, and the act complained of is done under its authority, if it be tortious and unconstitutional. So it was held in the cases last cited. In the next place, this court, as an appellate court, has nothing to do with ascertaining the nature or extent of the jurisdiction of the state court over any persons, or parties, or subject-matters, given by the state laws, or as to the mode of exercising the same; except so far as respects the very question arising under the 25th section of the act of 1789, ch. 20. There are but few facts in this case which admit of any controversy. The legislature of Massachusetts, by an act passed on the 9th of March 1785, incorporated certain persons, by the name of the Proprietors of the Charles River Bridge, for the purpose of building a bridge over Charles river, between Boston and Charlestown; and granted to them the exclusive toll thereof, for forty years from the time of the first opening of the bridge for passengers. The bridge was built and opened for passengers, in June 1786. In March 1792, another corporation was created by the legislature, for the purpose of building a bridge over Charles river, from the westerly part of Boston to Cambridge; and on that occasion, the legislature, taking into consideration the probable diminution of the profits of the Charles River bridge, extended the grant of the proprietors of the latter bridge to seventy years from the first opening of it for passengers. The proprietors have, under these grants, ever since continued to possess and enjoy the emoluments arising from the tolls taken for travel over the bridge; and it has proved a very profitable concern. In March 1828, the legislature created a corporation, called the Proprietors of the Warren Bridge, for the purpose of erecting another bridge across Charles river, between Boston and Charlestown. The termini of the last bridge (which has been since erected, and was, at the commencement of this suit, in the full receipt of toll, and is now a free bridge) are so very near to that of Charles River bridge, that for all practical purposes, they may be taken to be identical. The same travel is accommodated by each bridge, and necessarily approaches to a point, before it reaches either, which is nearly equidistant from each. In short, it is impossible, in a practical view, and so was admitted as the argument, to distinguish this case from one where the bridges are contiguous from the beginning to the end. The present bill is filled by the proprietors of Charles River bridge, against the proprietors of Warren bridge, for an injunction and other relief; founded upon the allegation, that the erection of the Warren bridge, under the circumstances, is a violation of their chartered rights, and so is void by the constitution of Massachusetts, and by the constitution of the United States. The judges of the supreme judicial court of Massachusetts, were (as is well known) equally divided in opinion upon the main points in the cause; and therefore, a pro formd decree was entered, with a view to bring before this court the great and grave question, whether the legislature of Massachusetts, in the grant of the charter of the Warren bridge, has violated the obligation of the constitution of the United States? If the legislature has done so, by mistake or inadvertence, I am quite sure, that it will be the last to insist upon maintaining its own act. It has that stake in the Union, and in the maintenance of the constitutional rights of its own citizens, which will, I trust, ever be found paramount to all local interests, feelings and prejudices; to the pride of power, and to the pride of opinion. In order to come to any just conclusion in regard to the only question which this court, sitting as an appellate court, has a right to entertain upon a writ of error to a state court, it will be necessary to ascertain what are the rights conferred on the proprietors of Charles River bridge by the act of incorporation. The act is certainly not drawn with any commendable accuracy. But it is difficult, upon any principles of common reasoning, to mistake its real purport and object. It is entitled, 'an act for incorporating certain persons, for the purpose of building a bridge over Charles river, between Boston and Charlestown, and supporting the same during the term of forty years.' Yet, it nowhere, in terms, in any of the enacting clauses, confers any authority upon the corporation, thus created, to build any such bridge; nor does it state in what particular place the bridge shall commence or terminate on either side of the river, except by inference and implication from the preamble. I mention this, at the threshold of the present inquiry, as an irresistible proof that the court must, in the construction of this very act of incorporation, resort to the common principles of interpretation; and imply and presume things, which the legislature has not expressly declared. If the court were not at liberty so to do, there would be an end of the cause. The act begins, by reciting, that 'the erecting of a bridge over Charles river, in a place where the ferry between Boston and Charlestown is now kept, will be of great public utility, and Thomas Russell and others having petitioned, &c., for the act of incorporation, to empower them to build said bridge, and many other persons, under the expectation of such an act, have subscribed to a fund for executing and completing the aforesaid purpose.' It then proceeds to enact, that the proprietors of the fund or stock shall be a corporation under the name of the Proprietors of Charles River Bridge; and it gives them the usual powers of corporations, such as the power to sue and be sued, &c. In the next section, it provides for the organization of the corporation; for choosing officers; for establishing rules and regulations for the corporation; and for effecting, completing and executing the purpose aforesaid. In the next section, 'for the purpose of reimbursing the said proprietors the money expended in building and supporting the said bridge,' it provides, that a toll be, and thereby is granted and established, for the sole benefit of the proprietors, for forty years from the opening of the bridge for travel, according to certain specified rates. In the next section, it provides, that the bridge shall be well built, at least forty feet wide, of sound and suitable materials, with a convenient draw or passage-way for ships and vessels, &c.; and 'that the same shall be kept in good, safe and passable repair for the term aforesaid, and at the end of the said term, the said bridge shall be left in like repair.' Certain other provisions are also made, as to lighting the bridge, erecting a toll-board, lifting the draw for all ships and vessels, without toll or pay,' &c. The next section declares, that after the tolls shall commence, the proprietors 'shall annually pay to Harvard College or university, the sum of two hundred pounds, during the said term of forty years; and at the end of the said term, the said bridge shall revert to, and be the property of the commonwealth, saving to the said college or university, a reasonable and annual compensation for the annual income of the ferry, which they might have received, had not such bridge been erected.' The next and last section of the act declares the act void, unless the bridge should be built within three years from the passing of the act. Such is the substance of the charter of incorporation, which the court is called upon to construe. But, before we can properly enter upon the consideration of this subject, a preliminary inquiry is presented, as to the proper rules of interpretation applicable to the charter. Is the charter to receive a strict or a liberal construction? Are any implications to be made, beyond the express terms? And if so, to what extent are they justifiable, by the principles of law? No one doubts, that the charter is a contract and a grant; and that it is to receive such a construction as belong to contracts and grants, as contradistinguished from mere laws. But the argument has been pressed here, with unwonted earnestness (and it seems to have had an irresistible influence elsewhere); that this charter is to be construed as a royal grant, and that such grants are always construed with a stern and parsimonious strictness. Indeed, it seems tacitly conceded, that unless such a strict construction is to prevail (and it is insisted on as the positive dictate of the common law), there is infinite danger to the defence assumed on behalf of the Warren bridge proprietors. Under such circumstances, I feel myself constrained to go at large into the doctrine of the common law, in respect to royal grants, because I cannot help thinking, that, upon this point, very great errors of opinion have crept into the argument. A single insulated position seems to have been taken as a general axiom. In my own view of the case, I should not have attached so much importance to the inquiry; but it is now fit that it should be sifted to the bottom. It is a well-known rule in the construction of private grants, if the meaning of the words be doubtful, to construe them most strongly against the grantor. But it is said, that an opposite rule prevails in cases of grants by the king; for, where there is any doubt, the construction is made most favorably for the king, and against the grantee. The rule is not disputed; but it is a rule of very limited application. To what cases does it apply? To such cases only, where there is a real doubt, where the grant admits of two interpretations, one of which is more extensive, and the other more restricted; so that a choice is fairly open, and either may be adopted, without any violation of the apparent objects of the grant. If the king's grant admits of two interpretations, one of which will make it utterly void and worthless, and the other will give it a reasonable effect, then the latter is to prevail; for the reason (says the common law), 'that it will be more for the benefit of the subject, and the honor of the king, which is to be more regarded than his profit.' Com. Dig. Grant, G. 12; 9 Co. 131 a; 10 Ibid. 67 b ; 6 Ibid. 6. And in every case, the rule is made to bend to the real justice and integrity of the case. No strained or extravagant construction is to be made in favor of the king. And if the intention of the grant is obvious, a fair and liberal interpretation of its terms is enforced. The rule itself is also expressly dispensed with, in all cases where the grant appears, upon its face, to flow, not from the solicitation of the subject, but from the special grace, certain knowledge, and mere motion of the crown; or, as it stands in the old royal patents, ex speciali gratia, certa scientia, et ex mero motu regis' (See Arthur Legat's Case , 10 Co. 109, 112 b; Sir John Moulin's Case , 6 Ibid. 6; 2 Bl. Com. 347; Com. Dig. Grant, G. 12); and these words are accordingly inserted in most of the modern grants of the crown, in order to exclude any narrow construction of them. So the court admitted the doctrine to be in Attorney-General v. Lord Eardly , 8 Price 39. But what is a most important qualification of the rule, it never did apply to grants made for a valuable consideration by the crown; for in such grants, the same rule has always prevailed, as in cases between subjects. The mere grant of a bounty of the king may properly be restricted to its obvious intent. But the contracts of the king for value are liberally expounded, that the dignity and justice of the government may never be jeoparded, by petty evasions and technical subtleties. I shall not go over all the cases in the books, which recognise these principles, although they are abundant. Many of them will be found collected in Bacon's Abridgment, Prerogative, F. 2, p. 602-4; in Comyn's Digest, Grant, G. 12; and in Chitty on the Prerogatives of the Crown, ch. 16, § 3. But I shall dwell on some of the more prominent, and especially on those which have been mainly relied on by the defendants; because, in my humble judgment, they teach a very different doctrine from what has been insisted on. Lord COKE, in his Commentary on the Statute of Quo Warranto, 18 Edw. I., makes this notable remark: 'Here is an excellent rule for construction of the king's patent, not only of liberties, but of lands, tenements and other things, which he may lawfully grant, that they have no strict or narrow interpretation, for the overthrowing of them, sed secundum eundum plenitudinem judicentur; that is, to have a liberal and favorable construction, for the making them available in law, usque ad plenitudinem , for the honor of the king.' Surely, no lawyer would contend for a more beneficent or more broad exposition of any grant whatsoever, than this. So, in respect to implications, in cases of royal grants, there is not the slightest difficulty, either upon authority or principle, in giving them a large effect, so as to include things which are capable of being the subject of a distinct grant. A very remarkable instance of this sort arose under the Statute of Prerogative (17 Edw. II., Stat. 2, c. 15), which declared, that when the king granteth to any, a manor or land, with the appurtenances, unless he makes express mention in the deed, in writing, of advowsons, &c., belonging to such manor, then the king reserveth to himself such advowsons. Here, the statute itself prescribed a strict rule of interpretation.(a) Yet, in Whistler's Case , 10 Co. 63, it was held, that a royal grant of a manor, with the appurtenances, in as ample a manner as it came to the king's hands, conveyed an advowson, which was appendant to the manor, by implication from the words actually used, and the apparent intent. This was certainly a very strong case of raising an implication from words susceptible of different interpretations, where the statute had furnished a positive rule for a narrow construction, excluding the advowson. So it has been decided, that if the king grants a messuage and all lands spectantes, aut cum eo dismissas , lands which have been enjoyed with it for a convenient time, pass. 2 Roll. Abr. 186, C. 25, 30; Cro. Car. 169; Chitty on the Prerogatives, ch. 16, § 3, p. 393; Com. Dig. Grant, G. 5. In short, wherever the intent from the words is clear, or possesses a reasonable certainty, the same construction prevails in crown grants, as in private grants; especially, where the grant is presumed to be from the voluntary bounty of the crown, and not from the representation of the subject. It has been supposed, in the argument, that there is a distinction between grants of lands held by the king, and grants of franchises which are matters of prerogative, and held by the crown for the benefit of the public, as flowers of prerogative. I know of no such distinction; and Lord COKE, in the passage already cited, expressly excludes it; for he insists, that the same liberal rule of interpretation is to be applied to cases of grants of liberties, as to cases of grants of lands. I am aware, that Mr. Justice BLACKSTONE, in his Commentaries (2 Bl. Com. 347), has laid down some rules apparently varying from what has been stated. He says, 'the manner of granting by the king does not more differ from that by a subject, than the construction of his grants when made. 1. A grant made by the king, at the suit of the grantee, shall be taken most beneficially for the king and against the party; whereas, the grant of a subject is construed most strongly against the grantor, &c. 2. A subject's grant shall be construed to include many things besides what are expressed, if necessary for the operation of the grant; therefore, in a private grant of the profits of land for one year, free ingress, egress and regress, to cut and carry away those profits, are also inclusively granted, &c. But the king's grant shall not inure to any other intent, than that which is precisely expressed in the grant. As, if he grants land to an alien, it operates nothing; for such a grant shall not inure to make him a denizen, that so he may be capable to take by the grant.' Now, in relation to the last position, there is nothing strange or unnatural in holding, that a crown grant shall not inure to a totally different purpose from that which is expressed, or to a double intent; when all its terms are satisfied by a single intent. It is one thing to grant land to an alien, and quite a different thing to make him a denizen. The one is not an incident to the other, nor does it naturally flow from it. The king may be willing to grant land to an alien, when he may not be willing to give him all the privileges of a subject. It is well known, that an alien may take land by grant, and may hold it against every person but the king, and it does not go to the latter, until office found; so that, in the meantime, an alienation by the alien will be good. A grant, therefore, to an alien, is not utterly void; it takes effect, though it is not indefeasible. And in this respect, there does not seem any difference between a grant by a private person, and by the crown; for the grant of the latter takes effect, though it is liable to be defeated. See Com. Dig. Alien, C. 4; 1 Leon. 47; 4 Ibid. 82. The question in such cases is not, whether there may not be implications in a crown grant; but whether a totally different effect shall be given to a crown grant from what its terms purport. The same principle was acted upon in Englefield's Case , 7 Co. 14 a . There, the crown had demised certain lands, which were forfeited by a tenant for life, by attainder, to certain persons, for forty years; and the crown being entitled to a condition which would defeat the remainder over, after the death of the person attainted, tendered performance of the condition to the remainder-man, who was a stranger to the demise; and he contended, that by the demise, the condition was suspended. And it was held, that the demise should not operate to a double intent, viz., to pass the term, and also, in favor of a stranger, to suspend the condition; for (it was said) 'the grant of the crown shall be taken according to the express intention comprehended in the grant, and shall not extend to any other thing, by construction or implication, which doth not appear by the grant, that the intent did extend to;' though it might have been different, in the case of a subject. In regard to the other position of Mr. Justice BLACKSTONE, it may be supposed, that he means to assert, that in a crown grant of the profits of land for a year, free ingress, egress and regress to take the profits, are not included by implication, as they would be in a subject's grant. If such be his meaning, he is certainly under a mistake. The same construction would be put upon each; for otherwise nothing would pass by the grant. It is a principle of common sense, as well as of law, that when a thing is granted, whatever is necessary to its enjoyment, is granted also. It is not presumed, that the king means to make a void grant; and therefore, if it admits of two constructions, that shall be followed which will secure its validity and operation. In Comyn's Digest (Com. Dig. Grant, E. 11, Co. Litt. 56 a ), a case is cited from the Year Book, 1 Hen. IV. 5 (it should be 6 a ), that if there be a grant of land, cum pertinentiis , to which common is appendant, the common passes as an incident, even though it be the grant of the king. So, it is said, in the same case, if the king grant to me the foundation of an abbey, the corody passes. So, if the king grant to me a fair, I shall have a court of piepoudre, as incident thereto. And there are other cases in the books, to the same effect. See Bac. Abr. Prerogative, F. 2, p. 602; Comyn's Dig. Grant, G. 12; Lord Chandos's Case , 6 Co. 55; Sir Robert Atkyn's Case , 1 Vent. 399, 409; 9 Co. 29-30. Finch, in his Treatise on the Law, contains nothing beyond the common authorities. Finch's Law, b. 2, ch. 2, p. 24 (ed. 1613); Cro. Eliz. 591, per POPHAM, Ch. J.; 17 Vin. Abr. Prerogative, O, c, pl. 13; Com. Dig. Franchise, C.; 2 Inst. 282. Lord COKE, after stating the decision of Sir John Moulin's Case , 6 Co. 6, adds these words: 'Note the gravity of the ancient sages of the law, to construe the king's grants beneficially for his honor, and not to make any strict or literal construction in subversion of such grants.' This is an admonition, in my humble judgment, very fit to be remembered and acted upon by all judges, who are called upon to interpose between the government and the citizen, in cases of public grants. Legat's Case , 10 Co. 109, contains nothing, that in the slightest degree impugns the general doctrine here contended for. It proceeded upon a plain interpretation of the very words of the grant; and no implications were necessary or proper, to give it its full effect. The case of the Royal Fishery of the Banne , decided in Ireland, in the privy council, in 8 James I. (Davies 149), has been much relied on to establish the point, that the king's grant shall pass nothing by implication. That case, upon its actual circumstances, justifies no such sweeping conclusion. The king was owner of a royal fishery in gross (which is material), on the river Banne, in navigable waters, where the tide ebbed and flowed, about two leagues from the sea; and he granted to Sir R. McD. the territory of Rout, which is parcel of the county of Antrim, and adjoining to the river Banne, in that part where the said fishery is; the grant containing the following words, ' omnia castra, messuagia, &c., piscarias, piscationes, aquas, aquarum cursus, &c., ac omnia alia hereditamenta in vel infra dictum territorium de Rout, in comitatu Antrim, exceptis, et ex hac concessione nobis heredibus et successoribus nostris reservatis tribus partibus piscationibus fluminis de Banne .' The question was, whether the grant passed the royal fishery in the Banne to the grantee? And it was held, that it did not; first, because the river Banne, so far as the sea ebbs and flows, is a royal navigable river, and the fishery there, a royal fishery; secondly, because no part of this royal fishery could pass by the grant of the land adjoining, and by the general grant of all the fisheries (in or within the territory of Rout), for this royal fishery is not appurtenant to the land, but is a fishery in gross, and parcel of the inheritance of the crown itself; and general words in the king's grant shall not pass such special royalty, which belongs to the crown by prerogative; thirdly, that by the exception in the grant of three parts of this fishery, the other fourth part of this fishery did not pass by this grant; for the king's grant shall pass nothing by implication; and for this was cited 2 Hen. VII. 13. Now, there is nothing in this case, which not easily explicable upon the common principles of interpretation. The fishery was a royal fishery in gross, and not appurtenant to the territory of Rout. Ward v. Cresswell , Willes 265. The terms of the grant were of all fisheries in and within this territory; and this excluded any fishery not within it, or not appurtenant to it. The premises, then, clearly did not, upon any just construction, convey the fishery in question, for it was not within the territory. The only remaining question was, whether the exception of three-quarters, would, by implication, carry the fourth part which was not excepted; that is, whether terms of exception in a crown grant should be construed to be terms of grant, and not of exception. It is certainly no harsh application of the common rules of interpretation, to hold that an implication which required such a change in the natural meaning of the words, ought not to be allowed, to the prejudice of the crown. Non constat , that the king might not have supposed, at the time of the grant, that he was owner of three parts only of the fishery, and not of the fourth part. This case of the Fishery of the Banne was cited and commented on by Mr. Justice BAYLEY, in delivering the opinion of the court, in the case of the Duke of Somerset v. Fogwell , 5 Barn. & Cres. 875, 885, and the same view was taken of the grounds of the decision, which has been here stated; the learned judge adding, that it was further agreed in that case, that the grant of the king passes nothing by implication; by which he must be understood to mean, nothing, which its terms do not, fairly and reasonably construed, embrace as a portion of or incident to the subject matter of the grant. As to the case cited from 2 Hen. VII. 13 (which was the sole authority relied on), it turned upon a very different principle. There, the king, by letters-patent, granted to a man that he might give twenty marks annual rent to a certain chaplain to pray for souls, &c.; and the question was, whether the grant was not void for uncertainty, as no chaplain was named. And the principal stress of the argument seems to have been, whether this license should be construed to create or enable the grantee to create a corporation capable of taking the rent. In the argument, it was asserted, that the king's grants should not be construed, by implication, to create a corporation, or to inure to a double intent. In point of fact, however, I find (Chronica Juridicialia, p. 141), that neither of the persons, whose opinions are stated in the case, was a judge at the time of the argument, nor does it appear what the decision was; so that the whole report is but the argument of counsel. The same case is fully reported by Lord COKE, in the case of Sutton's Hospital , 10 Co. 27-8, who says, that he had seen the original record, and who gives the opinions of the judges at large, by which it appears that the grant was held valid. And so, says Lord COKE, 'Note, reader, this grant of the king inures to these intents, viz., to make an incorporation; to make a succession; and to grant a rent.' So, that here we have a case, not only of a royal grant being construed liberally, but divers implications being made, not at all founded in the express terms of the grant. The reason of which was (as Lord COKE says), because the kings's charter made for the erection of pious and charitable works, shall be always taken in the most favorable and beneficial sense. This case was recognised by the judges as sound law, in the case of Sutton's Hospital . And it was clearly admitted by the judges, that in a charter of incorporation by the crown, all the incidents to a corporation were tacitly annexed, although not named; as the right to sue and be sued; to purchase, hold and alien lands; to make by-laws, &c. And if power is expressly given to purchase, but no clause to alien, the letter follows by implication, as an incident. Comyn's Dig. Franchise, F, 6, F, 10, F, 15. It is very difficult to affirm, in the teeth of such authorities, that in the king's grants nothing is to be taken by implication; as is gravely asserted in the case in Davies 149. The case cited to support it, is directly against it. In truth, it is obvious, that the learned judges mistook the mere arguments of counsel, for the solemn opinions of the court; and the case, as decided, is a direct authority the other way. The case of Blankley v. Winstanley , 3 T. R. 279, has also been relied on for the same purpose; but it has nothing to do with the point. The court there held, that by the saving in the very body of the charter, the concurrent jurisdiction of the county magistrates was preserved. There was nothing said by the court, in respect to the implications in crown grants. The whole argument turned upon the meaning of the express clauses. Much reliance has also been placed upon the language of Lord STOWELL, in The Elsebe , 5 Rob. 173. The main question in that case was, whether the crown had a right to release captured property, before adjudication, without the consent of the captors. That question depended upon the effect of the king's orders in council, his proclamation, and the parliamentary prize act; for, independently of these acts, it was clear, that all captured property, jure belli , belonged to the crown; and was subject to its sole disposal. Lord STOWELL, whose eminent qualifications as a judge entitle him to great reverence, on that occasion said: 'A general presumption arising from these considerations is, that government does not mean to divest itself of this universal attribute of sovereignty conferred for such purposes (to be used for peace, as well as war), unless it is so clearly and unequivocally expressed. In conjunction with this universal presumption, must be taken also the wise policy of our own peculiar law, which interprets the grants of the crown in this respect, by other rules than those which are applicable in the construction of the grants of individuals. Against an individual, it is presumed, that he meant to convey a benefit, with the utmost liberality that his words will bear. It is indifferent to the public, in which person an interest remains, whether in the grantor or the taker. With regard to the grant of the sovereign, it is far otherwise. It is not held by the sovereign himself, as private property, and no alienation shall be presumed, except what is clearly and indisputably expressed.' Now, the right of the captors in that case, was given by the words of the king's order in council only. It was a right to seize and bring in for adjudication. The right to seize, then, was given, and the duty to bring in for adjudication was imposed. If nothing more had existed, it would be clear, that the crown would have the general property in the captures. Then, again, the prize act and prize proclamation gave to the captors a right in the property, after adjudication, as lawful prize, and not before. This very limitation naturally implied, that until adjudication, they had no right in the property. And this is the ground, upon which Lord STOWELL placed his judgment, as the clear rusult of a reasonable interpretation of these acts; declining to rely on any reasoning from considerations of public policy. And it is to be considered, that Lord STOWELL was not speaking of an ordinary grant of land, or of franchises, in the common course of mere municipal regulations; but of sovereign attributes and prerogatives, involving the great rights and duties of war and peace, where, upon every motive of public policy, and every ground of rational interpretation, there might be great hesitation in extending the terms of a grant beyond their fair interpretation. But what, I repeat, is most material to be stated, is, that all this doctrine in relation to the king's prerogative of having a construction in his own favor, is exclusively confined to cases of mere donation , flowing from the bounty of the crown. Whenever the grant is upon a valuable consideration, the rule of construction ceases; and the grant is expounded exactly as it would be in the case of a private grant-favorably to the grantee. Why is this rule adopted? Plainly, because the grant is a contract, and is to be interpreted according to its fair meaning. It would be to the dishonor of the government, that it should pocket a fair consideration, and then quibble as to the obscurities and implications of its own contract. Such was the doctrine of my Lord COKE, and of the venerable sages of the law, in other times, when a resistance to prerogative was equivalent to a removal from office. Even in the worst ages of arbitrary power, and irresistible prerogative, they did not hesitate to declare, that contracts founded in a valuable consideration ought to be construed liberally for the subject, for the honor of the crown. 2 Inst. 496. See also Com. Dig. Franchise, C. F. 6. If we are to have the grants of the legislature construed by the rules applicable to royal grants, it is but common justice, to follow them throughout, for the honor of this republic. The justice of the commonwealth will not, I trust, be deemed less extensive than that of the crown. I think, that I have demonstrated, upon authority, that it is by no means true, that implications may not, and ought not, to be admitted, in regard to crown grants. And I would conclude what I have to say on this head, by a remark made by the late Mr. Chief Justice PARSONS, a lawyer equally remarkable for his extraordinary genius, and his professional learning. 'In England, prerogative is the cause of one against the whole; here, it is the cause of all against one. In the first case, the feelings and vices, as well as the virtues, are enlisted against it; in the last, in favor of it. And therefore, here , it is of more importance, that the judicial courts should take care that the claim of prerogative should be more strictly watched.' Martin v. Commonwealth , 1 Mass. 356. If, then, the present were the case of a royal grant, I should most strenuously contend, both upon principle and authority, that it was to receive a liberal, and not a strict construction. I should so contend, upon the plain intent of the charter, from its nature and objects, and from its burdens and duties. It is, confessedly, a case of contract, and not of bounty; a case of contract for a valuable consideration; for objects of public utility; to encourage enterprise; to advance the public convenience; and to secure a just remuneration for large outlays of private capital. What is there in such a grant of the crown, which should demand from any court of justice a narrow and strict interpretation of its terms? Where is the authority with contains such a doctrine, or justifies such a conclusion? Let it not be assumed, and then reasoned from, as an undisputed concession. If the common law carries in its bosom such a principle, it can be shown by some authorities, which ought to bind the judgment, even if they do not convince the understanding. In all my researches, I have not been able to find any, whose reach does not fall far, very far, short of establishing any such doctrine. Prerogative has never been wanting in pushing forward its own claims for indulgence or exemption. But it has never yet (so far as I know) pushed them to this extravagance. I stand upon the old law; upon law established more than three centuries ago, in cases contested with as much ability and learning, as any in the annals of our jurisprudence, in resisting any such encroachments upon the rights and liberties of the citizens, secured by public grants. I will not consent to shake their title deeds, by any speculative niceties or novelties. The present, however, is not the case of a royal grant, but of a legislative grant, by a public statute. The rules of the common law in relation to royal grants have, therefore, in reality, nothing to do with the case. We are to give this act of incorporation a rational and fair construction, according to the general rules which govern in all cases of the exposition of public statutes. We are to ascertain the legislative intent; and that once ascertained, it is our duty to give it a full and liberal operation. The books are full of cases to this effect (see Com. Dig. Parliament, R. 10 to R. 28; Bac. Abr. Statute), if indeed, so plain a principle of common sense and common justice stood in any need of authority to support it. Lord Chief Justice EYRE, in the case of Boulton v. Bull , 2 H. Bl. 463, 500, took notice of the distinction between the construction of a crown grant, and a grant by an act of parliament; and held the rules of the common law, introduced for the protection of the crown, in respect to its own grants, to be inapplicable to a grant by an act of parliament. 'It is to be observed (said his lordship), that there is nothing technical in the composition of an act of parliament. In the exposition of statutes, the intent of parliament is the guide. It is expressly laid down in our books (I do not here speak of penal statutes), that every statute ought to be expounded, not according to the letter, but the intent.' Again, he said, 'this case was compared to the case of the king being deceived in his grants; but I am not satisfied, that the king, proceeding by and with the advice of parliament, is in that situation, in respect to which he is under the special protection of the law; and that he could, on that ground, be considered as deceived in his grant; no case was cited to prove that position.' Now, it is to be remembered, that his lordship was speaking upon the construction of an act of parliament of a private nature; an act of parliament in the nature of a monopoly; an act of parliament granting an exclusive patent for an invention to the celebrated Mr. Watt. And let it be added, that his opinion as to the validity of that grant, notwithstanding all the obscurities of the act, was ultimately sustained in the king's bench by a definitive judgment in its favor. See Hornblower v. Boulton , 8 T. R. 95. A doctrine equally just and liberal has been repeatedly recognised by the supreme court of Massachusetts. In the case of Richards v. Daggett , 4 Mass. 534, 537, Mr. Chief Justice PARSONS, in delivering the opinion of the court, said: 'It is always to be presumed, that the legislature intend the most beneficial construction of their acts, when the design of them is not apparent.' See also, Inhabitants of Somerset v. Inhabitants of Dighton , 12 Mass. 383; Whitney v. Whitney , 14 Ibid. 88; 8 Ibid. 523; Holbrook v. Holbrook , 1 Pick. 248; Stanwood v. Peirce , 7 Mass 458. Even in relation to mere private statutes, made for the accommodation of particular citizens, and which may affect the rights and privileges of others; courts of law will give them a large construction, if it arise from necessary implication. Coolidge v. Williams , 4 Mass. 145. As to the manner of construing parliamentary grants for private enterprise, there are some recent decisions, which, in my judgment, establish two very important principles, applicable directly to the present case; which, if not confirmatory of the views which I have endeavored to maintain, are at least not repugnant to them. The first is, that all grants for purposes of this sort are to be construed as contracts between the government and the grantees, and not as mere laws; the second is, that they are to receive a reasonable construction; and that if, either upon their express terms, or by just inference from the terms, the intent of the contract can be made out, it is to be recognised and enforced accordingly. But if the language be ambiguous, or if the inference be not clearly made out, then the contract is to be taken most strongly against the grantor, and most favorably for the public. The first case is the Company of Proprietors of the Leeds and Liverpool Canal v. Hustler , 1 Barn. & Cres. 424, where the question was upon the terms of the charter, granting a toll. The toll was payable on empty boats, passing a lock of the canal. The court said 'no toll was expressly imposed upon empty boats, &c., and we are called upon to say, that such a toll was imposed by inference. Those who seek to impose a burden upon the public, should take care that their claim rests upon plain and unambiguous language; here the claim is by no means clear.' The next case was the Kingston-upon-Hull Dock Company v. La Marche , 8 Barn. & Cres. 42, where the question was, as to right to wharfare of goods shipped off from their quays. Lord TENTERDEN, in delivering the judgment of the court in the negative, said: 'This was clearly a bargain made between a company of adventurers and the public; and as, in many similar cases, the terms of the bargain are contained in the act; and the plaintiffs can claim nothing which is not clarly given.' The next case is the Proprietors of the Stourbridge Canal v. Wheeley , 2 Barn. & Ad. 792, in which the question was as to a right to certain tolls. Lord TENTERDEN, in delivering the opinion of the court, said, 'this like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute. And the rule of construction in all such cases in now fully established to be this that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public; and the plaintiffs can claim nothing which is not clearly given to them by the act.' 'Now, it is quite certain, that the company have no right expressly given to receive any compensation, except, &c.; and therefore, it is incumbent upon them to show, that that they have a right, clearly given by inference from some other of the clauses.' This latter statement shows, that it is not indispensable, that in grants of this sort, the contract or the terms of the bargain should be in express language; it is sufficient, if they may be clearly proved by implication or inference. I admit, that where the terms of a grant are to impose burdens upon the public, or to create a restraint injurious to the public interest, there is sound reason for interpreting the terms, if ambiguous, in favor of the public. But at the same time, I insist, that there is not the slightest reason for saying, even in such a case, that the grant is not to be construed favorably to the grantee, so as to secure him in the enjoyment of what is actually granted. I have taken up more time in the discussion of this point, than, perhaps, the occasion required, because of its importance, and the zeal, and earnestness and learning, with which the argument for a strict construction has been pressed upon the court, as in some sort vital to the merits of this controversy. I feel the more confirmed in my own views upon the subject, by the consideration, that every judge of the state court, in delivering his opinion, admitted, either directly or by inference, the very principle for which I contend. Mr. Justice MORTON, who pressed the doctrine of a strict construction most strongly, at the same time said, 'although no distinct thing or right will pass by implication, yet I do not mean to question, that the words used should be understood in their most natural and obvious sense; and that whatever is essential to the enjoyment of the thing granted will be necessarily implied in the grant.' 7 Pick. 462. Mr. Justice WILDE said, 'in doubtful cases, it seems to me a sound and wholesome rule of construction to interpret public grants most favorably to the public interests, and that they are not to be enlarged by doubtful implications.' 'When, therefore, the legislature makes a grant of a public franchise, it is not to be extended by construction, beyond its clear and obvious meaning.' 'There are some legislative grants, no doubt, that may admit of a different rule of construction; such as grants of land on a valuable consideration, and the like.' Ibid. 469. These two learned judges were adverse to the plaintiffs' claim. But the two other learned judges, who were in favor of it, took a much broader and more liberal view of the rules of interpretation of the charter. An attempt has, however, been made, to put the case of legislative grants upon the same footing as royal grants, as to their construction; upon some supposed analogy between royal grants and legislative grants, under our republican forms of government. Such a claim in favor of republican prerogative is new; and no authority has been cited which supports it. Our legislatures neither have, nor affect to have, any royal prerogatives. There is no provision in the constitution authorizing their grants to be construed differently from the grants of private persons, in regard to the like subject-matter. The policy of the common law, which gave the crown so many exclusive privileges and extraordinary claims, different from those of the subject, was founded, in a good measure, if not altogether, upon the divine right of kings, or, at least, upon a sense of their exalted dignity and pre-eminence over all subjects, and upon the notion, that they are entitled to peculiar favor, for the protection of their kingly rights and office. Parliamentary grants never enjoyed any such privileges; they were always construed according to common sense and comon reason, upon their language and their intent. What reason is there, that our legislative acts should not receive a similar interpretation? Is it not, at least, as important, in our free governments, that a citizen should have as much security for his rights and estate derived from the grants of the legislature, as he would have in England? What solid ground is there to say, that the words of a grant, in the mouth of a citizen, shall mean one thing, and in the mouth of the legislature shall mean another thing? That in regard to the grant of a citizen, every word shall, in case of any question of interpretation or implication, be construed against him, and in regard to the grant of the government, every word shall be construed in its favor? That language shall be construed, not according to its natural import and implications from its own proper sense, and the objects of the instrument; but shall change its meaning, as it is spoken by the whole people, or by one of them? There may be very solid grounds to say, that neither grants nor charters ought to be extended beyond the fair reach of their words; and that no implications ought to be made, which are not clearly deducible from the language, and the nature and objects of the grant. In the case of a legislative grant, there is no ground to impute surprise, imposition or mistake, to the same extent as in a mere private grant of the crown. The words are the words of the legislature, upon solemn deliberation, and examination and debate. Their purport is presumed to be well known, and the public interests are watched, and guarded by all the varieties of local, personal and professional jealousy; as well as by the untiring zeal of numbers, devoted to the public service. It should also be constantly kept in mind, that in construing this charter, we are not construing a statute involving political powers and sovereignty, like those involved in the case of The Elsebe , 5 Rob. 173. We are construing a grant of the legislature, which though in the form of a statute, is still but a solemn contract. In such a case, the true course is, to ascertain the sense of the parties, from the terms of the instrument; and that once ascertained, to give it full effect. Lord COKE, indeed, recommends this as the best rule, even in respect to royal grants. 'The best exposition' (says he) 'of the king's charter is, upon the consideration of the whole charter, to expound the charter by the charter itself; every material part thereof (being) explained according to the true and genuine sense, which is the best method.' Case of Sutton's Hospital , 10 Co. 24 b . But with a view to induce the court to withdraw from all the common rules of reasonable and liberal interpretation in favor of grants, we have been told at the argument, that this very charter is a restriction upon the legislative power; that it is in derogation of the rights and interests of the state, and the people; that it tends to promote monopolies and exclusive privileges; and that it will interpose an insuperable barrier to the progress of improvement. Now, upon every one of these propositions, which are assumed, and not proved, I entertain a directly opposite opinion; and if I did not, I am not prepared to admit the conclusion for which they are adduced. If the legislature has made a grant, which involves any or all of these consequences, it is not for courts of justice to overturn the plain sense of the grant, because it has been improvidently or injuriously made. But I deny the very ground-work of the argument. This charter is not (as I have already said) any restriction upon the legislative power; unless it be true, that because the legislature cannot grant again, what it has already granted, the legislative power is restricted. If so, then every grant of the public land is a restriction upon that power; a doctrine, that has never yet been established, nor (so far as I know) ever contended for. Every grant of a franchise is, so far as that grant extends, necessarily exclusive; and cannot be resumed or interfered with. All the learned judges in the state court admitted, that the franchise of Charles River bridge, whatever it be, could not be resumed or interfered with. The legislature could not recall its grant, or destroy it. It is a contract, whose obligation cannot be constitutionally impaired. In this respect, it does not differ from a grant of lands. In each case, the particular land, or the particular franchise, is withdrawn from the legislative operation. The identical land, or the identical franchise, cannot be regranted, or avoided by a new grant. But the legislative power remains unrestricted. The subject-matter only (I repeat it) has passed from the hands of the government. If the legislature should order a government debt to be paid by a sale of the public stock, and it is so paid, the legislative power over the funds of the government remains unrestricted, although it has ceased over the particular stock, which has been thus sold. For the present, I pass over all further consideration of this topic, as it will necessarily come again under review, in examining an objection of a more broad and comprehensive nature. Then, again, how is it established, that this is a grant in derogation of the rights and interests of the people? No individual citizen has any right to build a bridge over navigable waters; and consequently, he is deprived of no right, when a grant is made to any other persons for that purpose. Whether it promotes or injures the particular interest of an individual citizen, constitutes no ground for judicial or legislative interference, beyond what his own rights justify. When, then, it is said, that such a grant is in derogation of the rights and interests of the people, we must understand, that reference is had to the rights and interests common to the whole people, as such (such as the right of navigation), or belonging to them as a political body; or, in other words, the rights and interests of the state. Now, I cannot understand, how any grant of a franchise is a derogation from the rights of the people of the state, any more than a grant of public land. The right, in each case, is gone, to the extent of the thing granted, and so far may be said to derogate from, that is to say, to lessen the rights of the people, or of the state. But that is not the sense in which the argument is pressed; for, by derogation, is here meant an injurious or mischievous detraction from the sovereign rights of the state. On the other hand, there can be no derogation from the rights of the people, as such, except it applies to rights common there before; which the building of a bridge over navigable waters certainly is not. If it had been said, that the grant of this bridge was in derogation of the common right of navigating the Charles river, by reason of its obstructing, pro tanto , a free and open passage, the ground would have been intelligible. So, if it had been an exclusive grant of the navigation of that stream. But, if at the same time, equivalent public rights of a different nature, but of greater public accommodation and use, had been obtained; it could hardly have been said, in a correct sense, that there was any derogation from the rights of the people, or the rights of the state. It would be a mere exchange of one public right for another. Then, again, as to the grant being against the interests of the people. I know not how that is established; and certainly, it is not to be assumed. It will hardly be contended, that every grant of the government is injurious to the interests of the people; or that every grant of a franchise, must necessarily be so. The erection of a bridge may be of the highest utility to the people. It may essentially promote the public convenience, and aid the public interests, and protect the public property. And if no persons can be found willing to undertake such a work, unless they receive in return the exclusive privilege of erecting it, and taking toll; surely, it cannot be said, as of course, that such a grant, under such circumstances, is, per se , against the interests of the people. Whether the grant of a franchise is, or is not, on the whole, promotive of the public interests, is a question of fact and judgment, upon which different minds may entertain different opinions. It is not to be judicially assumed to be injurious, and then the grant to be reasoned down. It is a matter exclusively confided to the sober consideration of the legislature; which is invested with full discretion, and possesses ample means to decide it. For myself, meaning to speak with all due deference for others, I know of no power or authority confided to the judicial department, to rejudge the decisions of the legislature upon such a subject. It has an exclusive right to make the grant, and to decide whether it be, or be not, for the public interests. It is to be presumed, if the grant is made, that it is made from a high sense of public duty, to promote the public welfare, and to establish the public prosperity. In this very case, the legislature has, upon the very face of the act, made a solemn declaration as to the motive for passing it; that 'the erecting of a bridge over Charles River, &c., will be of great public utility.' What court of justice is invested with authority to gainsay this declaration? To strike it out of the act, and reason upon the other words, as if it were not there? To pronounce that a grant is against the interest of the people, which the legislature has declared to be of great utility to the people? It seems to me, to be our duty to interpret laws, and not to wander into speculations upon their policy. And where, I may ask, is the proof that Charles River bridge has been against the interests of the people? The record contains no such proof; and it is, therefore, a just presumption that it does not exist. Again, it is argued, that the present grant is a grant of a monopoly, and of exclusive privileges; and therefore, to be construed by the most narrow mode of interpretation. The sixth article of the bill of rights of Massachusetts has been supposed to support the objection; 'No man, nor corporation or association of men, have any other title to obtain advantages or particular and exclusive privileges, distinct from those of the community, than what arises from the consideration of services rendered to the public; and this title being in nature neither hereditary nor transmissive to children, or descendants, or relations by blood, the idea of a man born a magistrate, lawgiver or judge, is absurd and unnatural.' Now, it is plain, that taking this whole clause together, it is not an inhibition of all legislative grants of exclusive privileges; but a promulgation of the reasons why there should be no hereditary magistrates, legislators or judges. But it admits, by necessary implication, the right to grant exclusive privileges for public services, without ascertaining of what nature those services may be. It might be sufficient to say, that all the learned judges in the state court admitted, that the grant of an exclusive right to take toll at a ferry, or a bridge, or a turnpike, is not a monopoly which is deemed odious in law; nor one of the particular and exclusive privileges, distinct from those of the community, which are reprobated in the bill of rights. All that was asserted by the judges, opposed to a liberal interpretation of this grant, was, that it tended to promote monopolies. See the case, 7 Pick. 116, 132, 137. Again, the old colonial act of 1641, against monopolies, has been relied on, to fortify the same argument. That statute is merely in affirmance of the principles of the English statute against monopolies, of 21 James I., c. 3; and if it were now in force (which it is not), it would require the same construction. There is great virtue in particular phrases; and when it is once suggested, that a grant is of the nature or tendency of a monopoly, the mind almost instantaneously prepares itself to reject every construction which does not pare it down to the narrowest limits. It is an honest prejudice, which grew up, in former times, from the gross abuses of the royal prerogatives; to which, in America, there are no analogous authorities. But what is a monopoly, as understood in law? It is an exclusive right, granted to a few, of something which was before of common right. Thus, a privilege granted by the king for the sole buying, selling, making, working or using a thing, whereby the subject, in general, is restrained from that liberty of manufacturing or trading, which before he had, is a monopoly. 4 Bl. Com. 159; Bac. Abr. Prerogative, F. 4. My Lord COKE, in his Pleas of the Crown (3 Inst. 181), has given this very definition of a monopoly; and that definition was approved by HOLT and TREBY (afterwards chief justices of king's bench), arguendo , as counsel, in the great case of the East India Company v. Sandys , 10 How. State Trials 386. His words are, that a monopoly is 'an institution by the king, by his grant, commission, or otherwise, to any persons or corporations, of or for the sole buying, selling, making, working or using of everything, whereby any persons or corporations are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade.' So, that it is not the case of a monopoly, if the subjects had not the common right or liberty before to do the act, or possess or enjoy the privilege or franchise granted, as a common right. 10 How, State Trials 425. And it deserves an especial remark, that this doctrine was an admitted concession, pervading the entire arguments of the counsel who opposed, as well as of those who maintained the grant of the exclusive trade, in the case of the East India Company v. Sandys , 10 How. St. Tr. 386, a case which constitutes, in a great measure, the basis of this branch of the law. No sound lawyer will, I presume, assert that the grant of a right to erect a bridge over a navigable stream is a grant of a common right. Before such grant, had all the citizens of the state a right to erect bridges over navigable streams? Certainly, they had not; and therefore, the grant was no restriction of any common right. It was neither a monopoly; nor, in a legal sense, had it any tendency to a monopoly. It took from no citizen what he possessed before; and had no tendency to take it from him. It took, indeed, from the legislature the power of granting the same identical privilege or franchise to any other persons. But this made it no more a monopoly, than the grant of the public stock or funds of a state for a valuable consideration. Even in cases of monopolies, strictly so called, if the nature of the grant be such that it is for the public good, as in cases of patents for inventions, the rule has always been, to give them a favorable construction, in support of the patent, as Lord Chief Justice EYRE said, ut res magis valeat quam pereat. Boulton v. Bill , 2 H. Bl. 463, 500. But it has been argued, and the argument has been pressed in every form which ingenuity could suggest, that if grants of this nature are to be construed liberally, as conferring any exclusive rights on the grantees, it will interpose an effectual barrier against all general improvements of the country. For myself, I profess not to feel the cogency of this argument, either in its general application to the grant of franchises, or in its special application to the present grant. This is a subject upon which different minds may well arrive at different conclusions, both as to policy and principle. Men may, and will, complexionally differ upon topics of this sort, according to their natural and acquired habits of speculation and opinion. For my own part, I can conceive of no surer plan to arrest all public improvements, founded on private capital and enterprise, that to make the outlay of that capital uncertain and questionable, both as to security and as to productiveness. No man will hazard his capital in any enterprise, in which, if there be a loss, it must be borne exclusively by himself; and if there be success, he has not the slighest security of enjoying the rewards of that success, for a single moment. If the government means to invite its citizens to enlarge the public comforts and conveniences, to establish bridges, or turnpikes, or canals, or railroads, there must be some pledge, that the property will be safe; that the enjoyment will be co-extensive with the grant; and that success will not be the signal of a general combination to overthrow its rights and to take away its profits. The very agitation of a question of this sort is sufficient to alarm every stockholder in every public enterprise of this sort, throughout the whole country. Already, in my native state, the legislature has found it necessary expressly to concede the exclusive privilege here contended against; in order to insure the accomplishment of a railroad for the benefit of the public. And yet, we are told, that all such exclusive grants are to the detriment of the public. But if there were any foundation for the argument itself, in a general view, it would totally fail in its application to the present case. Here, the grant, however exclusive, is but for a short and limited period, more than two-thirds of which have already elapsed; and when it is gone, the whole property and franchise are to revert to the state. The legislature exercised a wholesome foresight on the subject; and within a reasonable period, it will have an unrestricted authority to do whatever it may choose, in the appropriation of the bridge and its tolls. There is not, then, under any fair aspect of the case, the slightest reason to presume that public improvements either can, or will, be injuriously retarded by a liberal construction of the present grant. It have thus endeavored to answer, and I think I have successfully answered all the arguments (which indeed run into each other) adduced to justify a strict construction of the present charter. I go further, and maintain, not only that it is not a case for strict construction; but that the charter, upon its very face, by its terms, and for its professed objects, demands from the court, upon undeniable principles of law, a favorable construction for the grantees. In the first place, the legislature has declared, that the erecting of the bridge will be of great public utility; and this exposition of its own motives for the grant, requires the court to give a liberal interpretation, in order to promote, and not to destroy, an enterprise of great public utility. In the next place, the grant is a contract for a valuable consideration, and a full and adequate consideration. The proprietors are to lay out a large sum of money (and in those times it was a very large outlay of capital) in erecting a bridge; they are to keep it in repair, during the whole period of forty years; they are to surrender it in good repair, at the end of that period, to the state, as its own property; they are to pay, during the whole period, an annuity of 200 l. to Harvard College; and they are to incur other heavy expenses and burdens, for the public accommodation. In return for all these charges, they are entitled to no more than the receipt of the tolls, during the forty years, for their reimbursement of capital, interest and expenses. With all this, they are to take upon themselves the chances of success; and if the enterprise fails, the loss is exclusively their own. Nor let any man imagine, that there was not, at the time when this charter was granted, much solid ground for doubting success. In order to entertain a just view of this subject, we must go back to that period of general bankruptcy, and distress and difficulty. The constitution of the United States was not only not then in existence, but it was not then even dreamed of. The union of the states was crumbling into ruins, under the old confederation. Agriculture, manufactures and commerce were at their lowest ebb. There was infinite danger to all the states, from local interests and jealousies, and from the apparent impossibility of a much longer adherence to that shadow of a government, the continental congress. And even four years afterwards, when every evil had been greatly aggravated, and civil war was added to other calamities, the constitution of the United States was all but shipwrecked, in passing through the state conventions; it was adopted by very slender majorities. These are historical facts, which required no coloring to give them effect, and admitted of no concealment, to seduce men into schemes of future aggrandizement. I would even now put it to the common sense of every man, whether, if the constitution of the United States had not been adopted, the charter would have been worth a forty years' purchase of the tolls. This is not all. It is well known, historically, that this was the very first bridge ever constructed, in New England, over navigable tide-waters so near the sea. The rigors of our climate, the dangers from sudden thaws and freezing, and the obstructions from ice in a rapid current, were deemed by many persons to be insuperable obstacles to the success of such a project. It was believed, that the bridge would scarcely stand a single severe winter. And I myself am old enough to know, that in regard to other arms of the sea, at much later periods, the same doubts have had a strong and depressing influence upon public enterprises. If Charles River bridge had been carried away, during the first or second season after its erection, it is far from being certain, that up to this moment, another bridge, upon such an arm of the sea, would ever have been erected in Massachusetts. I state these things, which are of public notoriety, to repel the notion that the legislature was surprised into an incautions grant, or that the reward was more than adequate to the perils. There was a full and adequate consideration, in a pecuniary sense, for the charter. But, in a more general sense, the erection of the bridge, as a matter of accommodation, has been incalcuably beneficial to the public. Unless, therefore, we are wholly to disregard the declarations of the legislature, and the objects of the charter, and the historical facts of the times; and indulge in mere private speculations of profit and loss, by our present lights and experience; it seems to me, that the court is bound to come to the interpretation of this charter, with a persuasion that it was granted in furtherance, and not in derogation, of the public good. But I do not insist upon any extraordinary liberality in interpreting this charter. All I contend for is, that it shall receive a fair and reasonable interpretation; so as to carry into effect the legislative intention, and secure to the grantees a just security for their privileges. I might, indeed, well have spared myself any investigation of the principles upon which royal and legislative grants are ordinarily to be construed; for this court has itself furnished an unequivocal rule for interpreting all public contracts. The present grant is confessedly a contract; and in Huidekoper's Lessee v. Douglass , 3 Cranch 1, this court said: 'This is a contract, and although a state is a party, it ought to be construed according to those well-established principles which regulate contracts, generally;' that is, precisely as in cases between mere private persons, taking into consideration the nature and objects of the grant. A like rule was adopted by this court, in the case of a contract by the United States. United States v. Gurney , 4 Cranch 333. And the good sense and justice of the rule seem equally irresistible. Let us now enter upon the consideration of the terms of the charter. In my judgment, nothing can be more plain, than that it is a grant of a right to errect a bridge between Boston and Charlestown, in the place where the ferry between those towns was kept. It has been said, that the charter itself does not describe the bridge as between Charlestown and Boston, but grants an authority to errect 'a bridge over Charles river, in the place where the old ferry was then kept;' and that these towns are not named, except for the purpose of describing the then ferry. Now, this seems to me, with all due deference, to be a distinction without a difference. The bridge is to be erected in the place where the old ferry then was. But where was it to begin? and where was it to terminate? Boston and Charlestown are the only possible termini , for the ferry-ways were there; and it was to be built between Boston and Charlestown, because the ferry was between them. Surely, according to the true sense of the preamble, where alone the descriptive words occur (for it is a great mistake to suppose, that the enacting clause anywhere refers, except by implication, to the location of the bridge), it is wholly immaterial, whether we read the clause, 'whereas, the erecting of a bridge over Charles river, in the place where the ferry between Boston and Charlestown is now kept;' or 'whereas, the erecting of a bridge over Charles river, between Charlestown and Boston, where the ferry is now kept.' In each case, the bridge is to be between Boston and Charlestown; and the termini are the ferry-ways. The title of the act puts this beyond all controversy; for it is 'an act for incorporating certain persons for the purpose of building a bridge over Charles river, between Boston and Charlestown, &c.' But, then, we are told, that no rule in construing statutes is better settled, than that the title of an act does not constitute any part of the act. If, by this, no more be meant, than that the title of an act constitutes no part of its enacting clauses, the accuracy of the position will not be disputed. But if it is meant to say, that the title of the act does not belong to it, for any purpose of explanation or construction, and that, in no sense, is it any part of the act; I, for one, must deny that there is any such settled principle of law. On the contrary, I understand that the title of an act (though it is not ordinarily resorted to), may be legitimately resorted to, for the purpose of ascertaining the legislative intention, just at much as any other part of the act. In point of fact, it is usually resorted to, whenever it may assist us in removing any ambiguities in the enacting clauses. Thus, in the great case of Sutton's Hospital , 10 Co. 23, 24 b , the title of an act of parliament was thought not unworthy to be examined, in construing the design of the act. In Boulton v. Bull , 2 H. Bl. 463, 500, the effect of the title of an act was largely insisted upon in the argument, as furnishing a key to the intent of the enacting clauses. And Lord Chief Justice EYRE admitted the propriety of the argument, and met it, by saying, that, in that case, he would, if necessary, expound the word 'engine,' in the body of the bill, in opposition to the title to it, to mean a 'method,' in order to support the patent. In the case of the United States v. Fisher , 2 Cranch 358, the supreme court of the United States expressly recognised the doctrine, and gave it a practical application. In that case, the chief justice, in delivering the opinion of the court, after adverting to the argument at the bar, respecting the degree of influence which the title of an act ought to have in construing the enacting clauses, said: 'Where the mind labors to discover the design of the legislature, it seizes everything from which aid can be derived; and in such a case, the title claims a degree of notice, and will have its due share of consideration.' According to my views of the terms of the charter, the grant, then, is of the franchise of erecting a bridge over Charles river, between Charlestown and Boston, and of taking tolls or pontage from passengers. It is, therefore, limited to those towns; and does not exclude the legislature from any right to grant a bridge over the same river, between any other towns and Boston; as, for example, between Chelsea and Boston, or Cambridge and Boston, or Roxbury and Boston. But although, in my judgment, this is the true construction of the limits of the charter, ex vi terminorum , my opinion does not, in any important degree, rest upon it. Taking this to be a grant of a right to build a bridge over Charles river, in the place where the old ferry between Charlestown and Boston was then kept (as is contended for by the defendants), still it has, as all such grants must have, a fixed locality, and the same question meets us; is the grant confined to the mere right to erect a bridge on the proper spot, and to take toll of the passengers, who may pass over it, without any exclusive franchise on either side of the local limits of the bridge? or does it, by implication, include an exclusive franchise on each side, to an extent which shall shut out any injurious competition? In other words, does the grant still leave the legislature at liberty to erect other bridges on either side, free or with tolls, even in juxta-position with the timbers and planks of this bridge? or is there an implied obligation on the part of the legislature, to abstain from all acts of this sort, which shall impair or destroy the value of the grant? The defendants contend, that the exclusive right of the plaintiffs extend no farther than the planks and timbers of the bridge; and that the legislature is at full liberty to grant any new bridge, however near; and although it may take away a large portion, or even the whole of the travel which would otherwise pass over the bridge of the plaintiffs. And to this extent, the defendants must contend; for their bridge is, to all intents and purposes, in a legal and practical sense, contiguous to that of the plaintiffs. The argument of the defendants is, that the plaintiffs are to take nothing by implication. Either (say they) the exclusive grant extends only to the local limits of the bridge; or it extends the whole length of the river, or, at least, up to old Cambridge bridge. The latter construction would be absurd and monstrous; and therefore, the former must be the true one. Now, I utterly deny the alternative involved in the dilemma. The right to build a bridge over a river, and to take toll, may well include an exclusive franchise, beyond the local limits of the bridge; and yet not extend through the whole course of the river, or even to any considerable distance on the river. There is no difficulty, in common sense, or in law, in maintaining such a doctrine. But then, it is asked, what limits can be assigned to such a franchise? The answer is obvious; the grant carries with it an exclusive franchise, to a reasonable distance on the river; so that the ordinary travel to the bridge shall not be diverted by any new bridge, to the injury or ruin of the franchise. A new bridge, which would be a nuisance to the old bridge, would be within the reach of its exclusive right. The question would not be so much as to the fact of distance, as it would be as to the fact of nuisance. There is nothing new in such expositions of incorporeal rights; and nothing new in thus administering, upon this foundation, remedies in regard thereto. The doctrine is coeval with the common law itself. Suppose, an action is brought for shutting up the ancient lights belonging to a messuage; or for diverting a water-course; or for flowing back a stream; or for erecting a nuisance near a dwelling-house; the question in such cases is not one of mere distance; of mere feet and inches, but of injury-permanent, real and substantial injury-to be decided upon all the circumstances of the case. But of this I shall speak again hereafter. Let us see what is the result of the narrow construction contended for by the defendants. If that result be such as is inconsistent with all reasonable presumptions growing out of case; if it be repugnant to the principles of equal justice; if it will defeat the whole objects of the grant; it will not, I trust, be insisted on, that this court is bound to adopt it. I have before had occasion to take notice, that the original charter is a limited one for forty years; that the whole compensation of the proprietors for all their outlay of capital, their annuity to Harvard College and their other annual burdens and charges, is to arise out of the tolls allowed them during that period. No other fund is provided for their indemnity; and they are to take it, subject to all the perils of failure and the chances of an inadequate remuneration. The moment the charter was accepted, the proprietors were bound to all the obligations of this contract, on their part. Whether the bargain should turn out to be good or bad, productive or unproductive of profit, did not vary their duties. The franchise was not a mere jus privatum . From the moment of its acceptance, and the erection of the bridge, it became charged with a jus publicum . The government had a right to insist that the bridge should be kept in perfect repair, for public travel, by the proprietors; that the bridge should be lighted; that the draw should be raised without expense, for the purposes of navigation; and if the proprietors had refused or neglected to do their duty in any of these respects, they would have been liable to a public prosecution. It could be no apology or defence, that the bridge was unprofitable; that the tolls were inadequate; that the repairs were expensive; or that the whole concern was a ruinous enterprise. The proprietors took the charter cum onere , and must abide by their choice. It is no answer to all this, to say, that the proprietors might surrender their charter, and thus escape from the burden. They could have no right to make such a surrender. It would depend upon the good pleasure of the government, whether it would accept of such a surrender, or not; and until such an acceptance, the burdens would be obligatory to the last hour of the charter. And when that hour shall have arrived, the bridge itself, in good repair, is to be delivered to the state. Now, I put it to the common sense of every man, whether if, at the moment of granting the charter, the legislature had said to the proprietors; you shall build the bridge; you shall bear the burdens; you shall be bound by the charges; and your sole reimbursement shall be from the tolls of forty years: and yet we will not even guaranty you any certainty of receiving any tolls; on the contrary; we reserve to ourselves the full power and authority to erect other bridges, toll or free bridges, according to our own free will and pleasure, contiguous to yours, and having the same termini with yours; and if you are successful, we may thus supplant you, divide, destroy your profits, and annihilate your tolls, without annihilating your burdens: if, I say, such had been the language of the legislature, is there a man living, of ordinary discretion or prudence, who would have accepted such a charter, upon such terms? I fearlessly answer, no. There would have been such a gross inadequacy of consideration, and such a total insecurity of all the rights of property, under such circumstances, that the project would have dropped still-born. And I put the question further, whether any legislature, meaning to promote a project of permanent, public utility (such as this confessedly was), would ever have dreamed of such a qualification of its own grant, when it sought to enlist private capital and private patronage to insure the accomplishment of it? Yet, this is the very form and pressure of the present case. It is not an imaginary and extravagant case. Warren bridge has been erected, under such a supposed reserved authority, in the immediate neighborhood of Charles River bridge; and with the same termini , to accommodate the same line of travel. For a half-dozen years, it was to be a toll bridge, for the benefit of the proprietors, to reimburse them for their expenditures; at the end of that period, the bridge is to become the property of the state, and free of toll; unless the legislature should thereafter impose one. In point of fact, it has since become, and now is, under the sanction of the act of incorporation, and other subsequent acts, a free bridge, without the payment of any tolls, for all persons. So that, in truth, here now is a free bridge, owned by and erected under the authority of the commonwealth, which necessarily takes away all the tolls from Charles River bridge; while its prolonged charter has twenty years to run. And yet the act of the legislature establishing Warren bridge, is said to be no violation of the franchise granted to the Charles River bridge. The legislature may annihilate, nay, has annihilated, by its own acts, all chance of receiving tolls, by withdrawing the whole travel; though it is admitted, that it cannot take away the barren right to gather tolls, if any should occur, when there is no travel to bring a dollar. According to the same course of argument, the legislature would have a perfect right to block up every avenue to the bridge, and to obstruct every highway which should lead to it, without any violation of the chartered rights of Charles River bridge; and at the same time, it might require every burden to be punctiliously discharged by the proprietors, during the prolonged period of seventy years. I confess, that the very statement of such propositions is so startling to my mind, and so irreconcilable with all my notions of good faith, and of any fair interpretation of the legislative intentions, that I should always doubt the soundness of any reasoning which should conduct me to such results. But it is said, that there is no prohibitory covenant in the charter, and no implications are to be made of any such prohibition. The proprietors are to stand upon the letter of their contract, and the maxim applies, de non apparentibus et non existentibus, eadem est lex . And yet it is conceded, that the legislature cannot revoke or resume this grant. Why not, I pray to know? There is no negative covenant in the charter; there is no express prohibition to be found there. The reason is plain. The prohibition arises by natural, if not by necessary, implication. It would be against the first principles of justice, to presume that the legislature reserved a right to destroy its own grant. That was the doctrine in Fletcher v. Peck , 6 Cranch 87, in this court; and in other cases turning upon the same great principle of political and constitutional duty and right. Can the legislature have power to do that indirectly, which it cannot do directly? If it cannot take away, or resume, the franchise itself, can it take away its whole substance and value? If the law will create an implication, that the legislature shall not resume its own grant, is it not equally as natural and as necessary an implication, that the legislature shall not do any act directly to prejudice its own grant, or to destroy its value? If there were no authority in favor of so reasonable a doctrine, I would say, in the language of the late lamented Mr. Chief Justice PARKER, in this very case: 'I ground it on the principles of our government and constitution, and on the immutable principles of justice, which ought to bind governments, as well as people.' But it is most important to remember, that in the construction of all legislative grants, the common law must be taken into consideration; for the legislature must be presumed to have in view the general principles of construction which are recognised by the common law. Now, no principle is better established, than the principle, that when a thing is given or granted, the law giveth, impliedly, whatever is necessary for the taking and enjoying the same. This is laid down in Co. Litt. 56 a; and is, indeed, the dictate of common sense applicable to all grants. Is not the unobstructed possession of the tolls, indispensable to the full enjoyment of the corporate rights granted to the proprietors of Charles River bridge? If the tolls were withdrawn, directly or indirectly, by the authority of the legislature, would not the franchise be utterly worthless? A burden, and not a benefit? Would not the reservation of authority in the legislature to create a rival bridge, impair, if it did not absolutely destroy, the exclusive right of the proprietors of Charles River bridge? I conceive it utterly impossible to give any other, than an affirmative, answer to each of these questions. How, then, are we to escape from the conclusion, that that which would impair or destroy the grant, is prohibited by implication of law, from the nature of the grant? 'We are satisfied,' said Mr. Chief Justice PARSONS, in delivering the opinion of the court, in Wales v. Stetson , 2 Mass. 143, 146, 'that the rights legally vested in any corporation cannot be controlled or destroyed by any statute, unless a power for that purpose be reserved to the legislature, in the act of incorporation.' Where is any such reservation to be found in the charter of Charles River bridge? My brother WASHINGTON (than whom few judges ever possessed a sounder judgment or clearer learning), in his able opinion in the case of Dartmouth College v. Woodward , 4 Wheat. 658, took this same view of the true sense of the passage in Blackstone's Commentaries, and uses the following strong language on the subject of a charter of the government: 'Certain obligations are created (by it) both on the grantor and the grantees. On the part of the former, it amounts to an extinguishment of the king's prerogative to bestow the same identical franchise on another corporate body, because it would prejudice his former grant. It implies, therefore, a contract not to re-assert the right to grant the franchise to another, or to impair it.' I know not how language more apposite could be applied to the present case. None of us then doubted its entire correctness, when he uttered it; and I am not able to preceive how the legal inference can now be escaped. The case of the Chesapeake and Ohio Canal Company v. Baltimore and Ohio Railroad Company , 4 Gill & Johns. 1, 4, 6, 143, 146, 149, fully sustains the same doctrine; and most elaborately expound its nature, and operation and extent. But we are not left to mere general reasoning on this subject. There are cases of grants of the crown, in which a like construction has prevailed, which are as conclusive upon this subject, in point of authority, as any can be. How stands the law in relation to grants by the crown, of fairs, markets and ferries? I speak of grants, for all claims of this sort resolve themselves into grants; a prescription being merely evidence of, and pre-supposing, an ancient grant, which can be no longer traced, except by the constant use and possession of the franchise. If the king grants a fair, or a market, or a ferry, has the franchise no existence beyond the local limits where it is erected? Does the grant import no more than a right to set up such fair, or market, or ferry, leaving in the crown full power and authority to make other grants of the same nature, in juxta-position with those local limits? No case, I will venture to say, has ever maintained such a doctrine; and the common law repudiates it (as will be presently shown) in the most express terms. The authorities are abundant, to establish, that the king cannot make any second grant which shall prejudice the profits of the former grant. And why not? Because the grant imposes public burdens on the grantee, and subjects him to public charges, and the profits constitute his only means of remuneration; and the crown shall not be at liberty directly to impair, much less, to destroy, the whole value and objects of its grant. In confirmation of this reasoning, it has been repeatedly laid down in the books, that when the king grants a fair, or market, or ferry, it is usual to insert in all such grants a clause or proviso, that it shall not be to the prejudice of any other existing franchise of the same nature; as a fair, or market, or ferry. But if such a clause or proviso is not inserted, the grant is always construed with the like restriction; for such a clause will be implied by law. And therefore, if such new grant is without such a clause, if it occasion any damage either to the king, or to a subject, in any other thing, it will be revocable. So my Lord COKE laid it down in 2 Inst. 406. The judges laid down the same law, in the house of lords, in the case of the King v. Butler , 3 Lev. 220, 222; which was the case of a grant of a new market, to the supposed prejudice of an old market. Their language on that occasion deserves to be cited: it was, 'that the king has an undoubted right to repeal a patent wherein he is deceived, or his subjects prejudiced, and that by scire facias .' And, afterwards, referring to cases where a writ of ad quod damnum had been issued, they added, 'there, the king takes notice, that it is not ad damnum; and yet, if it be ad damnum , the patent is void; for in all such patents, the condition is implied, viz., that it be not ad damnum of the neighboring merchants.' And they added further, 'this is positively alleged (in the scire facias ), that concessio predicta est ad damnum et depauperationem , &c.; which is a sufficient cause to revoke the patent, if there were nothing more.' The same doctrine is laid down in Mr. Serjeant Williams's learned note (2) to the case of Yard v. Ford , 2 Saund. 172. Now, if, in the grant of any such franchise of a fair, or market, or ferry, there is no implied obligation or condition that the king will not made any subsequent grant to the prejudice of such prior grant, or impairing its rights, it is inconceivable, why such a proviso should be implied. But if (as the law certainly is) the king can make no subsequent grant, to the prejudice of his former grant, then the reason of such implication is clear; for the king will not be presumed to intend to violate his duty, but rather to be deceived in his second grant, if to the prejudice of the first. It is upon this ground, and this ground only, that we can explain the established doctrine in relation to ferries. When the crown grants a ferry from A. to B., without using any words which import it to be an exclusive ferry, why is it (as will be presently shown), that by the common law, the grant is construed to be exclusive of all other ferries between the same places or termini; at least, if such ferries are so near that they are injurious to the first ferry, and tend to a direct diminution of its receipts? Plainly, it must be, because from the nature of such a franchise, it can have no permanent value, unless it is exclusive; and the circumstance that during the existence of the grant, the grantee has public burdens imposed upon him, raises the implication, that nothing shall be done to the prejudice of it, while it is a subsisting franchise. The words of the grant do, indeed, import per se , merely to confer a right of ferry between A. and B.; but the common law steps in, and, ut res magis valeat quam pereat , expands the terms into an exclusive right, from the very nature, and objects and motives, of the grant. I say this is the theory of the common law on this subject. Let us now see, if it is not fully borne out by the authorities in relation to ferries; a franchise, which approaches so near to that of a bridge, that human ingenuity has not as yet been able to state any assignable difference between them, except that one includes the right of pontage, and the other of passage or ferriage (see Webb's Case , 8 Co. 47 b ); that is, each includes public duties and burdens, and an indemnity for these duties and burdens by a right to receive tolls. A grant of a ferry must always be by local limits; it must have some termini; and must be between some fixed points, villes or places. But is the franchise of a ferry limited to the mere ferry-ways? Unless I am greatly mistaken, there is an unbroken series of authorities establishing the contrary doctrine; a doctrine firmly fixed in the common law, and brought to America by our ancestors as a part of their inheritance. The case of a ferry is put as a case of clear law by PASTON, Justice, as long ago as in 22 Hen. V. 14 b . 'If,' says he, 'I have a market or a fair on a particular day, and another sets up a market on fair on the same day, in a ville which is near to my market, so that my market, or my fair, is impaired, I shall have against him an assize of nuisance, or an action on the case.' And the same law is, 'if I have an ancient ferry in a ville , and another sets up another ferry upon the same river, near to my ferry, so that the profits of my ferry are impaired, I shall have an action on the case against him.' And Newton (who, it seems, was of counsel for the defendant in that case) admitted the law to be so; and gave as a reason, 'for you are bound to support the ferry, and to serve and repair it for the ease of the common people, and otherwise you shall be grievously amerced; and it is inquirable before the sheriff, at his tourn, and also before the justices in eyre.' As to the case of a market or fair, Newton said, that in the king's grant of a market or fair, there is always a proviso that it should not be to the nuisance of another market or fair. To which PASTON, Justice, replied, 'suppose the king grants to me a market, without any proviso, if one sets up, after that time, another market, which is a nuisance to that, I shall have against him an assize of nuisance.' The doctrine here laid down seems indisputable law; and it was cited and approved by Lord ABINGER, in Huzzey v. Field , 2 Cromp. Mees. & Rosc. 432; to which reference will presently be made. In Bacon's Abridgment, Prerogative, F. 1, it is laid down, 'that if the king creates or grants a fair or market, to a person, and afterwards grants another to another person, to the prejudice of the first, the second grant is void:' see 16 Vin. Abr. Nuisance, G. pl. 2. The same law is laid down in 3 Bl. Com. 218-19. 'If (says he) I am entitled to hold a fair or market, and another person sets up a fair or market, so near mine that it does me a prejudice, it is a nuisance to the freehold which I have in my market or fair.' He adds, 'if a ferry is erected on a river, so near another ancient ferry as to draw away the custom, it is a nuisance to the old one; for where there is a ferry by prescription, the owner is bound always to keep it in repair and readiness, for the ease of the king's subjects, otherwise he may be grievously amerced. It would be, therefore, extremely hard, if a new ferry were suffered to share the profits, which does not also share the burden.' The same doctrine is to be found in Comyn's Digest (Action upon the Case for a Nuisance, A.) and in many other authorities. See Yard v. Ford , 2 Saund. 175, and note 2; Fitz. N. B. 184; Hale de Port. Maris, ch. 5, Harg. Law Tracts, p. 59; Com. Dig. Piscary, B.; Ibid. Market, C. 2, C. 3; 2 Bl. Com. 27. The doctrine is, in England, just as true now, and just as strictly enforced, as it was three centuries ago. In Blisset v. Hart , Willes 508, the plaintiff recovered damages for a violation of his right to an ancient ferry, against the defendant, who had set up a neighboring ferry to his nuisance. The court said, 'A ferry is publici juris . It is a franchise, that no one can erect without a license from the crown; and when one is erected, another cannot be erected without an ad quod damnum . If a second is erected, without a license, the crown has a remedy by a quo warranto; and the former grantee has a remedy by action.' The case of Tripp v. Frank , 4 T. R. 666, proceeds upon the admission of the same doctrine; as does Prince v. Lewis , 5 Barn. & Cres. 363; Peter v. Kendall , 6 Ibid. 703; Mosley v. Chadwick , 7 Ibid. 47, note a; and Mosley v. Walker , Ibid. 40. There is a very recent case (already alluded to), which was decided by the court of exchequer, upon the fullest consideration, and in which the leading authorities upon this point were discussed with great acuteness and ability. I mean the case of Huzzey v. Field , in 1835, 2 Cromp. Mees. & Rosc. 432. Lord ABINGER, in delivering the opinion of the court on that occasion, used the following language: 'So far, the authorities appear to be clear, that if a new ferry be put up, without the king's license, to the prejudice of an old one, an action will lie; and there is no case, which has the appearance of being to the contrary, except that of Tripp v. Frank , hereafter mentioned. These old authorities proceeded upon the ground, first, that the grant of the franchise is good in law, being for a sufficient consideration, to the subject, who, as he received a benefit, may have, by the grant of the crown, a corresponding obligation imposed upon him, in return for the benefit received; and secondly, that if another, without legal authority, interrupts the grantee in the exercise of his franchise, by withdrawing the profits of passengers, which he would otherwise have had, and which he has, in a manner, purchased from the public, at the price of his corresponding liability, the disturber is subject to an action for the injury. And the case is in this respect analogous to a grant of a fair or market, which is also a privilege of the nature of a monopoly. A public ferry, then, is a public highway of a special description; and its termini must be places where the public have rights, as towns or villes, or highways leading to towns or villes. The right of the grantee is, in one case, an exclusive right of carrying from town to town; in the other, of carrying from one point to the other, all who are going to use the highway, to the nearest town or ville to which the highway leads on the other side. Any new ferry, therefore, which has the effect of taking away such passengers, must be injurious. For instance, if any one should construct a new landing place, at a short distance of one terminus of the ferry, and make a proclamation of carrying passengers over from the other terminus , and then landing them at that place, from which they pass to the same public highway upon which the ferry is established, before it reaches any town or ville , by which the passengers go immediately to the first and all the villes, to which that highway leads; there could not be any doubt, but such an act would be an infringement of the right of ferry, whether the person so acting intended to defraud the grantee of the ferry, or not. If such new ferry be nearer, or the boat used more commodious, or the fare less; it is obvious, that all the custom must be inevitably withdrawn from the old ferry. And thus, the grantee would be deprived of all the benefit of the franchise, whilst he continued liable to all the burdens imposed upon him.' Language more apposite to the present case could scarcely have been used. And what makes it still stronger is, that the very case before the court was of a new ferry, starting on one side, from the same town, but not at the same place in the town, to a terminus on the other side, different from that of the old ferry-house, and more than half a mile from it, and thence by a highway, communicated with the highway which was connected with the old ferry, at a mile distant from the ferry. Now, if the right of the old ferry did not, by implication, extend on either side beyond its local termini , no question could have arisen as to the disturbance. Trotter v. Harris , 2 Younge & Jerv. 285, proceeded upon similar principles; though it did not call for so exact an exposition of them. It is observable, that in the case of Huzzey v. Field , the defendant did not claim under any license or grant from the crown; and therefore, it may be supposed in argument, that it does not apply to a case where that is a grant of the new ferry from the crown. But in point of law, there is no difference between the cases. In each case, the new ferry must be treated as a clear disturbance of the rights of the old ferry, or it is not, in either case; for if the first grant does not, by implication, carry an exclusive right above and below its local termini , then there can be no pretence, in either case, for the grantee of the old ferry to complain of the new ferry; for it does not violate his rights under his grant. If the first grant does, by implication, carry an exclusive right above and below its local termini , so far as it may be prejudiced or disturbed by a new ferry, then it is equally clear, upon established principles, that the king cannot, by a new grant, prejudice his former grant; for the law deprives him of any such prerogative. It is true, that where the new ferry is got up without a license from the crown, it may be abated as a nuisance, upon a quo warranto , or information by the crown. But this will not confer any right of action on the grantee of the old ferry, unless his own rights have been disturbed. I have said, that this is the result of established principles; and the case of the Islington Market , recently before the judges of England, upon certain questions submitted to them by the house of lords, is an authority of the most solemn and conclusive nature, upon this identical point of franchise. What gives it still more importance is, that in the last three questions proposed to the judges by the house of lords, the very point as to the power of the king to make a second grant of a market, to the prejudice of his former grant, within the limits of the common law, arose, and was pointedly answered in the negative. On that occasion, the judges said, that while the first grant of a market remains unrepealed, even the default of the grantee of the franchise, in not providing, according to his duty, proper accommodations for the public, cannot operate, in point of law, as a ground for granting a new charter to another, to hold a market, within the common law, which shall really be injurious to the existing market. The judges, after adverting to the usual course of the issuing of a writ of ad quod damnum , in cases where a new market is asked for, added: 'We do not say, that a writ of ad quod damnum is absolutely necessary. But if the crown were to grant a new charter, without a writ of ad quod damnum , and it should appear, that the interests of other persons were prejudiced, the crown would be supposed to be deceived, and the grant might be repealed on a scire facias .' And they cited, with approbation, the doctrine of Lord COKE, in 2 Inst. 406, that 'if one held a market, either by prescription or by letters-patent, and another obtains a market, to the nuisance of a former market, he shall not tarry till he have avoided the letters-patent of the latter market by course of law, that he may have an assize of nuisance:' thus establishing the doctrine, that there is no difference in point of law, whether the first market be by prescription or by grant; or whether the new market be with, or without, a patent from the crown. In each case, the remedy is the same for the owner of the first market, if the new market is a nuisance to him. The judges also held, that the circumstance of the benefit of the public requiring a new market would not, of itself, warrant the grant of the new market. Mr. Dane, in his Abridgment (2 Dane's Abr. ch. 67, p. 683), lays down the doctrine in terms equally broad and comprehensive, as applicable to America. After having spoken of a ferry, as imposing burdens publici juris , he adds, 'in this way, a ferry becomes property, an incorporeal hereditament; the owners of which, for the public convenience, being obliged by law to perform certain public services, must, as a reasonable equivalent, be protected in this property.' And he cites the case of Chadwick v. Proprietors of the Haverhill Bridge , as directly in point; that the erection of a neighboring bridge, under the authority of the legislature, is a nuisance to a ferry. Notwithstanding all the commentary bestowed on that case, to escape from its legal pressure, I am of opinion, that the report of the referees never could have been accepted by the court, or judgment given thereon, if the declaration had not stated a right which, in point of law, was capable of supporting such a judgment. The court seems, from Mr. Dane's statement of the case, clearly to have recognised the title of the plaintiff, if he should prove himself the owner of a ferry. Besides, without disparagement to any other man, Mr. Dane himself (the chairman of the referees), from his great learning and ability, is well entitled to speak with the authority of a commentator of the highest character, upon such a subject. It is true, that there is the case of Churchman v. Tunstal , Hardr. 162 where a different doctrine, as to a ferry, was laid down. But that case is repugnant to all former cases, as well as later cases; and Lord Ch. Baron MACDONALD, in Attorney-General v. Richard , 2 Anstr. 603, informs us, that it was afterwards overturned. Lord ABINGER, in Huzzey v. Field , 2 Comp. Mees. & Rosc. 432, goes further, and informs us, that after the bill in that case was dismissed (which was a bill by a farmer of a ferry, as it should seem, under the crown, for an injunction to restrain the defendant, who had lands on both sides of the Thames, three-quarters of a mile off, and who was in the habit of ferrying passengers across, from continuing to do so), another bill was brought, after the restoration, in 1663, and a decree made by Lord HALE in favor of the plaintiff, that the new ferry should be put down. This last determination is exceedingly strong, carrying the implication in regard to the franchise of a ferry, as exclusive of all other ferries injurious to it, to a very enlarged extent; and it was made by one of the greatest judges who ever adorned the English bench. But it has been suggested, that the doctrine as to ferries is confined to ancient ferries by prescription, and does not apply to those where there is a grant which may be shown. In the former case, the exclusive right may be proved by long use, and exclusive use; in the latter, the terms of the grant show whether it is exclusive or not; and if not stated to be exclusive, in the grant, it cannot, by implication, be presumed to be exclusive. Now, there is no authority shown for such a distinction; and it is not sound in itself. If a ferry exists by prescription, nothing more, from the nature of the thing, can be established by long possession, than that the ferry originated in some grant, and that it has local limits, from the ferry-ways on one side to those on the other side. The mere absence of any other near ferry proves nothing, except that there is no competition; for until there is some interference, by the erection of another ferry, there can be nothing exclusive, above or below the ferry-ways, established by the mere use of the ferry. If such an interference should occur, then the question might arise; and the long use could establish no more than the rightful possession of the franchise. The question, whether the franchise is exclusive or not, must depend upon the nature of such a franchise at the common law, and the implications belonging to it. In short, it is, in the authorities, taken to be exclusive, unless a contrary presumption arises from the facts, as it did in Holcroft v. Heel , 1 Bos. & Pul. 400. But Lord COKE, in 2 Inst. 406, lays down the law as equally applicable to all cases of prescription and of grant: 'If, says he, one hath a market, either by prescription or by letters-patent of the king, another obtains a market, to the nuisance of the former market, he shall not tarry till he have avoided the letters-patent of the latter market, by course of law; but he may have an assize of nuisance.' The same rule must, for the same reason, apply to fairs and ferries. The case of Prince v. Lewis , 5 Barn. & Cres. 363, was the case of the grant of a market, and not of a market by prescription; yet no one suggested any distinction on this account. Holcroft v. Heel , 1 Bos. & Pul. 400, was the case of a grant of a market by letters-patent. In Ogden v. Gibbons , 4 Johns. Ch. 150, Mr. Chancellor KENT recognises, in the most ample manner, the general principles of the common law. Speaking of the grant, in the case, of an exclusive right to navigate with steamboats from New York to Elizabethtown Point, &c., he declared, that the true intent was to include not merely that point, but the whole shore or navigable part of Elizabethtown. 'Any narrower construction,' said he, 'in favor of the grantor, would render the deed a fraud upon the grantee. It would be like granting an exclusive right of ferriage between two given points, and the setting up a rival ferry, within a few rods of those very points, and within the same course of the line of travel. The common law contained principles applicable to this very case, dictated by a sounder judgment, and a more enlightened morality. If one had a ferry by prescription, and another erected a ferry so near to it as to draw away its custom, it was a nuisance, for which the injured party had his remedy by action, &c. The same rule applies, in its spirit and substance, to all exclusive grants and monopolies. The grant must be so construed so as to give it due effect by excluding all contiguous and injurious competition.' Language more apposite to the present case could not will be imagined. Here, there is an exclusive grant of a bridge from Charlestown to Boston on the old ferry-ways; must it not also be so construed as to exclude all contiguous and injurious competition? Such an opinion, from such an enlightened judge, is not to be overthrown by general suggestions against making any implications in legislative grants. The case of the Newburgh Turnpike Company v. Miller , 5 Johns. Ch. 101, decided by the same learned judge, is still more directly in point; and, so far as his authority can go, conclusively establishes the doctrine, not only that the franchise of a ferry is not confined to the ferry-ways, but that the franchise of a bridge is not confined to the termini and local limits of the bridge. In that case, the plaintiffs had erected a toll-bridge over the river Wallkill, in connection with a turnpike, under an act of the legislature; and the defendants afterwards erected another road and bridge near to the former, and thereby diverted the toll from the plaintiffs' bridge. The suit was a bill in chancery, for a perpetual injunction of this nuisance of the plaintiffs' bridge; and it was accordingly, at the hearing granted by the court. Mr. Chancellor KENT, on that occasion, said, 'considering the proximity of the new bridge, and the facility that every traveller has, by means of that bridge, and the road connected with it, to shun the plaintiffs' gate, which he would otherwise be obliged to pass, I cannot doubt, for a moment, that the new bridge is a direct and immediate disturbance of the plaintiffs' enjoyment of their privileges,' & c. 'The new road, by its termini , created a competition most injurious to the statute franchise; and becomes, what is deemed in law, in respect to such franchise, a nuisance.' And after adverting to his own language, already quoted, in Odgen v. Gibbons , privilege created by statute; all same doctrine applies to any exclusive privilege created by statute; and such privileges come within the equity and reason of the principle. No rival road, bridge or ferry, or other establishment of a similar kind, and for like purposes, can be tolerated so near to the other as materially to affect or take away its custom. It operates as a fraud upon the grant, and goes to defeat it. The consideration, by which individuals are invited to expend money upon great, and expensive, and hazardous public works, as roads and bridges; and to become bound to keep them in constant and good repair; is the grant of an exclusive toll. This right, thus purchased for a valuable consideration, cannot be taken away by direct or indirect means, devised for the purpose, both of which are equally unlawful.' Now, when the learned chancellor here speaks of an exclusive privilege or franchise, he does not allude to any terms in the statute grant, expressly giving such a privilege beyond the local limits; for the statute contained no words to such an effect. The grant, indeed, was, by necessary implication, exclusive, as to the local limits, for the legislature could not grant any other bridge in the same place with the same termini . It was to such a grant of a franchise, exclusive in this sense, and in no other, that his language applies. And he affirms the doctrine, in the most positive terms, that such a grant carries with it a necessary right to exclude all injurious competition, as an indispensable incident. And his judgment turned altogether upon this doctrine. It is true, that in this case, the defendants did not erect the new bridge, under any legislative act. But that is not material in regard to the point now under consideration. The point we are now considering is, whether the grant of a franchise to erect a bridge or a ferry, is confined to the local limits or termini , to the points and planks of the bridge, or to the ferry-ways of the ferry. The learned chancellor rejects such a doctrine, with the most pointed severity of phrase. 'It operates (says he) as a fraud upon the grant, and goes to defeat it.' The grant necessarily includes, 'a right to an exclusive toll.' 'No rival road, bridge or ferry can be tolerated, so near to the former as to affect or take away its custom.' Now, if such be the true construction of the grant of such a franchise, it is just as true a construction in relation to the government, as in relation to private persons. It would be absurd, to say, that the same grant means one think as to the public, and an entirely opposite thing in relation to individuals. If the right to an exclusive franchise or toll exists, it exists from the nature and objects of the grant; and applies equally in all directions. It would be repugnant to all notions of common sense, as well as of justice, to say, that the legislature had a right to commit a fraud upon its own grant. The whole reasoning of the learned chancellor repudiates such a notion. But in what manner is the doctrine to be maintained, that the franchise of a ferry is confined to the ferry-ways, and the franchise of a bridge to the planks? It is said, that in Saville 11, it is laid down, 'that a ferry is in respect to the landing-place, and not of the water; which water may belong to one, and the ferry to another.' There can be no doubt of this doctrine. A ferry must have local limits. It must have termini or landing-places; and it may include only a right of passage over the water. And is not this equally true, whether it be a ferry by prescription, or by grant? If so, can there be any difference as to the value of the exclusive right in cases of grant, or of prescription? Does not each rest on its landing-places? But it is added, in Saville, 'and in every ferry, the land on both sides of the water ought to be (belong) to the owner of the ferry; for otherwise he cannot land upon the other part.' Now, if by this is meant, that the owner of the ferry must be the owner of the land, it is not law; for all that is required, is, that he should have a right or easement in the landing-places. So it was adjudged, in Peter v. Kendall , 6 Barn. & Cres. 703; and the dictum of Saville was there overruled. If the same principle is to be applied (as I think it must be) to a bridge, then, as there must be a subsisting right in the proprietors of Charles River bridge to have such landing-places on the old ferry-ways, there must be an assignment or grant implied of those ferry-ways by Harvard College, to the proprietors for that purpose. But of this I shall speak hereafter. One of the learned judges in the state court (who was against the plaintiffs) admitted, that if any person should be forcibly prevented fram passing over the plaintiffs' bridge, it would be an injury, for which an action on the case would lie. I entirely assent to this doctrine, which appears to me to be founded in the most sound reasoning. It is supported by the case of the Bailiffs of Tewksbury v. Diston , 6 East 438, and by the authorities cited by Lord ELLENBOROUGH on that occassion; and especially by the doctrine of Mr. Justice POWELL, in Ashby v. White , 2 Ld. Raym. 948; and S.C.. 6 Mod. 49. But how can this be, if the franchise of the bridge is confined to the mere local limits or timbers of the bridge? If the right to take toll does not commence or attach in the plaintiffs, except when the passengers arrive on the bridge, how can an action lie for the proprietors for obstructing passengers from coming to the bridge? The remedy of the plaintiffs can only be co-extensive with their rights and franchise. And if an action lies for an obstruction of passengers, because it goes to impair the right of toll, and to prevent its being earned, why does not the diversion of passengers from the bridge by other means, equally give a cause of action, since it goes, equally, nay more, to impair the right of the plaintiffs to toll? If the legislature could not impair or destroy its own grant, by blocking up all avenues to the bridge, how can it possess the right to draw away all the tolls, by a free bridge, which must necessarily withdraw all passengers? For myself, I cannot perceive any ground upon which a right of action is maintainable, for any obstruction of passengers, which does not equally apply to the diversion of passengers. In each case, the injury of the franchise is the same, although the means used are, or may be, different. The truth is, that the reason why the grant of a franchise, for example, of a ferry or of a bridge, though necessarily local in its limits, is yet deemed to extend beyond those local limits, by operation and intendment of law, is founded upon two great fundamental maxims of law applicable to all grants. One is the doctrine already alluded to, and laid down in Liford's Case , in 11 Co. 46, 52 a; lex est cuicunque, aliquis, quod concedit, concedere videtur et id, sine quo res ipsa esse non potuit; or, as it is expressed with pregnant brevity by Mr. Justice TWISDEN, in Pomfret v. Ricroft , 1 Saund. 321, 323, 'when the use is granted, everything is granted by which the grantee may have and enjoy the use.' See also Lord Darcy v. Askwith , Hob. 234; 1 Saund. 323, note 6, by Williams; Co. Litt. 56 a . Another is, that wherever a grant is made for a valuable consideration, which involves public duties and charges, the grant shall be construed so as to make the indemnity co-extensive with the burden. Qui sentit onus, sentire debet et commodum . In the case of a ferry, there is a public charge and duty. The owner must keep the ferry in good repair, upon the peril of an indictment. He must keep sufficient accommodations for all travellers, at all reasonable times. He must content himself with a reasonable toll. Such is the jus publicum . In return, the law will exclude all injurious competition, and deem every new ferry a nuisance, which subtracts from him the ordinary custom and toll. See Com. Dig. Piscary, B.; Ibid. Ferry. So strong is the duty of the ferry-owner to the public, that it was held, in Paine v. Patrick , 3 Mod. 289, 294, that the ferry-owner could not excuse himself from not keeping proper boats, even by showing that he had erected a bridge more convenient for passengers. It would be a fraud upon such a grant of a ferry, to divert the travel, and yet to impose the burden. The right to take toll would, or might, be useless, unless it should be exclusive within all the bounds of injurious rivalship from another ferry. The franchise is, therefore, construed to extend beyond the local limits, and to be exclusive, within a reasonable distance; for the plain reason, that it is indispensable to the fair enjoyment of the franchise and right of toll. The same principle applies, without a shadow of difference that I am able to perceive, to the case of a bridge; for the duties are publici juris , and pontage and passage are but different names for exclusive toll for transportation. In the argument at the present term, it has been further contended, that at all events, in the state of Massachusetts, the ancient doctrine of the common law in relation to ferries is not in force, and never has been recognised; that all ferries in Massachusetts are held at the mere will of the legislature, and may be established by them and annihilated by them at pleasure; and of course, that the grantees hold them durante bene placito of the legislature. And in confirmation of this view of the subject, certain proceedings of the colonial legislature have been relied on, and especially those stated in the record, between the years 1629 and 1650; to the colonial act of 1641, against monopolies (which is, in substance, like the statute of monopolies of the 21 James I., c. 3); and to the general colonial and provincial and state statutes, regulating ferries, passed in 1641, 1644, 1646, 1647, 1695, 1696, 1710, 1719, 1781 and 1787; some of which contain special provisions respecting Charlestown and Boston ferry. As to the proceedings of the colonial government, so referred to, in my judgment, they establish no such conclusion. But some of them, at least, are directly opposed to it. Thus, for example, in 1638, a ferry was granted to Garret Spencer, at Lynn, for two years. In 1641, it was ordered, that they that put two boats between Cape Ann and Annisquam, shall have liberty to take sufficient toll, as the court shall think fit, for one-and-twenty years. Could the colonial government have repealed these grants, within the terms specified, at their pleasure? In 1648, Juhn Glover had power given him to let a ferry over Neponset river, between Dorchester and Braintree, to any person or persons, for the term of seven years, &c.; or else to take it to himself and his heirs, as his inheritance for ever; provided it be kept in such a place, and at such a price, as may be most convenient for the country, and pleasant to the general court. Now, if Glover, according to this act, had taken this ferry to him and his heirs, as an inheritance, could the colonial legislature have revoked it, at its pleasure? Or rather, can it be presumed, that the colonial legislature intended such a ferry, confessedly an inheritance, to be an estate held only at will? It would be repugnant to all notions of legal interpretation. In 1637, the general court ordered the ferry between Boston and Charlestown to be let for three years. It was, afterwards, in 1640, granted to Harvard College. From that time, down to 1785, it was always held and claimed by the college, as its inheritance. But the college never supposed, that it was not subject to the regulation of the legislature, so far as the public interests were concerned. The acts of 1650, 1654, 1694, 1696, 1710 and 1781, establish this. But they show no more. That many of the ferries in Massachusetts were held, and perhaps were always held, under mere temporary licenses of the legislature, or of certain magistrates to whom they were intrusted, is not denied. But it is as clear, that there were other ferries, held under more permanent tenures. The colonial act of 1644, authorized magistrates to pass ferries toll free, except such ferries as are appropriated to any, or rented out, and are out of the country's hands; and then it is 'ordered, that their passages be paid by the country.' The act of 1694 excepts from its operation, 'such ferries as are already stated and settled, either by the court, or town to whom they appertain.' The colonial act of 1670, as an inducement to the town of Cambridge, or other persons, to repair the bridge at Cambridge, or to erect a new one, declared, 'that this order (granting certain tolls) should continue in force, so long a time as the said bridge is maintained serviceable and safe for passage.' So that it is plain, that the colonial legislature did contemplate both ferries and bridges to be held by permanent tenures, and not to be revocable at pleasure. But to all the general laws respecting ferries, one answer may be given, that their provisions are generally confined to the due regulation of public ferries, and matters publici juris; and so far as the public have rights which ought to be conforced and protected, and which the legislature had a proper right to enforce and protect by suitable laws. And in regard to matters not strictly of this nature, the enactments may well apply to all such ferries within the state as were held under the mere temporary license of the state, and were revocable and controllable at pleasure by the legislature, in which predicament a very large number of ferries in the state were; and also to those ferries (among which Charlestown ferry seems to have been) over which a modified legislative control had been, at their original establishment, reserved. Beyond these results, I am not prepared to admit, that these statutes either had, or ever were supposed to have, any legitimate operation. And before I should admit such a conclusion, I should require the evidence of some solemn judgment of a court of justice, in Massachusetts, to the very point. But the argument presses the doctrine to an extent which it is impossible can be correct, if any principles respecting vested rights exist, or have any recognition, in a free government. What is it? That all ferries in Massachusetts are revocable and extinguishable at pleasure. Suppose, then, the legislature of Massachusetts, for a valuable consideration, should grant a ferry from A. to B., to a grantee and his heirs, or to a grantee, for forty years, or for life; will it be contended, that the legislature can take away, revoke or annihilate that grant, within the period? That it may make such a grant, cannot well be denied; for there is no prohibition touching it in the constitution of Massachusetts. That it can take away or resume such a grant, has never yet been held by any judicial tribunal in that state. The contrary is as well established, as to all sorts of grants, unless an express power be reserved for the purpose, as any principle in its jurisprudence. In the very case now before this court, every judge of the supreme court of the state admitted, that the legislature could not resume or revoke its charter to Charles River bridge. Why not, if it could revoke its solemn grant of a ferry to a private person, or to a corporation, during the stipulated period of the grant? The legislature might just as well resume its grant of the public land, or the grant of a turnpike, or of a railroad, or of any other franchise, within the period stipulated by its charter. The doctrine then is untenable. The moment that you ascertain what the terms and stipulations of a grant of a ferry, or any other franchise, are, that moment they are obligatory. They cannot be gainsaid or resumed. So this court has said, in the case of Fletcher v. Peck , 6 Cranch 87; and so are the unequivocable principles of justice, which cannot be overturned, without shaking every free government to its very foundations. If, then, the ferry between Charlestown and Boston was vested, in perpetuity, in the corporation of Harvard College, it could not be taken away, without its consent, by the legislature. It was a ferry, so far withdrawn from the power of any legislation trenching on its rights and franchises. It is assuming the very point in controversy, to say, that the ferry was held at the mere pleasure of the legislature. An exclusive claim, and possession and user , and taking of the profits thereof, for 150 years, by the corporation of Harvard College, without interruption, was as decisive evidence of its exclusive right to the franchise in perpetuity, as the title deed of any man to his own estate. The legislature of Massachusetts has never, so far as I know, breathed a doubt on the point. All the judges of the state court admit the exclusive right of Harvard College to the ferry, in the most unequivocal terms. The argument, then, that the English doctrine as to ferries has not been adopted, and is not in force in Massachusetts, is not supported. For myself, I can only say, that I have always understood that the English doctrine on this subject constitutes a part of the common law of Massachusetts. But what is most material to be stated, not one of the learned judges in the state court doubted or denied the doctrine, though it was brought directly before them; and they gave, seriatim , opinions containing great diversities of judgment on other points.(a) It is also fully established by the case of Chadwick v. Proprietors of Haverhill Bridge , already cited. But it is urged, that some local limits must be assigned to such grants, and the court must assign them, for otherwise they would involve the absurdity of being co-extensive with the range of the river; for every other bridge or ferry must involve some diminution of toll; and how much (it is asked) is necessary to constitute an infringement of the right? I have already given an answer, in part, to this suggestion. The rule of law is clear. The application of it must depend upon the particular circumstances of each case. Wherever any other bridge or ferry is so near, that it injures the franchise, or diminishes the toll, in a positive and essential decree, there it is a nuisance, and is actionable. It invades the franchise, and ought to be abated. But whether there be such an injury or not, is a matter, not of law, but of fact. Distance is no otherwise important than as it bears on the question of fact. All that is required, is, that there should be a sensible, positive injury. In the present case, there is no room to doubt upon this point, for the bridges are contiguous; and Warren bridge, after it was opened, took away three-fourths of the profits of the travel from Charles River bridge; and when it became free (as it now is), it necessarily took away all the tolls, or all except an unimportant and trivial amount. What I have said, however, is to be understood with this qualification, that the franchise of the bridge has no assigned local limits; but it is a simple grant of the right to errect a bridge across a river, from one point to another, without being limited between any particular villes or towns, or by other local limits. In the case now before the court, I have already stated, that my judgment is, that the franchise is merely to erect a bridge between Charlestown and Boston; and therefore, it does not, necessarily, exclude the legislature from making any other grant, for the erecting of a bridge between Boston and any other town. The exclusive right being between those towns, it only precludes another legislative grant between those towns, which is injurious to Charles River bridge. The case of Tripp v. Frank , 4 T. R. 666, is a clear authority for this doctrine. It was there decided, that the grant of an exclusive ferry between A. and B., did not exclude a ferry between A. and C. But the argument of the plaintiff's counsel was tacitly admitted by the court, that 'ferries, in general, must have some considerable extent, upon which their right may operate; otherwise, the exclusive privilege would be of no avail; that extent must be governed by local circumstances.' And there is the greatest reason for supporting such rights, because the owners of ferries are bound, at their peril, to supply them to the public use; and are, therefore, fairly entitled to the public advantage arising from them. But it is said, if this is the law, what then is to become of turnpikes and canals? Is the legislature precluded from authorizing new turnpikes or new canals, simply because they cross the path of the old ones, and incidentally diminish their receipt of tolls? The answer is plain. Every turnpike has its local limits and local termini; its points of beginning and of end. No one ever imagined, that the legislature might grant a new turnpike, with exactly the same location and termini . That would be to rescind its first grant. The grant of a turnpike between A. and B., does not preclude the legislature from the grant of a turnpike between A. and C., even though it should incidentally intercept some of the travel; for it is not necessarily a nuisance to the former grant. The termini being different, the grants are or may be substantially different. But if the legislature should grant a second turnpike, substantially taking away the whole travel from the first turnpike, between the same local points; then, I say, it is a violation of the rights of the first turnpike. And the opinion of Mr. Chancellor KENT, and all the old authorities on the subject of ferries, support me in the doctrine. Some reliance has been placed upon the cases of Prince v. Lewis , 5 Barn. & Cres. 363, and Mosley v. Walker , 7 Ibid. 40, as impugning the reasoning. But it appears to me, that they rather fortify than shake it. In the former case, the king granted a market to A. and his heirs, in a place within certain specified limits, and the grantee used part of the limits for other purposes, and space enough was not ordinarily left for the marketing. It was held, that the owner of the market could not maintain an action against a person for selling marketable goods in the neighborhood, without showing that, at the time of the sale, there was room enough in the market for the seller. This clearly admits the exclusive right of the owner, if there is room enough in the market. The other case affirms the same principle, as, indeed, it was before affirmed, in Mosley v. Chadwick , 7 Barn. & Cres. 47, note. But then again, it is said, that all this rests upon implication, and not upon the words of the charter. I admit, that it does; but I again say, that the implication is natural and necessary. It is indispensable to the proper effect of the grant. The franchise cannot subsist without it, at least, for any valuable or practical purpose. What objection can there be to implications, if they arise from the very nature and objects of the grant? If it be indispensable to the full enjoyment of the right to take toll, that it should be exclusive within certain limits, is it not just and reasonable, that it should be so construed? If the legislative power to errect a new bridge would annihilate a franchise already granted, is it not, unless expressly reserved, necessarily excluded, by intendment of law? Can any reservations be raised by mere implication, to defeat the operation of a grant, especially, when such a reservation would be co-extensive with the whole right granted, and amount to the reservation of a right to recall the whole grant. Besides, in this very case, it is admitted on all sides, that from the defective language and wording of the charter, no power is directly given to the proprietors to erect the bridge; and yet it is agreed, that the power passes by necessary implication from the grant, for otherwise it would be utterly void. The argument, therefore, surrenders the point as to the propriety of making implications; and reduces the question to the mere consideration of what is a necessary implication. Now, I would willingly put the whole case upon this point, whether it is not as indispensable to the fair and full operation of the grant, that the plaintiffs should be secure in the full enjoyment of their right to tolls, without disturbance or diversion; as that they should have the power to erect the bridge. If the tolls may be all swept away, by a contiguous free bridge, erected the next day, can it be said, in any sense, that the object of the franchise is obtained? What does the sound logic of the common law teach us on this point? If a grant, even of the crown, admits of two constructions, one of which will defeat, and the other will promote and secure, the fair operation of the grant; the latter is to be followed. The truth is, that the whole argument of the defendants turns upon an implied reservation of power in the legislature to defeat and destroy its own grant. The grant, construed upon its own terms, upon the plain principles of construction of the common law, by which alone it ought to be judged, is an exclusive grant. It is the grant of a franchise, publici juris , with a right of tolls; and in all such cases, the common law asserts the grant to be exclusive, so as to prevent injurious competition. The argument seeks to exclude the common law from touching the grant, by implying an exception in favor of the legislative authority to make any new grant. And let us change the position of the question as often as we may, it comes to this, as a necessary result-that the legislature has reserved the power to destroy its own grant, and annihilate the right of pontage of the Charles River bridge. If it stops short of this exercise of its power, it is its own choice, and not its duty. Now, I maintain, that such a reservation is equivalent to a power to resume the grant; and yet it has never been for a moment contended, that the legislature was competent to resume it. To the answer already given to the objection, that, unless such a reservation of power exists, there will be a stop put to the progress of all public improvements; I wish, in this connection, to add, that there never can any such consequence follow upon the opposite doctrine. If the public exigencies and interests require that the franchise of Charles River bridge should be taken away, or impaired, it may be lawfully done, upon making due compensation to the proprietors. 'Whenever,' says the constitution of Massachusetts, 'the public exigencies require that the property of any individual should be appropriated to public uses, he shall receive a reasonable compensation therefor;' and this franchise is property-is fixed determinate property. We have been told, indeed, that where the damage is merely consequential (as, by the erection of a new bridge, it is said that it would be), the constitution does not entitle the party to compensation; and Thruston v. Hancock , 12 Mass. 220, and Callender v. Marsh , 1 Pick. 418, are cited in support of the doctrine. With all possible respect for the opinions of others, I confess myself to be among those who never could comprehend the law of either of those cases; and I humbly continue to doubt, if, upon principle or authority, they are easily maintainable; and I think my doubts fortified by the recent English decisions. But, assuming these cases to be unquestionable, they do not apply to a case like the prevent, if the erection of such a new bridge is a violation of the plaintiffs' franchise. That franchise, so far as it reaches, is private property; and so far as it is injured, it is the taking away of private property. Suppose, a man is the owner of a mill, and the legislature authorizes a diversion of the watercourse which supplies it, whereby the mill is injured or ruined; are we to be told, that this is a consequential injury, and not within the scope of the constitution? If not within the scope of the constitution, it is, according to the fundamental principles of a free government, a violation of private rights, which cannot be taken away, without compensation. The case of Gardner v. Village of Newburgh , 2 Johns. Ch. 139, would be a sufficient authority to sustain this reasoning; if it did not stand upon the eternal principles of justice, recognised by every government which is not a pure despotism. Not a shadow of authority has been introduced, to establish the position of the defendants, that the franchise of a toll-bridge is confined to the planks of the bridge; and yet it seems to me, that the onus probandi is on them; for all the analogies of the common law are against them. They are driven, indeed, to contend, that the same principles apply to ferries, which are limited to the ferry-ways, unless some prescription has given them a more extensive range. But here, unless I am entirely mistaken, they have failed to establish their position; as I understand the authorities, they are, unequivocally, the other way. Are we then to desert the wholesome principles of the common law, the bulwark of our public liberties, and the protecting shield of our private property, and assume a doctrine, which substantially annihilates the security of all franchises affected with public easements? But it is said, that if the doctrine contended for be not true, then every grant to a corporation becomes, ipso facto , a monopoly or exclusive privilege. The grant of a bank, or of an insurance company, or of a manufacturing company, becomes a monopoly, and excludes all injurious competition. With the greatest deference and respect for those who press such an argument, I cannot but express my surprise that it should be urged. As long ago as the case in the Year Book, 22 Hen. VI. 14, the difference was pointed out in argument, between such grants as involve public duties and public matters for the common benefit of the people, and such as are for mere private benefit, involving no such consideration. If a bank, or insurance company, or manufacturing company, is established in any town, by an act of incorporation; no one ever imagined that the corporation was bound to do business, to employ its capital, to manufacture goods, to make insurance. The privilege is a mere private corporate privilege, for the benefit of the stockholders, to be used or not, at their own pleasure; to operate when they please; and to stop when they please. Did any man ever imagine, that he had a right to have a note discounted by a bank, or a policy underwritten by an insurance company? Such grants are always deemed privati juris . No indictment lies for a non-user . But in cases of ferries and bridges, and other franchises of a like nature (as has been shown), they are affected with a jus publicum . Such grants are made for the public accommodation; and pontage and passage are authorized to be levied upon travellers (which can only be by public authority); and in return, the proprietors are bound to keep up all suitable accommodations for tra vellers, under the penalty of indictment for their neglect. The tolls are deemed an equivalent for the burden, and are deemed exclusive, because they might not otherwise afford any just indemnity. In the very case at bar, the proprietors of Charles River bridge (as we have seen) are compellable to keep their draws and bridge in good repair, during the period of seventy years; to pay an annuity to Harvard College; to give all reasonable accommodations to the public travel; and if they do not, they may be grievously amerced. The burdens being exclusively on them, must not the tolls granted by way of remuneration (I repeat it); must they not be equally exclusive, to insure an indemnity? Is there any analogy in such a case, to the case of a bank, or an insurance company, or a manufacturing company? The case of Jackson v. Lamphire , 3 Pet. 280, contains no doctrine which, in the slighest degree, interferes with that which I have been endeavoring to establish in the present case. In that decision, I believe that I concurred; and I see no reason now to call in question the soundness of that decision. That case does not pretend to inculcate the doctrine, that no implication can be made, as to matters of contract, beyond the express terms of a grant. If it did, it would be in direct conflict with other most profoundly considered adjudications of this court. It asserted only, that the grant in that case carried no implication that the grantee should enjoy the land therein granted, free from any legislative regulations to be made, in violation of the constitution of the state. Such an implication, so broad and so unmeasured, which might extend far beyond any acts which could be held, in any just sense, to revoke or impair the grant, could, by no fit reasoning, be deduced from the nature of the grant. What said the court on that occasion? 'The only contract made by the state, is a grant to J. C., his heirs and assigns, of the land in question. The patent contains no covenant to do or not to do any further act in relation to the land; and we do not, in this case, feel at liberty to create one by implication. The state has not, by this act, impaired the force of the grant. It does not profess or attempt to take the land from the assigns of C., and give it to one not claiming under him. Neither does the award produce that effect. The grant remains in full force; the property conveyed is held by the grantee; and the state asserts no claim to it.' But suppose, the reverse had been the fact. Suppose, that the state had taken away the land, and granted it to another; or asserted its own right otherwise to impair the grant; does it not follow, from this very reasoning of the court, that it would have been held to have violated the implied obligations of the grant? Certainly, it must have been so held, or the court would have overturned its own most solemn judgments in other cases. Now, there is not, and cannot be, any real distinction between a grant of land and a grant of franchises. The implication, in each case, must be the same, viz., that the thing granted shall not be resumed or impaired by the grantor. It has been further argued, that even if the charter of the Charles River bridge does imply such a contract on the part of the legislature, as is contended for, it is void for want of authority in the legislature to make it; because it is a surrender of the right of eminent domain, intrusted to the legislature and its successors, for the benefit of the public, which is not at liberty to alienate. If the argument means no more, than that the legislature, being intrusted with the power to grant franchises, cannot, by contract, agree to surrender or part with this power, generally, it would be unnecessary to consider the argument; for no one supposes that the legislature can rightfully surrender its legislative power. If the argument means no more, than that the legislature, having the right, by the constitution, to take private property (among which property are franchises) for public purposes, cannot divest itself of such a right, by contract, there would be as little reason to contest it. Neither of these cases is like that before the court. But the argument (if I do not misunderstand it) goes further, and denies the right of the legislature to make a contract granting the exclusive right to build a bridge between Charlestown and Boston, and thereby taking from itself the right to grant another bridge between Charlestown and Boston, at its pleasure; although the contract does not exclude the legislature from taking it for public use, upon making actual compensation; because it trenches upon the sovereign right of eminent domain. It is unnecessary to consider, whether the phrase 'eminent domain,' in the sense in which it is used in the objection, is quite accurate. The right of eminent domain is usually understood to be the ultimate right of the sovereign power to appropriate, not only the public property, but the private property of all citizens within the territorial sovereignty, to public purposes. Vattel (b. 1, c. 20, § 244) seems so to have understood the terms; for he says, that the right, which belongs to the society, or the sovereign, of disposing, in case of necessity, and for the public safety, of all the wealth (the property) contained in the state, is called the 'eminent domain.' And he adds, that it is placed among the prerogatives of majesty; which, in another section (b. 1, c. 4, § 45), he defines to be, 'all the prerogatives without which the sovereign command, or authority, could not be exerted in the manner most conducive to the public welfare.' The right of 'eminent domain,' then, does not comprehend all, but only is among the prerogatives of majesty. But the objection uses the words in a broader sense, as including what may be deemed the essential and ordinary attributes of sovereignty; such as the right to provide for the public welfare, to open highways, to build bridges, and, from time to time, to make grants of franchises for the public good. Without doubt, these are proper attributes of sovereignty, and prerogatives resulting from its general nature and functions. And so Vattel considers them in the passage cited at the bar: b. 1, c. 9, § 100-1. But they are attributes and prerogatives of sovereignty only, and can be exercised only by itself, unless specially delegated. But, without stopping to examine into the true meaning of phrases, it may be proper to say, that however extensive the prerogatives and attributes of sovereignty may theoretically be, in free governments, they are universally held to be restrained within some limits. Although the sovereign power in free governments may appropriate all the property, public as well as well as private, for public purposes, making compensation therefor; yet it has never been understood, at least, never in our republic, that the sovereign power can take the private property of A. and give it to B., by the right of 'eminent domain;' or, that it can take it at all, except for public purposes; or, that it can take it for public purposes, without the duty and responsibility of making compensation for the sacrifice of the private property of one, for the good of the whole. These limitations have been held to be fundamental axioms in free governments like ours; and have accordingly received the sanction of some of our most eminent judges and jurists. Vattel himself lays them down, in discussing the question of the right of eminent domain, as among the fundamental principles of government, binding even upon the sovereignty itself. 'If,' says he, 'the nation itself disposes of the public property, in virtue of this eminent domain, the alienation is valid, as having been made with a sufficient power. When it disposes, in like manner, in a case of necessity, of the possessions (the property) of a community, or of an individual, the alienation will be valid, for the same reason. But justice demands, that this community or this individual be recompensed out of the public money; and if the treasury is not able to pay, all the citizens are obliged to contribute to it.' Vatt. b. 1, c. 20, § 244. They have also been incorporated into most of our state constitutions, and into that of the United States; and, what is most important to the present argument, into the state constitution of Massachusetts. So long as they remain in those constitutions, they must be treated as limitations imposed by the sovereign authority upon itself; and a fortiori , upon all its delegated agents. The legislature of Massachusetts is, in no just sense, sovereign. It is but the agent, with limited authority, of the state sovereignty; and it cannot rightfully transcend the bounds fixed in the constitution. What those limits are, I shall presently consider. It is but justice to the argument, to say, that I do not understand it to maintain, that the legislature ought not, in all cases, as a matter of duty, to give compensation, where private property or franchises are taken away. But that the legislature is the final judge as to the time, the manner and the circumstances, under which it should be given or withheld; whether when the property is taken, or afterwards; and whether it is, or is not, a case for compensation at all. But let us see what the argument is, in relation to sovereignty in general. It admits, that the sovereign power has, among its prerogatives, the right to make grants, to build bridges, to erect ferries, to lay out highways; and to create franchises for public and private purposes. If it has a right to make such grants, it follows, that the grantees have a right to take, and to hold, these franchises. It would be a solecism, to declare that the sovereign power could grant, and yet no one could have a right to take. If it may grant such franchises, it may define and limit the nature and extent of such franchises; for, as the power is general, the limitations must depend upon the good pleasure and discretion of the sovereign power in making the particular grant. If it may prescribe the limits, it may contract that these limits shall not be invaded by itself or by others. It follows, from this view of the subject, that if the sovereign power grants any franchise, it is good and irrevocable, within the limits granted, whatever they may be; or else, in every case, the grant will be held only during pleasure; and the identical franchise may be granted to any other person, or may be revoked at the will of the sovereign. This latter doctrine is not pretended; and, indeed, is unmaintainable in our systems of free government. If, on the other hand, the argument be sound, that the sovereign power cannot grant a franchise, to be exclusive within certain limits, and cannot contract not to grant the same, or any like franchise, within the same limits, to the prejudice of the first grant, because it would abridge the sovereign power in the exercise of its right to grant franchises; the argument applies equally to all grants of franchises, whether they are broad or narrow: for, pro tanto , they do abridge the exercise of the sovereign power to grant the same franchise within the same limits. Thus, for example, if the sovereign power should expressly grant an exclusive right to build a bridge over navigable waters, between the towns of A. and B., and should expressly contract with the grantees, that no other bridge should be built between the same towns; the grant would, upon the principles of the argument, be equally void in regard to the franchise, within the planks of the bridge, as it would be in regard to the franchise, outside of the planks of the bridge; for, in each case, it would, pro tanto , abridge or surrender the right of the sovereign to grant a new bridge within the local limits. I am aware, that the argument is not pressed to this extent; but it seems to me a necessary consequence flowing from it. The grant of the franchise of a bridge, twenty feet wide, to be exclusive within those limits, is certainly, if obligatory, an abridgment or surrender of the sovereign power to grant another bridge within the same limits; if we mean to say, that every grant that diminishes the things upon which that power can rightfully act, is such an abridgment. Yet the argument admits, that within the limits and planks of the bridge itself, the grant is exclusive; and cannot be recalled. There is no doubt, that there is a necessary exception in every such grant, that if it is wanted for public use, it may be taken by the sovereign power for such use, upon making compensation. Such a taking is not a violation of the contract; but it is strictly an exception, resulting from the nature and attributes of sovereignty; implied from the very terms, or at least, acting upon the subject-matter of the grant, suo jure . But the legislature of Massachusetts is, as I have already said, in no just sense, the sovereign of the state. The sovereignty belongs to the people of the state, in their original character as an independent community; and the legislature possesses those attributes of soverignty, and those only, which have been delegated to it by the people of the state, under its constitution. There is no doubt, that among the powers so delegated to the legislature, is the power to grant the franchises of bridges and ferries, and others of a like nature. The power to grant is not limited by any restrictive terms in the constitution; and it is, of course, general and unlimited, as to the terms, the manner, and the extent of granting franchises. These are matters resting in its sound discretion; and having the right to grant, its grantees have a right to hold, according to the terms of their grant, and to the extent of the exclusive privileges conferred thereby. This is the necessary result of the general authority, upon the principles already stated. But this doctrine does not stand upon general reasoning alone. It is directly and positively affirmed by all the judges of the state court (the true and rightful expositors of the state constitution), in this very case. All of them admit, that the grant of an exclusive franchise of this sort, made by the legislature, is absolutely obligatory upon the legislature, and cannot be revoked or resumed; and that it is a part of the contract, implied in the grant, that it shall not be revoked or resumed; and that, as a contract, it is valid to the extent of the exclusive franchise granted. So that the highest tribunal in the state which is entitled to pass judgment on this very point, has decided against the soundness of the very objection now stated; and has affirmed the validity and obligation of such a grant of the franchise. The question, among the learned judges, was not, whether the grant was valid or not; for all of them admitted it to be good and irrevocable. But the question was, what was, in legal construction, the nature and extent of the exclusive franchise granted. This is not all. Although the legislature have an unlimited power to grant franchises, by the constitution of Massachusetts; they are not intrusted with any general sovereign power to recall or resume them. On the contrary, there is an express prohibition in the bill of rights, in that constitution, restraining the legislature from taking any private property, except upon two conditions; first, that it is wanted for public use; and secondly, that due compensation is made. So that the power to grant franchises, which are confessedly property, is general; while the power to impair the obligation of the grant, and to resume the property, is limited. An act of the legislature transcending these bounds, is utterly void; and so it has been constantly held by the state judges. The same doctrine has been maintained by this court, on various occasions; and especially, in Fletcher v. Peck , 6 Cranch 146; and in Trustees of Dartmouth College v. Woodward , 4 Wheat. 518. Another answer to the argument has been, in fact, already given. It is, that by the grant of a particular franchise, the legislature does not surrender its power to grant franchises, but merely parts with its power to grant the same franchise; for it cannot grant that which it has already parted with. Its power remains the same; but the thing on which it can alone operate, is disposed of. It may, indeed, take it again for public uses, paying a compensation. But it cannot resume it, or grant it to another person, under any other circumstances, or for any other purposes. In truth, however, the argument itself proceeds upon a ground which the court cannot act upon or sustain. The argument is, that if the state legislature makes a grant of a franchise exclusive, and contracts that it shall remain exclusive, within certain local limits, it is an excess of power, and void as an abridgment or surrender of the right of sovereignty, under the state constitution. But this is a point over which this court has no jurisdiction. We have no right to inquire, in this case, whether a state law is repugnant to its own constitution; but only whether it is repugnant to the constitution of the United States. If the contract has been made, we are to say, whether its obligation has been impaired; and not to ascertain whether the legislature could rightfully make it. Such was the doctrine of this court in the case of Jackson v. Lamphire , already cited. 3 Pet. 280-9. But the conclusive answer is, that the state judges have already settled that point, and held the present grant a contract; to be valid to the extent of the exclusive limits of the grant, whatever they are. To sum up, then, the whole argument on this head: I maintain, that, upon the principles of common reason and legal interpretation, the present grant carries with it a necessary implication, that the legislature shall do no act to destroy or essentially to impair the franchise; that (as one of the learned judges of the state court expressed it) there is an implied agreement that the state will not grant another bridge between Boston and Charlestown, so near as to draw away the custom from the old one; and 'as another learned judge expressed it) that there is an implied agreement of the state to grant the undisturbed use of the bridge and its tolls, so far as respects any acts of its own, or of any persons acting under its authority. In other words, the state impliedly contracts not to resume its grant, or to do any act to the prejudice or destruction of its grant. I maintain, that there is no authority or principle established in relation to the construction of crown grants, or legislative grants, which does not concede and justify this doctrine. Where the thing is given, the incidents, without which it cannot be enjoyed, are also given; ut res magis valeat quam pereat . I maintain, that a different doctrine is utterly repugnant to all the principles of the common law, applicable to all franchises of a like nature; and that we must overturn some of the best securities of the rights of property, before it can be established. I maintain, that the common law is the birthright of every citizen of Massachusetts, and that he holds the title deeds of his property, corporeal and incorporeal, under it. I maintain, that under the principles of the common law, there exists no more right in the legislature of Massachusetts, to erect the Warren bridge, to the ruin of the franchise of the Charles River bridge, than exists to transfer the latter to the former, or to authorize the former to demolish the latter. If the legislature does not mean in its grant to give any exclusive rights, let it say so, expressly, directly, and in terms admitting of no misconstruction. The grantees will then take at their peril, and must abide the results of their overweening confidence, indiscretion and zeal. My judgment is formed upon the terms of the grant, its nature and objects, its designs and duties; and, in its interpretation, I seek for no new principles, but I apply such as are as old as the very rudiments of the common law. But if I could persuade myself that this view of the case were not conclusive upon the only question before this court, I should rely upon another ground, which, in may humble judgment, is equally decisive in favor of the plaintiffs. I hold, that the plaintiffs are the equitable assignees (during the period of their ownership of the bridge) of the old ferry, belonging to Harvard College, between Charlestown and Boston, for a valuable consideration; and as such assignees, they are entitled to an exclusive right to the ferry, so as to exclude any new bridge from being erected between those places, during that period. If Charles River bridge did not exist, the erection of Warren bridge would be a nuisance to that ferry, and would, in fact, ruin it. It would be exactly the case of Chadwick v. Proprietors of the Haverhill Bridge; which, notwithstanding all I have heard to the contrary, I deem of the very highest authority. But, independently of that case, I should arrive at the same conclusion, upon general principles. The general rights and duties of the owners of the ferries, at the common law, were not disputed by any of the learned judges in the state court, to be precisely the same in Massachusetts, as in England. I shall not, therefore, attempt to go over that ground, with any further illustrations than what have already, in another part of this opinion, been suggested. I cannot accede to the argument, that the ferry was extinguished by operation of law, by the grant of the bridge, and the acceptance of the annuity. In my judgment, it was indispensable to the existence of the bridge, as to its termini , that the ferry should be deemed to be still a subsisting franchise; for otherwise, the right of landing on each side would be gone. I shall not attempt to go over the reasoning, by which I shall maintain this opinion; as it is examined with great clearness and ability by Mr. Justice PUTNAM, in his opinion in the state court, to which I gladly refer, as expressing mainly all my own views on this topic. Indeed, there is, in the whole of that opinion, such masculine vigor, such a soundness and depth of learning, such a forcible style of argumentation and illustration, that in every step of my own progress, I have sedulously availed myself of his enlightened labors. For myself, I can only say, that I have as yet heard no answer to his reasoning; and my belief is, that in a judicial sense, it is unanswerable. Before I close, it is proper to notice, and I shall do it briefly, another argument strongly pressed at the bar against the plaintiffs; and that is, that the extension of the term of the franchise of the plaintiffs for thirty years, by the act of 1792 (erecting the West Boston bridge, between Boston and Cambridge), and the acceptance thereof by the plaintiffs, amounted to a surrender or extinguishment of their exclusive franchise, if they ever had any, to build bridges over Charles river; so that they are barred from now setting it up against the Warren bridge. In my judgment, there is no foundation whatsoever, either in law, or in the facts, to sustain this objection. If any legitimate conclusion be deducible from the terms of that act, it is, that the plaintiffs, if they had claimed any such exclusive right over the whole river, would, by their acceptance of the new term of years, have been estopped to claim any damages done to their franchise by the erection of West Boston bridge; and that their consent must be implied to its erection. But there is no warrant for the objection, in any part of the language of the act. The extension of the term is not granted upon any condition whatsoever. No surrender of any right is asked, or required. The clause extending the term, purports, in its face, to be a mere donation or bounty of the legislature, founded on motives of public liberality and policy. It is granted expressly as an encouragement to enterprise, and as a compensation for the supposed diminution of tolls, which West Boston bridge would occasion to Charles River bridge; and in no manner suggests any sacrifice or surrender of right whatsoever, to be made by the plaintiffs. In the next place, the erection of West Boston bridge was no invasion, whatsoever, of the franchise of the plaintiffs. Their right, as I have endeavored to show, was limited to a bridge, and the travel between Charlestown and Boston; and did not extend beyond those towns. West Boston bridge was between Boston and Cambridge, at the distance of more than a mile by water, and by land of nearly three miles; and as the roads then ran, the line of travel for West Boston bridge would scarcely ever, perhaps never, approach nearer than that distance to Charles River bridge. The grant, therefore, could not have been founded in any notion of any surrender or extinguishment of the exclusive franchise of the plaintiffs; for it did not reach to such an extent; it did not reach Cambridge, and never had reached it. As to the report of the committee, on the basis of which the West Boston bridge was granted, it has, in my judgment, no legal bearing on the question. The committee say, that they are of opinion, that the act of 1785 did not confer 'an exclusive grant of the right to build over the waters of Charles river.' That is true; and it is equally true, that the plaintiffs never asserted, or pretended to have, any such right. In their remonstrance against the erection of West Boston bridge, they assert no such right; but they put themselves upon mere equitable considerations, addressing themselves to the sound discretion of the legislature. If they had asserted such a broad right, it would not justify any conclusion, that they were called upon to surrender, or did surrender, their real and unquestionable rights. The legislature understood itself to be granting a boon; and not making a bargain or asking a favor. It was liberal, because it meant to be just, in a case of acknowledged hazard, and of honorable enterprise, very beneficial to the public. To suppose, that the plaintiffs meant to surrender their present valuable and exclusive right of franchise for thirty-four remaining years, and to put it in the power of the legislature, the next day, or the next year, to erect a bridge, toll or free, which by its contiguity should ruin theirs, or take away all their profits; is a supposition, in my judgment, truly extravagant, and without a scintilla of evidence to support it. The burdens of maintaining the bridge were to remain; the payment of the annuity to Harvard College was to remain: and yet, upon this supposition, the extension of the term of their charter, granted in the shape of a bounty, would amount to a right to destroy the franchise the next day, or the next hour, at the pleasure of the legislature. I cannot perceive, upon what ground such an implication can be made; an implication, not arising from any words or intent expressed on the face of the act, or fairly inferrible from its purposes; and wholly repugnant to the avowed objects of the grant, which are to confer a benefit, and not to impose an oppressive burden, or create a ruinous competition. Upon the whole, my judgment is, that the act of the legislature of Massachusetts granting the charter of Warren Bridge, is an act impairing the obligation of the prior contract and grant to the proprietors of Charles River bridge; and, by the constitution of the United States, it is, therefore, utterly void. I am for reversing the decree to the state court (dismissing the bill); and for remanding the cause to the state court for further proceedings, as to law and justice shall appertain. THOMPSON, Justice. The opinion delivered by my brother, Mr. Justice STORY, I have read over and deliberately considered. On this full consideration, I concur entirely in all the principles and reasonings contained in it; and I am of opinion, the decree of the supreme judicial court of Massachusetts should be reversed. THIS cause came on to be heard, on the transcript of the record from the supreme judicial court, holden in and for the county of Suffolk, in the commonwealth of Massachusetts, and was argued by counsel: On consideration whereof, it is ordered, adjudged and decreed by this court, that the decree of the said supreme judicial court in this cause be and the same is hereby affirmed, with costs.

The case of Charles River Bridge v. Warren Bridge (1837) centered around a legislative grant of exclusive bridge-building rights over Charles River in Massachusetts. The Charles River Bridge proprietors sued the Warren Bridge proprietors, arguing that a subsequent legislative grant to build a nearby bridge violated their contractual rights and constituted a taking of property without just compensation. The Supreme Court, in a majority opinion written by Justice Story, ruled in favor of the Warren Bridge proprietors. The Court held that the legislative grant to the Charles River Bridge proprietors did not convey a contractual right to be free from future legislative acts that might impair the profitability of the bridge. The Court interpreted the grant as a license that did not convey any exclusive privileges beyond what was explicitly stated. The Court further emphasized the police power of the state to legislate for the public good, which includes the authority to build additional bridges to meet the needs of a growing community. The Court concluded that the Warren Bridge charter did not violate any contractual obligations and affirmed the decision of the Massachusetts Supreme Judicial Court, dismissing the Charles River Bridge proprietors' suit.

Property Rights & Land Use

U.S. v. Causby

https://supreme.justia.com/cases/federal/us/328/256/

U.S. Supreme Court United States v. Causby, 328 U.S. 256 (1946) United States v. Causby No. 630 Argued May 1, 1946 Decided May 27, 1946 328 U.S. 256 CERTIORARI TO THE COURT OF CLAIMS Syllabus Respondents owned a dwelling and a chicken farm near a municipal airport. The safe path of glide to one of the runways of the airport passed directly over respondents' property at 83 feet, which was 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. It was used 4% of the time in taking off and 7% of the time in landing. The Government leased the use of the airport for a term of one month commencing June 1, 1942, with a provision for renewals until June 30, 1967, or six months after the end of the national emergency, whichever was earlier. Various military aircraft of the United States used the airport. They frequently came so close to respondents' property that they barely missed the tops of trees, the noise was startling, and the glare from their landing lights lighted the place up brightly at night. This destroyed the use of the property as a chicken farm and caused loss of sleep, nervousness, and fright on the part of respondents. They sued in the Court of Claims to recover for an alleged taking of their property and for damages to their poultry business. The Court of Claims found that the Government had taken an easement over respondents' property, and that the value of the property destroyed and the easement taken was $2,000; but it made no finding as to the precise nature or duration of the easement. Held: 1. A servitude has been imposed upon the land for which respondents are entitled to compensation under the Fifth Amendment. Pp. 328 U. S. 260 -267. (a) The common law doctrine that ownership of land extends to the periphery of the universe has no place in the modern world. Pp. 328 U. S. 260 -261. (b) The air above the minimum safe altitude of flight prescribed by the Civil Aeronautics Authority is a public highway and part of the public domain, as declared by Congress in the Air Commerce Act of 1926, as amended by the Civil Aeronautics Act of 1938. Pp. 328 U. S. 260 -261, 328 U. S. 266 . (c) Flights below that altitude are not within the navigable air space which Congress placed within the public domain, even though they are within the path of glide approved by the Civil Aeronautics Authority. Pp. 328 U.S. 263 -264. Page 328 U. S. 257 (d) Flights of aircraft over private land which are so low and frequent as to be a direct and immediate interference with the enjoyment and use of the land are as much an appropriation of the use of the land as a more conventional entry upon it. Pp. 328 U. S. 261 -262, 328 U. S. 264 -267. 2. Since there was a taking of private property for public use, the claim was "founded upon the Constitution," within the meaning of § 141(1) of the Judicial Code, and the Court of Claims had jurisdiction to hear and determine it. P. 328 U. S. 267 . 3. Since the court's findings of fact contain no precise description of the nature or duration of the easement taken, the judgment is reversed, and the cause is remanded to the Court of Claims so that it may make the necessary findings. Pp. 328 U. S. 267 -268. (a) An accurate description of the easement taken is essential, since that interest vests in the United States. P. 328 U. S. 267 . (b) Findings of fact on every "material issue" are a statutory requirement, and a deficiency in the findings cannot be rectified by statements in the opinion. Pp. 328 U. S. 267 -268. (c) A conjecture in lieu of a conclusion from evidence would not be a proper foundation for liability of the United States. P. 328 U. S. 268 . 104 Ct.Cls. 342, 60 F. Supp. 751, reversed and remanded. The Court of Claims granted respondents a judgment for the value of property destroyed and damage to their property resulting from the taking of an easement over their property by low-flying military aircraft of the United States, but failed to include in its findings of fact a specific description of the nature or duration of the easement. 104 Ct.Cls. 342, 60 F. Supp. 751. This Court granted certiorari. 327 U.S. 775. Reversed and remanded, p. 328 U. S. 268 . Page 328 U. S. 258 MR. JUSTICE DOUGLAS delivered the opinion of the Court. This is a case of first impression. The problem presented is whether respondents' property was taken within the meaning of the Fifth Amendment by frequent and regular flights of army and navy aircraft over respondents' land at low altitudes. The Court of Claims held that there was a taking, and entered judgment for respondent, one judge dissenting. 60 F. Supp. 751. The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented. Respondents own 2.8 acres near an airport outside of Greensboro, North Carolina. It has on it a dwelling house, and also various outbuildings which were mainly used for raising chickens. The end of the airport's northwest-southeast runway is 2,220 feet from respondents' barn and 2,275 feet from their house. The path of glide to this runway passes directly over the property -- which is 100 feet wide and 1,200 feet long. The 30 to 1 safe glide angle [ Footnote 1 ] approved by the Civil Aeronautics Authority [ Footnote 2 ] passes over this property at 83 feet, which is 67 feet above the house, 63 feet above the barn and 18 feet above the highest tree. [ Footnote 3 ] The use by the United States of this airport is pursuant to a lease executed in May, 1942, for a term commencing June 1, 1942 and ending June 30, 1942, with a provision for renewals until June 30, 1967, or six Page 328 U. S. 259 months after the end of the national emergency, whichever is the earlier. Various aircraft of the United States use this airport -- bombers, transports, and fighters. The direction of the prevailing wind determines when a particular runway is used. The northwest-southeast runway in question is used about four percent of the time in taking off and about seven percent of the time in landing. Since the United States began operations in May, 1942, its four-motored heavy bombers, other planes of the heavier type, and its fighter planes have frequently passed over respondents' land buildings in considerable numbers and rather close together. They come close enough at times to appear barely to miss the tops of the trees, and at times so close to the tops of the trees as to blow the old leaves off. The noise is startling. And, at night, the glare from the planes brightly lights up the place. As a result of the noise, respondents had to give up their chicken business. As many as six to ten of their chickens were killed in one day by flying into the walls from fright. The total chickens lost in that manner was about 150. Production also fell off. The result was the destruction of the use of the property as a commercial chicken farm. Respondents are frequently deprived of their sleep, and the family has become nervous and frightened. Although there have been no airplane accidents on respondents' property, there have been several accidents near the airport and close to respondents' place. These are the essential facts found by the Court of Claims. On the basis of these facts, it found that respondents' property had depreciated in value. It held that the United States had taken an easement over the property on June 1, 1942, and that the value of the property destroyed and the easement taken was $2,000. Page 328 U. S. 260 I. The United States relies on the Air Commerce Act of 1926, 44 Stat. 568, 49 U.S.C. § 171 et seq., as amended by the Civil Aeronautics Act of 1938, 52 Stat. 973, 49 U.S.C. § 401 et seq. Under those statutes, the United States has "complete and exclusive national sovereignty in the air space" over this country. 49 U.S.C. § 176(a). They grant any citizen of the United States "a public right of freedom of transit in air commerce [ Footnote 4 ] through the navigable air space of the United States." 49 U.S.C. § 403. And "navigable air space" is defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180. And it is provided that "such navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation." Id. It is therefore argued that, since these flights were within the minimum safe altitudes of flight which had been prescribed, they were an exercise of the declared right of travel through the airspace. The United States concludes that, when flights are made within the navigable airspace without any physical invasion of the property of the landowners, there has been no taking of property. It says that, at most, there was merely incidental damage occurring as a consequence of authorized air navigation. It also argues that the landowner does not own superadjacent airspace which he has not subjected to possession by the erection of structures or other occupancy. Moreover, it is argued that, even if the United States took airspace owned by respondents, no compensable damage was shown. Any damages are said to be merely consequential for which no compensation may be obtained under the Fifth Amendment. It is ancient doctrine that at common law ownership of the land extended to the periphery of the universe -- cujus Page 328 U. S. 261 est solum ejus est usque and coelum. [ Footnote 5 ] But that doctrine has no place in the modern world. The air is a public highway, as Congress has declared. Were that not true, every transcontinental flight would subject the operator to countless trespass suits. Common sense revolts at the idea. To recognize such private claims to the airspace would clog these highways, seriously interfere with their control and development in the public interest, and transfer into private ownership that to which only the public has a just claim. But that general principle does not control the present case. For the United States conceded on oral argument that, if the flights over respondents' property rendered it uninhabitable, there would be a taking compensable under the Fifth Amendment. It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken. United States v. Miller, 317 U. S. 369 . Market value fairly determined is the normal measure of the recovery. Id. And that value may reflect the use to which the land could readily be converted, as well as the existing use. United States v. Powelson, 319 U. S. 266 , 319 U. S. 275 , and cases cited. If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. [ Footnote 6 ] It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it. We agree that, in those circumstances, there would be a taking. Though it would be only an easement of flight Page 328 U. S. 262 which was taken, that easement, if permanent and not merely temporary, normally would be the equivalent of a fee interest. It would be a definite exercise of complete dominion and control over the surface of the land. The fact that the planes never touched the surface would be as irrelevant as the absence in this day of the feudal livery of seisin on the transfer of real estate. The owner's right to possess and exploit the land -- that is to say, his beneficial ownership of it -- would be destroyed. It would not be a case of incidental damages arising from a legalized nuisance, such as was involved in Richards v. Washington Terminal Co., 233 U. S. 546 . In that case, property owners whose lands adjoined a railroad line were denied recovery for damages resulting from the noise, vibrations, smoke, and the like, incidental to the operations of the trains. In the supposed case, the line of flight is over the land. And the land is appropriated as directly and completely as if it were used for the runways themselves. There is no material difference between the supposed case and the present one, except that, here, enjoyment and use of the land are not completely destroyed. But that does not seem to us to be controlling. The path of glide for airplanes might reduce a valuable factory site to grazing land, an orchard to a vegetable patch, a residential section to a wheat field. Some value would remain. But the use of the airspace immediately above the land would limit the utility of the land and cause a diminution in its value. [ Footnote 7 ] That was the philosophy of Portsmouth Harbor Land & Hotel Co. v. Page 328 U. S. 263 United States, 260 U. S. 327 . In that case, the petition alleged that the United States erected a fort on nearby land, established a battery and a fire control station there, and fired guns over petitioner's land. The Court, speaking through Mr. Justice Holmes, reversed the Court of Claims which dismissed the petition on a demurrer, holding that "the specific facts set forth would warrant a finding that a servitude has been imposed." [ Footnote 8 ] 260 U.S. at 260 U. S. 330 . And see Delta Air Corp. v. Kersey, 193 Ga. 862, 20 S.E.2d 245. Cf. United States v. 357.25 Acres of Land, 55 F. Supp. 461 . The fact that the path of glide taken by the planes was that approved by the Civil Aeronautics Authority does not change the result. The navigable airspace which Congress has placed in the public domain is "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180. If that agency prescribed 83 feet as the minimum safe altitude, then we would have presented the question of the validity of the regulation. But nothing of the sort has been done. The path of glide governs the method of operating -- of landing or taking off. The altitude required for that operation is not the minimum safe altitude of flight which is the downward reach of the navigable airspace. The minimum prescribed by the authority is 500 feet during the day and 1000 feet at night for air carriers (Civil Air Regulations, Pt. 61, §§ 61.7400, 61.7401, Code Fed.Reg.Cum.Supp., Tit. 14, ch. 1) and from 300 to 1000 feet for Page 328 U. S. 264 other aircraft depending on the type of plane and the character of the terrain. Id., Pt. 60, §§ 60.350-60.3505, Fed.Reg.Cum.Supp., supra. Hence, the flights in question were not within the navigable airspace which Congress placed within the public domain. If any airspace needed for landing or taking off were included, flights which were so close to the land as to render it uninhabitable would be immune. But the United States concedes, as we have said, that, in that event, there would be a taking. Thus, it is apparent that the path of glide is not the minimum safe altitude of flight within the meaning of the statute. The Civil Aeronautics Authority has, of course, the power to prescribe air traffic rules. But Congress has defined navigable airspace only in terms of one of them -- the minimum safe altitudes of flight. We have said that the airspace is a public highway. Yet it is obvious that, if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run. The principle is recognized when the law gives a remedy in case overhanging structures are erected on adjoining land. [ Footnote 9 ] The landowner owns at least as much of the space above the ground as the can occupy or use in connection with the land. See Hinman v. Pacific Air Transport, 84 F.2d 755. The fact that he does not occupy it in a physical sense -- by the erection of buildings and the like -- is not material. As we have said, the flight of airplanes, which skim the surface but do not touch it, is as much an appropriation of the use of the land as a more conventional entry upon it. We would not doubt that, if the United States erected Page 328 U. S. 265 an elevated railway over respondents' land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. [ Footnote 10 ] The reason is that there would be an intrusion so immediate and direct as to subtract from the owner's full enjoyment of the property and to limit his exploitation of it. While the owner does not in any physical manner occupy that stratum of airspace or make use of it in the conventional sense, he does use it in somewhat the same sense that space left between buildings for the purpose of light and air is used. The superadjacent airspace at this low altitude is so close to the land that continuous invasions of it affect the use of the surface of the land itself. We think that the landowner, as an incident to his ownership, has a claim to it, and that invasions of it are in the same category as invasions of the surface. [ Footnote 11 ] In this case, as in Portsmouth Harbor Land & Hotel Co. v. United States, supra, the damages were not merely consequential. They were the product of a direct invasion of respondents' domain. Page 328 U. S. 266 As stated in United States v. Cress, 243 U. S. 316 , 243 U. S. 328 , ". . . it is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial, that determines the question whether it is a taking." We said in United States v. Powelson, supra, p. 319 U. S. 279 , that, while the meaning of "property" as used in the Fifth Amendment was a federal question, "it will normally obtain its content by reference to local law." If we look to North Carolina law, we reach the same result. Sovereignty in the airspace rests in the State "except where granted to and assumed by the United States." Gen.Stats.1943, § 63-11. The flight of aircraft is lawful "unless at such a low altitude as to interfere with the then existing use to which the land or water, or the space over the land or water, is put by the owner, or unless so conducted as to be imminently dangerous to persons or property lawfully on the land or water beneath." Id., § 63-13. Subject to that right of flight, "ownership of the space above the lands and waters of this State is declared to be vested in the several owners of the surface beneath." Id., § 63-12. Our holding that there was an invasion of respondents' property is thus not inconsistent with the local law governing a landowner's claim to the immediate reaches of the superadjacent airspace. The airplane is part of the modern environment of life, and the inconveniences which it causes are normally not compensable under the Fifth Amendment. The airspace, apart from the immediate reaches above the land, is part of the public domain. We need not determine at this time what those precise limits are. Flights over private land are not a taking, unless they are so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land. We need not speculate on that phase of the present case. For the findings of the Court Page 328 U. S. 267 of Claims plainly establish that there was a diminution in value of the property, and that the frequent, low-level flights were the direct and immediate cause. We agree with the Court of Claims that a servitude has been imposed upon the land. II. By § 145(1) of the Judicial Code, 28 U.S.C. § 250(1), the Court of Claims has jurisdiction to hear and determine "All claims (except for pensions) founded upon the Constitution of the United States or . . . upon any contract, express or implied, with the Government of the United States." We need not decide whether repeated trespasses might give rise to an implied contract. Cf. Portsmouth Harbor Land & Hotel Co. v. United States, supra. If there is a taking, the claim is "founded upon the Constitution," and within the jurisdiction of the Court of Claims to hear and determine. See Hollister v. Benedict & Burnham Mfg. Co., 113 U. S. 59 , 113 U. S. 67 ; Hurley v. Kincaid, 285 U. S. 95 , 285 U. S. 104 ; Yearsley v. W. A. Ross Construction Co., 309 U. S. 18 , 309 U. S. 21 . Thus, the jurisdiction of the Court of Claims in this case is clear. III. The Court of Claims held, as we have noted, that an easement was taken. But the findings of fact contain no precise description as to its nature. It is not described in terms of frequency of flight, permissible altitude, or type of airplane. Nor is there a finding as to whether the easement taken was temporary or permanent. Yet an accurate description of the property taken is essential, since that interest vests in the United States. United States v. Cress, supra, 243 U. S. 328 -329, and cases cited. It is true that the Court of Claims stated in its opinion that the easement taken was permanent. But the deficiency in findings cannot be rectified by statements in the opinion. United States v. Esnault-Pelterie, 299 U. S. 201 , 299 U. S. 205 -206; United States v. Seminole Nation, 299 U. S. 417 , 299 U. S. 422 . Findings of fact on every "material issue" are a statutory Page 328 U. S. 268 requirement. 53 Stat. 752, 28 U.S.C. § 288. The importance of findings of fact based on evidence is emphasized here by the Court of Claims' treatment of the nature of the easement. It stated in its opinion that the easement was permanent because the United States "no doubt intended to make some sort of arrangement whereby it could use the airport for its military planes whenever it had occasion to do so." That sounds more like conjecture, rather than a conclusion from evidence, and if so, it would not be a proper foundation for liability of the United States. We do not stop to examine the evidence to determine whether it would support such a finding, if made. For that is not our function. United States v. Esnault-Pelterie, supra, p. 299 U. S. 206 . Since on this record it is not clear whether the easement taken is a permanent or a temporary one, it would be premature for us to consider whether the amount of the award made by the Court of Claims was proper. The judgment is reversed, and the cause is remanded to the Court of Claims so that it may make the necessary findings in conformity with this opinion. Reversed. MR. JUSTICE JACKSON took no part in the consideration or decision of this case. [ Footnote 1 ] A 30 to 1 glide angle means one foot of elevation or descent for every 30 feet of horizontal distance. [ Footnote 2 ] Military planes are subject to the rules of the Civil Aeronautics Board where, as in the present case, there are no Army or Navy regulations to the contrary. Cameron v. Civil Aeronautics Board, 140 F.2d 482. [ Footnote 3 ] The house is approximately 16 feet high, the barn 20 feet, and the tallest tree 65 feet. [ Footnote 4 ] "Air commerce" is defined as including "any operation or navigation of aircraft which directly affects, or which may endanger safety in, interstate, overseas, or foreign air commerce." 49 U.S.C. § 401(3). [ Footnote 5 ] 1 Coke, Institutes, 19th Ed. 1832, ch. 1, § 1(4a); 2 Blackstone, Commentaries, Lewis Ed.1902, p. 18; 3 Kent, Commentaries, Gould Ed. 1896, p. 621. [ Footnote 6 ] The destruction of all uses of the property by flooding has been held to constitute a taking. Pumpelly v. Green Bay Co. , 13 Wall. 166; United States v. Lynah, 188 U. S. 445 ; United States v. Welch, 217 U. S. 333 . [ Footnote 7 ] It was stated in United States v. General Motors Corp., 323 U. S. 373 , 323 U. S. 378 , "The courts have held that the deprivation of the former owner, rather than the accretion of a right or interest to the sovereign, constitutes the taking. Governmental action short of acquisition of title or occupancy has been held, if its effects are so complete as to deprive the owner of all or most of his interest in the subject matter, to amount to a taking." The present case falls short of the General Motors case. This is not a case where the United States has merely destroyed property. It is using a part of it for the flight of its planes. Cf. Warren Township School Dist. v. Detroit, 308 Mich. 460, 14 N.W.2d 134; Smith v. New England Aircraft Co., 270 Mass. 511, 170 N.E. 385; Burnham v. Beverly Airways, Inc., 311 Mass. 628, 42 N.E.2d 575. [ Footnote 8 ] On remand, the allegations in the petition were found not to be supported by the facts. 64 Ct.Cls. 572. [ Footnote 9 ] Baten's Case, 9 Coke R. 53b; Meyer v. Metzler, 51 Cal. 142; Codman v. Evans, 7 Allen 431, 89 Mass. 431; Harrington v. McCarthy, 169 Mass. 492, 48 N.E. 278. See Ball, The Vertical Extent of Ownership in Land, 76 U.Pa.L.Rev. 631, 658-671. [ Footnote 10 ] It was held in Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716, that ejectment would lie where a telephone wire was strung across the plaintiff's property, even though it did not touch the soil. The court stated, pp. 491-492: ". . . an owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. Expand the wire into a beam supported by posts standing upon abutting lots without touching the surface of plaintiff's land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be disturbed." [ Footnote 11 ] See Bouve, Private Ownership of Navigable Airspace Under the Commerce Clause, 21 Amer.Bar Assoc.Journ. 416, 421-422; Hise, Ownership and Sovereignty of the Air, 16 Ia.L.Rev. 169; Eubank, The Doctrine of the Airspace Zone of Effective Possession, 12 Boston Univ.L.Rev. 414. MR. JUSTICE BLACK, dissenting. The Fifth Amendment provides that "private property" shall not "be taken for public use, without just compensation." The Court holds today that the Government has "taken" respondents' property by repeatedly flying Army bombers directly above respondents' land at a height of eighty-three feet where the light and noise from these planes caused respondents to lose sleep, and their chickens to be killed. Since the effect of the Court's decision is Page 328 U. S. 269 to limit, by the imposition of relatively absolute Constitutional barriers, possible future adjustments through legislation and regulation which might become necessary with the growth of air transportation, and since, in my view, the Constitution does not contain such barriers, I dissent. The following is a brief statement of the background and of the events that the Court's opinion terms a "taking" within the meaning of the Fifth Amendment: since 1928, there has been an airfield some eight miles from Greensboro, North Carolina. In April, 1942, this airport was taken over by the Greensboro-High Point Municipal Airport Authority, and it has since then operated as a municipal airport. In 1942, the Government, by contract, obtained the right to use the field "concurrently, jointly, and in common" with other users. Years before, in 1934, respondents had bought their property, located more than one-third of a mile from the airport. Private planes from the airport flew over their land and farm buildings from 1934 to 1942. and are still doing so. But though these planes disturbed respondents to some extent, Army bombers, which started to fly over the land in 1942 at a height of eighty-three feet, disturbed them more, because they were larger, came over more frequently, made a louder noise, and, at night, a greater glare was caused by their lights. This noise and glare disturbed respondents' sleep, frightened them, and made them nervous. The noise and light also frightened respondents' chickens so much that many of them flew against buildings and were killed. The Court's opinion seems to indicate that the mere flying of planes through the column of air directly above respondents' land does not constitute a "taking." Consequently, it appears to be noise and glare, to the extent and under the circumstances shown here, which make the government a seizer of private property. But the allegation Page 328 U. S. 270 of noise and glare resulting in damages constitutes at best, an action in tort where there might be recovery if the noise and light constituted a nuisance, a violation of a statute, [ Footnote 2/1 ] or were the result of negligence. [ Footnote 2/2 ] But the Government has not consented to be sued in the Court of Claims except in actions based on express or implied contract. And there is no implied contract here, unless, by reason of the noise and glare caused by the bombers, the Government can be said to have "taken" respondents' property in a Constitutional sense. The concept of taking property, as used in the Constitution, has heretofore never been given so sweeping a meaning. The Court's opinion presents no case where a man who makes noise or shines light onto his neighbor's property has been ejected from that property for wrongfully taking possession of it. Nor would anyone take seriously a claim that noisy automobiles passing on a highway are taking wrongful possession of the homes located thereon, or that a city elevated train which greatly interferes with the sleep of those who live next to it wrongfully takes their property. Even the one case in this Court which, in considering the sufficiency of a complaint, gave the most elastic meaning to the phrase "private property be taken," as used in the Fifth Amendment, did not go so far. Portsmouth Harbor Land & Hotel Co. v. United States , 260 U.S. Page 328 U. S. 271 327. I am not willing, nor do I think the Constitution and the decisions authorize me, to extend that phrase so as to guarantee an absolute Constitutional right to relief not subject to legislative change, which is based on averments that, at best, show mere torts committed by Government agents while flying over land. The future adjustment of the rights and remedies of property owners, which might be found necessary because of the flight of planes at safe altitudes, should, especially in view of the imminent expansion of air navigation, be left where I think the Constitution left it -- with Congress. Nor do I reach a different conclusion because of the fact that the particular circumstance which under the Court's opinion makes the tort here absolutely actionable is the passing of planes through a column of air at an elevation of eighty-three feet directly over respondents' property. It is inconceivable to me that the Constitution guarantees that the airspace of this Nation needed for air navigation is owned by the particular persons who happen to own the land beneath to the same degree as they own the surface below. [ Footnote 2/3 ] No rigid Constitutional rule, in my judgment, commands that the air must be considered as marked off into separate compartments by imaginary metes and bounds in order to synchronize air ownership with land ownership. I think that the Constitution entrusts Congress with full power to control all navigable airspace. Congress has already acted under that power. It has by statute, 44 Stat. 568, 52 Stat. 973, provided that "the United States of America is . . . to possess and exercise complete and exclusive national sovereignty in the Page 328 U. S. 272 air space [over] the United States." This was done under the assumption that the Commerce Clause of the Constitution gave Congress the same plenary power to control navigable airspace as its plenary power over navigable waters. H.Rep. No. 572, 69th Cong., 1st Sess., p. 10; H.Rep. No. 1162, 69th Cong., 1st Sess., p. 14; United States v. Commodore Park, Inc., 324 U. S. 386 . To make sure that the airspace used for air navigation would remain free, Congress further declared that "navigable airspace shall be subject to a public right of freedom of interstate and foreign air navigation," and finally stated emphatically that there exists "a public right of freedom of transit . . . through the navigable airspace of the United States." Congress thus declared that the air is free -- not subject to private ownership and not subject to delimitation by the courts. Congress and those acting under its authority were the only ones who had power to control and regulate the flight of planes. "Navigable air-space" was defined as "airspace above the minimum safe altitudes of flight prescribed by the Civil Aeronautics Authority." 49 U.S.C. § 180. Thus, Congress has given the Civil Aeronautics Authority exclusive power to determine what is navigable airspace subject to its exclusive control. This power derives specifically from the Section which authorizes the Authority to prescribe "air traffic rules governing the flight of, and for the navigation, protection, and identification of, aircraft, including rules as to safe altitudes of flight and rules for the prevention of collisions between aircraft, and between aircraft and land or water vehicles." Here, there was no showing that the bombers flying over respondents' land violated any rule or regulation of the Civil Aeronautics Authority. Yet, unless we hold the Act unconstitutional, at least such a showing would be necessary before the courts could act without interfering with the exclusive authority which Congress gave to the administrative agency. Not even a Page 328 U. S. 273 showing that the Authority has not acted at all would be sufficient. For, in that event, were the courts to have any authority to act in this case at all, they should stay their hand till the Authority has acted. The broad provisions of the Congressional statute cannot properly be circumscribed by making a distinction, as the Court's opinion does, between rules of safe altitude of flight while on the level of cross-country flight and rules of safe altitude during landing and taking off. First, such a distinction cannot be maintained from the practical standpoint. It is unlikely that Congress intended that the Authority prescribe safe altitudes for planes making cross-country flights while, at the same time, it left the more hazardous landing and take-off operations unregulated. The legislative history, moreover, clearly shows that the Authority's power to prescribe air traffic rules includes the power to make rules governing landing and take-off. Nor is the Court justified in ignoring that history by labeling rules of safe altitude while on the level of cross-country flight as rules prescribing the safe altitude proper and rules governing take-off and landing as rules of operation. For the Conference Report explicitly states that such distinctions were purposely eliminated from the original House Bill in order that the Section on air traffic rules "might be given the broadest construction by the . . . [Civil Aeronautics Authority] . . . and the courts." [ Footnote 2/4 ] In construing the statute narrowly the Court Page 328 U. S. 274 thwarts the intent of Congress. A proper broad construction, such as Congress commanded, would not permit the Court to decide what it has today without declaring the Act of Congress unconstitutional. I think the Act given the broad construction intended is constitutional. No greater confusion could be brought about in the coming age of air transportation than that which would result were courts by Constitutional interpretation to hamper Congress in its efforts to keep the air free. Old concepts of private ownership of land should not be introduced into the field of air regulation. I have no doubt that Congress will, if not handicapped by judicial interpretations of the Constitution, preserve the freedom of the air, and at the same time, satisfy the just claims of aggrieved persons. The noise of newer, larger, and more powerful planes may grow louder and louder and disturb people more and more. But the solution of the problems precipitated by these technological advances and new ways of living cannot come about through the application of rigid Constitutional restraints formulated and enforced by the courts. What adjustments may have to be made, only the future can reveal. It seems certain, however, Page 328 U. S. 275 the courts do not possess the techniques or the personnel to consider and act upon the complex combinations of factors entering into the problems. The contribution of courts must be made through the awarding of damages for injuries suffered from the flying of planes, or by the granting of injunctions to prohibit their flying. When these two simple remedial devices are elevated to a Constitutional level under the Fifth Amendment, as the Court today seems to have done, they can stand as obstacles to better adapted techniques that might be offered by experienced experts and accepted by Congress. Today's opinion is, I fear, an opening wedge for an unwarranted judicial interference with the power of Congress to develop solutions for new and vital and national problems. In my opinion, this case should be reversed on the ground that there has been no "taking" in the Constitutional sense. [ Footnote 2/1 ] Neiswonger v. Goodyear Tire & Rubber Co., 35 F.2d 761 . [ Footnote 2/2 ] As to the damage to chickens, Judge Madden, dissenting from this judgment against the Government said, "When railroads were new, cattle in fields in sight and hearing of the trains were alarmed, thinking that the great moving objects would turn aside and harm them. Horses ran away at the sight and sound of a train or a threshing machine engine. The farmer's chickens have to get over being alarmed at the incredible racket of the tractor starting up suddenly in the shed adjoining the chicken house. These sights and noises are a part of our world, and airplanes are now and will be to a greater degree, likewise a part of it. These disturbances should not be treated as torts in the case of the airplane any more than they are so treated in the case of the railroad or public highway." 104 Ct.Cls. 342, 358. [ Footnote 2/3 ] The House, in its report on the Air Commerce Act of 1926, stated: "The public right of flight in the navigable air space owes its source to the same constitutional basis which, under decisions of the Supreme Court, has given rise to a public easement of navigation in the navigable waters of the United States regardless of the ownership of adjacent or subjacent soil." House Report No. 572, 69th Congress, First Session, page 10. [ Footnote 2/4 ] The full statement read: "The substitute provides that the Secretary shall by regulation establish air traffic rules for the navigation, protection, and identification of all aircraft, including rules for the safe altitudes of flight and rules for the prevention of collisions between vessels and aircraft. The provision as to rules for taking off and alighting, for instance, was eliminated as unnecessary specification, for the reason that such rules are but one class of air traffic rules for the navigation and protection of aircraft. Rules as to marking were eliminated for the reason that such rules were fairly included within the scope of air rules for the identification of aircraft. No attempt is made by either the Senate bill or the House amendment to fully define the various classes of rules that would fall within the scope of air traffic traffic rules, as, for instance, lights and signals along airways and at airports and upon emergency landing fields. In general, these rules would relate to the same subjects as those covered by navigation laws and regulations and by the various State motor vehicle traffic codes. As noted above, surplusage was eliminated in specifying particular air traffic rules in order that the term might be given the broadest possible construction by the Department of Commerce and the courts." House Report No. 1162, 69th Congress, 1st Session, p. 12. That the rules for landing and take-off are rules prescribing "minimum safe altitudes of flight" is shown by the following further statement in the House Report: ". . . the minimum safe altitudes of flight . . . would vary with the terrain and location of cities and would coincide with the surface of the land or water at airports." Id. at p. 14.

Here is a summary of the United States v. Causby case: The Supreme Court ruled that the government imposed a servitude on the respondents' land, entitling them to compensation under the Fifth Amendment. The Court rejected the idea that land ownership extends infinitely upward and instead defined the public airspace as beginning at the minimum safe altitude of flight. While the airspace above this altitude is considered a public highway, flights below it are not within the public domain, even if they are within the path of glide. The Court determined that frequent and low-altitude flights over private land can be considered an appropriation of land use, similar to a conventional entry. The Court also concluded that the Court of Claims had jurisdiction to hear the case, as the claim was "founded upon the Constitution" due to the taking of private property for public use. This case sets a precedent for balancing property rights with the increasing presence of aircraft in modern life.

Property Rights & Land Use

Nectow v. City of Cambridge

https://supreme.justia.com/cases/federal/us/277/183/

U.S. Supreme Court Nectow v. City of Cambridge, 277 U.S. 183 (1928) Nectow v. City of Cambridge No. 509 Argued April 19, 1928 Decided May 14, 1928 277 U.S. 183 ERROR TO THE SUPREME JUDICIAL COURT OF MASSACHUSETTS Syllabus The inclusion of private land in a residential district under a zoning ordinance, with resulting inhibition of its use for business and industrial buildings to the serious damage of the owner, violates the Fourteenth Amendment if the health, safety, convenience, or general welfare of the part of the city affected will not be promoted thereby. P. 277 U. S. 188 . 260 Mass. 441 reversed. Error to a judgment of the Supreme Judicial Court of Massachusetts which dismissed a bill brought in that court by Nectow for a mandatory injunction directing the city and its building inspector to pass upon an application to erect any lawful buildings upon his land without regard to an ordinance including it within a restricted residential district. Page 277 U. S. 185 MR. JUSTICE SUTHERLAND delivered the opinion of the Court. A zoning ordinance of the City of Cambridge divides the city into three kinds of districts -- residential, business, and unrestricted. Each of these districts is subclassified in respect of the kind of buildings which way be erected. The ordinance is an elaborate one, and of the same general character as that considered by this Court in Euclid v. Ambler Co., 272 U. S. 365 . In its general scope, it is conceded to be constitutional within that decision. The land of plaintiff in error was put in District R-3, in which are permitted only dwellings, hotels, clubs, churches, schools, philanthropic institutions, greenhouses and gardening, with customary incidental accessories. The attack upon the ordinance is that, as specifically applied to plaintiff in error, it deprived him of his property without due process of law in contravention of the Fourteenth Amendment. Page 277 U. S. 186 The suit was for a mandatory injunction directing the city and its inspector of buildings to pass upon an application of the plaintiff in error for a permit to erect any lawful buildings upon a tract of land without regard to the provisions of the ordinance including such tract within a residential district. The case was referred to a master to make and report findings of fact. After a view of the premises and the surrounding territory, and a hearing, the master made and reported his findings. The case came on to be heard by a justice of the court, who, after confirming the master's report, reported the case for the determination of the full court. Upon consideration, that court sustained the ordinance as applied to plaintiff in error, and dismissed the bill. 260 Mass. 441. A condensed statement of facts, taken from the master's report, is all that is necessary. When the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of land containing 140,000 square feet, of which the locus here in question is a part. The locus contains about 29,000 square feet, with a frontage on Brookline Street, lying west, of 304.75 feet, on Henry Street, lying north, of 100 feet, on the other land of the plaintiff in error, lying east, of 264 feet, and on land of the Ford Motor Company, lying southerly, of 75 feet. The territory lying east and south is unrestricted. The lands beyond Henry Street to the north and beyond Brookline Street to the west are within a restricted residential district. The effect of the zoning is to separate from the west end of plaintiff in error's tract a strip 100 feet in width. The Ford Motor Company has a large auto assembling factory south of the locus, and a soap factory and the tracks of the Boston & Albany Railroad lie near. Opposite the locus, on Brookline Street, and included in the same district, there are some residences, and opposite the locus, on Henry Street, and in the same district, are other residences. The locus is now vacant, Page 277 U. S. 187 although it was once occupied by a mansion house. Before the passage of the ordinance in question, plaintiff in error had outstanding a contract for the sale of the greater part of his entire tract of land for the sum of $63,000. Because of the zoning restrictions, the purchaser refused to comply with the contract. Under the ordinance, business and industry of all sorts are excluded from the locus, while the remainder of the tract is unrestricted. It further appears that provision has been made for widening Brookline Street, the effect of which, if carried out, will be to reduce the depth of the locus to 65 feet. After a statement at length of further facts, the master finds: "That no practical use can be made of the land in question for residential purposes, because, among other reasons herein related, there would not be adequate return on the amount of any investment for the development of the property." The last finding of the master is: "I am satisfied that the districting of the plaintiff's land in a residence district would not promote the health, safety, convenience, and general welfare of the inhabitants of that part of the defendant city, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole city, and I so find." It is made pretty clear that, because of the industrial and railroad purposes to which the immediately adjoining lands to the south and east have been devoted and for which they are zoned, the locus is of comparatively little value for the limited uses permitted by the ordinance. We quite agree with the opinion expressed below that a court should not set aside the determination of public officers in such a matter unless it is clear that their action "has no foundation in reason, and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public Page 277 U. S. 188 safety, or the public welfare in its proper sense." Euclid v. Ambler Co., supra, p. 272 U. S. 395 . An inspection of a plat of the city upon which the zoning districts are outlined, taken in connection with the master's findings, shows with reasonable certainty that the inclusion of the locus in question is not indispensable to the general plan. The boundary line of the residential district before reaching the locus runs for some distance along the streets, and to exclude the locus from the residential district requires only that such line shall be continued 100 feet further along Henry Street and thence south along Brookline Street. There does not appear to be any reason why this should not be done. Nevertheless, if that were all, we should not be warranted in substituting our judgment for that of the zoning authorities primarily charged with the duty and responsibility of determining the question. Zahn v. Board of Public Works, 274 U. S. 325 , 274 U. S. 328 , and cases cited. But that is not all. The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use is not unlimited, and, other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare. Euclid v. Ambler Co., supra, p. 272 U. S. 395 . Here, the express finding of the master, already quoted, confirmed by the court below, is that the health, safety, convenience, and general welfare of the inhabitants of the part of the city affected will not be promoted by the disposition made by the ordinance of the locus in question. This finding of the master, after a hearing and an inspection of the entire area affected, supported, as we think it is, by other findings of fact, is determinative of the case. That the invasion of the property of plaintiff in error was serious and highly injurious is clearly established, and, since a necessary Page 277 U. S. 189 basis for the support of that invasion is wanting, the action of the zoning authorities comes within the ban of the Fourteenth Amendment, and cannot be sustained. Judgment reversed.

Nectow v. City of Cambridge (1928): The Supreme Court ruled that a city's zoning ordinance, which included private land in a residential district and restricted its use, violated the Fourteenth Amendment as it did not promote the health, safety, convenience, or general welfare of the affected area. The Court found that the ordinance's restriction on the landowner's use of their property was not substantially related to the public interest and caused serious and highly injurious consequences for the landowner.

Property Rights & Land Use

Barrows v. Jackson

https://supreme.justia.com/cases/federal/us/346/249/

U.S. Supreme Court Barrows v. Jackson, 346 U.S. 249 (1953) Barrows v. Jackson No. 517 Argued April 28-29, 1953 Decided June 15, 1953 346 U.S. 249 CERTIORARI TO THE DISTRICT COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT Syllabus The enforcement of a covenant forbidding use and occupancy of real estate by non-Caucasians, by an action at law in a state court to recover damages from a co-covenantor for a breach of the covenant, is barred by the Fourteenth Amendment of the Federal Constitution. Pp. 346 U. S. 251 -260. (a) The action of a state court in thus sanctioning a racial restrictive covenant would constitute state action within the prohibition of the Fourteenth Amendment. P. 346 U. S. 254 . (b) State action in allowing damages for breach of a covenant not to permit non-Caucasians to use and occupy their property would deprive such non-Caucasians, unidentified but identifiable, of equal protection of the laws in violation of the Fourteenth Amendment. P. 346 U. S. 254 . (c) The principle that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation has no application to the instant case, in which respondent has been sued for damages totaling $11,600, and in which a judgment against respondent would constitute a direct pocketbook injury to her. Pp. 346 U. S. 254 -256. (d) Under the peculiar circumstances of this case, the reasons which underlie the rule denying standing to raise another's constitutional rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. P. 346 U. S. 257 . (e) The principle that the right to equal protection of the laws is a "personal" right, guaranteed to the individual, rather than to groups or classes, is not here violated, since it is not non-Caucasians as a group whose rights are asserted by the defendant in the damages action, but the rights of particular non-Caucasian would-be users of restricted land. Pp. 346 U. S. 259 -260. (f) The provision of Art. I, §10 of the Federal Constitution, that "No State shall . . . pass any . . . Law impairing the Obligation of Contracts," is not violated by the refusal of a state court Page 346 U. S. 250 to enforce a racial restrictive covenant, since that provision is directed against legislative action only, not against the judgments of courts. P. 346 U. S. 260 . (g) The plaintiffs in an action for damages for breach of a racial restrictive covenant are not denied due process and equal protection of the laws by the state court's refusal to enforce the covenant, since the Constitution confers upon no individual the right to demand action by the State which would result in the denial of equal protection of the laws to others. P. 346 U. S. 260 . 112 Cal. App. 2d 534 , 247 P.2d 99, affirmed. Petitioners sued respondent in a California state court to recover damages for an alleged breach of a racial restrictive covenant. The trial court sustained a demurrer to the complaint. The district Court of Appeal affirmed. 112 Cal. App. 2d 534 , 247 P.2d 99. The State Supreme Court denied a hearing. This Court granted certiorari. 345 U.S. 902. Affirmed, p. 346 U. S. 260 . Page 346 U. S. 251 MR. JUSTICE MINTON delivered the opinion of the Court. This Court held in Shelley v. Kraemer, 334 U. S. 1 , that racial restrictive covenants could not be enforced in equity against Negro purchasers because such enforcement would constitute state action denying equal protection of the laws to the Negroes, in violation of the Fourteenth Amendment to the Federal Constitution. The question we now have is: can such a restrictive covenant be enforced at law by a suit for damages against a co-covenantor who allegedly broke the covenant? Petitioners [ Footnote 1 ] sued respondent at law for damages for breach of a restrictive covenant the parties entered into as owners of residential real estate in the same neighborhood in Los Angeles, California. The petitioners' complaint alleged in part: "That by the terms of said Agreement each of the signers promised and agreed in writing and bound himself, his heirs, executors, administrators, successors, and assigns, by a continuing covenant that no part of his said real property, described therein, should ever at any time be used or occupied by any person or persons not wholly of the white or Caucasian race, and also agreed and promised in writing that this restriction should be incorporated in all papers and transfers of lots or parcels of land hereinabove referred to; provided, however, that said restrictions should not prevent the employment by Page 346 U. S. 252 the owners or tenants of said real property of domestic servants or other employees who are not wholly of the white or Caucasian race; provided, further, however, that such employees shall be permitted to occupy said real property only when actively engaged in such employment. That said Agreement was agreed to be a covenant running with the land. That each provision in said Agreement was for the benefit for all the lots therein described." The complaint further alleged that respondent broke the covenant in two respects: (1) by conveying her real estate without incorporating in the deed the restriction contained in the covenant; and (2) by permitting non-Caucasians to move in and occupy the premises. The trial court sustained a demurrer to the complaint, the District Court of Appeals for the Second Appellate District affirmed, 112 Cal. App. 2d 534 , 247 P.2d 99, and the Supreme Court of California denied hearing. We granted certiorari, 345 U.S. 902, because of the importance of the constitutional question involved and to consider the conflict which has arisen in the decisions of the state courts since our ruling in the Shelley case, supra. Like the California court in the instant case, the Supreme Court of Michigan sustained the dismissal of a claim for damages for breach of a racial restrictive covenant, Phillips v. Naff, 332 Mich. 389, 52 N.W.2d 158 . See also Roberts v. Curtis, 93 F. Supp. 604 . The Supreme Court of Missouri reached a contrary result, Weiss v. Leaon, 359 Mo. 1054, 225 S.W.2d 127, while the Supreme Court of Oklahoma has held that a claim for damages may be maintained against a white seller, an intermediate straw man, and a non-Caucasian purchaser for a conspiracy to violate the covenant, Correll v. Earley, 205 Okl. 366, 237 P.2d 1017 . Page 346 U. S. 253 The trial court in the case here held a party to a covenant restricting use and occupancy [ Footnote 2 ] of real estate to Caucasians could not maintain a suit at law against a co-covenantor for breach of the covenant because of our ruling in Shelley, supra. In Shelley, this Court held that the action of the lower courts in granting equitable relief in the enforcement of such covenants constituted state action denying to Negroes, against whom the covenant was sought to be enforced, equal protection of the laws in violation of the Fourteenth Amendment. This Court said: "We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as a violation of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated. . . ." 334 U. S. 334 U.S. 1, 334 U. S. 13 . That is to say, the law applicable in that case did not make the covenant itself invalid, no one would be punished for making it, and no one's constitutional rights were violated by the covenantor's voluntary adherence thereto. Such voluntary adherence would constitute individual action only. When, however, the parties cease to rely upon voluntary action to carry out the covenant and the State is asked to step in and give its sanction to the enforcement of the covenant, the first question Page 346 U. S. 254 that arises is whether a court's awarding damages constitutes state action under the Fourteenth Amendment. To compel respondent to respond in damages would be for the State to punish her for her failure to perform her covenant to continue to discriminate against non-Caucasians in the use of her property. The result of that sanction by the State would be to encourage the use of restrictive covenants. To that extent, the State would act to put its sanction behind the covenants. If the State may thus punish respondent for her failure to carry our her covenant, she is coerced to continue to use her property in a discriminatory manner, which, in essence, is the purpose of the covenant. Thus, it becomes not respondent's voluntary choice, but the State's choice that she observe her covenant or suffer damages. The action of a state court at law to sanction the validity of the restrictive covenant here involved would constitute state action as surely as it was state action to enforce such covenants in equity, as in Shelley, supra. The next question to emerge is whether the state action in allowing damages deprives anyone of rights protected by the Constitution. If a state court awards damages for breach of a restrictive covenant, a prospective seller of restricted land will either refuse to sell to non-Caucasians or else will require non-Caucasians to pay a higher price to meet the damages which the seller may incur. Solely because of their race, non-Caucasians will be unable to purchase, own, and enjoy property on the same terms as Caucasians. Denial of this right by state action deprives such non-Caucasians, unidentified but identifiable, of equal protection of the laws in violation of the Fourteenth Amendment. See Shelley, supra. But unlike Shelley, supra, no non-Caucasian is before the Court claiming to have been denied his constitutional rights. May respondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her Page 346 U. S. 255 restrictive covenant, rely on the invasion of the rights of others in her defense to this action? Ordinarily, one may not claim standing in this Court to vindicate the constitutional rights of some third party. Reference to this rule is made in varied situations. See Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U. S. 123 , 341 U. S. 149 -154 (concurring opinion). The requirement of standing is often used to describe the constitutional limitation on the jurisdiction of this Court to "cases" and "controversies." See Coleman v. Miller, 307 U. S. 433 , 307 U. S. 464 (concurring opinion). Apart from the jurisdictional requirement, this Court has developed a complementary rule of self-restraint for its own governance (not always clearly distinguished from the constitutional limitation) which ordinarily precludes a person from challenging the constitutionality of state action by invoking the rights of others. See Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 346 -348 (concurring opinion). The common thread underlying both requirements is that a person cannot challenge the constitutionality of a statute unless he shows that he himself is injured by its operation. [ Footnote 3 ] This principle has no application to the instant Page 346 U. S. 256 case in which respondent has been sued for damages totaling $11,600, and in which a judgment against respondent would constitute a direct, pocketbook injury to her. There are still other cases in which the Court has held that, even though a party will suffer a direct substantial injury from application of a statute, he cannot challenge its constitutionality unless he can show that he is within the class whose constitutional rights are allegedly infringed. Bode v. Barrett, 344 U. S. 583 , 344 U. S. 585 ; Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571 , 235 U. S. 576 ; New York ex rel. Hatch v. Reardon, 204 U. S. 152 , 204 U. S. 160 -161; see also Tennessee Elec. Power Co. v. Tennessee Valley Authority, 306 U. S. 118 , 306 U. S. 144 . [ Footnote 4 ] One reason for this ruling is that the state court, when actually faced with the question, might narrowly construe the statute to obliterate the objectionable feature, or it might declare the unconstitutional provisions separable. New York ex rel. Hatch v. Reardon, supra, at 204 U. S. 160 -161; Wuchter v. Pizzutti, 276 U. S. 13 , 276 U. S. 26 -28 (dissenting opinion). It would indeed be undesirable for this Court to consider every conceivable situation which might possibly arise in the application of complex and comprehensive legislation. Nor are we so ready to frustrate the expressed will of Congress or that Page 346 U. S. 257 of the state legislatures. Cf. Southern Pacific Co. v. Gallagher, 306 U. S. 167 , 306 U. S. 172 . This is a salutary rule, the validity of which we reaffirm. But, in the instant case, we are faced with a unique situation in which it is the action of the state court which might result in a denial of constitutional rights and in which it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court. Under the peculiar circumstances of this case, we believe the reasons which underlie our rule denying standing to raise another's rights, which is only a rule of practice, are outweighed by the need to protect the fundamental rights which would be denied by permitting the damages action to be maintained. Cf. Quong Ham Wah Co. v. Industrial Acc. Comm., 184 Cal. 26, 192 P. 1021. In other unique situations which have arisen in the past, broad constitutional policy has led the Court to proceed without regard to its usual rule. In Pierce v. Society of Sisters, 268 U. S. 510 , a state statute required all parents (with certain immaterial exceptions) to send their children to public schools. A private and a parochial school brought suit to enjoin enforcement of the act on the ground that it violated the constitutional rights of parents and guardians. No parent or guardian to whom the act applied was a party or before the Court. The Court held that the act was unconstitutional because it "unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control." Pierce v. Society of Sisters, supra, at 268 U. S. 534 -535. In short, the schools were permitted to assert in defense of their property rights and constitutional rights of the parents and guardians. See also Joint Anti-Fascist Refugee Comm. v. McGrath, supra, at 341 U. S. 141 , 341 U. S. 153 -154; Columbia Broadcasting System v. United States, 316 U. S. 407 , 316 U. S. 422 -423; Helvering v. Page 346 U. S. 258 Gerhardt, 304 U. S. 405 ; Truax v. Raich, 239 U. S. 33 ; United States v. Railroad Co. , 17 Wall. 322; Quong Ham Wah Co. v. Industrial Acc. Comm., supra; cf. United States v. Jeffers, 342 U. S. 48 , 342 U. S. 52 ; Federal Communications Comm'n v. Sanders Brothers Radio Station, 309 U. S. 470 ; Wuchter v. Pizzutti, supra. There is such a close relationship between the restrictive covenant here and the sanction of a state court which would punish respondent for not going forward with her covenant, and the purpose of the covenant itself, that relaxation of the rule is called for here. It sufficiently appears that mulcting in damages of respondent will be solely for the purpose of giving vitality to the restrictive covenant, that is to say, to punish respondent for not continuing to discriminate against non-Caucasians in the use of her property. This Court will not permit or require California to coerce respondent to respond in damages for failure to observe a restrictive covenant that this Court would deny California the right to enforce in equity, Shelley, supra; or that this Court would deny California the right to incorporate in a statute, Buchanan v. Warley, 245 U. S. 60 ; or that could not be enforced in a federal jurisdiction because such a covenant would be contrary to public policy: "It is not consistent with the public policy of the United States to permit federal courts in the Nation's capital to exercise general equitable powers to compel action denied the state courts where such state action has been held to be violative of the guaranty of the equal protection of the laws. We cannot presume that the public policy of the United States manifests a lesser concern for the protection of such basic rights against discriminatory action of federal courts than against such action taken by the courts of the States." Hurd v. Hodge, 334 U. S. 24 , 344 U. S. 35 -36. See also Roberts v. Curtis, supra. Page 346 U. S. 259 Consistency in the application of the rules of practice in this Court does not require us in this unique set of circumstances to put the State in such an equivocal position simply because the person against whom the injury is directed is not before the Court to speak for himself. The law will permit respondent to resist any effort to compel her to observe such a covenant, so widely condemned by the courts, since she is the one in whose charge and keeping reposes the power to continue to use her property to discriminate or to discontinue such use. The relation between the coercion exerted on respondent and her possible pecuniary loss thereby is so close to the purpose of the restrictive covenant, to violate the constitutional rights of those discriminated against, that respondent is the only effective adversary of the unworthy covenant in its last stand. She will be permitted to protect herself and, by so doing, close the gap to the use of this covenant, so universally condemned by the courts. Petitioners argue that the right to equal protection of the laws is a "personal" right, guaranteed to the individual, rather than to groups or classes. For instance, discriminatory denial of sleeping and dining-car facilities to an individual Negro cannot be justified on the ground that there is little demand for such facilities by Negroes as a group. McCabe v. Atchison, T. & S.F. R. Co., 235 U. S. 151 , 235 U. S. 161 -162. See Sweatt v. Painter, 339 U. S. 629 , 339 U. S. 635 . This description of the right as "personal," when considered in the context in which it has been used, obviously has no bearing on the question of standing. Nor do we violate this principle by protecting the rights of persons not identified in this record. For instance, in the Pierce case, the persons whose rights were invoked were identified only as "present and prospective patrons" of the two schools. Pierce v. Society of Sisters, supra, at 268 U. S. 535 . In the present case, it is not non-Caucasians Page 346 U. S. 260 as a group whose rights are asserted by respondent, but the rights of particular non-Caucasian would-be users of restricted land. It is contended by petitioners that for California courts to refuse to enforce this covenant is to impair the obligations of their contracts. Article I, § 10, of the Federal Constitution provides: "No State shall . . . pass any . . . Law impairing the Obligation of Contracts. . . ." The short answer to this contention is that this provision, as its terms indicate, is directed against legislative action only. "It has been settled by a long line of decisions that the provision of § 10, Article I, of the Federal Constitution, protecting the obligation of contracts against state action, is directed only against impairment by legislation, and not by judgments of courts. . . ." Tidal Oil Co. v. Flanagan, 263 U. S. 444 , 263 U. S. 451 . It is finally contended that petitioners are denied due process and equal protection of the laws by the failure to enforce the covenants. The answer to that proposition is stated by the Court in Shelley, supra, in these words: "The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. . . ." 334 U. S. 334 U.S. 1, 334 U. S. 22 . The judgment is Affirmed. MR. JUSTICE REED and MR. JUSTICE JACKSON took no part in the consideration or decision of this case. [ Footnote 1 ] Petitioner Pikaar was not a signer of the covenant, but is successor in interest of a signer. [ Footnote 2 ] There is no question of restraint of sale here, as agreements restraining sale of land to members of defined racial groups have long been held unenforceable in California because they contravened the State's statutory rule and public policy against restraints on alienation. Wayt v. Patee, 205 Cal. 46, 269 P. 660; Title Guarantee & Trust Co. v. Garrott, 42 Cal. App. 152, 183 P. 470. [ Footnote 3 ] See Frothingham v. Mellon, 262 U. S. 447 , 262 U. S. 486 -489 (federal taxpayer sought to challenge a federal statute in the enforcement of which federal revenues were applied); Doremus v. Board of Education, 342 U. S. 429 , 342 U. S. 434 (state taxpayer unable to show that there was "a measurable appropriation or disbursement of . . . funds occasioned solely by the [state] activities complained of"); Tileston v. Ullman, 318 U. S. 44 (doctor sought a declaratory judgment that a state statute would deprive certain of his patients of their lives without due process of law); Tyler v. The Judges of the Court of Registration, 179 U. S. 405 , 179 U. S. 410 (landowner sought to challenge the notice provisions for a land registration proceeding in which he had not made himself a party, although he had notice of the proceedings, and even though "his interest in the land would remain unaffected" if the act were subsequently declared unconstitutional); Gange Lumber Co. v. Rowley, 326 U. S. 295 ; Alabama Power Co. v. Ickes, 302 U. S. 464 , 302 U. S. 478 -480; cf. McCabe v. Atchison, T. & S.F. R. Co., 235 U. S. 151 , 235 U. S. 162 -164 (four Negroes who sought to enjoin enforcement of discriminatory state action denied relief on the ground that they failed to allege that they themselves had suffered, or were about to suffer, discriminatory treatment for which there was no adequate remedy at law). And compare Doremus v. Board of Education, supra, with Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 206 , 333 U. S. 234 . [ Footnote 4 ] Cf. Goldstein v. United States, 316 U. S. 114 ; Hale v. Henkel, 201 U. S. 43 , 201 U. S. 69 -70, and the lower court cases which restrict to the person whose premises were invaded the right to have illegally seized evidence excluded. The rights in these cases are obviously closely linked to the person of the individual. MR. CHIEF JUSTICE VINSON, dissenting. This case, we are told, is "unique." I agree with the characterization. The Court, by a unique species of Page 346 U. S. 261 arguments, has developed a unique exception to an otherwise easily understood doctrine. While I may hope that the majority's use of "unique" is but another way of saying that the decision today will be relegated to its precise facts tomorrow, I must voice my dissent. The majority seems to recognize, albeit ignore, a proposition which I thought was made plain in the Shelley case. [ Footnote 2/1 ] That proposition is this: these racial restrictive covenants, whatever we may think of them, are not legal nullities so far as any doctrine of federal law is concerned; it is not unlawful to make them; it is not unlawful to enforce them unless the method by which they are enforced in some way contravenes the Federal Constitution or a federal statute. Thus, in the Shelley case, it was not the covenants which were struck down, but judicial enforcement of them against Negro vendees. The question which we decided was simply whether a state court could decree the ouster of Negroes from property which they had purchased and which they were enjoying. We held that it could not. We held that such judicial action, which operated directly against the Negro petitioners and deprived them of their right to enjoy their property solely because of their race, was state action and constituted a denial of "equal protection." [ Footnote 2/2 ] Page 346 U. S. 262 This case is different. The majority identifies no non-Caucasian who has been injured or could be injured if damages are assessed against respondent for breaching the promise which she willingly and voluntarily made to petitioners, a promise which neither the federal law nor the Constitution proscribes. Indeed, the non-Caucasian occupants of the property involved in this case will continue their occupancy undisturbed, regardless of the outcome of the suit. The state court was asked to do nothing which would impair their rights or their enjoyment of the property. The plain, admitted fact that there is no identifiable non-Caucasian before this Court who will be denied any right to buy, occupy or otherwise enjoy the properties involved in this lawsuit, or any other particular properties, is decisive to me. It means that the constitutional defect, present in the Shelley case, is removed from this case. It means that this Court has no power to deal with the constitutional issue which respondent seeks to inject in this litigation as a defense to her breach of contract. It means that the covenant, valid on its face, can be enforced between the parties -- unless California law or California policy forbids its enforcement -- without running afoul of any doctrine ever promulgated by this Court, without any interference from this Court. Page 346 U. S. 263 I turn, first, to the matter of our power to decide this case. The majority states the issue: ". . . May respondent, whom petitioners seek to coerce by an action to pay damages for her failure to honor her restrictive covenant, rely on the invasion of the rights of others in her defense to this action?" Logically, this issue should be met where such an issue is usually met -- at the "threshold"; [ Footnote 2/3 ] this decision should precede any discussion of the merits of respondent's constitutional claim. Yet it is not amiss to point out that the majority has failed to put first things first; it decides the merits and then, comforted by its decision on the merits, resolves its doubts that it has power to decide the merits. A line of decisions -- long enough to warrant the respect of even the most hardened skeptic of the strength of stare decisis as an effective limitation upon this Court's exercise of jurisdiction in constitutional cases -- establishes the principle [ Footnote 2/4 ] which should stay this Court from deciding Page 346 U. S. 264 what it decides today -- from doing what it does today -- from imposing a novel constitutional limitation upon the power of the courts of the several states to enforce their own contract laws as they choose. This deep-rooted, vital doctrine demands that the Court refrain from deciding a constitutional issue until it has a party before it was has standing to raise the issue. [ Footnote 2/5 ] The majority agrees that this is a "salutary" principle, and supplies us with but a small sampling of the cases to show that it has been rigorously applied in many varied situations, and surely no sophistry is required to apply it to this case. Accordingly, respondent must show, at the outset, that she, herself, and not some unnamed person in an Page 346 U. S. 265 amorphous class, is the victim of the unconstitutional discrimination of which she complains. [ Footnote 2/6 ] Respondent makes no such showing. She does not ask the Court to protect her own constitutional rights, nor even the rights of the persons who now occupy her property. Instead, she asks the Court to protect the rights of those non-Caucasians -- whoever they may be -- who might, at some point, be prospective vendees of some other property encumbered by some other similar covenant. Had respondent failed to designate herself as the agent of this anonymous, amorphous class, the majority certainly would have no power to vindicate its rights. Yet, because respondent happens to have decided to act as the self-appointed agent of these principals whom she cannot identify -- in order to relieve herself of the obligations of her own covenant -- the majority finds itself able to assert Page 346 U. S. 266 the power over state courts which it asserts today. I do not think that such tenuous circumstances can spawn the broad constitutional limitation upon state courts which springs from today's decision. [ Footnote 2/7 ] Yet we are told that the rule which restricts our power to impose this constitutional limitation is but a rule of "self-restraint." So is every other jurisdictional limitation which depends, in the last analysis, solely upon this Court's willingness to govern its own exercise of power. And certainly to characterize the rule as self-imposed does not mean that it is self-removable by a simple self-serving process of argument. Yet the majority's logic, reduced to its barest outlines, seems to proceed in that fashion. We are told that the reasons for the self-imposed rule, which precludes us from reaching the merits, have been dissipated in this case, but the only reason why the reasons do not exist is because the Court first holds for respondent, and, having thus decided the merits, it feels free to abandon the rule which should preclude it from reaching the merits. In my view, respondent cannot Page 346 U. S. 267 surmount the hurdle of our well established rule by proceeding with an argument which carries her in a circle right back to her precise point of departure. If it should be, as the majority assumes, that there is no other way that the rights of unidentified non-Caucasians can be vindicated in court, that is only an admission that there is no way in which a substantial case or controversy can be predicated upon the right which the majority is so anxious to pass upon. I cannot assent to a manner of vindicating the constitutional rights of persons unknown, which puts personal predisposition in a paramount position over well established proscriptions on power. But even if the merits are to be reached, even if we must decide whether enforcement of this covenant in a lawsuit of this kind is state action which contravenes the Fourteenth Amendment, I think that the absence of any direct injury to any identifiable non-Caucasian is decisive. The Shelley case, resting on the express determination that restrictive covenants are valid between the parties, dealt only with a state court's attempt to enforce them directly against innocent third parties whose right to enjoy their property would suffer immediate harm. In this case, the plaintiffs have not sought such relief. The suit is directed against the very person whose solemn promise helped to bring the covenant into existence. The plaintiffs ask only that respondent do what she in turn had a right to ask of plaintiffs -- indemnify plaintiffs for the bringing about of an event which she recognized would cause injury to the plaintiffs. We need not concern ourselves now with any question of whether this injury is fancied or real. The short of that matter is that the parties thought that any influx of non-Caucasian neighbors would impair their enjoyment of their properties, and, whether right or wrong, each had the right to control the use of his property against that event, and to exact a promise from his or her neighbor that he or Page 346 U. S. 268 she would act accordingly. And that is precisely what petitioners and respondent did. Moreover, we must, at this pleading stage of the case, accept it as a fact that respondent has thus far profited from the execution of this bargain; observance of the covenant by petitioners raised the value of respondent's properties. By this suit, the plaintiffs sought only to have respondent disgorge that which was gained at the expense of depreciation in her neighbors' property. The majority speaks of this as an attempt to "coerce" respondent to continue to abide by her agreement. Yet the contract has already been breached. The non-Caucasians are in undisturbed occupancy. Furthermore, the respondent consented to the "coercion" -- if "coercion" there be -- by entering into the covenant. Plaintiffs ask only that respondent now pay what she legally obligated herself to pay for an injury which she recognized would occur if she did what she did. Of course, there may be other elements of coercion. Coercion might result on the minds of some Caucasian property owners who have signed a covenant such as this, for they may now feel an economic compulsion to abide by their agreements. But visiting coercion upon the minds of some unidentified Caucasian property owners is not at all the state action which was condemned in the Shelley case. In that case, the state court had directed "the full coercive power of government" against the Negro petitioners -- forcefully removing them from their property because they fell in a class discriminatorily defined. But, in this case, where no identifiable third person can be directly injured if respondent is made to disgorge enough to indemnify petitioners, the Court should not undertake to hold that the Fourteenth Amendment stands as a bar to the state court's enforcement of its contract law. Page 346 U. S. 269 Obviously we can only interfere in this case if the Fourteenth Amendment compels us to do so, for that is the only basis upon which respondent seeks to sustain her defense. While we are limited to enforcement of the Fourteenth Amendment, the state courts are not; they may decline to recognize the covenants for other reasons. Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to the settled rules which restrict the exercise of our power of judicial review -- remembering that the only restraint upon this power is our own sense of self-restraint. [ Footnote 2/8 ] Because I cannot see how respondent can avail herself of the Fourteenth Amendment rights of total strangers -- the only rights which she has chosen to assert -- and since I cannot see how the Court can find that those rights would be impaired in this particular case by requiring respondent to pay petitioners for the injury which she recognizes that she has brought upon them, I am unwilling to join the Court in today's decision. [ Footnote 2/1 ] Shelley v. Kraemer, 334 U. S. 1 (1949). [ Footnote 2/2 ] The state action which we struck down was epitomized in this language, 334 U.S. at 334 U. S. 19 : "We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers; and contracts of sale were accordingly consummated. It is clear that, but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint." "These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. . . ." [ Footnote 2/3 ] Compare Montgomery Building & Construction Trades Council v. Ledbetter Erection Co., 344 U. S. 178 , 344 U. S. 179 (1952); United Public Workers v. Mitchell, 330 U. S. 75 , 330 U. S. 86 (1947). [ Footnote 2/4 ] The principle derives, of course, from the nature of the judicial power conferred by Art. III of the Constitution. At a very early stage in this Court's history, Chief Justice Marshall put the matter thus: ". . . The article does not extend the judicial power to every violation of the constitution which may possibly take place, but to 'a case in law or equity' in which a right, under such law, is asserted in a Court of justice. If the question cannot be brought into a Court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. . . ." Cohens v. Virginia , 6 Wheat. 264, 19 U. S. 405 (1821). And see the discussion of this principle and its ramifications in Mr. Justice Brandeis' concurring opinion in Ashwander v. Tennessee Valley Authority, 297 U. S. 288 , 297 U. S. 341 (1936). [ Footnote 2/5 ] MR. JUSTICE FRANKFURTER, concurring in Coleman v. Miller, 307 U. S. 433 , 307 U. S. 461 (1939), sets forth the basis of the principle which I believe the Court has failed to observe today: "In endowing this Court with 'judicial Power' the Constitution presupposed an historic content for that phrase and relied on assumption by the judiciary of authority only over issues which are appropriate for disposition by judges. . . ." " * * * *" ". . . It is our ultimate responsibility to determine who may invoke our judgment and under what circumstances. . . . The scope and consequences of our doctrine of judicial review over executive and legislative action should make us observe fastidiously the bounds of the litigious process within which we are confined. No matter how seriously infringement of the Constitution may be called into question, this is not the tribunal for its challenge except by those who have some specialized interest of their own to vindicate, apart from a political concern which belongs to all. Stearns v. Wood, 236 U. S. 75 ; Fairchild v. Hughes, 258 U. S. 126 ." " * * * *" "We can only adjudicate an issue as to which there is a claimant before us who has a special, individualized stake in it. One who is merely the self-constituted spokesman of a constitutional point of view can not ask us to pass on it. . . ." [ Footnote 2/6 ] Tyler v. Judges of the Court of Registration, 179 U. S. 405 (1900), while not the first, is generally cited as the leading case on this aspect of the rules governing our exercise of jurisdiction. The Court said: "The prime object of all litigation is to establish a right asserted by the plaintiff or to sustain a defense set up by the party pursued. Save in a few instances where, by statute or the settled practice of the courts, the plaintiff is permitted to sue for the benefit of another, he is bound to show an interest in the suit personal to himself, and even in a proceeding which he prosecutes for the benefit of the public, as, for example, in cases of nuisance, he must generally aver an injury peculiar to himself, as distinguished from the great body of his fellow citizens." 179 U.S. at 179 U. S. 406 . This historic view has been voiced again and again and applied in various situations down through the decades. See, e.g., Lampasas v. Bell, 180 U. S. 276 (1901); Cronin v. Adams, 192 U. S. 108 (1904); The Winnebago, 205 U. S. 354 (1907); Rosenthal v. New York, 226 U. S. 260 (1912); McCabe v. Atchison, T. & S.R. R. Co., 235 U. S. 151 (1914); Jeffrey Manufacturing Co. v. Blagg, 235 U. S. 571 (1915); Sprout v. City of South Bend, 277 U. S. 163 (1928); Tileston v. Ullman, 318 U. S. 44 (1943); Gange Lumber Co. v. Rowley, 326 U. S. 295 (1945); Bode v. Barrett, 344 U. S. 583 (1953). [ Footnote 2/7 ] Similarly, I think that respondent's reliance, in her brief, on Buchanan v. Warley, 245 U. S. 60 (1917), as a precedent to show that she has met the minimum requirements on standing, is misplaced. In that case, a white vendor attacked a zoning ordinance which prohibited the sale of his property to any Negroes. The Court held he had standing to attack the ordinance, since his constitutional attack was founded on the theory that the ordinance unconstitutionally abridged his right to sell his property to any willing purchaser, and not on the theory that it abridged the Negro vendee's right to buy property without being subject to discrimination by the state. The Court then held the statute invalid as an unreasonable classification. Similarly, in Pierce v. Society of Sisters, 268 U. S. 510 (1925), upon which the majority relies, a private school challenged a state law forbidding private education on the theory that the statute unreasonably abridged its (the school's) property rights. It was the assertion of the school's property rights which the Court considered in determining the validity of the statute. [ Footnote 2/8 ] See Mr. Justice Stone dissenting in United States v. Butler, 297 U. S. 1 , 297 U. S. 78 -79 (1936).

In Barrows v. Jackson, the Supreme Court ruled that a state court's enforcement of a covenant prohibiting non-Caucasians from using and occupying real estate violates the Fourteenth Amendment. The Court held that such an action constitutes state action and deprives non-Caucasians of equal protection under the law. The Court also addressed standing, finding that the respondent, sued for damages for breach of the covenant, had a direct and personal stake in the case. The Court further clarified that the right to equal protection is guaranteed to individuals, not groups, and that the state's refusal to enforce the covenant does not violate the Constitution's contract clause or deprive the covenantors of due process or equal protection.

Property Rights & Land Use

Berman v. Parker

https://supreme.justia.com/cases/federal/us/348/26/

U.S. Supreme Court Berman v. Parker, 348 U.S. 26 (1954) Berman v. Parker No. 22 Argued October 19, 1954 Decided November 22, 1954 348 U.S. 26 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Syllabus The District of Columbia Redevelopment Act of 1945 is constitutional, as applied to the taking of appellants' building and land (used solely for commercial purposes) under the power of eminent domain, pursuant to a comprehensive plan prepared by an administrative agency for the redevelopment of a large area of the District of Columbia so as to eliminate and prevent slum and substandard housing conditions -- even though such property may later be sold or leased to other private interests subject to conditions designed to accomplish these purposes. Pp. 348 U. S. 28 -36. (a) The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs. Pp. 348 U. S. 31 -32. (b) Subject to specific constitutional limitations, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation enacted in the exercise of the police power, and this principle admits of no exception merely because the power of eminent domain is involved. P. 348 U.S. 32 . (c) This Court does not sit to determine whether or not a particular housing project is desirable. P. 348 U. S. 33 . (d) If Congress decides that the Nation's Capital shall be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. P. 348 U. S. 33 . (e) Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. P. 348 U. S. 33 . (f) Once the public purpose has been established, the means of executing the project are for Congress and Congress alone to determine. P. 348 U. S. 33 . (g) This Court cannot say that public ownership is the sole method of promoting the public purposes of a community redevelopment project, and it is not beyond the power of Congress to utilize an agency of private enterprise for this purpose, or to authorize the taking of private property and its resale or lease to the same or other private parties as part of such a project. P. 348 U. S. 34 . Page 348 U. S. 27 (h) It is not beyond the power of Congress or its authorized agencies to attack the problem of the blighted parts of the community on an area, rather than on a structure-by-structure basis. Redevelopment of an entire area under a balanced integrated plan so as to include not only new homes, but also schools, churches, parks, streets, and shopping centers is plainly relevant to the maintenance of the desired housing standards, and therefore within congressional power. Pp. 348 U. S. 34 -35. (i) The standards contained in the Act are sufficiently definite to sustain the delegation of authority to administrative agencies to execute the plan to eliminate not only slums, but also the blighted areas that tend to produce slums. P. 348 U. S. 35 . (j) Once the public purpose is established, the amount and character of the land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislature. Pp. 348 U. S. 35 -36. (k) If the Redevelopment Agency considers it necessary in carrying out a redevelopment project to take full title to the land, as distinguished from the objectionable buildings located thereon, it may do so. P. 348 U. S. 36 . (l) The rights of these property owners are satisfied when they receive the just compensation which the Fifth Amendment exacts as the price of the taking. P. 348 U. S. 36 . 117 F. Supp. 705 , modified and affirmed. Page 348 U. S. 28 MR. JUSTICE DOUGLAS delivered the opinion of the Court. This is an appeal (28 U.S.C. § 1253) from the judgment of a three-judge District Court which dismissed a complaint seeking to enjoin the condemnation of appellants' property under the District of Columbia Redevelopment Act of 1945, 60 Stat. 790, D.C.Code, 1951, §§ 5-701-5-719. The challenge was to the constitutionality of the Act, particularly as applied to the taking of appellants' property. The District Court sustained the constitutionality of the Act. 117 F. Supp. 705 . By § 2 of the Act, Congress made a "legislative determination" that, "owing to technological and sociological changes, obsolete lay-out, and other factors, conditions existing in the District of Columbia with respect to substandard housing and blighted areas, including the use of buildings in alleys as dwellings for human habitation, are injurious to the public health, safety, morals, and welfare, and it is hereby declared to be the policy of the United States to protect and promote the welfare of the inhabitants of the seat of the Government by eliminating all such injurious conditions by employing all means necessary and appropriate for the purpose. * " Section 2 goes on to declare that acquisition of property is necessary to eliminate these housing conditions. Page 348 U. S. 29 Congress further finds in § 2 that these ends cannot be attained "by the ordinary operations of private enterprise alone without public participation"; that "the sound replanning and redevelopment of an obsolescent or obsolescing portion" of the District "cannot be accomplished unless it be done in the light of comprehensive and coordinated planning of the whole of the territory of the District of Columbia and its environs," and that "the acquisition and the assembly of real property and the leasing or sale thereof for redevelopment pursuant to a project area redevelopment plan . . . is hereby declared to be a public use." Section 4 creates the District of Columbia Redevelopment Land Agency (hereinafter called the Agency), composed of five members, which is granted power by § 5(a) to acquire and assemble, by eminent domain and otherwise, real property for "the redevelopment of blighted territory in the District of Columbia and the prevention, reduction, or elimination of blighting factors or causes of blight." Section 6(a) of the Act directs the National Capital Planning Commission (hereinafter called the Planning Commission) to make and develop "a comprehensive or general plan" of the District, including "a land use plan" which designates land for use for "housing, business, industry, recreation, education, public buildings, public reservations, and other general categories of public and private uses of the land." Section 6(b) authorizes the Planning Commission to adopt redevelopment plans for specific project areas. These plans are subject to the approval of the District Commissioners after a public hearing, and they prescribe the various public and private land uses for the respective areas, the "standards of population density and building intensity," and "the amount or character or class of any low-rent housing." Page 348 U. S. 30 § 6(b). Once the Planning Commission adopts a plan and that plan is approved by the Commissioners, the Planning Commission certifies it to the Agency. § 6(d). At that point, the Agency is authorized to acquire and assemble the real property in the area. Id. After the real estate has been assembled, the Agency is authorized to transfer to public agencies the land to be devoted to such public purposes as streets, utilities, recreational facilities, and schools, § 7(a), and to lease or sell the remainder as an entirety or in parts to a redevelopment company, individual, or partnership. § 7(b), (f). The leases or sales must provide that the lessees or purchasers will carry out the redevelopment plan, and that "no use shall be made of any land or real property included in the lease or sale nor any building or structure erected thereon" which does not conform to the plan, §§ 7(d), 11. Preference is to be given to private enterprise over public agencies in executing the redevelopment plan. § 7(g). The first project undertaken under the Act relates to Project Area B in Southwest Washington, D.C. In 1950, the Planning Commission prepared and published a comprehensive plan for the District. Surveys revealed that, in Area B, 64.3% of the dwellings were beyond repair, 18.4% needed major repairs, only 17.3% were satisfactory; 57.8% of the dwellings had outside toilets, 60.3% had no baths, 29.3% lacked electricity, 82.2% had no wash basins or laundry tubs, 83.8% lacked central heating. In the judgment of the District's Director of Health, it was necessary to redevelop Area B in the interests of public health. The population of Area B amounted to 5,012 persons, of whom 97.5% were Negroes. The plan for Area B specifies the boundaries and allocates the use of the land for various purposes. It makes detailed provisions for types of dwelling units, and provides that at least one-third of them are to be low-rent Page 348 U. S. 31 housing with a maximum rental of $17 per room per month. After a public hearing, the Commissioners approved the plan and the Planning Commission certified it to the Agency for execution. The Agency undertook the preliminary steps for redevelopment of the area when this suit was brought. Appellants own property in Area B at 712 Fourth Street, S.W. It is not used as a dwelling or place of habitation. A department store is located on it. Appellants object to the appropriation of this property for the purposes of the project. They claim that their property may not be taken constitutionally for this project. It is commercial, not residential property; it is not slum housing; it will be put into the project under the management of a private, not a public, agency, and redeveloped for private, not public, use. That is the argument, and the contention is that appellants' private property is being taken contrary to two mandates of the Fifth Amendment -- (1) "No person shall . . . be deprived of . . . property, without due process of law"; (2) "nor shall private property be taken for public use, without just compensation." To take for the purpose of ridding the area of slums is one thing; it is quite another, the argument goes, to take a man's property merely to develop a better balanced, more attractive community. The District Court, while agreeing in general with that argument, saved the Act by construing it to mean that the Agency could condemn property only for the reasonable necessities of slum clearance and prevention, its concept of "slum" being the existence of conditions "injurious to the public health, safety, morals and welfare." 117 F. Supp. 705 , 724-725. The power of Congress over the District of Columbia includes all the legislative powers which a state may exercise over its affairs. See District of Columbia v. Thompson Page 348 U. S. 32 Co., 346 U. S. 100 , 346 U. S. 108 . We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it be Congress legislating concerning the District of Columbia ( see Block v. Hirsh, 256 U. S. 135 ) or the States legislating concerning local affairs. See Olsen v. Nebraska, 313 U. S. 236 ; Lincoln Union v. Northwestern Co., 335 U. S. 525 ; California State Association v. Maloney, 341 U. S. 105 . This principle admits of no exception merely because the power of eminent domain is involved. The role of the judiciary in determining whether that power is being exercised for a public purpose is an extremely narrow one. See Old Dominion Co. v. United States, 269 U. S. 55 , 269 U. S. 66 ; United States ex rel. TVA v. Welch, 327 U. S. 546 , 327 U. S. 552 . Public safety, public health, morality, peace and quiet, law and order -- these are some of the more conspicuous examples of the traditional application of the police power to municipal affairs. Yet they merely illustrate the scope of the power, and do not delimit it. See Noble State Bank v. Haskell, 219 U. S. 104 , 219 U. S. 111 . Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, Page 348 U. S. 33 which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river. We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. See Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 , 342 U. S. 424 . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation's Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way. Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. See Luxton v. North River Bridge Co., 153 U. S. 525 , 153 U. S. 529 -530; United States v. Gettysburg Electric R. Co., 160 U. S. 668 , 160 U. S. 679 . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here, one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress, and Congress alone, to determine once the public purpose has been established. See Luxton v. North River Bridge Co., supra; cf. Highland v. Russell Car Co., 279 U. S. 253 . The public end may be as well or better served through an Page 348 U. S. 34 agency of private enterprise than through a department of government -- or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects. What we have said also disposes of any contention concerning the fact that certain property owners in the area may be permitted to repurchase their properties for redevelopment in harmony with the over-all plan. That, too, is a legitimate means which Congress and its agencies may adopt, if they choose. In the present case, Congress and its authorized agencies attack the problem of the blighted parts of the community on an area, rather than on a structure-by-structure, basis. That, too, is opposed by appellants. They maintain that, since their building does not imperil health or safety nor contribute to the making of a slum or a blighted area, it cannot be swept into a redevelopment plan by the mere dictum of the Planning Commission or the Commissioners. The particular uses to be made of the land in the project were determined with regard to the needs of the particular community. The experts concluded that, if the community were to be healthy, if it were not to revert again to a blighted or slum area, as though possessed of a congenital disease, the area must be planned as a whole. It was not enough, they believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums -- the overcrowding of dwellings, the lack of parks, the lack of adequate streets and alleys, the absence of recreational areas, the lack of light and air, the presence of outmoded street patterns. It was believed that the piecemeal approach, the removal of individual structures that were offensive, would be only a palliative. The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes, Page 348 U. S. 35 but also schools, churches, parks, streets, and shopping centers. In this way, it was hoped that the cycle of decay of the area could be controlled, and the birth of future slums prevented. Cf. Gohld Realty Co. v. Hartford, 141 Conn. 135, 141-144, 104 A.2d 365, 368-370; Hunter v. Redevelopment Authority, 195 Va. 326, 338-339, 78 S.E.2d 893, 900-901. Such diversification in future use is plainly relevant to the maintenance of the desired housing standards, and therefore within congressional power. The District Court below suggested that, if such a broad scope were intended for the statute, the standards contained in the Act would not be sufficiently definite to sustain the delegation of authority. 117 F. Supp. 705 , 721. We do not agree. We think the standards prescribed were adequate for executing the plan to eliminate not only slums as narrowly defined by the District Court, but also the blighted areas that tend to produce slums. Property may, of course, be taken for this redevelopment which, standing by itself, is innocuous and unoffending. But we have said enough to indicate that it is the need of the area as a whole which Congress and its agencies are evaluating. If owner after owner were permitted to resist these redevelopment programs on the ground that his particular property was not being used against the public interest, integrated plans for redevelopment would suffer greatly. The argument pressed on us is, indeed, a plea to substitute the landowner's standard of the public need for the standard prescribed by Congress. But as we have already stated, community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis -- lot by lot, building by building. It is not for the courts to oversee the choice of the boundary line, nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular Page 348 U. S. 36 tract to complete the integrated plan rests in the discretion of the legislative branch. See Shoemaker v. United States, 147 U. S. 282 , 147 U. S. 298 ; United States ex rel. TVA v. Welch, supra, 327 U. S. 554 ; United States v. Carmack, 329 U. S. 230 , 329 U. S. 247 . The District Court indicated grave doubts concerning the Agency's right to take full title to the land as distinguished from the objectionable buildings located on it. 117 F. Supp. 705 , 715-719. We do not share those doubts. If the Agency considers it necessary in carrying out the redevelopment project to take full title to the real property involved, it may do so. It is not for the courts to determine whether it is necessary for successful consummation of the project that unsafe, unsightly, or insanitary buildings alone be taken or whether title to the land be included, any more than it is the function of the courts to sort and choose among the various parcels selected for condemnation. The rights of these property owners are satisfied when they receive that just compensation which the Fifth Amendment exacts as the price of the taking. The judgment of the District Court, as modified by this opinion, is Affirmed. * The Act does not define either "slums" or "blighted areas." Section 3(r), however, states: "'Substandard housing conditions' means the conditions obtaining in connection with the existence of any dwelling, or dwellings, or housing accommodations for human beings, which because of lack of sanitary facilities, ventilation, or light, or because of dilapidation, overcrowding, faulty interior arrangement, or any combination of these factors, is in the opinion of the Commissioners detrimental to the safety, health, morals, or welfare of the inhabitants of the District of Columbia."

The U.S. Supreme Court upheld the District of Columbia Redevelopment Act of 1945, which allowed for the taking of private property through eminent domain for urban renewal projects. The Court ruled that Congress has the power to determine the public purpose and means of executing redevelopment projects, including the use of private enterprise and the taking of land, not just unsafe buildings. The Court affirmed that the Act's standards were sufficient to guide the redevelopment agency and that the public purpose of eliminating slum and substandard housing conditions justified the taking of private property.

Property Rights & Land Use

Shelley v. Kraemer

https://supreme.justia.com/cases/federal/us/334/1/

U.S. Supreme Court Shelley v. Kraemer, 334 U.S. 1 (1948) Shelley v. Kraemer Argued January 15-16, 1948 Decided May 3, 1948 334 U.S. 1 ast|>* 334 U.S. 1 CERTIORARI TO THE SUPREME COURT OF MISSOURI Syllabus Private agreements to exclude persons of designated race or color from the use or occupancy of real estate for residential purposes do not violate the Fourteenth Amendment; but it is violative of the equal protection clause of the Fourteenth Amendment for state courts to enforce them. Corrigan v. Buckley, 271 U. S. 323 , distinguished. Pp. 334 U. S. 8 -23. (a) Such private agreements, standing alone, do not violate any rights guaranteed by the Fourteenth Amendment. Pp. 334 U. S. 12 -13. (b) The actions of state courts and judicial officers in their official capacities are actions of the states within the meaning of the Fourteenth Amendment. Pp. 334 U. S. 14 -18. (c) In granting judicial enforcement of such private agreements in these cases, the states acted to deny petitioners the equal protection of the laws, contrary to the Fourteenth Amendment. Pp. 334 U. S. 18 -23. (d) The fact that state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by them does not prevent the enforcement of covenants excluding colored persons from constituting a denial of equal protection of the laws, since the rights created by § 1 of the Fourteenth Amendment are guaranteed to the individual. Pp. 334 U. S. 21 -22. Page 334 U. S. 2 (e) Denial of access to the courts to enforce such restrictive covenants does not deny equal protection of the laws to the parties to such agreements. P. 334 U. S. 22 . 355 Mo. 814, 198 S.W.2d 679, and 316 Mich. 614, 25 N.W.2d 638, reversed. No. 72. The Supreme Court of Missouri reversed a judgment of a state trial court denying enforcement of a private agreement restricting the use or occupancy of certain real estate to persons of the Caucasian race. 355 Mo. 814,198 S.W.2d 679. This Court granted certiorari. 331 U.S. 803. Reversed, p. 334 U. S. 23 . No. 87. The Supreme Court of Michigan affirmed a judgment of a state trial court enjoining violation of a private agreement restricting the use or occupancy of certain real estate to persons of the Caucasian race. 316 Mich. 614, 25 N.W.2d 638. This Court granted certiorari. 331 U.S. 804. Reversed, p. 334 U. S. 23 . Page 334 U. S. 4 MR. CHIEF JUSTICE VINSON delivered the opinion of the Court. These cases present for our consideration questions relating to the validity of court enforcement of private agreements, generally described as restrictive covenants, which have as their purpose the exclusion of persons of designated race or color from the ownership or occupancy of real property. Basic constitutional issues of obvious importance have been raised. The first of these cases comes to this Court on certiorari to the Supreme Court of Missouri. On February 16, 1911, thirty out of a total of thirty-nine owners of property fronting both sides of Labadie Avenue between Taylor Avenue and Cora Avenue in the city of St. Louis, signed an agreement, which was subsequently recorded, providing in part: ". . . the said property is hereby restricted to the use and occupancy for the term of Fifty (50) years from this date, so that it shall be a condition all the time and whether recited and referred to as [ sic ] not in subsequent conveyances and shall attach to the land as a condition precedent to the sale of the same, that hereafter no part of said property or any Page 334 U. S. 5 portion thereof shall be, for said term of Fifty-years, occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property for said period of time against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race." The entire district described in the agreement included fifty-seven parcels of land. The thirty owners who signed the agreement held title to forty-seven parcels, including the particular parcel involved in this case. At the time the agreement was signed, five of the parcels in the district were owned by Negroes. One of those had been occupied by Negro families since 1882, nearly thirty years before the restrictive agreement was executed. The trial court found that owners of seven out of nine homes on the south side of Labadie Avenue, within the restricted district and "in the immediate vicinity" of the premises in question, had failed to sign the restrictive agreement in 1911. At the time this action was brought, four of the premises were occupied by Negroes, and had been so occupied for periods ranging from twenty-three to sixty-three years. A fifth parcel had been occupied by Negroes until a year before this suit was instituted. On August 11, 1945, pursuant to a contract of sale, petitioners Shelley, who are Negroes, for valuable consideration received from one Fitzgerald a warranty deed to the parcel in question. [ Footnote 1 ] The trial court found that petitioners had no actual knowledge of the restrictive agreement at the time of the purchase. Page 334 U. S. 6 On October 9, 1945, respondents, as owners of other property subject to the terms of the restrictive covenant, brought suit in the Circuit Court of the city of St. Louis praying that petitioners Shelley be restrained from taking possession of the property and that judgment be entered divesting title out of petitioners Shelley and revesting title in the immediate grantor or in such other person as the court should direct. The trial court denied the requested relief on the ground that the restrictive agreement, upon which respondents based their action, had never become final and complete because it was the intention of the parties to that agreement that it was not to become effective until signed by all property owners in the district, and signatures of all the owners had never been obtained. The Supreme Court of Missouri, sitting en banc, reversed and directed the trial court to grant the relief for which respondents had prayed. That court held the agreement effective and concluded that enforcement of its provisions violated no rights guaranteed to petitioners by the Federal Constitution. [ Footnote 2 ] At the time the court rendered its decision, petitioners were occupying the property in question. The second of the cases under consideration comes to this Court from the Supreme Court of Michigan. The circumstances presented do not differ materially from the Missouri case. In June, 1934, one Ferguson and his wife, who then owned the property located in the city of Detroit which is involved in this case, executed a contract providing in part: "This property shall not be used or occupied by any person or persons except those of the Caucasian race. " Page 334 U. S. 7 "It is further agreed that this restriction shall not be effective unless at least eighty percent of the property fronting on both sides of the street in the block where our land is located is subjected to this or a similar restriction." The agreement provided that the restrictions were to remain in effect until January 1, 1960. The contract was subsequently recorded, and similar agreements were executed with respect to eighty percent of the lots in the block in which the property in question is situated. By deed dated November 30, 1944, petitioners, who were found by the trial court to be Negroes, acquired title to the property, and thereupon entered into its occupancy. On January 30, 1945, respondents, as owners of property subject to the terms of the restrictive agreement, brought suit against petitioners in the Circuit Court of Wayne County. After a hearing, the court entered a decree directing petitioners to move from the property within ninety days. Petitioners were further enjoined and restrained from using or occupying the premises in the future. On appeal, the Supreme Court of Michigan affirmed, deciding adversely to petitioners' contentions that they had been denied rights protected by the Fourteenth Amendment. [ Footnote 3 ] Petitioners have placed primary reliance on their contentions, first raised in the state courts, that judicial enforcement of the restrictive agreements in these cases has violated rights guaranteed to petitioners by the Fourteenth Amendment of the Federal Constitution and Acts of Congress passed pursuant to that Amendment. [ Footnote 4 ] Specifically, Page 334 U. S. 8 petitioners urge that they have been denied the equal protection of the laws, deprived of property without due process of law, and have been denied privileges and immunities of citizens of the United States. We pass to a consideration of those issues. I Whether the equal protection clause of the Fourteenth Amendment inhibits judicial enforcement by state courts of restrictive covenants based on race or color is a question which this Court has not heretofore been called upon to consider. Only two cases have been decided by this Court which in any way have involved the enforcement of such agreements. The first of these was the case of Corrigan v. Buckley, 271 U. S. 323 (1926). There, suit was brought in the courts of the District of Columbia to enjoin a threatened violation of certain restrictive covenants relating to lands situated in the city of Washington. Relief was granted, and the case was brought here on appeal. It is apparent that that case, which had originated in the federal courts and involved the enforcement of covenants on land located in the District of Columbia, could present no issues under the Fourteenth Amendment, for that Amendment, by its terms, applies only to the States. Nor was the question of the validity of court enforcement of the restrictive covenants under the Fifth Amendment properly before the Court, as the opinion of this Court specifically recognizes. [ Footnote 5 ] The only constitutional issue which the appellants had raised in the lower courts, and hence the only constitutional issue Page 334 U. S. 9 before this Court on appeal, was the validity of the covenant agreements as such. This Court concluded that, since the inhibitions of the constitutional provisions invoked apply only to governmental action, as contrasted to action of private individuals, there was no showing that the covenants, which were simply agreements between private property owners, were invalid. Accordingly, the appeal was dismissed for want of a substantial question. Nothing in the opinion of this Court, therefore, may properly be regarded as an adjudication on the merits of the constitutional issues presented by these cases, which raise the question of the validity not of the private agreements as such, but of the judicial enforcement of those agreements. The second of the cases involving racial restrictive covenants was Hansberry v. Lee, 311 U. S. 32 (1940). In that case, petitioners, white property owners, were enjoined by the state courts from violating the terms of a restrictive agreement. The state Supreme Court had held petitioners bound by an earlier judicial determination, in litigation in which petitioners were not parties, upholding the validity of the restrictive agreement, although, in fact, the agreement had not been signed by the number of owners necessary to make it effective under state law. This Court reversed the judgment of the state Supreme Court upon the ground that petitioners had been denied due process of law in being held estopped to challenge the validity of the agreement on the theory, accepted by the state court, that the earlier litigation, in which petitioners did not participate, was in the nature of a class suit. In arriving at its result, this Court did not reach the issues presented by the cases now under consideration. It is well, at the outset, to scrutinize the terms of the restrictive agreements involved in these cases. In the Missouri case, the covenant declares that no part of the Page 334 U. S. 10 affected property shall be "occupied by any person not of the Caucasian race, it being intended hereby to restrict the use of said property . . . against the occupancy as owners or tenants of any portion of said property for resident or other purpose by people of the Negro or Mongolian Race." Not only does the restriction seek to proscribe use and occupancy of the affected properties by members of the excluded class, but, as construed by the Missouri courts, the agreement requires that title of any person who uses his property in violation of the restriction shall be divested. The restriction of the covenant in the Michigan case seeks to bar occupancy by persons of the excluded class. It provides that "This property shall not be used or occupied by any person or persons except those of the Caucasian race." It should be observed that these covenants do not seek to proscribe any particular use of the affected properties. Use of the properties for residential occupancy, as such, is not forbidden. The restrictions of these agreements, rather, are directed toward a designated class of persons and seek to determine who may and who may not own or make use of the properties for residential purposes. The excluded class is defined wholly in terms of race or color; "simply that, and nothing more." [ Footnote 6 ] It cannot be doubted that among the civil rights intended to be protected from discriminatory state action by the Fourteenth Amendment are the rights to acquire, enjoy, own and dispose of property. Equality in the enjoyment of property rights was regarded by the framers of that Amendment as an essential pre-condition to the realization of other basic civil rights and liberties which the Amendment was intended to guarantee. [ Footnote 7 ] Thus, Page 334 U. S. 11 § 1978 of the Revised Statutes, derived from § 1 of the Civil Rights Act of 1866, which was enacted by Congress while the Fourteenth Amendment was also under consideration, [ Footnote 8 ] provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. [ Footnote 9 ]" This Court has given specific recognition to the same principle. Buchanan v. Warley, 245 U. S. 60 (1917). It is likewise clear that restrictions on the right of occupancy of the sort sought to be created by the private agreements in these cases could not be squared with the requirements of the Fourteenth Amendment if imposed by state statute or local ordinance. We do not understand respondents to urge the contrary. In the case of Buchanan v. Warley, supra, a unanimous Court declared unconstitutional the provisions of a city ordinance which denied to colored persons the right to occupy houses in blocks in which the greater number of houses were occupied by white persons, and imposed similar restrictions on white persons with respect to blocks in which the greater number of houses were occupied by colored persons. During the course of the opinion in that case, this Court stated: "The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire Page 334 U. S. 12 property without state legislation discriminating against him solely because of color. [ Footnote 10 ]" In Harmon v. Tyler, 273 U. S. 68 (1927), a unanimous court, on the authority of Buchanan v. Warley, supra, declared invalid an ordinance which forbade any Negro to establish a home on any property in a white community or any white person to establish a home in a Negro community, "except on the written consent of a majority of the persons of the opposite race inhabiting such community or portion of the City to be affected." The precise question before this Court in both the Buchanan and Harmon cases involved the rights of white sellers to dispose of their properties free from restrictions as to potential purchasers based on considerations of race or color. But that such legislation is also offensive to the rights of those desiring to acquire and occupy property and barred on grounds of race or color is clear not only from the language of the opinion in Buchanan v. Warley, supra, but from this Court's disposition of the case of Richmond v. Deans, 281 U. S. 704 (1930). There, a Negro, barred from the occupancy of certain property by the terms of an ordinance similar to that, in the Buchanan case, sought injunctive relief in the federal courts to enjoin the enforcement of the ordinance on the grounds that its provisions violated the terms of the Fourteenth Amendment. Such relief was granted, and this Court affirmed, finding the citation of Buchanan v. Warley, supra, and Harmon v. Tyler, supra, sufficient to support its judgment. [ Footnote 11 ] But the present cases, unlike those just discussed, do not involve action by state legislatures or city councils. Page 334 U. S. 13 Here, the particular patterns of discrimination and the areas in which the restrictions are to operate are determined, in the first instance, by the terms of agreements among private individuals. Participation of the State consists in the enforcement of the restrictions so defined. The crucial issue with which we are here confronted is whether this distinction removes these cases from the operation of the prohibitory provisions of the Fourteenth Amendment. Since the decision of this Court in the Civil Rights Cases, 109 U. S. 3 (1883), the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful. [ Footnote 12 ] We conclude, therefore, that the restrictive agreements, standing alone, cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State, and the provisions of the Amendment have not been violated. Cf. Corrigan v. Buckley, supra. But here there was more. These are cases in which the purposes of the agreements were secured only by judicial enforcement by state courts of the restrictive Page 334 U. S. 14 terms of the agreements. The respondents urge that judicial enforcement of private agreements does not amount to state action, or, in any event, the participation of the State is so attenuated in character as not to amount to state action within the meaning of the Fourteenth Amendment. Finally, it is suggested, even if the States in these cases may be deemed to have acted in the constitutional sense, their action did not deprive petitioners of rights guaranteed by the Fourteenth Amendment. We move to a consideration of these matters. II That the action of state courts and judicial officers in their official capacities is to be regarded as action of the State within the meaning of the Fourteenth Amendment is a proposition which has long been established by decisions of this Court. That principle was given expression in the earliest cases involving the construction of the terms of the Fourteenth Amendment. Thus, in Virginia v. Rives, 100 U. S. 313 , 100 U. S. 318 (1880), this Court stated: "It is doubtless true that a State may act through different agencies, either by its legislative, its executive, or its judicial authorities, and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another." In Ex parte Virginia, 100 U. S. 339 , 100 U. S. 347 (1880), the Court observed: "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way." In the Civil Rights Cases, 109 U. S. 3 , 109 U. S. 11 , 17 (1883), this Court pointed out that the Amendment makes void "State action of every kind" which is inconsistent with the guaranties therein contained, and extends to manifestations of "State authority in the shape of laws, customs, or judicial or executive proceedings." Language to like effect is employed Page 334 U. S. 15 no less than eighteen times during the course of that opinion. [ Footnote 13 ] Similar expressions, giving specific recognition to the fact that judicial action is to be regarded as action of the State for the purposes of the Fourteenth Amendment, are to be found in numerous cases which have been more recently decided. In Twining v. New Jersey, 211 U. S. 78 , 211 U. S. 90 -91 (1908), the Court said: "The judicial act of the highest court of the State, in authoritatively construing and enforcing its laws, is the act of the State." In Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673 , 281 U. S. 680 (1930), the Court, through Mr. Justice Brandeis, stated: "The federal guaranty of due process extends to state action through its judicial as well as through its legislative, executive or administrative branch of government." Further examples of such declarations in the opinions of this Court are not lacking. [ Footnote 14 ] One of the earliest applications of the prohibitions contained in the Fourteenth Amendment to action of state Page 334 U. S. 16 judicial officials occurred in cases in which Negroes had been excluded from jury service in criminal prosecutions by reason of their race or color. These cases demonstrate, also, the early recognition by this Court that state action in violation of the Amendment's provisions is equally repugnant to the constitutional commands whether directed by state statute or taken by a judicial official in the absence of statute. Thus, in Strauder v. West Virginia, 100 U. S. 303 (1880), this Court declared invalid a state statute restricting jury service to white persons as amounting to a denial of the equal protection of the laws to the colored defendant in that case. In the same volume of the reports, the Court in Ex parte Virginia, supra, held that a similar discrimination imposed by the action of a state judge denied rights protected by the Amendment, despite the fact that the language of the state statute relating to jury service contained no such restrictions. The action of state courts in imposing penalties or depriving parties of other substantive rights without providing adequate notice and opportunity to defend has, of course, long been regarded as a denial of the due process of law guaranteed by the Fourteenth Amendment. Brinkerhoff-Faris Trust & Savings Co. v. Hill, supra. Cf. Pennoyer v. Neff, 95 U. S. 714 (1878). [ Footnote 15 ] In numerous eases, this Court has reversed criminal convictions in state courts for failure of those courts to provide the essential ingredients of a fair hearing. Thus, it has been held that convictions obtained in state courts under the domination of a mob are void. Moore v. Dempsey, 261 U. S. 86 (1923). And see Frank v. Mangum, 237 U. S. 309 (1915). Convictions obtained by Page 334 U. S. 17 coerced confessions, [ Footnote 16 ] by the use of perjured testimony known by the prosecution to be such, [ Footnote 17 ] or without the effective assistance of counsel, [ Footnote 18 ] have also been held to be exertions of state authority in conflict with the fundamental rights protected by the Fourteenth Amendment. But the examples of state judicial action which have been held by this Court to violate the Amendment's commands are not restricted to situations in which the judicial proceedings were found in some manner to be procedurally unfair. It has been recognized that the action of state courts in enforcing a substantive common law rule formulated by those courts, may result in the denial of rights guaranteed by the Fourteenth Amendment, even though the judicial proceedings in such cases may have been in complete accord with the most rigorous conceptions of procedural due process. [ Footnote 19 ] Thus, in American Federation of Labor v. Swing, 312 U. S. 321 (1941), enforcement by state courts of the common law policy of the State, which resulted in the restraining of peaceful picketing, was held to be state action of the sort prohibited by the Amendment's guaranties of freedom of discussion. [ Footnote 20 ] In Cantwell v. Connecticut, 310 U. S. 296 Page 334 U. S. 18 (1940), a conviction in a state court of the common law crime of breach of the peace was, under the circumstances of the case, found to be a violation of the Amendment's commands relating to freedom of religion. In Bridges v. California, 314 U. S. 252 (1941), enforcement of the state's common law rule relating to contempts by publication was held to be state action inconsistent with the prohibitions of the Fourteenth Amendment. [ Footnote 21 ] And cf. Chicago, Burlington and Quincy R. Co. v. Chicago, 166 U. S. 226 (1897). The short of the matter is that, from the time of the adoption of the Fourteenth Amendment until the present, it has been the consistent ruling of this Court that the action of the States to which the Amendment has reference includes action of state courts and state judicial officials. Although, in construing the terms of the Fourteenth Amendment, differences have from time to time been expressed as to whether particular types of state action may be said to offend the Amendment's prohibitory provisions, it has never been suggested that state court action is immunized from the operation of those provisions simply because the act is that of the judicial branch of the state government. III Against this background of judicial construction, extending over a period of some three-quarters of a century, we are called upon to consider whether enforcement by state courts of the restrictive agreements in these cases may be deemed to be the acts of those States, and, if so, whether that action has denied these petitioners the equal protection of the laws which the Amendment was intended to insure. Page 334 U. S. 19 We have no doubt that there has been state action in these cases in the full and complete sense of the phrase. The undisputed facts disclose that petitioners were willing purchasers of properties upon which they desired to establish homes. The owners of the properties were willing sellers, and contracts of sale were accordingly consummated. It is clear that, but for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint. These are not cases, as has been suggested, in which the States have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government to deny to petitioners, on the grounds of race or color, the enjoyment of property rights in premises which petitioners are willing and financially able to acquire and which the grantors are willing to sell. The difference between judicial enforcement and nonenforcement of the restrictive covenants is the difference to petitioners between being denied rights of property available to other members of the community and being accorded full enjoyment of those rights on an equal footing. The enforcement of the restrictive agreements by the state courts in these cases was directed pursuant to the common law policy of the States as formulated by those courts in earlier decisions. [ Footnote 22 ] In the Missouri case, enforcement of the covenant was directed in the first instance by the highest court of the State after the trial court had determined the agreement to be invalid for Page 334 U. S. 20 want of the requisite number of signatures. In the Michigan case, the order of enforcement by the trial court was affirmed by the highest state court. [ Footnote 23 ] The judicial action in each case bears the clear and unmistakable imprimatur of the State. We have noted that previous decisions of this Court have established the proposition that judicial action is not immunized from the operation of the Fourteenth Amendment simply because it is taken pursuant to the state's common law policy. [ Footnote 24 ] Nor is the Amendment ineffective simply because the particular pattern of discrimination, which the State has enforced, was defined initially by the terms of a private agreement. State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms. And when the effect of that action is to deny rights subject to the protection of the Fourteenth Amendment, it is the obligation of this Court to enforce the constitutional commands. We hold that, in granting judicial enforcement of the restrictive agreements in these cases, the States have denied petitioners the equal protection of the laws, and that, therefore, the action of the state courts cannot stand. We have noted that freedom from discrimination by the States in the enjoyment of property rights was among the basic objectives sought to be effectuated by the framers of the Fourteenth Amendment. That such discrimination has occurred in these cases is clear. Because of the race or color of these petitioners, they have been denied rights of ownership or occupancy enjoyed as a matter of course by other citizens of different race or Page 334 U. S. 21 color. [ Footnote 25 ] The Fourteenth Amendment declares "that all persons, whether colored or white, shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color. [ Footnote 26 ]" Strauder v. West Virginia, supra, at 100 U. S. 307 . Only recently, this Court had occasion to declare that a state law which denied equal enjoyment of property rights to a designated class of citizens of specified race and ancestry was not a legitimate exercise of the state's police power, but violated the guaranty of the equal protection of the laws. Oyama v. California, 332 U. S. 633 (1948). Nor may the discriminations imposed by the state courts in these cases be justified as proper exertions of state police power. [ Footnote 27 ] Cf. Buchanan v. Warley, supra. Respondents urge, however, that, since the state courts stand ready to enforce restrictive covenants excluding white persons from the ownership or occupancy of property covered by such agreements, enforcement of covenants excluding colored persons may not be deemed a denial of equal protection of the laws to the colored persons who are thereby affected. [ Footnote 28 ] This contention does Page 334 U. S. 22 not bear scrutiny. The parties have directed our attention to no case in which a court, state or federal, has been called upon to enforce a covenant excluding members of the white majority from ownership or occupancy of real property on grounds of race or color. But there are more fundamental considerations. The rights created by the first section of the Fourteenth Amendment are, by its terms, guaranteed to the individual. The rights established are personal rights. [ Footnote 29 ] It is, therefore, no answer to these petitioners to say that the courts may also be induced to deny white persons rights of ownership and occupancy on grounds of race or color. Equal protection of the laws is not achieved through indiscriminate imposition of inequalities. Nor do we find merit in the suggestion that property owners who are parties to these agreements are denied equal protection of the laws if denied access to the courts to enforce the terms of restrictive covenants and to assert property rights which the state courts have held to be created by such agreements. The Constitution confers upon no individual the right to demand action by the State which results in the denial of equal protection of the laws to other individuals. And it would appear beyond question that the power of the State to create and enforce property interests must be exercised within the boundaries defined by the Fourteenth Amendment. Cf. Marsh v. Alabama, 326 U. S. 501 (1946). The problem of defining the scope of the restrictions which the Federal Constitution imposes upon exertions of power by the States has given rise to many of the most persistent and fundamental issues which this Court has been called upon to consider. That problem was foremost in the minds of the framers of the Constitution, Page 334 U. S. 23 and, since that early day, has arisen in a multitude of forms. The task of determining whether the action of a State offends constitutional provisions is one which may not be undertaken lightly. Where, however, it is clear that the action of the State violates the terms of the fundamental charter, it is the obligation of this Court so to declare. The historical context in which the Fourteenth Amendment became a part of the Constitution should not be forgotten. Whatever else the framers sought to achieve, it is clear that the matter of primary concern was the establishment of equality in the enjoyment of basic civil and political rights and the preservation of those rights from discriminatory action on the part of the States based on considerations of race or color. Seventy-five years ago, this Court announced that the provisions of the Amendment are to be construed with this fundamental purpose in mind. [ Footnote 30 ] Upon full consideration, we have concluded that, in these cases, the States have acted to deny petitioners the equal protection of the laws guaranteed by the Fourteenth Amendment. Having so decided, we find it unnecessary to consider whether petitioners have also been deprived of property without due process of law or denied privileges and immunities of citizens of the United States. For the reasons stated, the judgment of the Supreme Court of Missouri and the judgment of the Supreme Court of Michigan must be reversed. Reversed. MR. JUSTICE REED, MR. JUSTICE JACKSON, and MR. JUSTICE RUTLEDGE took no part in the consideration or decision of these cases. * Together with No. 87, McGhee et al. v. Sipes et al., on certiorari to the Supreme Court of Michigan. [ Footnote 1 ] The trial court found that title to the property which petitioners Shelley sought to purchase was held by one Bishop, a real estate dealer, who placed the property in the name of Josephine Fitzgerald. Bishop, who acted as agent for petitioners in the purchase, concealed the fact of his ownership. [ Footnote 2 ] Kraemer v. Shelley, 355 Mo. 814, 198 S.W.2d 679 (1946). [ Footnote 3 ] Sipes v. McGhee, 316 Mich. 614, 25 N.W.2d 638 (1947). [ Footnote 4 ] The first section of the Fourteenth Amendment provides: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." [ Footnote 5 ] Corrigan v. Buckley, 271 U. S. 323 , 271 U. S. 330 -331 (1926). [ Footnote 6 ] Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 73 (1917). [ Footnote 7 ] Slaughter-House Cases , 16 Wall. 36, 83 U. S. 70 , 83 U. S. 81 (1873). See Flack, The Adoption of the Fourteenth Amendment. [ Footnote 8 ] In Oyama v. California, 332 U. S. 633 , 640 (1948), the section of the Civil Rights Act herein considered is described as the federal statute, "enacted before the Fourteenth Amendment but vindicated by it." The Civil Rights Act of 1866 was reenacted in § 18 of the Act of May 31, 1870, subsequent to the adoption of the Fourteenth Amendment. 16 Stat. 144. [ Footnote 9 ] 14 Stat. 27, 8 U.S.C. § 42. [ Footnote 10 ] Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 79 (1917). [ Footnote 11 ] Courts of Georgia, Maryland, North Carolina, Oklahoma, Texas, and Virginia have also declared similar statutes invalid as being in contravention of the Fourteenth Amendment. Glover v. Atlanta, 148 Ga. 285, 96 S.E. 562 (1918); Jackson v. State, 132 Md. 311, 103 A. 910 (1918); Clinard v. Winston-Salem, 217 N.C. 119, 6 S.E.2d 867 (1940); Allen v. Oklahoma City, 175 Okla. 421 , 52 P.2d 1054 (1936); Liberty Annex Corp. v. Dallas, 289 S.W. 1067 (Tex.Civ.App. 1927); Irvine v. Clifton Forge, 124 Va. 781, 97 S.E. 310 (1918). [ Footnote 12 ] And see United States v. Harris, 106 U. S. 629 (1883); United States v. Cruikshank, 92 U. S. 542 (1876). [ Footnote 13 ] Among the phrases appearing in the opinion are the following: "the operation of State laws, and the action of State officers executive or judicial"; "State laws and State proceedings"; "State law . . . or some State action through its officers or agents"; "State laws and acts done under State authority"; "State laws, or State action of some kind"; "such laws as the States may adopt or enforce"; "such acts and proceedings as the States may commit or take"; "State legislation or action"; "State law or State authority." [ Footnote 14 ] Neal v. Delaware, 103 U. S. 370 , 103 U. S. 397 (1881); Scott v. McNeal, 154 U. S. 34 , 154 U. S. 45 (1894); Chicago, Burlington and Quincy R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 233 -235 (1897); Hovey v. Elliott, 167 U. S. 409 , 167 U. S. 417 -418 (1897); Carter v. Texas, 177 U. S. 442 , 177 U. S. 447 (1900); Martin v. Texas, 200 U. S. 316 , 200 U. S. 319 (1906); Raymond v. Chicago Union Traction Co., 207 U. S. 20 , 207 U. S. 35 -36 (1907); Home Telephone and Telegraph Co. v. Los Angeles, 227 U. S. 278 , 227 U. S. 286 -287 (1913); Prudential Insurance Co. v. Cheek, 259 U. S. 530 , 259 U. S. 548 (1922); American Railway Express Co. v. Kentucky, 273 U. S. 269 , 273 U. S. 274 (1927); Mooney v. Holohan, 294 U. S. 103 , 294 U. S. 112 -113 (1935); Hansberry v. Lee, 311 U. S. 32 , 311 U. S. 41 (1940). [ Footnote 15 ] And see Standard Oil Co. v. Missouri, 224 U. S. 270 , 224 U. S. 281 -282 (1912); Hansberry v. Lee, 311 U. S. 32 (1940). [ Footnote 16 ] Brown v. Mississippi, 297 U. S. 278 (1936); Chambers v. Florida, 309 U. S. 227 (1940); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Lee v. Mississippi, 332 U. S. 742 (1948). [ Footnote 17 ] See Mooney v. Holohan, 294 U. S. 103 (1935); Pyle v. Kansas, 317 U. S. 213 (1942). [ Footnote 18 ] Powell v. Alabama, 287 U. S. 45 (1932); Williams v. Kaiser, 323 U. S. 471 (1945); Tomkins v. Missouri, 323 U. S. 485 (1945); De Meerleer v. Michigan, 329 U. S. 663 (1947). [ Footnote 19 ] In applying the rule of Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), it is clear that the common law rules enunciated by state courts in judicial opinions are to be regarded as a part of the law of the State. [ Footnote 20 ] And see Bakery Drivers Local v. Wohl, 315 U. S. 769 (1942); Cafeteria Employees Union v. Angelos, 320 U. S. 293 (1943). [ Footnote 21 ] And see Pennekamp v. Florida, 328 U. S. 331 (1946); Craig v. Harney, 331 U. S. 367 (1947). [ Footnote 22 ] See Swain v. Maxwell, 355 Mo. 448, 196 S.W.2d. 80 (1916); Koehler v. Rowland, 275 Mo. 573, 205 S.W. 217 (1918). See also Parmalee v. Morris, 218 Mich. 625, 188 N.W. 330 (1922). Cf. Porter v. Barrett, 233 Mich. 373, 206 N.W. 532 (1925). [ Footnote 23 ] Cf. Home Telephone and Telegraph Co. v. Los Angeles, 227 U. S. 2 (1913); Raymond v. Chicago Union Traction Co., 207 U. S. 20 (1907). [ Footnote 24 ] Bridges v. California, 314 U. S. 252 (1941); American Federation of Labor v. Swing, 312 U. S. 321 (1941). [ Footnote 25 ] See Yick Wo v. Hopkins, 118 U. S. 356 (1886); Strauder v. West Virginia, 100 U. S. 303 (1880); Truax v. Raich, 239 U. S. 33 (1915). [ Footnote 26 ] Restrictive agreements of the sort involved in these cases have been used to exclude other than Negroes from the ownership or occupancy of real property. We are informed that such agreements have been directed against Indians, Jews, Chinese, Japanese, Mexicans, Hawaiians, Puerto Ricans, and Filipinos, among others. [ Footnote 27 ] See Bridges v. California, 314 U. S. 252 , 314 U. S. 261 (1941); Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 307 -308 (1940). [ Footnote 28 ] It should be observed that the restrictions relating to residential occupancy contained in ordinances involved in the Buchanan, Harmon and Deans cases, cited supra, and declared by this Court to be inconsistent with the requirements of the Fourteenth Amendment, applied equally to white persons and Negroes. [ Footnote 29 ] McCabe v. Atchison, Topeka Santa Fe R. Co., 235 U. S. 151 , 235 U. S. 161 -162 (1914); Missouri ex rel. Gaines v. Canada, 305 U. S. 337 (1938); Oyama v. California, 332 U. S. 633 (1948). [ Footnote 30 ] Slaughter-House Cases , 16 Wall. 36, 83 U. S. 81 (1873); Strauder v. West Virginia, 100 U. S. 303 (1880). See Flack, The Adoption of the Fourteenth Amendment.

In Shelley v. Kraemer, the U.S. Supreme Court ruled that while private agreements to exclude people of a specific race or color from using or occupying real estate for residential purposes do not violate the Fourteenth Amendment, it is a violation of the equal protection clause for state courts to enforce these agreements. The Court distinguished this case from Corrigan v. Buckley, where the agreement was between private parties and did not involve state action. The Court held that the actions of state courts and judicial officers are considered state actions and by granting judicial enforcement of these private agreements, the states denied the petitioners equal protection of the laws, as guaranteed by the Fourteenth Amendment. The Court also addressed the argument that enforcing covenants excluding white people from property ownership or occupancy would prevent the enforcement of covenants excluding people of color, and reaffirmed that the rights guaranteed by the Fourteenth Amendment are individual rights. Finally, the Court noted that denying access to courts to enforce restrictive covenants does not deny equal protection of the laws to the parties involved in such agreements.

Property Rights & Land Use

Marsh v. Alabama

https://supreme.justia.com/cases/federal/us/326/501/

U.S. Supreme Court Marsh v. Alabama, 326 U.S. 501 (1946) Marsh v. Alabama No. 114 Argued December 6, 1945 Decided January 7, 1946 326 U.S. 501 APPEAL FROM THE COURT OF APPEALS OF ALABAMA Syllabus 1. A state can not, consistently with the freedom of religion and the press guaranteed by the First and Fourteenth Amendments, impose criminal punishment on a person for distributing religious literature on the sidewalk of a company-owned town contrary to regulations of the town's management, where the town and its shopping district are freely accessible to and freely used by the public in general, even though the punishment is attempted under a state statute making it a crime for anyone to enter or remain on the premises of another after having been warned not to do so. Pp. 326 U. S. 502 , 326 U. S. 505 . Page 326 U. S. 502 2. Whether a corporation or a municipality owns or possesses a town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. P. 326 U. S. 507 . 3. People living in company-owned towns are free citizens of their State and country, just as residents of municipalities, and there is no more reason for depriving them of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen. P. 326 U. S. 508 . 21 So. 2d 558, reversed. APPEAL from the affirmance of a conviction for violation of a state statute challenged as invalid under the Federal Constitution. The State Supreme Court denied certiorari, 246 Ala. 539, 21 So. 2d 564. MR. JUSTICE BLACK delivered the opinion of the Court. In this case, we are asked to decide whether a State, consistently with the First and Fourteenth Amendments, can impose criminal punishment on a person who undertakes to distribute religious literature on the premises of a company-owned town contrary to the wishes of the town's management. The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that, it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant, and a "business block" on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block, and Page 326 U. S. 503 the United States uses one of the places as a post office, from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and, according to all indications, the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block, and, upon arrival, a traveler may make free use of the facilities available there. In short, the town and its shopping district are accessible to and freely used by the public in general, and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation. Appellant, a Jehovah's Witness, came onto the sidewalk we have just described, stood near the post office, and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows: "This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted." Appellant was warned that she could not distribute the literature without a permit, and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff arrested her, and she was charged in the state court with violating Title Page 326 U. S. 504 14, § 426 of the 1940 Alabama Code, which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected, and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute, as applied, was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public. 21 So. 2d 558. The State Supreme Court denied certiorari, 246 Ala. 539, 21 So. 2d 564, and the case is here on appeal under § 237(a) of the Judicial Code, 28 U.S.C. § 344(a). Had the title to Chickasaw belonged not to a private, but to a municipal, corporation, and had appellant been arrested for violating a municipal ordinance, rather than a ruling by those appointed by the corporation to manage a company town, it would have been clear that appellant's conviction must be reversed. Under our decision in Lovell v. Griffin, 303 U. S. 444 , and others which have followed that case, [ Footnote 1 ] neither a State nor a municipality can completely bar the distribution of literature containing religious or political ideas on its streets, sidewalks and public places or make the right to distribute dependent on a flat license tax or permit to be issued by an official who could deny it at will. We have also held that an ordinance completely prohibiting the dissemination of ideas on the city streets cannot be justified on the ground that the Page 326 U. S. 505 municipality holds legal title to them. Jamison v. Texas, 318 U. S. 413 . And we have recognized that the preservation of a free society is so far dependent upon the right of each individual citizen to receive such literature as he himself might desire that a municipality could not, without jeopardizing that vital individual freedom, prohibit door to door distribution of literature. Martin v. Struthers, 319 U. S. 141 , 319 U. S. 146 , 319 U. S. 147 . From these decisions, it is clear that, had the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature. Our question then narrows down to this: can those people who live in or come to Chickasaw be denied freedom of press and religion simply because a single company has legal title to all the town? For it is the State's contention that the mere fact that all the property interests in the town are held by a single company is enough to give that company power, enforceable by a state statute, to abridge these freedoms. We do not agree that the corporation's property interests settle the question. [ Footnote 2 ] The State urges, in effect, that Page 326 U. S. 506 the corporation's right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. Cf. Republic Aviation Corp. v. Labor Board, 324 U. S. 793 , 324 U. S. 798 , 324 U. S. 802 , n. 8. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm. Since these facilities are built and operated primarily to benefit the public, and since their operation is essentially a public function, it is subject to state regulation. [ Footnote 3 ] And, though the issue is not directly analogous to the one before us, we do want to point out by way of illustration that such regulation may not result in an operation of these facilities, even by privately owned companies, which unconstitutionally interferes with and discriminates against interstate commerce. Port Richmond Ferry v. Hudson County, supra, 234 U.S. at 234 U. S. 326 , and cases cited, pp. 234 U. S. 328 -329; cf. South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177 . Had the corporation here owned the segment of the four-lane highway which runs parallel to the "business block" and operated the same under a state franchise, doubtless no one would have seriously contended that the corporation's property interest in the highway gave it power to obstruct through traffic or to discriminate against interstate commerce. See Page 326 U. S. 507 County Commissioners v. Chandler, 96 U. S. 205 , 96 U. S. 208 ; Donovan v. Pennsylvania Co., supra, 199 U.S. at 199 U. S. 294 ; Covington Drawbridge Co. v. Shepherd , 21 How. 112, 62 U. S. 125 . And even had there been no express franchise, but mere acquiescence by the State in the corporation's use of its property as a segment of the four-lane highway, operation of all the highway, including the segment owned by the corporation, would still have been performance of a public function, and discrimination would certainly have been illegal. [ Footnote 4 ] We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a "business block" in the town, and a street and sidewalk on that business block. Cf. Barney v. Keokuk, 94 U. S. 324 , 94 U. S. 340 . Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we Page 326 U. S. 508 have heretofore stated, the town of Chickasaw does not function differently from any other town. The "business block" serves as the community shopping center, and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution. Many people in the United States live in company-owned towns. [ Footnote 5 ] These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens, they must make decisions which affect the welfare of community and nation. To act as good citizens, they must be informed. In order to enable them to be properly informed, their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Page 326 U. S. 509 Amendments than there is for curtailing these freedoms with respect to any other citizen. [ Footnote 6 ] When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. [ Footnote 7 ] As we have stated before, the right to exercise the liberties safeguarded by the First Amendment "lies at the foundation of free government by free men," and we must in all cases "weigh the circumstances and . . . appraise the . . . reasons . . . in support of the regulation . . . of the rights." Schneider v. State, 308 U. S. 147 , 308 U. S. 161 . In our view, the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place were held by others than the public is not sufficient to justify the State's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. The case is reversed, Page 326 U. S. 510 and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE JACKSON took no part in the consideration or decision of this case. [ Footnote 1 ] Hague v. CIO, 307 U. S. 496 ; Schneider v. State, 308 U. S. 147 ; Thornhill v. Alabama, 310 U. S. 88 ; Cantwell v. Connecticut, 310 U. S. 296 ; dissent of Chief Justice Stone in Jones v. Opelika, 316 U. S. 584 , 316 U. S. 600 , adopted as the opinion of the Court, 319 U. S. 319 U.S. 103; Largent v. Texas, 318 U. S. 418 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Follett v. McCormick, 321 U. S. 573 . [ Footnote 2 ] We do not question the state court's determination of the issue of "dedication." That determination means that the corporation could, if it so desired, entirely close the sidewalk and the town to the public, and is decisive of all questions of state law which depend on the owner's being estopped to reclaim possession of, and the public's holding the title to, or having received an irrevocable easement in, the premises. Demopolis v. Webb, 87 Ala. 659, 6 So. 408; Hamilton v. Town of Warrior, 215 Ala. 670, 112 So. 136; Town of Leeds v. Sharp, 218 Ala. 403, 405, 118 So. 572; Forney v. Calhoun County, 84 Ala. 215, 4 So. 153; Cloverdale Homes v. Cloverdale, 182 Ala. 419, 62 So. 712. The "dedication" of a road to the public may also be decisive of whether, under Alabama law, obstructing the road constitutes a crime, Beverly v. State, 28 Ala.App. 451, 185 So. 768, and whether certain action on or near the road amounts to a tort. Thrasher v. Burr, 202 Ala. 307, 80 So. 372. But determination of the issue of "dedication" does not decide the question under the Federal Constitution here involved. [ Footnote 3 ] Clark's Ferry Bridge Co. v. Public Service Commission, 291 U. S. 227 ; American Toll Bridge Co. v. Railroad Commission, 307 U. S. 486 ; Mills v. St. Clair County , 8 How. 569, 581; Port Richmond Ferry v. Hudson County, 234 U. S. 317 , 234 U. S. 327 , 234 U. S. 331 -332; Covington & L. Turnpike Road Co. v. Sandford, 164 U. S. 578 ; Norfolk & S. Turnpike Co. v. Virginia, 225 U. S. 264 ; Donovan v. Pennsylvania Co., 199 U. S. 279 , and cases cited on pp. 199 U. S. 293 -295. [ Footnote 4 ] And certainly the corporation can no more deprive people of freedom of press and religion than it can discriminate against commerce. In his dissenting opinion in Jones v. Opelika, 316 U. S. 584 , 316 U. S. 600 , which later was adopted as the opinion of the Court, 319 U. S. 319 U.S. 103, 319 U. S. 104 , Mr. Chief Justice Stone made the following pertinent statement: "Freedom of press and religion, explicitly guaranteed by the Constitution, must at least be entitled to the same freedom from burdensome taxation which it has been thought that the more general phraseology of the commerce clause has extended to interstate commerce. Whatever doubts may be entertained as to this Courts function to relieve, unaided by Congressional legislation, from burdensome taxation under the commerce clause, see Gwin, White & Prince v. Henneford, 305 U. S. 434 , 305 U. S. 441 , 305 U. S. 446 -55; McCarroll v. Dixie Lines, 309 U. S. 176 , 309 U. S. 184 -85, it cannot be thought that that function is wanting under the explicit guaranties of freedom of speech, press and religion." 316 U.S. at 316 U. S. 610 -11. [ Footnote 5 ] In the bituminous coal industry alone, approximately one-half of the miners in the United States lived in company-owned houses in the period from 1922-23. The percentage varied from 9 percent in Illinois and Indiana and 64 percent in Kentucky, to almost 80 percent in West Virginia. U.S. Coal Commission, Report, 1925, Part III, pp. 1467, 1469 summarized in Morris, The Plight of the Coal Miner, Philadelphia 1934, Ch. VI, p. 86. The most recent statistics we found available are in Magnusson, Housing by Employers in the United States, Bureau of Labor Statistics Bulletin No. 263 (Misc. Ser.) p. 11. See also United States Department of Labor, Wage and Hour Division, Data on Pay Roll Deductions, Union Manufacturing Company, Union Point, Georgia, June, 1941; Rhyne, Some Southern Cotton Mill Workers and Their Villages, Chapel Hill, 1930 (Study completed under the direction of the Institute for Research in Social Science at the University of North Carolina); Comment, Urban Redevelopment, 54 Yale L.J. 116. [ Footnote 6 ] As to the suppression of civil liberties in company towns and the need of those who live there for Constitutional protection, see the summary of facts aired before the Senate Committee on Education and Labor, Violations of Free Speech and Rights of Labor, Hearings pursuant to S.Res. 266, 74th Cong., 2d Sess., 1937, summarized in Bowden, Freedom for Wage Earners, Annals of The American Academy of Political and Social Science, Nov.1938, p. 185; Z. Chafee, The Inquiring Mind (New York, 1928), pp. 173-174; Pamphlet published in 1923 by the Bituminous Operators' Special Committee under the title The Company Town; U.S. Coal Commission, Report, supra, Part III, p. 1331. [ Footnote 7 ] Jones v. Opelika, supra, 316 U.S. at 316 U. S. 608 ; Murdock v. Pennsylvania, supra, 319 U.S. at 319 U. S. 115 ; Follett v. McCormick, supra, 321 U.S. at 321 U. S. 577 . MR. JUSTICE FRANKFURTER, concurring. So long as the views which prevailed in Jones v. Opelika, 319 U. S. 103 , in connection with 316 U. S. 316 U.S. 584, 316 U. S. 600 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Martin v. Struthers, 319 U. S. 141 , express the law of the Constitution, I am unable to find legal significance in the fact that a town in which the Constitutional freedoms of religion and speech are invoked happens to be company-owned. These decisions accorded the purveyors of ideas, religious or otherwise, "a preferred position," Murdock v. Pennsylvania, supra, at 319 U. S. 115 , even to the extent of relieving them from an unhampering and nondiscriminatory duty of bearing their share of the cost of maintaining the peace and the other amenities of a civilized society. Constitutional privileges having such a reach ought not to depend upon a State court's notion of the extent of "dedication" of private property to public purposes. Local determinations of such technical matters govern controversies affecting property. But when decisions by State courts involving local matters are so interwoven with the decision of the question of Constitutional rights that one necessarily involves the other, State determination of local questions cannot control the Federal Constitutional right. A company-owned town gives rise to a network of property relations. As to these, the judicial organ of a State has the final say. But a company-owned town is a town. In its community aspects, it does not differ from other towns. These community aspects are decisive in Page 326 U. S. 511 adjusting the relations now before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to resolve the freedom of the community to regulate its life and the freedom of the individual to exercise his religion and to disseminate his ideas. Title to property, as defined by State law, controls property relations; it cannot control issues of civil liberties which arise precisely because a company town is a town, as well as a congeries of property relations. And similarly, the technical distinctions on which a finding of "trespass" so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by the Constitution. Accordingly, as I have already indicated, so long as the scope of the guarantees of the Due Process Clause of the Fourteenth Amendment, by absorption of the First, remains that which the Court gave to it in the series of cases in the October Term, 1942, the circumstances of the present case seem to me clearly to fall within it. And so I agree with the opinion of the Court, except that portion of it which relies on arguments drawn from the restrictions which the Commerce Clause imposes on State regulation of commerce. It does not seem to me to further Constitutional analysis to seek help for the solution of the delicate problems arising under the First Amendment from the very different order of problems which the Commerce Clause presents. The latter involves an accommodation between National and State powers operating in the same field. Where the First Amendment applies, it is a denial of all governmental power in our Federal system. MR. JUSTICE REED, dissenting. Former decisions of this Court have interpreted generously the Constitutional rights of people in this land to Page 326 U. S. 512 exercise freedom of religion, of speech and of the press. [ Footnote 2/1 ] It has never been held, and is not now by this opinion of the Court, that these rights are absolute and unlimited, either in respect to the manner or the place of their exercise. [ Footnote 2/2 ] What the present decision establishes as a principle is that one may remain on private property against the will of the owner and contrary to the law of the state so long as the only objection to his presence is that he is exercising an asserted right to spread there his religious views. See Marrone v. Washington Jockey Club, 227 U. S. 633 . This is the first case to extend by law the privilege of religious exercises beyond public places or to private places without the assent of the owner. Compare Martin v. Struthers, 319 U. S. 141 . As the rule now announced permits this intrusion, without possibility of protection of the property by law, and apparently is equally applicable to the freedom of speech and the press, it seems appropriate to express a dissent to this, to us, novel Constitutional doctrine. Of course, such principle may subsequently be restricted by this Court to the precise facts of this case -- that is to private property in a company town where the owner, for his own advantage, has permitted a restricted public use by his licensees and invitees. Such distinctions are of degree. and require new arbitrary lines, judicially drawn, instead of those hitherto established by legislation and precedent. While the power Page 326 U. S. 513 of this Court, as the interpreter of the Constitution, to determine what use of real property by the owner makes that property subject, at will, to the reasonable practice of religious exercises by strangers, cannot be doubted, we find nothing in the principles of the First Amendment, adopted now into the Fourteenth, which justifies their application to the facts of this case. [ Footnote 2/3 ] Both Federal and Alabama law permit, so far as we are aware, company towns. By that, we mean an area occupied by numerous houses, connected by passways, fenced or not, as the owners may choose. These communities may be essential to furnish proper and convenient living conditions for employees on isolated operations in lumbering, mining, production of high explosives and large-scale farming. The restrictions imposed by the owners upon the occupants are sometimes galling to the employees, and may appear unreasonable to outsiders. Unless they fall under the prohibition of some legal rule, however, they are a matter for adjustment between owner and licensee, or by appropriate legislation. Compare Western Turf Assn. v. Greenberg, 204 U. S. 359 . Alabama has a statute generally applicable to all privately owned premises. It is Title 14, § 426, Alabama Code 1940, which, so far as pertinent, reads as follows: "Trespass after warning. -- Any person who, without legal cause or good excuse, enters into the dwelling house or on the premises of another, after having been warned, within six months preceding, not to do so; or any person, who, having entered into the dwelling house or on the premises of another without having been warned within six months not to do so, and fails or refuses, without legal Page 326 U. S. 514 cause or good excuse, to leave immediately on being ordered or requested to do so by the person in possession, his agent or representative, shall, on conviction, be fined not more than one hundred dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than three months." Appellant was distributing religious pamphlets on a privately owned passway or sidewalk thirty feet removed from a public highway of the State of Alabama, and remained on these private premises after an authorized order to get off. We do not understand from the record that there was objection to appellant's use of the nearby public highway, and, under our decisions, she could rightfully have continued her activities a few feet from the spot she insisted upon using. An owner of property may very well have been willing for the public to use the private passway for business purposes and yet have been unwilling to furnish space for street trades or a location for the practice of religious exhortations by itinerants. The passway here in question was not put to any different use than other private passways that lead to privately owned areas, amusement places, resort hotels or other businesses. There had been no dedication of the sidewalk to the public use, express or implied. Alabama so decided, and we understand that this Court accepts that conclusion. Alabama, also, decided that appellant violated by her activities the above-quoted state statute. The Court calls attention to the fact that the owners of public utilities, bridges, ferries, turnpikes and railroads are subject to state regulation of rates, and are forbidden to discriminate against interstate commerce. This is quite true, but we doubt if the Court means to imply that the property of these utilities may be utilized, against the companies' wishes, for religious exercises of the kind in question. Page 326 U. S. 515 A state does have the moral duty of furnishing the opportunity for information, education and religious enlightenment to its inhabitants, including those who live in company towns, but it has not heretofore been adjudged that it must commandeer, without compensation, the private property of other citizens to carry out that obligation. Heretofore, this Court has sustained the right of employees, under an appropriate statute, protecting full freedom of employee organization, to solicit union membership in nonworking time on the property of an employer and against his express prohibition. This is because the prohibition is an impediment to the right of organization which is protected by a statute which governs a relation between employers and employees if and when the latter are admitted to the employers' premises as licensees. It was recognized in the opinion that the freedom of solicitation was the result of a regulatory statute, and was not a Constitutional right. Republic Aviation Corp. v. Labor Board, 324 U. S. 793 , 324 U. S. 803 . In the area which is covered by the guarantees of the First Amendment, this Court has been careful to point out that the owner of property may protect himself against the intrusion of strangers. Although, in Martin v. Struthers, 319 U. S. 141 , an ordinance forbidding the summonsing of the occupants of a dwelling to receive handbills was held invalid because in conflict with the freedom of speech and press, this Court pointed out at page 319 U. S. 147 that, after warning, the property owner would be protected from annoyance. [ Footnote 2/4 ] Page 326 U. S. 516 The very Alabama statute which is now held powerless to protect the property of the Gulf Shipbuilding Corporation, after notice, from this trespass was there cited, note 10, to show that it would protect the householder, after notice. The right to communicate ideas was expressed by us in Jamison v. Texas, 318 U. S. 413 , 318 U. S. 416 , as follows: "But one who is rightfully on a street which the state has left open to the public carries with him there, as elsewhere, the Constitutional right to express his views in an orderly fashion." Our Constitution guarantees to every man the right to express his views in an orderly fashion. An essential element of "orderly" is that the man shall also have a right to use the place he chooses for his exposition. The rights of the owner, which the Constitution protects as well as the right of free speech, are not outweighed by the interests of the trespasser, even though he trespasses in behalf of religion or free speech. We cannot say that Jehovah's Witnesses can claim the privilege of a license, which has never been granted, to hold their meetings in other private places merely because the owner has admitted the public to them for other limited purposes. Even though we have reached the point where this Court is required to force private owners to open their property for the practice there of religious activities or propaganda distasteful Page 326 U. S. 517 to the owner because of the public interest in freedom of speech and religion, there is no need for the application of such a doctrine here. Appellant, as we have said, was free to engage in such practices on the public highways, without becoming a trespasser on the company's property. The CHIEF JUSTICE and MR. JUSTICE BURTON join in this dissent. [ Footnote 2/1 ] Lovell v. Griffin, 303 U. S. 444 ; Hague v. CIO, 307 U. S. 496 ; Schneider v. State, 308 U. S. 147 ; Thornhill v. Alabama, 310 U. S. 88 ; Cantwell v. Connecticut, 310 U. S. 296 ; dissent of Chief Justice Stone in Jones v. Opelika, 316 U. S. 584 , 316 U. S. 600 , adopted as the opinion of the Court, 319 U. S. 319 U.S. 103; Jamison v. Texas, 318 U. S. 413 ; Largent v. Texas, 318 U. S. 418 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Martin v. Struthers, 319 U. S. 141 ; Follett v. McCormick, 321 U. S. 573 . [ Footnote 2/2 ] Schenck v. United States, 249 U. S. 47 ; Gitlow v. New York, 268 U. S. 652 ; Near v. Minnesota, 283 U. S. 697 ; Cantwell v. Connecticut, 310 U. S. 296 ; Chaplinsky v. New Hampshire, 315 U. S. 568 ; Prince v. Massachusetts, 321 U. S. 158 . [ Footnote 2/3 ] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." First Amendment to the Constitution. [ Footnote 2/4 ] "The dangers of distribution can so easily be controlled by traditional legal methods, leaving to each householder the full right to decide whether he will receive strangers as visitors, that stringent prohibition can serve no purpose but that forbidden by the Constitution, the naked restriction of the dissemination of ideas." "Traditionally, the American law punishes persons who enter onto the property of another after having been warned by the owner to keep off. General trespass after warning statutes exist in at least twenty states, while similar statutes of narrower scope are on the books of at least twelve states more. We know of no state which, as does the Struthers ordinance, in effect, makes a person a criminal trespasser if he enters the property of another for an innocent purpose without an explicit command from the owners to stay away. The National Institute of Municipal Law Officers has proposed a form of regulation to its member cities which would make it an offense for any person to ring the bell of a householder who has appropriately indicated that he is unwilling to be disturbed. This or any similar regulation leaves the decision as to whether distributers of literature may lawfully call at a home where it belongs -- with the homeowner himself." Martin v. Struthers, 319 U. S. 141 , 319 U. S. 147 -148.

The Supreme Court ruled that a state cannot punish someone for distributing religious literature on the sidewalk of a company-owned town, as it violates the freedom of religion and press guaranteed by the First and Fourteenth Amendments. The Court found that the town, Chickasaw, had all the characteristics of a regular town and was freely accessible to the public, so people living there had the same rights as residents of municipalities. The Court emphasized that the public has an interest in keeping the channels of communication free and that residents of company-owned towns are free citizens entitled to the liberties guaranteed by the Constitution.

Property Rights & Land Use

Jones v. Alfred H. Mayer Co.

https://supreme.justia.com/cases/federal/us/392/409/

U.S. Supreme Court Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) Jones v. Alfred H. Mayer Co. No. 645 Argued April 1-2, 1968 Decided June 17, 1968 392 U.S. 409 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus Petitioners, alleging that respondents had refused to sell them a home for the sole reason that petitioner Joseph Lee Jones is a Negro, filed a complaint in the District Court, seeking injunctive and other relief. Petitioners relied in part upon 42 U.S.C. § 1982, which provides that all citizens "shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." The District Court dismissed the complaint, and the Court of Appeals affirmed, concluding that § 1982 applies only to state action, and does not reach private refusals to sell. Held: 1. Congress' enactment of the Civil Rights Act of 1968, containing in Title VIII detailed housing provisions applicable to a broad range of discriminatory practices and enforceable by a complete arsenal of federal authority, had no effect upon this litigation or upon § 1982, a general statute limited to racial discrimination in the sale and rental of property and enforceable only by private parties acting on their own initiative. Pp. 392 U. S. 413 -417. 2. Section 1982 applies to all racial discrimination in the sale or rental of property. Pp. 392 U. S. 417 -437. (a) Section 1982 has previously been construed to do more than grant Negro citizens the general legal capacity to buy and rent property free of prohibitions that wholly disable them because of their race. Hurd v. Hodge, 334 U. S. 24 . Pp. 392 U. S. 417 -419. (b) The question whether purely private discrimination, unaided by any governmental action, violates § 1982 remains one of first impression in this Court. Hurd v. Hodge, supra; Corrigan v. Buckley, 271 U. S. 323 ; the Civil Rights Cases, 109 U. S. 3 , and Virginia v. Rives, 100 U. S. 313 , distinguished. Pp. 392 U. S. 419 -420. (c) On its face, the language of § 1982 appears to prohibit all discrimination against Negroes in the sale or rental of property. Pp. 392 U. S. 420 -422. (d) The legislative history of § 1982, which was part of § 1 of the Civil Rights Act of 1866, likewise shows that both Houses of Congress believed that they were enacting a comprehensive statute Page 392 U. S. 410 forbidding every form of racial discrimination affecting the basic civil rights enumerated therein -- including the right to purchase or lease property -- and thereby securing all such rights against interference from any source whatever, whether governmental or private. Pp. 392 U. S. 422 -436. (e) The scope of the 1866 Act was not altered when it was reenacted in 1870, two years after ratification of the Fourteenth Amendment. Pp. 392 U. S. 436 -437. (f) That § 1982 lay partially dormant for many years does not diminish its force today. P. 392 U. S. 437 . 3. Congress has power under the Thirteenth Amendment to do what 42 U.S.C. § 1982 purports to do. Pp. 392 U. S. 437 -444. (a) Because the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States," Civil Rights Cases, 109 U. S. 3 , 109 U. S. 20 , it has never been doubted "that the power vested in Congress to enforce the article by appropriate legislation," ibid., includes the power to enact laws "operating upon the acts of individuals, whether sanctioned by State legislation or not." Id. at 109 U. S. 23 . See Clyatt v. United States, 197 U. S. 207 . P. 392 U. S. 438 . (b) The Thirteenth Amendment authorized Congress to do more than merely dissolve the legal bond by which the Negro slave was held to his master; it gave Congress the power rationally to determine what are the badges and the incidents of slavery and the authority to translate that determination into effective legislation. Pp. 392 U. S. 439 -440. (c) Whatever else they may have encompassed, the badges and incidents of slavery that the Thirteenth Amendment empowered Congress to eliminate included restraints upon "those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens." Civil Rights Cases, 109 U. S. 3 , 109 U. S. 22 . Insofar as Hodges v. United States, 203 U. S. 1 , suggests a contrary holding, it is overruled. Pp. 392 U. S. 441 -443. 379 F.2d 33, reversed. Page 392 U. S. 412 MR JUSTICE STEWART delivered the opinion of the Court. In this case, we are called upon to determine the scope and the constitutionality of an Act of Congress, 42 U.S.C. § 1982, which provides that: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase lease, sell, hold, and convey real and personal property." On September 2, 1965, the petitioners filed a complaint in the District Court for the Eastern District of Missouri, alleging that the respondents had refused to sell them a home in the Paddock Woods community of St. Louis County for the sole reason that petitioner Joseph Lee Jones is a Negro. Relying in part upon § 1982, the petitioners sought injunctive and other relief. [ Footnote 1 ] The District Court sustained the respondents' motion to dismiss the complaint, [ Footnote 2 ] and the Court of Appeals for the Eighth Circuit affirmed, concluding that § 1982 applies only to state action, and does not reach private refusals to sell. [ Footnote 3 ] We granted certiorari to consider the Page 392 U. S. 413 questions thus presented. [ Footnote 4 ] For the reasons that follow, we reverse the judgment of the Court of Appeals. We hold that § 1982 bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment. [ Footnote 5 ] I At the outset, it is important to make clear precisely what this case does not involve. Whatever else it may be, 42 U.S.C. § 1982 is not a comprehensive open housing law. In sharp contrast to the Fair Housing Title (Title VIII) of the Civil Rights Act of 1968, Pub.L. 9284, 82 Stat. 81, the statute in this case deals only with racial discrimination, and does not address itself to discrimination on grounds of religion or national origin. [ Footnote 6 ] It does not deal specifically with discrimination in the provision of services or facilities in connection with the sale or rental of a dwelling. [ Footnote 7 ] It does not prohibit advertising or other representations that indicate discriminatory preferences. [ Footnote 8 ] It does not refer explicitly to discrimination in financing arrangements, [ Footnote 9 ] or in the provision of brokerage services. [ Footnote 10 ] It does not empower Page 392 U. S. 414 a federal administrative agency to assist aggrieved parties. [ Footnote 11 ] It makes no provision for intervention by the Attorney General. [ Footnote 12 ] And, although it can be enforced by injunction, [ Footnote 13 ] it contains no provision expressly authorizing a federal court to order the payment of damages. [ Footnote 14 ] Page 392 U. S. 415 Thus, although § 1982 contains none of the exemptions that Congress included in the Civil Rights Act of 1968, [ Footnote 15 ] it would be a serious mistake to suppose that § 1982 in any way diminishes the significance of the law recently enacted by Congress. Indeed, the Senate Subcommittee on Housing and Urban Affairs was informed in hearings held after the Court of Appeals had rendered its decision in this case that § 1982 might well be "a presently valid federal statutory ban against discrimination by private persons in the sale or lease of real property." [ Footnote 16 ] The Subcommittee was told, however, that, even if this Court should so construe § 1982, the existence of that statute would not "eliminate the need for congressional action" to spell out "responsibility on the part of the federal government to enforce the rights it protects." [ Footnote 17 ] The point was made that, in light of the many difficulties Page 392 U. S. 416 confronted by private litigants seeking to enforce such rights on their own, "legislation is needed to establish federal machinery for enforcement of the rights guaranteed under Section 1982 of Title 42 even if the plaintiffs in Jones v. Alfred H. Mayer Company should prevail in the United States Supreme Court. [ Footnote 18 ]" On April 10, 1968, Representative Kelly of New York focused the attention of the House upon the present case and its possible significance. She described the background of this litigation, recited the text of § 1982, and then added: "When the Attorney General was asked in court about the effect of the old law [1982] as compared with the pending legislation which is being considered on the House floor today, he said that the scope was somewhat different, the remedies and procedures were different, and that the new law was still quite necessary. [ Footnote 19 ]" Later the same day, the House passed the Civil Rights Act of 1968. Its enactment had no effect upon § 1982 [ Footnote 20 ] Page 392 U. S. 417 and no effect upon this litigation, [ Footnote 21 ] but it underscored the vast differences between, on the one hand, a general statute applicable only to racial discrimination in the rental and sale of property and enforceable only by private parties acting on their own initiative, and, on the other hand, a detailed housing law, applicable to a broad range of discriminatory practices and enforceable by a complete arsenal of federal authority. Having noted these differences, we turn to a consideration of § 1982 itself. II This Court last had occasion to consider the scope of 42 U.S.C. § 1982 in 1948, in Hurd v. Hodge, 334 U. S. 24 . That case arose when property owners in the District of Columbia sought to enforce racially restrictive covenants against the Negro purchasers of several homes on their block. A federal district court enforced the restrictive agreements by declaring void the deeds of the Negro purchasers. It enjoined further attempts to sell or lease them the properties in question, and directed them to "remove themselves and all of their personal belongings" from the premises within 60 days. The Page 392 U. S. 418 Court of Appeals for the District of Columbia Circuit affirmed, [ Footnote 22 ] and this Court granted certiorari [ Footnote 23 ] to decide whether § 1982, then § 1978 of the Revised Statutes of 1874, barred enforcement of the racially restrictive agreements in that case. The agreements in Hurd covered only two-thirds of the lots of a single city block, and preventing Negroes from buying or renting homes in that specific area would not have rendered them ineligible to do so elsewhere in the city. Thus, if § 1982 had been thought to do no more than grant Negro citizens the legal capacity to buy and rent property free of prohibitions that wholly disabled them because of their race, judicial enforcement of the restrictive covenants at issue would not have violated § 1982. But this Court took a broader view of the statute. Although the covenants could have been enforced without denying the general right of Negroes to purchase or lease real estate, the enforcement of those covenants would nonetheless have denied the Negro purchasers "the same right as is enjoyed by white citizens . . . to inherit, purchase, lease, sell, hold, and convey real and personal property.'" 334 U.S. at 334 U. S. 34 . That result, this Court concluded, was prohibited by Page 392 U. S. 419 § 1982. To suggest otherwise, the Court said, "is to reject the plain meaning of language." Ibid. Hurd v. Hodge, supra, squarely held, therefore, that a Negro citizen who is denied the opportunity to purchase the home he wants "[s]olely because of [his] race and color," 334 U.S. at 334 U. S. 34 , has suffered the kind of injury that § 1982 was designed to prevent. Accord, Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 79 ; Harmon v. Tyler, 273 U.S. 668; Richmond v. Deans, 281 U. S. 704 . The basic source of the injury in Hurd was, of course, the action of private individuals -- white citizens who had agreed to exclude Negroes from a residential area. But an arm of the Government -- in that case, a federal court -- had assisted in the enforcement of that agreement. [ Footnote 24 ] Thus, Hurd v. Hodge, supra, did not present the question whether purely private discrimination, unaided by any action on the part of government, would violate § 1982 if its effect were to deny a citizen the right to rent or buy property solely because of his race or color. The only federal court (other than the Court of Appeals in this case) that has ever squarely confronted that question held that a wholly private conspiracy among white citizens to prevent a Negro from leasing a farm violated § 1982. United States v. Morris, 125 F. 322. It is true that a dictum in Hurd said that § 1982 was directed only toward "governmental action," 334 U.S. at 334 U. S. 31 , but neither Hurd nor any other case Page 392 U. S. 420 before or since has presented that precise issue for adjudication in this Court. [ Footnote 25 ] Today we face that issue for the first time. III We begin with the language of the statute itself. In plain and unambiguous terms, § 1982 grants to all citizens, without regard to race or color, "the same right" to purchase and lease property "as is enjoyed by white citizens." As the Court of Appeals in this case evidently recognized, that right can be impaired as effectively Page 392 U. S. 421 by "those who place property on the market" [ Footnote 26 ] as by the State itself. For, even if the State and its agents lend no support to those who wish to exclude persons from their communities on racial grounds, the fact remains that, whenever property "is placed on the market for whites only, whites have a right denied to Negroes." [ Footnote 27 ] So long as a Negro citizen who wants to buy or rent a home can be turned away simply because he is not white, he cannot be said to enjoy "the same right . . . as is enjoyed by white citizens . . . to . . . purchase [and] lease . . . real and personal property." 42 U.S.C. § 1982. (Emphasis added.) On its face, therefore, § 1982 appears to prohibit all discrimination against Negroes in the sale or rental of property -- discrimination by private owners as well as discrimination by public authorities. Indeed, even the respondents seem to concede that, if § 1982 "means what it says" -- to use the words of the respondents' brief -- then it must encompass every racially motivated refusal Page 392 U. S. 422 to sell or rent, and cannot be confined to officially sanctioned segregation in housing. Stressing what they consider to be the revolutionary implications of so literal a reading of § 1982, the respondents argue that Congress cannot possibly have intended any such result. Our examination of the relevant history, however, persuades us that Congress meant exactly what it said. IV In its original form, 42 U.S.C. § 1982 was part of § 1 of the Civil Rights Act of 1866. [ Footnote 28 ] That section was cast in sweeping terms: " Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power, . . . are hereby declared to be citizens of the United States, and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. [ Footnote 29 ] " Page 392 U. S. 423 The crucial language for our purposes was that which guaranteed all citizens "the same right, in every State and Territory in the United States, . . . to inherit, purchase, lease, sell, hold, and convey real and personal property . . . as is enjoyed by white citizens. . . ." To the Congress that passed the Civil Rights Act of 1866, it was clear that the right to do these things might be infringed not only by "State or local law", but also by "custom, or prejudice." [ Footnote 30 ] Thus, when Congress provided in § 1 of the Civil Rights Act that the right to purchase and lease property was to be enjoyed equally throughout the United States by Negro and white citizens Page 392 U. S. 424 alike, it plainly meant to secure that right against interference from any source whatever, whether governmental or private. [ Footnote 31 ] Indeed, if § 1 had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. [ Footnote 32 ] For that section, which provided fines and prison terms for certain Page 392 U. S. 425 individuals who deprived others of rights "secured or protected" by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. [ Footnote 33 ] There would, of course, have been no private violations to exempt if the only "right" granted by § 1 Page 392 U. S. 426 had been a right to be free of discrimination by public officials. Hence, the structure of the 1866 Act, as well as its language, points to the conclusion urged by the petitioners in this case -- that § 1 was meant to prohibit all racially motivated deprivations of the rights enumerated in the statute, although only those deprivations perpetrated "under color of law" were to be criminally punishable under § 2. In attempting to demonstrate the contrary, the respondents rely heavily upon the fact that the Congress which approved the 1866 statute wished to eradicate the recently enacted Black Codes -- laws which had saddled Negroes with "onerous disabilities and burdens, and curtailed their rights . . . to such an extent that their freedom was of little value. . . ." Slaughter-House Cases , 16 Wall. 36, 83 U. S. 70 . [ Footnote 34 ] The respondents suggest that the only evil Congress sought to eliminate was that of racially discriminatory laws in the former Confederate States. But the Civil Rights Act was drafted to apply throughout the country, [ Footnote 35 ] and its language was far Page 392 U. S. 427 broader than would have been necessary to strike down discriminatory statutes. That broad language, we are asked to believe, was a mere slip of the legislative pen. We disagree. For the same Congress that wanted to do away with the Black Codes also had before it an imposing body of evidence pointing to the mistreatment of Negroes by private individuals and unofficial groups, mistreatment unrelated to any hostile state legislation. "Accounts in newspapers North and South, Freedmen's Bureau and other official documents, private reports and correspondence were all adduced" to show that "private outrage and atrocity" were "daily inflicted on freedmen. . . . [ Footnote 36 ] The congressional debates are replete with references to private injustices against Negroes -- references to white employers who refused to pay their Negro workers, [ Footnote 37 ] white planters who agreed among themselves not to hire freed slaves without the permission of their former masters, [ Footnote 38 ] white Page 392 U. S. 428 citizens who assaulted Negroes [ Footnote 39 ] or who combined to drive them out of their communities. [ Footnote 40 ] Indeed, one of the most comprehensive studies then before Congress stressed the prevalence of private hostility toward Negroes and the need to protect them from the resulting persecution and discrimination. [ Footnote 41 ] The report noted the existence of laws virtually prohibiting Negroes from owning or renting property in certain towns, [ Footnote 42 ] but described such laws as "mere isolated cases," representing "the local outcroppings of a spirit . . . found to prevail everywhere" [ Footnote 43 ] -- a spirit expressed, for example, Page 392 U. S. 429 by lawless acts of brutality directed against Negroes who traveled to areas where they were not wanted. [ Footnote 44 ] The report concluded that, even if anti-Negro legislation were "repealed in all the States lately in rebellion," equal treatment for the Negro would not yet be secured. [ Footnote 45 ] In this setting, it would have been strange indeed if Congress had viewed its task as encompassing merely the nullification of racist laws in the former rebel States. That the Congress which assembled in the Nation's capital in December, 1865, in fact, had a broader vision of the task before it became clear early in the session, when three proposals to invalidate discriminatory state statutes were rejected as "too narrowly conceived." [ Footnote 46 ] From the outset, it seemed clear, at least to Senator Trumbull of Illinois, Chairman of the Judiciary Committee, that stronger legislation might prove necessary. After Senator Wilson of Massachusetts had introduced his bill to strike down all racially discriminatory laws in the South, [ Footnote 47 ] Senator Trumbull said this: "I reported from the Judiciary Committee the second section of the [Thirteenth Amendment] for the very purpose of conferring upon Congress authority to see that the first section was carried out Page 392 U. S. 430 in good faith . . . and I hold that, under that second section, Congress will have the authority, when the constitutional amendment is adopted, not only to pass the bill of the Senator from Massachusetts, but a bill that will be much more efficient to protect the freedman in his rights. . . . And, sir, when the constitutional amendment shall have been adopted, if the information from the South be that the men whose liberties are secured by it are deprived of the privilege to go and come when they please, to buy and sell when they please, to make contracts and enforce contracts, I give notice that, if no one else does, I shall introduce a bill and urge its passage through Congress that will secure to those men every one of these rights: they would not be freemen without them. It is idle to say that a man is free who cannot go and come at pleasure, who cannot buy and sell, who cannot enforce his rights. . . . [So] when the constitutional amendment is adopted, I trust we may pass a bill, if the action of the people in the southern States should make it necessary, that will be much more sweeping and efficient than the bill under consideration. [ Footnote 48 ] " Page 392 U. S. 431 Five days later, on December 18, 1865, the Secretary of State officially certified the ratification of the Thirteenth Amendment. The next day, Senator Trumbull again rose to speak. He had decided, he said, that the "more sweeping and efficient" bill of which he had spoken previously ought to be enacted "at an early day for the purpose of quieting apprehensions in the minds of many friends of freedom lest by local legislation or a prevailing public sentiment in some of the States persons of the African race should continue to be oppressed and, in fact, deprived of their freedom. . . . [ Footnote 49 ]" On January 5, 1866, Senator Trumbull introduced the bill he had in mind -- the bill which later became the Civil Rights Act of 1866. [ Footnote 50 ] He described its objectives in terms that belie any attempt to read it narrowly: "Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be Page 392 U. S. 432 affected by them have some means of availing themselves of their benefits. [ Footnote 51 ]" Of course, Senator Trumbull's bill would, as he pointed out, "destroy all [the] discriminations" embodied in the Black Codes, [ Footnote 52 ] but it would do more: it would affirmatively secure for all men, whatever their race or color, what the Senator called the "great fundamental rights": "the right to acquire property, the right to go and come at pleasure, the right to enforce rights in the courts, to make contracts, and to inherit and dispose of property. [ Footnote 53 ]" As to those basic civil rights, the Senator said, the bill would "break down all discrimination between black men and white men." [ Footnote 54 ] Page 392 U. S. 433 That the bill would indeed have so sweeping an effect was seen as its great virtue by its friends [ Footnote 55 ] and as its great danger by its enemies, [ Footnote 56 ] but was disputed by none. Opponents of the bill charged that it would not only regulate state laws, but would directly "determine the persons who [would] enjoy . . . property within the States," [ Footnote 57 ] threatening the ability of white citizens "to determine who [would] be members of [their] communit[ies]." [ Footnote 58 ] The bill's advocates did not deny the accuracy of those characterizations. Instead, they defended the propriety of employing federal authority to deal with "the white man . . . [who] would invoke the power of local prejudice" against the Negro. [ Footnote 59 ] Thus, when the Senate passed the Civil Rights Act on February 2, 1866, [ Footnote 60 ] it did so fully aware of the breadth of the measure it had approved. In the House, as in the Senate, much was said about eliminating the infamous Black Codes. [ Footnote 61 ] But, like the Senate, the House was moved by a larger objective -- that of giving real content to the freedom guaranteed by the Thirteenth Amendment. Representative Thayer of Pennsylvania put it this way: "[W]hen I voted for the amendment to abolish slavery . . . , I did not suppose that I was offering Page 392 U. S. 434 . . . a mere paper guarantee. And when I voted for the second section of the amendment, I felt . . . certain that I had . . . given to Congress ability to protect . . . the rights which the first section gave. . . ." "The bill which now engages the attention of the House has for its object to carry out and guaranty the reality of that great measure. It is to give to it practical effect and force. It is to prevent that great measure from remaining a dead letter upon the constitutional page of this country. . . . The events of the last four years . . . have changed [a] large class of people . . . from a condition of slavery to that of freedom. The practical question now to be decided is whether they shall be, in fact, freemen. It is whether they shall have the benefit of this great charter of liberty given to them by the American people. [ Footnote 62 ]" Representative Cook of Illinois thought that, without appropriate federal legislation, any "combination of men in [a] neighborhood [could] prevent [a Negro] from having any chance" to enjoy those benefits. [ Footnote 63 ] To Congressman Cook and others like him, it seemed evident that, with respect to basic civil rights -- including the "right to . . . purchase, lease, sell, hold, and convey . . . property," Congress must provide that "there . . . be no discrimination" on grounds of race or color. [ Footnote 64 ] Page 392 U. S. 435 It thus appears that, when the House passed the Civil Rights Act on March 13, 1866, [ Footnote 65 ] it did so on the same assumption that had prevailed in the Senate: it too believed that it was approving a comprehensive statute forbidding all racial discrimination affecting the basic civil rights enumerated in the Act. President Andrew Johnson vetoed the Act on March 27, [ Footnote 66 ] and, in the brief congressional debate that followed, his supporters characterized its reach in all-embracing terms. One stressed the fact that § 1 would confer "the right . . . to purchase . . . real estate . . . without any qualification and without any restriction whatever. . . ." [ Footnote 67 ] Another predicted, as a corollary, that the Act would preclude preferential treatment for white persons in the rental of hotel rooms and in the sale of church pews. [ Footnote 68 ] Those observations elicited no reply. On April 6, the Senate, and on April 9, the House, overrode the President's veto by the requisite majorities, [ Footnote 69 ] and the Civil Rights Act of 1866 became law. [ Footnote 70 ] Page 392 U. S. 436 In light of the concerns that led Congress to adopt it and the contents of the debates that preceded its passage, it is clear that the Act was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein -- including the right to purchase or lease property. Nor was the scope of the 1866 Act altered when it was reenacted in 1870, some two years after the ratification of the Fourteenth Amendment. [ Footnote 71 ] It is quite true that some members of Congress supported the Fourteenth Amendment "in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States." Hurd v. Hodge, 334 U. S. 24 , 334 U. S. 333 . But it certainly does not follow that the adoption of the Fourteenth Amendment or the subsequent readoption of the Civil Rights Act were meant somehow to limit its application to state action. The legislative history furnishes not the slightest factual basis for any such speculation, and the conditions prevailing in 1870 make it highly implausible. For, by that time, most, if not all, of the former Confederate States, then under the control of "reconstructed" legislatures, had formally repudiated racial discrimination, and the focus of congressional concern had clearly shifted from hostile statutes to the activities of groups like the Ku Klux Klan, operating wholly outside the law. [ Footnote 72 ] Page 392 U. S. 437 Against this background, it would obviously make no sense to assume, without any historical support whatever, that Congress made a silent decision in 1870 to exempt private discrimination from the operation of the Civil Rights Act of 1866. [ Footnote 73 ] "The cardinal rule is that repeals by implication are not favored." Posadas v. National City Bank, 296 U. S. 497 , 296 U. S. 503 . All Congress said in 1870 was that the 1866 law "is hereby reenacted." That is all Congress meant. As we said in a somewhat different setting two Terms ago, "We think that history leaves no doubt that, if we are to give [the law] the scope that its origins dictate, we must accord it a sweep as broad as its language." United States v. Price, 383 U. S. 787 , 383 U. S. 801 . "We are not at liberty to seek ingenious analytical instruments," ibid., to carve from § 1982 an exception for private conduct -- even though its application to such conduct in the present context is without established precedent. And, as the Attorney General of the United States said at the oral argument of this case, "The fact that the statute lay partially dormant for many years cannot be held to diminish its force today." V . The remaining question is whether Congress has power under the Constitution to do what § 1982 purports to do: to prohibit all racial discrimination, private and public, in the sale and rental of property. Our starting point is the Thirteenth Amendment, for it was pursuant Page 392 U. S. 438 to that constitutional provision that Congress originally enacted what is now § 1982. The Amendment consists of two parts. Section 1 states: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." Section 2 provides: "Congress shall have power to enforce this article by appropriate legislation." As its text reveals, the Thirteenth Amendment "is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States." Civil Rights Cases, 109 U. S. 3 , 109 U. S. 20 . It has never been doubted, therefore, "that the power vested in Congress to enforce the article by appropriate legislation," ibid., includes the power to enact laws "direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not." Id. at 109 U. S. 23 . [ Footnote 74 ] Thus, the fact that § 1982 operates upon the unofficial acts of private individuals, whether or not sanctioned by state law, presents no constitutional problem. If Congress has power under the Thirteenth Amendment to eradicate conditions that prevent Negroes from buying and renting property because of their race or color, then no federal statute calculated to achieve that objective Page 392 U. S. 439 can be thought to exceed the constitutional power of Congress simply because it reaches beyond state action to regulate the conduct of private individuals. The constitutional question in this case, therefore, comes to this: does the authority of Congress to enforce the Thirteenth Amendment "by appropriate legislation" include the power to eliminate all racial barriers to the acquisition of real and personal property? We think the answer to that question is plainly yes. "By its own unaided force and effect," the Thirteenth Amendment "abolished slavery, and established universal freedom." Civil Rights Cases, 109 U. S. 3 , 109 U. S. 20 . Whether or not the Amendment itself did any more than that -- a question not involved in this case -- it is at least clear that the Enabling Clause of that Amendment empowered Congress to do much more. For that clause clothed "Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. " Ibid. (Emphasis added.) Those who opposed passage of the Civil Rights Act of 1866 argued, in effect that the Thirteenth Amendment merely authorized Congress to dissolve the legal bond by which the Negro slave was held to his master. [ Footnote 75 ] Yet many had earlier opposed the Thirteenth Amendment on the very ground that it would give Congress virtually unlimited power to enact laws for the protection of Negroes in every State. [ Footnote 76 ] And the majority leaders in Congress -- who were, after all, the authors of the Thirteenth Amendment -- had no doubt that its Enabling Clause contemplated the sort of positive legislation that Page 392 U. S. 440 was embodied in the 1866 Civil Rights Act. Their chief spokesman, Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then "the trumpet of freedom that we have been blowing throughout the land has given an 'uncertain sound,' and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that, under this provision . . . , we may destroy all these discriminations in civil rights against the black man, and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States, and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end. [ Footnote 77 ]" Surely Senator Trumbull was right. Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation. Nor can we say that the determination Congress has made is an irrational Page 392 U. S. 441 one. For this Court recognized long ago that, whatever else they may have encompassed, the badges and incidents of slavery -- its "burdens and disabilities" -- included restraints upon "those fundamental rights which are the essence of civil freedom, namely, the same right . . . to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens." Civil Rights Cases, 109 U. S. 3 , 109 U. S. 22 . [ Footnote 78 ] Just as the Black Codes, enacted after the Civil Page 392 U. S. 442 War to restrict the free exercise of those rights, were substitutes for the slave system, so the exclusion of Negroes from white communities became a substitute for the Black Codes. And when racial discrimination herds men Page 392 U. S. 443 into ghettos and makes their ability to buy property turn on the color of their skin, then it too is a relic of slavery. Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom -- freedom to "go and come at pleasure" [ Footnote 79 ] and to "buy and sell when they please" [ Footnote 80 ] -- would be left with "a mere paper guarantee" [ Footnote 81 ] if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep. Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland , 4 Wheat. 316, 17 U. S. 421 : "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. [ Footnote 82 ]" "The end is legitimate," the Congressman said, "because it is defined by the Constitution itself. The end is the Page 392 U. S. 444 maintenance of freedom. . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality. [ Footnote 83 ]" We agree. The judgment is Reversed. [ Footnote 1 ] To vindicate their rights under 42 U.S.C. § 1982, the petitioners invoked the jurisdiction of the District Court to award "damages or . . . equitable or other relief under any Act of Congress providing for the protection of civil rights. . . ." 28 U.S.C. § 1343(4). In such cases, federal jurisdiction does not require that the amount in controversy exceed $10,000. Cf. Douglas v. City of Jeannette, 319 U. S. 157 , 319 U. S. 161 ; Hague v. C.I.O., 307 U. S. 496 , 307 U. S. 507 -514, 307 U. S. 527 -532. [ Footnote 2 ] 255 F. Supp. 115 . [ Footnote 3 ] 379 F.2d 33. [ Footnote 4 ] 389 U. S. 968 . [ Footnote 5 ] Because we have concluded that the discrimination alleged in the petitioners' complaint violated a federal statute that Congress had the power to enact under the Thirteenth Amendment, we find it unnecessary to decide whether that discrimination also violated the Equal Protection Clause of the Fourteenth Amendment. [ Footnote 6 ] Contrast the Civil Rights Act of 1968, § 804(a). [ Footnote 7 ] Contrast § 804(b). [ Footnote 8 ] Contrast §§ 804(c), (d), (e). [ Footnote 9 ] Contrast § 805. [ Footnote 10 ] Contrast § 806. In noting that 42 U.S.C. § 1982 differs from the Civil Rights Act of 1968 in not dealing explicitly and exhaustively with such matters ( see also nn. 7 and | 7 and S. 409fn9|>9, supra ), we intimate no view upon the question whether ancillary services or facilities of this sort might in some situations constitute "property" as that term is employed in § 1982. Nor do we intimate any view upon the extent to which discrimination in the provision of such services might be barred by 42 U.S.C. § 1981, the text of which appears in 7 and S. 409fn78|>n. 78, infra. [ Footnote 11 ] Contrast the Civil Rights Act of 1968, §§ 808-811. [ Footnote 12 ] Contrast § 813(a). [ Footnote 13 ] The petitioners in this case sought an order requiring the respondents to sell them a "Hyde Park" type of home on Lot No. 7147, or on "some other lot in [the] subdivision sufficient to accommodate the home selected. . . ." They requested that the respondents be enjoined from disposing of Lot No. 7147 while litigation was pending, and they asked for a permanent injunction against future discrimination by the respondents "in the sale of homes in the Paddock Woods subdivision." The fact that 42 U.S.C. § 1982 is couched in declaratory terms and provides no explicit method of enforcement does not, of course, prevent a federal court from fashioning an effective equitable remedy. See, e.g., Texas & N. O. R. Co. v. Ry. Clerks, 281 U. S. 548 , 281 U. S. 568 -570; Deckert v. Independence Corp., 311 U. S. 282 , 311 U. S. 288 ; United States v. Republic Steel Corp., 362 U. S. 482 , 362 U. S. 491 -492; J. I. Case Co. v. Borak, 377 U. S. 426 , 377 U. S. 432 -435. Cf. Ex parte Young, 209 U. S. 123 ; Griffin v. School Board, 377 U. S. 218 . [ Footnote 14 ] Contrast the Civil Rights Act of 1968, § 812(c). The complaint in this case alleged that the petitioners had "suffered actual damages in the amount of $50.00," but no facts were stated to support or explain that allegation. Upon receiving the injunctive relief to which they are entitled, see n 13, supra, the petitioners will presumably be able to purchase a home from the respondents at the price prevailing at the time of the wrongful refusal in 1965 -- substantially less, the petitioners concede, than the current market value of the property in question. Since it does not appear that the petitioners will then have suffered any uncompensated injury, we need not decide here whether, in some circumstances, a party aggrieved by a violation of § 1982 might properly assert an implied right to compensatory damages. Cf. Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33 , 241 U. S. 39 -40; Steele v. Louisville & N. R. Co., 323 U. S. 192 , 323 U. S. 207 ; Wyandotte Transportation Co. v. United States, 389 U. S. 191 , 389 U. S. 202 , 389 U. S. 204 . See generally Bell v. Hood, 327 U. S. 678 , 327 U. S. 684 . See also 42 U.S.C. § 1988. In no event, on the facts alleged in the present complaint, would the petitioners be entitled to punitive damages. See Philadelphia, Wilmington, & Baltimore R. Co. v. Quigley , 21 How. 202, 62 U. S. 213 -214. Cf. Barry v. Edmunds, 116 U. S. 550 , 116 U. S. 562 -565; Wills v. Trans World Airlines, Inc., 200 F. Supp. 360 , 367-368. We intimate no view, however, as to what damages might be awarded in a case of this sort arising in the future under the Civil Rights Act of 1968. [ Footnote 15 ] See §§ 803(b), 807. [ Footnote 16 ] Hearings on S. 1358, S. 2114, and S. 2280 before the Subcommittee on Housing and Urban Affairs of the Senate Committee on Banking and Currency, 90th Cong., 1st Sess., 229. These hearings were a frequent point of reference in the debates preceding passage of the 1968 Civil Rights Act. See, e.g., 114 Cong.Rec. S1387 (Feb. 16, 1968), S1453 (Feb. 20, 1968), S1641 (Feb. 26, 1968), S1788 (Feb. 27, 1968). [ Footnote 17 ] Hearings, supra, n 16, at 229. [ Footnote 18 ] Id. at 230. See also id. at 129, 162-163, 251. And see Hearings on S. 1026, S. 1318, S. 1359, S. 1362, S. 1462, H.R. 2516, and H.R. 10805 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 90th Cong., 1st Sess., 416. [ Footnote 19 ] 114 Cong.Rec. H2807 (April 10, 1968). See also id. at H2808. The Attorney General of the United States stated during the oral argument in this case that the Civil Rights Act then pending in Congress "would provide open housing rights on a complicated statutory scheme, including administrative, judicial, and other sanctions for its effectuation. . . ." "Its potential for effectiveness,' he added, 'is probably much greater than [§ 1982] because of the sanctions and the remedies that it provides." [ Footnote 20 ] At oral argument, the Attorney General expressed the view that, if Congress should enact the pending bill, § 1982 would not be affected in any way, but "would stand independently." That is, of course, correct. The Civil Rights Act of 1968 does not mention 42 U.S.C. § 1982, and we cannot assume that Congress intended to effect any change, either substantive or procedural, in the prior statute. See United States v. Borden Co., 308 U. S. 188 , 308 U. S. 198 -199 See also § 815 of the 1968 Act: "Nothing in this title shall be construed to invalidate or limit any law of . . . any . . . jurisdiction in which this title shall be effective, that grants, guarantees, or protects the . . . rights . . . granted by this title. . . ." [ Footnote 21 ] On April 22, 1968, we requested the views of the parties as to what effect, if any, the enactment of the Civil Rights Act of 1968 had upon this litigation. The parties and the Attorney General, representing the United States as amicus curiae, have informed us that the respondents' housing development will not be covered by the 1968 Act until January 1, 1969; that, even then, the Act will have no application to cases where, as here, the alleged discrimination occurred prior to April 11, 1968, the date on which the Act became law, and that, if the Act were deemed applicable to such cases, the petitioners' claim under it would nonetheless be barred by the 180-day limitation period of §§ 810(b) and 812(a). Nor did the passage of the 1968 Act after oral argument in this case furnish a basis for dismissing the writ of certiorari as improvidently granted. Rice v. Sioux City Cemetery, 349 U. S. 70 , relied upon in dissent, post at 392 U. S. 479 , was quite unlike this case, for the statute that belatedly came to the Court's attention in Rice reached precisely the same situations that would have been covered by a decision in this Court sustaining the petitioner's claim on the merits. The coverage of § 1982, however, is markedly different from that of the Civil Rights Act of 1968. [ Footnote 22 ] 82 U.S.App.D.C. 180, 162 F.2d 233. [ Footnote 23 ] 332 U.S. 789 [ Footnote 24 ] Compare Harmon v. Tyler, 273 U.S. 668, invalidating a New Orleans ordinance which gave legal force to private discrimination by forbidding any Negro to establish a home in a white community, or any white person to establish a home in a Negro community, "except on the written consent of a majority of the persons of the opposite race inhabiting such community or portion of the City to be affected." See Shelley v. Kraemer, 334 U. S. 1 , 334 U. S. 12 . [ Footnote 25 ] Two of this Court's early opinions contain dicta to the general effect that § 1982 is limited to state action. Virginia v. Rives, 100 U. S. 313 , 100 U. S. 317 -318; Civil Rights Cases, 109 U. S. 3 , 109 U. S. 16 -17. But all that Virginia v. Rives, supra, actually held was that § 641 of the Revised Statutes of 1874 (derived from § 3 of the Civil Rights Act of 1866 and currently embodied in 28 U.S.C. § 1443(1)) did not authorize the removal of a state prosecution where the defendants, without pointing to any statute discriminating against Negroes, could only assert that a denial of their rights might take place and might go uncorrected at trial. 100 U.S. at 100 U. S. 319 -322. See Georgia v. Rachel, 384 U. S. 780 , 384 U. S. 797 -804. And, of course, the Civil Rights Cases, supra, which invalidated §§ 1 and 2 of the Civil Rights Act of 1875, 18 Stat. 335, did not involve the present statute at all. It is true that a dictum in Hurd v. Hodge, 334 U. S. 24 , 334 U. S. 31 , characterized Corrigan v. Buckley, 271 U. S. 323 , as having "held" that "[t]he action toward which the provisions of the statute . . . [are] directed is governmental action." 334 U.S. at 334 U. S. 31 . But no such statement appears in the Corrigan opinion, and a careful examination of Corrigan reveals that it cannot be read as authority for the proposition attributed to it in Hurd. In Corrigan, suits had been brought to enjoin a threatened violation of certain restrictive covenants in the District of Columbia. The courts of the District had granted relief, see 55 App.D.C. 30, 299 F. 899, and the case reached this Court on appeal. As the opinion in Corrigan specifically recognized, no claim that the covenants could not validly be enforced against the appellants had been raised in the lower courts, and no such claim was properly before this Court. 271 U.S. at 271 U. S. 330 -331. The only question presented for decision was whether the restrictive covenants themselves violated the Fifth, Thirteenth, and Fourteenth Amendments, and §§ 1977, 1978, and 1979 of the Revised Statutes (now 42 U.S.C. §§ 1981 1982 and 1983). Ibid. Addressing itself to that narrow question, the Court said that none of the provisions relied upon by the appellants prohibited private individuals from "enter[ing] into . . . [contracts] in respect to the control and disposition of their own property." Id. at 271 U. S. 331 . Nor, added the Court, had the appellants even claimed that the provisions in question "had, in and of themselves, . . . [the] effect" of prohibiting such contracts. Ibid. Even if Corrigan should be regarded as an adjudication that 42 U.S.C. § 1982 (then § 1978 of the Revised Statutes) does not prohibit private individuals from agreeing not to sell their property to Negroes, Corrigan would not settle the question whether § 1982 prohibits an actual refusal to sell to a Negro. Moreover, since the appellants in Corrigan had not even argued in this Court that the statute prohibited private agreements of the sort there involved, it would be a mistake to treat the Corrigan decision as a considered judgment even on that narrow issue. [ Footnote 26 ] 379 F.2d 33, 43 [ Footnote 27 ] Ibid. [ Footnote 28 ] Act of April 9, 1866, c. 31, § 1, 14 Stat. 27, reenacted by § 18 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, § 18, 16 Stat. 140, 144, and codified in §§ 1977 and 1978 of the Revised Statutes of 1874, now 42 U.S.C. §§ 1981 and 1982. For the text of § 1981, see n 78, infra. [ Footnote 29 ] It is, of course, immaterial that § 1 ended with the words "any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." The phrase was obviously inserted to qualify the reference to "like punishment, pains, and penalties, and to none other," thus emphasizing the supremacy of the 1866 statute over inconsistent state or local laws, if any. It was deleted, presumably as surplusage, in § 1978 of the Revised Statutes of 1874. [ Footnote 30 ] Several weeks before the House began its debate on the Civil Rights Act of 1866, Congress had passed a bill (S. 60) to enlarge the powers of the Freedmen's Bureau (created by Act of March 3, 1865, c. 90, 13 Stat. 507) by extending military jurisdiction over certain areas in the South where, "in consequence of any State or local law, . . . custom, or prejudice, any of the civil rights . . . belonging to white persons (including the right . . . to inherit, purchase, lease, sell, hold, and convey real and personal property . . . ) are refused or denied to negroes . . . on account of race, color, or any previous condition of slavery or involuntary servitude. . . ." See Cong.Globe, 39th Cong., 1st Sess., 129, 209. (Emphasis added.) Both Houses had passed S. 60 ( see id. at 421, 688, 748, 775), and, although the Senate had failed to override the President's veto ( see id. t 915-916, 943) the bill was nonetheless significant for its recognition that the "right to purchase" was a right that could be "refused or denied" by "custom or prejudice" as well as by "State or local law." See also the text accompanying nn. 49 and | 49 and S. 409fn59|>59, infra. Of course, an "abrogation of civil rights made 'in consequence of . . . custom, or prejudice' might as easily be perpetrated by private individuals or by unofficial community activity as by state officers armed with statute or ordinance." J. tenBroek, Equal Under Law 179 (1965 ed.). [ Footnote 31 ] When Congressman Bingham of Ohio spoke of the Civil Rights Act, he charged that it would duplicate the substantive scope of the bill recently vetoed by the President, see n 30, supra, and that it would extend the territorial reach of that bill throughout the United States. Cong.Globe, 39th Cong., 1st Sess., 1292. Although the Civil Rights Act, as the dissent notes, post at 392 U. S. 457 , 392 U. S. 462 , made no explicit reference to "prejudice," cf. n 30, supra, the fact remains that nobody who rose to answer the Congressman disputed his basic premise that the Civil Rights Act of 1866 would prohibit every form of racial discrimination encompassed by the earlier bill the President had vetoed. Even Senator Trumbull of Illinois, author of the vetoed measure as well as of the Civil Rights Act, had previously remarked that the latter was designed to "extend to all parts of the country," on a permanent basis, the "equal civil rights" which were to have been secured in rebel territory by the former, id. at 322, to the end that " all the badges of servitude . . . be abolished." Id. at 323. (Emphasis added.) [ Footnote 32 ] Section 2 provided: "That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court." (Emphasis added.) For the evolution of this provision into 18 U.S.C. § 242, see Screws v. United States, 325 U. S. 91 , 325 U. S. 98 -99; United States v. Price, 383 U. S. 787 , 383 U. S. 804 . [ Footnote 33 ] When Congressman Loan of Missouri asked the Chairman of the House Judiciary Committee, Mr. Wilson of Iowa, "why [does] the committee limit the provisions of the second section to those who act under the color of law," Cong.Globe, 39th Cong., 1st Sess., 1120, he was obviously inquiring why the second section did not also punish those who violated the first without acting "under the color of law." Specifically, he asked: "Why not let them [the penalties of § 2] apply to the whole community where the acts are committed?" Ibid. Mr. Wilson's reply was particularly revealing. If, as floor manager of the bill, he had viewed acts not under color of law as not violative of § 1 at all, that would, of course, have been the short answer to the Congressman's query. Instead, Mr. Wilson found it necessary to explain that the Judiciary Committee did not want to make "a general criminal code for the States." Ibid. Hence, only those who discriminated "in reference to civil rights . . . under the color of . . . local laws" were made subject to the criminal sanctions of § 2. Ibid. Congress might have thought it appropriate to confine criminal punishment to state officials, oath-bound to support the supreme federal law, while allowing only civil remedies -- or perhaps only preventive relief -- against private violators. Or Congress might have thought that States which did not authorize abridgment of the rights declared in § 1 would themselves punish all who interfered with those rights without official authority. See, e.g., Cong.Globe, 39th Cong., 1st Sess., 1758, 1785. Cf. Civil Rights Cases, 109 U. S. 3 , 109 U. S. 19 , 109 U. S. 24 -25. Whatever the reason, it was repeatedly stressed that the only violations "reached and punished " by the bill, see Cong.Globe, 39th Cong., 1st Sess., at 1294 (emphasis added), would be those "done under color of State authority." Ibid. It is observed in dissent, post at 392 U. S. 458 , that Senator Trumbull told Senator Cowan that § 2 was directed not at "State officers especially, but [at] everybody who violates the law." That remark, however, was nothing more than a reply to Senator Cowan's charge that § 2 was "exceedingly objectionable" in singling out state judicial officers for punishment for the first time "in the history of civilized legislation." Id. at 500. [ Footnote 34 ] See, e.g., Cong.Globe, 39th Cong., 1st Sess., at 39, 474, 516-517, 602-603, 1123-1125, 1151-1153, 1160. For the substance of the codes and their operation, see H.R.Exec.Doc. No. 118, 39th Cong., 1st Sess.; S.Exec.Doc. No. 6, 39th Cong., 2d Sess.; 1 W. Fleming, Documentary History of Reconstruction 273-312 (1906); E. McPherson, The Political History of the United States of America During the Period of Reconstruction 294 (1871); 2 S. Morison and H. Commager, The Growth of the American Republic 17-18 (1950 ed.); K. Stampp, The Era of Reconstruction 79-81 (1965). [ Footnote 35 ] See n. 31 supra. It is true, as the dissent emphasizes, post at 392 U. S. 460 , that Senator Trumbull remarked at one point that the Act "could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union," whose laws did not themselves discriminate against Negroes. Cong.Globe, 39th Cong., 1st Sess., 1761. But the Senator was simply observing that the Act would "in no manner [interfere] with the . . . regulations of any State which protects all alike in their rights of person and property." Ibid. See also id. at 476, 505, 600. That is, the Act would have no effect upon nondiscriminatory legislation. Senator Trumbull obviously could not have meant that the law would apply to racial discrimination in some States, but not in others, for the bill, on its face, applied upon its enactment "in every State and Territory in the United States," and no one disagreed when Congressman Bingham complained that, unlike Congress' recently vetoed attempt to expand the Freedmen's Bureau, see n 30, supra, the Civil Rights Act would operate "in every State of the Union." Id. at 1292. Nor, contrary to a suggestion made in dissent, post at 392 U. S. 460 , was the Congressman speaking only of the Act's potential operation in any State that might enact a racially discriminatory law in the future. The Civil Rights Act, Congressman Bingham insisted, would "be enforced in every State . . . [at] the present . . . time." Ibid. (Emphasis added.) [ Footnote 36 ] J. tenBroek, supra, n 30, at 181. See also W. Brock, An American Crisis 124 (1963); J. McPherson, The Struggle For Equality 332 (1964); K. Stampp, supra, n 34, at 75, 131-132. [ Footnote 37 ] Cong.Globe, 39th Cong., 1st Sess., 95, 1833. [ Footnote 38 ] Id. at 1160. [ Footnote 39 ] Id. at 339-340, 1160, 1835. It is true, as the dissent notes, post at 392 U. S. 462 , that some of the references to private assaults occurred during debate on the Freedmen's Bureau bill, n 30, supra, but the congressional discussion proceeded upon the understanding that all discriminatory conduct reached by the Freedmen's Bureau bill would be reached as well by the Civil Rights Act. See, e.g., n 31, supra. [ Footnote 40 ] Id. at 1835. It is clear that these instances of private mistreatment, see also text accompanying n 41, infra were understood as illustrative of the evils that the Civil Rights Act of 1866 would correct. Congressman Eldridge of Wisconsin, for example, said this: "Gentlemen refer us to individual cases of wrong perpetrated upon the freedmen of the South as an argument why we should extend the Federal authority into the different States to control the action of the citizens thereof. But, I ask, has not the South submitted to the altered state of things there, to the late amendment of the Constitution, to the loss of their slave property, with a cheerfulness and grace that we did not expect? . . . I deprecate all these measures because of the implication they carry upon their face that the people who have heretofore owned slaves intend to do them wrong. I do not believe it. . . . The cases of ill-treatment are exceptional cases." Id. at 1156. So it was that "opponents denied or minimized the facts asserted," but "did not contend that the [Civil Rights Act] would not reach such facts if they did exist." J. tenBroek, supra, n 30, at 181. [ Footnote 41 ] Report of C. Schurz, S.Exec.Doc. No. 2, 39th Cong., 1st Sess., 2, 17-25. See W. Brock, supra, n 36, at 40-42; K. Stampp, supra, n 34, at 73-75. [ Footnote 42 ] Report of C. Schurz, supra, at 23-24. [ Footnote 43 ] Id. at 25. [ Footnote 44 ] Id. at 18. [ Footnote 45 ] Id. at 35. [ Footnote 46 ] J. tenBroek, supra, n 30, at 177. One of the proposals, sponsored by Senator Wilson of Massachusetts, would have declared void all "laws, statutes, acts, ordinances, rules, and regulations" establishing or maintaining in former rebel States "any inequality of civil rights and immunities" on account of "color, race, or . . . a previous condition . . . of slavery." Cong.Globe, 39th Cong., 1st Sess., 39. The other two proposals, sponsored by Senator Sumner of Massachusetts, would have struck down in the former Confederate States "all laws . . . establishing any oligarchical privileges and any distinction of rights on account of color or race," and would have required that all persons there be "recognized as equal before the law." Id. at 91. [ Footnote 47 ] See n 46, supra. [ Footnote 48 ] Cong.Globe, 39th Cong., 1st Sess., 43. (Emphasis added.) The dissent seeks to neutralize the impact of this quotation by noting that, prior to making the above statement, the Senator had argued that the second clause of the Thirteenth Amendment was inserted "for the purpose, and none other, of preventing State Legislatures from enslaving, under any pretense, those whom the first clause declared should be free." See post at 392 U. S. 455 , 392 U. S. 462 -463. In fact, Senator Trumbull was simply replying at that point to the contention of Senator Saulsbury of Delaware that the second clause of the Thirteenth Amendment was never intended to authorize federal legislation interfering with subjects other than slavery itself. See id. at 42. Senator Trumbull responded that the clause was intended to authorize precisely such legislation. That, "and none other," he said for emphasis, was its avowed purpose. But Senator Trumbull did not imply that the force of § 2 of the Thirteenth Amendment would be spent once Congress had nullified discriminatory state laws. On the contrary, he emphasized the fact that it was "for Congress to determine, and nobody else," what sort of legislation might be "appropriate" to make the Thirteenth Amendment effective. Id. at 43. Cf. 392 U. S. infra. [ Footnote 49 ] Id. at 77. (Emphasis added.) [ Footnote 50 ] Id. at 129. [ Footnote 51 ] Id. at 474. [ Footnote 52 ] Ibid. See the dissenting opinion, post at 392 U. S. 458 . [ Footnote 53 ] Id. at 475 [ Footnote 54 ] Id. at 599. (Emphasis added.) Senator Trumbull later observed that his bill would add nothing to federal authority if the States would fully "perform their constitutional obligations." Id. at 600. See also Senator Trumbull's remarks, id. at 1758; the remarks of Senator Lane of Indiana, id. at 602-603, and the remarks of Congressman Wilson of Iowa, id. at 1117-1118. But it would be a serious mistake to infer from such statements any notion ( see the dissenting opinion, post at 392 U. S. 460 ) that, so long as the States refrained from actively discriminating against Negroes, their "obligations" in this area, as Senator Trumbull and others understood them, would have been fulfilled. For the Senator's concern, it will be recalled ( see text accompanying n 49, supra ), was that Negroes might be "oppressed and, in fact, deprived of their freedom" not only by hostile laws, but also by "prevailing public sentiment," and he viewed his bill as necessary "unless, by local legislation, they [the States] provide for the real freedom of their former slaves." Id. at 77. See also id. at 43. And see the remarks of Congressman Lawrence of Ohio: "Now there are two ways in which a State may undertake to deprive citizens of these absolute, inherent, and inalienable rights: either by prohibitory laws, or by a failure to protect any one of them." Id. at 1833. [ Footnote 55 ] See, e.g., the remarks of Senator Howard of Michigan. Id. at 504. [ Footnote 56 ] See, e.g., the remarks of Senator Cowan of Pennsylvania, id. at 500, and the remarks of Senator Hendricks of Indiana. Id. at 601. [ Footnote 57 ] Senator Saulsbury of Delaware. Id. at 478. [ Footnote 58 ] Senator Van Winkle of West Virginia. Id. at 498. [ Footnote 59 ] Senator Lane of Indiana. Id. at 603. [ Footnote 60 ] Id. at 606-607 [ Footnote 61 ] See, e.g., id. at 1118-1119, 1123-1125, 1151-1153, 1160. See generally the discussion in the dissenting opinion, post at 392 U. S. 464 -467. [ Footnote 62 ] Id. at 1151. (Emphasis added.) [ Footnote 63 ] Id. at 1124. [ Footnote 64 ] Ibid. (Emphasis added.) The clear import of these remarks is in no way diminished by the heated debate, see id. at 1290-1294, portions of which are quoted in the dissenting opinion, post at 392 U. S. 467 -468, between Representative Bingham, opposing the bill, and Representative Shellabarger, supporting it, over the question of what kinds of state laws might be invalidated by § 1, a question not involved in this case. [ Footnote 65 ] Id. at 1367. On March 15, the Senate concurred in the several technical amendments that had been made by the House. Id. at 1413-1416. [ Footnote 66 ] Id. at 1679-1681. [ Footnote 67 ] Senator Cowan of Pennsylvania. Id. at 1781. [ Footnote 68 ] Senator Davis of Kentucky. Id., Appendix, at 183. Such expansive views of the Act's reach found frequent and unchallenged expression in the Nation's press. See, e.g., Daily National Intelligencer (Washington, D.C.), March 24, 1866, p. 2, col. 1; New York Herald, March 29, 1866, p. 4, col. 3; Cincinnati Commercial, March 30, 1866, p. 4, col. 2; Evening Post (New York), April 7, 1866, p. 2, col. 1; Indianapolis Daily Herald, April 17, 1866, p. 2, col. 1. [ Footnote 69 ] Cong.Globe, 39th Cong., 1st Sess., 1809, 1861. [ Footnote 70 ] "Never before had Congress overridden a President on a major political issue, and there was special gratification in feeling that this had not been done to carry some matter of material interest, such as a tariff, but in the cause of disinterested justice." W. Brock, supra, n 36, at 115. [ Footnote 71 ] Section 18 of the Enforcement Act of 1870, Act of May 31, 1870, c. 114, § 18, 16 Stat. 144: " And be it further enacted, That the act to protect all persons In the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby reenacted. . . ." [ Footnote 72 ] See United States v. Mosley, 238 U. S. 383 , 238 U. S. 387 -388; United States v. Price, 383 U. S. 787 , 383 U. S. 804 -805; 2 W. Fleming, Documentary History of Reconstruction 285-288 (1907); K. Stampp, supra, n 34, at 145, 171, 185, 198-204; G. Stephenson, Race Distinctions in American Law 116 (1910). [ Footnote 73 ] The Court of Appeals in this case seems to have derived such an assumption from language in Virginia v. Rives, 100 U. S. 313 , 100 U. S. 317 -318, and Hurd v. Hodge, 334 U. S. 24 , 334 U. S. 31 . See 379 F.2d 33, 39-40, 43. Both of those opinions simply asserted that, at least after its reenactment in 1870, the Civil Rights Act of 1866 was directed only at governmental action. Neither opinion explained why that was thought to be so, and, in each case, the statement was merely dictum. See n 25, supra. [ Footnote 74 ] So it was, for example, that this Court unanimously upheld the power of Congress under the Thirteenth Amendment to make it a crime for one individual to compel another to work in order to discharge a debt. Clyatt v. United States, 197 U. S. 207 . [ Footnote 75 ] See, e.g., Cong.Globe, 39th Cong., 1st Sess., 113, 318, 476, 499, 507, 576, 600-601. [ Footnote 76 ] See, e.g., Cong.Globe, 38th Cong., 1st Sess., 1366, 2616, 2940-2941, 2962, 2986; Cong.Globe, 38th Cong., 2d Sess., 178-180, 182, 192, 195, 239, 241-242, 480-481, 529. [ Footnote 77 ] Cong.Globe, 39th Cong., 1st Sess., 322. See also the remarks of Senator Howard of Michigan. Id. at 503. [ Footnote 78 ] The Court did conclude in the Civil Rights Cases that "the act of . . . the owner of the inn, the public conveyance or place of amusement, refusing . . . accommodation" cannot be "justly regarded as imposing any badge of slavery or servitude upon the applicant." 109 U.S. at 109 U. S. 24 . "It would be running the slavery argument into the ground," the Court thought, "to make it apply to every act of discrimination which a person may see fit to make as to the guests he will entertain or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business." Id. at 109 U. S. 24 -25. Mr. Justice Harlan dissented, expressing the view that "such discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude the imposition of which Congress may prevent under its power, by appropriate legislation, to enforce the Thirteenth Amendment." Id. at 43. Whatever the present validity of the position taken by the majority on that issue -- a question rendered largely academic by Title II of the Civil Rights Act of 1964, 78 Stat. 243 ( see Heart of Atlanta Motel v. United States, 379 U. S. 241 ; Katzenbach v. McClung, 379 U. S. 294 ) -- we note that the entire Court agreed upon at least one proposition: the Thirteenth Amendment authorizes Congress not only to outlaw all forms of slavery and involuntary servitude, but also to eradicate the last vestiges and incidents of a society half slave and half free by securing to all citizens, of every race and color, "the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens." 109 U.S. at 109 U. S. 22 . Cf. id. at 109 U. S. 35 (dissenting opinion). In Hodges v. United States, 203 U. S. 1 , a group of white men had terrorized several Negroes to prevent them from working in a sawmill. The terrorizers were convicted under 18 U.S.C. § 241 (then Revised Statutes § 5508) of conspiring to prevent the Negroes from exercising the right to contract for employment, a right secured by 42 U.S.C. § 1981 (then Revised Statutes § 1977, derived from § 1 of the Civil Rights Act of 1866, see n 28, supra ). Section 1981 provides, in terms that closely parallel those of § 1982 (then Revised Statutes § 1978), that all persons in the United States "shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. . . ." (Emphasis added.) This Court reversed the conviction. The majority recognized that "one of the disabilities of slavery, one of the indicia of its existence, was a lack of power to make or perform contracts." 203 U.S. at 203 U. S. 17 . And there was no doubt that the defendants had deprived their Negro victims, on racial grounds, of the opportunity to dispose of their labor by contract. Yet the majority said that "no mere personal assault or trespass or appropriation operates to reduce the individual to a condition of slavery," id. at 203 U. S. 18 , and asserted that only conduct which actually enslaves someone can be subjected to punishment under legislation enacted to enforce the Thirteenth Amendment. Contra, United States v. Cruikshank, 25 Fed.Cas. 707, 712 (No. 14,897) (dictum of Mr. Justice Bradley, on circuit), aff'd, 92 U. S. 542 ; United States v. Morris, 125 F. 322, 324, 330-331. Mr. Justice Harlan, joined by Mr. Justice Day, dissented. In their view, the interpretation the majority placed upon the Thirteenth Amendment was "entirely too narrow and . . . hostile to the freedom established by the supreme law of the land." 203 U.S. at 203 U. S. 37 . That interpretation went far, they thought, "towards neutralizing many declarations made as to the object of the recent Amendments of the Constitution, a common purpose of which, this court has said, was to secure to a people theretofore in servitude, the free enjoyment, without discrimination merely on account of their race, of the essential rights that appertain to American citizenship and to freedom." Ibid. The conclusion of the majority in Hodges rested upon a concept of congressional power under the Thirteenth Amendment irreconcilable with the position taken by every member of this Court in the Civil Rights Cases and incompatible with the history and purpose of the Amendment itself. Insofar as Hodges is inconsistent with our holding today, it is hereby overruled. [ Footnote 79 ] See text accompanying n 48, supra. [ Footnote 80 ] Ibid. [ Footnote 81 ] See text accompanying n 62, supra. [ Footnote 82 ] Cong.Globe, 39th Cong., 1st Sess., 1118. [ Footnote 83 ] Ibid. MR. JUSTICE DOUGLAS, concurring. The Act of April 9, 1866, 14 Stat. 27, 42 U.S. .C. § 1982, provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." This Act was passed to enforce the Thirteenth Amendment, which, in § 1, abolished "slavery" and "involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted" and, in § 2, gave Congress power "to enforce this article by appropriate legislation." Enabling a Negro to buy and sell real and personal property is a removal of one of many badges of slavery. "Slaves were not considered men. . . . They could own nothing; they could make no contracts; they could hold no property, nor traffic in property; they could not hire out; they could not legally marry nor constitute families; they could not control their children; they could not appeal from their master; they could be punished at will." W. Dubois, Black Reconstruction in America 10 (1964). [ Footnote 2/1 ] Page 392 U. S. 445 The true curse of slavery is not what it did to the black man, but what it has done to the white man. For the existence of the institution produced the notion that the white man was of superior character, intelligence, and morality. The blacks were little more than livestock -- to be fed and fattened for the economic benefits they could bestow through their labors, and to be subjected to authority, often with cruelty, to make clear who was master and who slave. Some badges of slavery remain today. While the institution has been outlawed, it has remained in the minds and hearts of many white men. Cases which have come to this Court depict a spectacle of slavery unwilling to die. We have seen contrivances by States designed to thwart Negro voting, e.g., Lane v. Wilson, 307 U. S. 268 . Negroes have been excluded over and again from juries solely on account of their race, e.g., Strauder v. West Virginia, 100 U. S. 303 , or have been forced to sit in segregated seats in courtrooms, Johnson v. Virginia, 373 U. S. 61 . They have been made to attend segregated and inferior schools, e.g., Brown v. Board of Education, 347 U. S. 483 , or been denied entrance to colleges or graduate schools because of their color, e.g., Pennsylvania v. Board of Trusts, 353 U. S. 230 ; Sweatt v. Painter, 339 U. S. 629 . Negroes have been prosecuted for marrying whites, e.g., Loving v. Virginia, 388 U. S. 1 . They have been forced to live in segregated residential districts, Buchanan v. Warley, 245 U. S. 60 , and residents of white neighborhoods have denied them entrance, e.g., Shelley v. Kraemer, 334 U. S. 1 . Negroes have been forced to use segregated facilities in going about their daily lives, having been excluded from railway coaches, Plessy v. Ferguson, 163 U. S. 537 ; public parks, New Orleans Park Improvement Assn. v. Detiege, 358 U. S. 54 ; restaurants, Lombard v. Louisiana, 373 U. S. 267 ; public beaches, Mayor of Baltimore v. Dawson, 350 U.S. 877; municipal Page 392 U. S. 446 golf courses, Holmes v. City of Atlanta, 350 U.S. 879; amusement parks, Griffin v. Maryland, 378 U. S. 130 ; buses, Gayle v. Browder, 352 U.S. 903; public libraries, Brown v. Louisiana, 383 U. S. 131 . A state court judge in Alabama convicted a Negro woman of contempt of court because she refused to answer him when he addressed her as "Mary," although she had made the simple request to be called "Miss Hamilton." Hamilton v. Alabama, 376 U. S. 650 . That brief sampling of discriminatory practices, many of which continue today, stands almost as an annotation to what Frederick Douglass (1817-1895) wrote nearly a century earlier: "Of all the races and varieties of men which have suffered from this feeling, the colored people of this country have endured most. They can resort to no disguises which will enable them to escape its deadly aim. They carry in front the evidence which marks them for persecution. They stand at the extreme point of difference from the Caucasian race, and their African origin can be instantly recognized, though they may be several removes from the typical African race. They may remonstrate like Shylock --" "Hath not a Jew eyes? hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same summer and winter, as a Christian is?" "-- but such eloquence is unavailing. They are Negroes -- and that is enough, in the eye of this unreasoning prejudice, to justify indignity and violence. In nearly every department of American life, they are confronted by this insidious influence. It fills the air. It meets them at the workshop and factory, when they apply for work. It meets them at the church, at the hotel, at the Page 392 U. S. 447 ballot box, and, worst of all, it meets them in the jury box. Without crime or offense against law or gospel, the colored man is the Jean Valjean of American society. He has escaped from the galleys, and hence all presumptions are against him. The workshop denies him work, and the inn denies him shelter; the ballot box a fair vote, and the jury box a fair trial. He has ceased to be the slave of an individual, but has, in some sense, become the slave of society. He may not now be bought and sold like a beast in the market, but he is the trammeled victim of a prejudice, well calculated to repress his manly ambition, paralyze his energies, and make him a dejected and spiritless man, if not a sullen enemy to society, fit to prey upon life and property and to make trouble generally. [ Footnote 2/2 ]" Today the black is protected by a host of civil rights laws. But the forces of discrimination are still strong. A member of his race, duly elected by the people to a state legislature, is barred from that assembly because of his views on the Vietnam war. Bond v. Floyd, 385 U. S. 116 . Real estate agents use artifice to avoid selling "white property" to the blacks. [ Footnote 2/3 ] The blacks who travel the country, though entitled by law to the facilities for sleeping and dining that are offered all tourists, Heart of Atlanta Motel v. United States, 379 U. S. 241 , may well learn that the "vacancy" sign does not mean what it says, especially if the motel has a swimming pool. On entering a half-empty restaurant, they may find "reserved" signs on all unoccupied tables. Page 392 U. S. 448 The black is often barred from a labor union because of his race. [ Footnote 2/4 ] He learns that the order directing admission of his children into white schools has not been obeyed "with all deliberate speed," Brown v. Board of Education, 349 U. S. 294 , 349 U. S. 301 , but has been delayed by numerous stratagems and devices. [ Footnote 2/5 ] State laws, at times, have even encouraged Page 392 U. S. 449 discrimination in housing. Reitman v. Mulkey, 387 U. S. 369 . This recital is enough to show how prejudices, once part and parcel of slavery, still persist. The men who sat in Congress in 1866 were trying to remove some of the badges or "customs" [ Footnote 2/6 ] of slavery when they enacted § 1982. And, as my Brother STEWART shows, the Congress that passed the so-called Open Housing Act in 1968 did not undercut any of the grounds on which § 1982 rests. [ Footnote 2/1 ] The cases are collected in five volumes in H. Catterall, Judicial Cases Concerning American Slavery and the Negro (1926-1937). And see 1 T. Cobb, An Inquiry into the Law of Negro Slavery, c. XIV (1858); G. Ostrander, The Rights of Man in America 1606-1861, p. 252 (1960); G. Stroud, Sketch of the Laws Relating to Slavery 45-50 (1827); J. Wheeler, Law of Slavery 190-191 (1837). [ Footnote 2/2 ] Excerpt from Frederick Douglass, The Color Line, The North American Review, June 1881, 4 The Life and Writings of Frederick Douglass 343-344 (1955). [ Footnote 2/3 ] See Kamper v. Department of State of New York, 22 N.Y.2d 690 , 238 N.E.2d 914. [ Footnote 2/4 ] See, e.g., O'Hanlon, The Case Against the Unions, Fortune, Jan.1968, at 170. [ Footnote 2/5 ] The contrivances which some States have concocted to thwart the command of our decision in Brown v. Board of Education are by now legendary. See, e.g., Monroe v. Board of Commissioners, 391 U. S. 450 (Tennessee "free-transfer" plan); Green v. County School Board, 391 U. S. 430 (Virginia school board "freedom of choice" plan); Raney v. Board of Education, 391 U. S. 443 (Arkansas "freedom of choice" plan); Bradley v. School Board, 382 U. S. 103 (allocation of faculty allegedly on a racial basis); Griffin v. School Board, 377 U. S. 218 (closing of public schools in Prince Edward County, Virginia, with tuition grants and tax concessions used to assist white children attending private segregated schools); Goss v. Board of Education, 373 U. S. 683 (Tennessee rezoning of school districts, with a transfer plan permitting transfer by students on the basis of race); United States v. Jefferson County Board of Education, 372 F.2d 836, aff'd en banc, 380 F.2d 385 (C.A. 5th Cir.1967) ("freedom of choice" plans in States within the jurisdiction of the United States Court of Appeals for the Fifth Circuit); Northcross v. Board of Education, 302 F.2d 818 (C.A. 6th Cir.1962) (Tennessee pupil assignment law); Orleans Parish School Board v. Bush, 242 F.2d 156 (C.A. 5th Cir.1957) (Louisiana pupil assignment law); Hall v. St. Helena Parish School Board, 197 F. Supp. 649 (D.C.E.D.La.1961), aff'd, 368 U. S. 515 (Louisiana law permitting closing of public schools, with extensive state aid going to private segregated schools); Holmes v. Danner, 191 F. Supp. 394 (D.C.M.D. Ga.1961) (Georgia statute cutting off state funds if Negroes admitted to state university); Aaron v. McKinley, 173 F. Supp. 944 (D.C.E.D. Ark.1959), aff'd sub nom. Faubus v. Aaron, 361 U. S. 197 (Arkansas statute cutting off state funds to integrated school districts); James v. Almond, 170 F. Supp. 331 (D.C.E.D.Va.1959) (closing of all integrated public schools). See also Rogers v. Paul, 382 U. S. 198 ; Calhoun v. Latimer, 377 U. S. 263 ; Cooper v. Aaron, 358 U. S. 1 . [ Footnote 2/6 ] My Brother HARLAN's listing of some of the "customs" prevailing in the North at the time § 1982 was first enacted shows the extent of organized white discrimination against newly freed blacks. As he states, "[r]esidential segregation was the prevailing pattern almost everywhere in the North." Post at 392 U. S. 474 -475. Certainly, then, it was "customary." To suggest, however, that there might be room for argument in this case ( post at 392 U. S. 475 , n. 65) that the discrimination against petitioners was not in some measure a part and product of this longstanding and widespread customary pattern is to pervert the problem by allowing the legal mind to draw lines and make distinctions that have no place in the jurisprudence of a nation striving to rejoin the human race. MR. JUSTICE HARLAN, whom MR. JUSTICE WHITE joins, dissenting. The decision in this case appears to me to be most ill-considered and ill-advised. The petitioners argue that the respondents' racially motivated refusal to sell them a house entitles them to judicial relief on two separate grounds. First, they claim that the respondents acted in violation of 42 U.S.C. § 1982; second, they assert that the respondents' conduct amounted in the circumstances to "state action," [ Footnote 3/1 ] and was therefore forbidden by the Fourteenth Amendment even in the absence of any statute. The Court, without Page 392 U. S. 450 reaching the second ground alleged, holds that the petitioners are entitled to relief under 42 U.S.C. § 1982, and that § 1982 is constitutional as legislation appropriate to enforce the Thirteenth Amendment. For reasons which follow, I believe that the Court's construction of § 1982 as applying to purely private action is almost surely wrong, and, at the least, is open to serious doubt. The issues of the constitutionality of § 1982, as construed by the Court, and of liability under the Fourteenth Amendment alone, also present formidable difficulties. Moreover, the political processes of our own era have, since the date of oral argument in this case, given birth to a civil rights statute [ Footnote 3/2 ] embodying "fair housing" provisions [ Footnote 3/3 ] which would, at the end of this year, make available to others, though apparently not to the petitioners themselves, [ Footnote 3/4 ] the type of relief which the petitioners now seek. It seems to me that this latter factor so diminishes the public importance of this case that by far the wisest course would be for this Court to refrain from decision and to dismiss the writ as improvidently granted. I I shall deal first with the Court's construction of § 1982, which lies at the heart of its opinion. That construction is that the statute applies to purely private, as well as to state-authorized, discrimination. A The Court's opinion focuses upon the statute's legislative history, but it is worthy of note that the precedents in this Court are distinctly opposed to the Court's view of the statute. Page 392 U. S. 451 In the Civil Rights Cases, 109 U. S. 3 , decided less than two decades after the enactment of the Civil Rights Act of 1866, from which § 1982 is derived, the Court said in dictum of the 1866 Act: "This law is clearly corrective in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. . . . The Civil Rights Bill here referred to is analogous in its character to what a law would have been under the original Constitution, declaring that the validity of contracts should not be impaired, and that, if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defence." Id. at 16-17. [ Footnote 3/5 ] In Corrigan v. Buckley, 271 U. S. 323 , the question was whether the courts of the District of Columbia might enjoin prospective breaches of racially restrictive covenants. The Court held that it was without jurisdiction to consider the petitioners' argument that the covenant was void because it contravened the Fifth, Thirteenth, and Fourteenth Amendments and their implementing statutes. The Court reasoned, inter alia, that the statutes, including the immediate predecessor of § 1982, [ Footnote 3/6 ] were inapplicable because "they, like the Constitutional Amendment under whose sanction they were enacted, do not in any manner prohibit or invalidate contracts entered into Page 392 U. S. 452 by private individuals in respect to the control and disposition of their own property." Id. at 271 U. S. 331 . [ Footnote 3/7 ] In Hurd v. Hodge, 334 U. S. 24 , the issue was again whether the courts of the District might enforce racially restrictive covenants. At the outset of the process of reasoning by which it held that judicial enforcement of such a covenant would violate the predecessor of § 1982, the Court said: "We may start with the proposition that the statute does not invalidate private restrictive agreements so long as the purposes of those agreements are achieved by the parties through voluntary adherence to the terms. The action toward which the provisions of the statute under consideration is [ sic ] directed is governmental action. Such was the holding of Corrigan v. Buckley. . . ." Id. at 334 U. S. 31 . [ Footnote 3/8 ] B Like the Court, I begin analysis of § 1982 by examining its language. In its present form, the section provides: "All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." The Court finds it "plain and unambiguous," ante at 392 U. S. 420 , that this language forbids purely private, as well as state-authorized, discrimination. With all respect, I do not find it so. For me, there is an inherent ambiguity in the Page 392 U. S. 453 term "right," as used in § 1982. The "right" referred to may either be a right to equal status under the law, in which case the statute operates only against state-sanctioned discrimination, or it may be an "absolute" right enforceable against private individuals. To me, the words of the statute, taken alone, suggest the former interpretation, not the latter. [ Footnote 3/9 ] Further, since intervening revisions have not been meant to alter substance, the intended meaning of § 1982 must be drawn from the words in which it was originally enacted. Section 1982 originally was a part of § 1 of the Civil Rights Act of 1866, 14 Stat. 27. Sections 1 and 2 of that Act provided in relevant part: "That all persons born in the United States and not subject to any foreign power . . . are hereby declared to be citizens of the United States, and such citizens, of every race and color . . shall have the same right, in every State and Territory Page 392 U. S. 454 in the United States, . . . to inherit, purchase, lease, sell, hold, and convey real and personal property . . . as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." "Sec. 2. That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act . . . shall be deemed guilty of a misdemeanor. . . ." It seems to me that this original wording indicates even more strongly than the present language that § 1 of the Act (as well as § 2, which is explicitly so limited) was intended to apply only to action taken pursuant to state or community authority, in the form of a "law, statute, ordinance, regulation, or custom." [ Footnote 3/10 ] And, with deference, I suggest that the language of § 2, taken alone, no more implies that § 2 "was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed," see ante at 392 U. S. 425 , than it does that § 2 was carefully drafted to enforce all of the rights secured by § 1. C The Court rests its opinion chiefly upon the legislative history of the Civil Rights Act of 1866. I shall endeavor to show that those debates do not, as the Court would have it, overwhelmingly support the result reached by the Court, and, in fact, that a contrary conclusion may equally well be drawn. I shall consider the legislative Page 392 U. S. 455 history largely in chronological sequence, dealing separately with the Senate and House debates. The First Session of the Thirty-ninth Congress met on December 4, 1865, some six months after the preceding Congress had sent to the States the Thirteenth Amendment, and a few days before word was received of that Amendment's ratification. On December 13, Senator Wilson introduced a bill which would have invalidated all laws in the former rebel States which discriminated among persons as to civil rights on the basis of color, and which would have made it a misdemeanor to enact or enforce such a statute. [ Footnote 3/11 ] On the same day, Senator Trumbull said with regard to Senator Wilson's proposal: "The bill does not go far enough, if what we have been told today in regard to the treatment of freedmen in the southern States is true. . . . [U]ntil [the Thirteenth Amendment] is adopted, there may be some question . . . as to the authority of Congress to pass such a bill as this, but after the adoption of the constitutional amendment, there can be none." "The second clause of that amendment was inserted for some purpose, and I would like to know . . . for what purpose? Sir, for the purpose, and none other, of preventing State Legislatures from enslaving, under any pretense, those whom the first clause declared should be free. [ Footnote 3/12 ]" Senator Trumbull then indicated that he would introduce separate bills to enlarge the powers of the recently founded Freedmen's Bureau and to secure the freedmen in their civil rights, both bills in his view being authorized by the second clause of the Thirteenth Amendment. [ Footnote 3/13 ] Page 392 U. S. 456 Since he had just stated that the purpose of that clause was to enable Congress to nullify acts of the state legislatures, it seems inferable that this was also to be the aim of the promised bills. On January 5, Senator Trumbull introduced both the Freedmen's bill and the civil rights bill. [ Footnote 3/14 ] The Freedmen's bill would have strengthened greatly the existing system by which agents of the Freedmen's Bureau exercised protective supervision over freedmen wherever they were present in large numbers. Inter alia, the Freedmen's bill would have permitted the President, acting through the Bureau, to extend "military protection and jurisdiction" over all cases in which persons in the former rebel States were, "in consequence of any State or local law, ordinance, police or other regulation, custom, or prejudice, [denied or refused] any of the civil rights or immunities belonging to white persons, including the right . . . to inherit, purchase, lease, sell, hold and convey real and personal property, . . . on account of race. [ Footnote 3/15 ]" The next section of the Freedmen's bill provided that the agents of the Freedmen's Bureau might try and convict of a misdemeanor any person who deprived another of such rights on account of race and "under color of any State or local law, ordinance, police, or other regulation or custom. . . ." Thus, the Freedmen's bill, which was generally limited in its application to the Southern States and which was correspondingly more sweeping in its protection Page 392 U. S. 457 of the freedmen than the civil rights bill, [ Footnote 3/16 ] defined both the rights secured and the denials of those rights which were criminally punishable in terms of acts done under the aegis of a State or locality. The only significant distinction was that denials which occurred "in consequence of a State or local . . . prejudice" would have entitled the victim to military protection, but would not have been criminal. In the corresponding section of the companion and generally parallel civil rights bill, which was to be effective throughout the Nation, the reference to "prejudice" was omitted from the rights-defining section. This would seem to imply that the more widely applicable civil rights bill was meant to provide protection only against those discriminations which were legitimated by a state or community sanction sufficiently powerful to deserve the name "custom." The form of the Freedmen's bill also undercuts the Court's argument, ante at 392 U. S. 424 , that, if § 1 of the Civil Rights Act were construed as extending only to "state action," then "much of § 2 [which clearly was so limited] would have made no sense at all." For the similar structure of the companion Freedmen's bill, drafted by the same hand and largely parallel in structure, would seem to confirm that the limitation to "state action" was deliberate. The civil rights bill was debated intermittently in the Senate from January 12, 1866, until its eventual Page 392 U. S. 458 passage over the President's veto on April 6. In the course of the debates, Senator Trumbull, who was by far the leading spokesman for the bill, made a number of statements which can only be taken to mean that the bill was aimed at "state action" alone. For example, on January 29, 1866, Senator Trumbull began by citing a number of recently enacted Southern laws depriving men of rights named in the bill. He stated that "[t]he purpose of the bill under consideration is to destroy all these discriminations, and carry into effect the constitutional amendment." [ Footnote 3/17 ] Later the same day, Senator Trumbull quoted § 2 of the bill in full, and said: "This is the valuable section of the bill so far as protecting the rights of freedmen is concerned. . . . When it comes to be understood in all parts of the United States that any person who shall deprive another of any right . . . in consequence of his color or race will expose himself to fine and imprisonment, I think such acts will soon cease. [ Footnote 3/18 ]" These words contain no hint that the "rights" protected by § 2 were intended to be any less broad than those secured by § 1. Of course, § 2 plainly extended only to "state action." That Senator Trumbull viewed §§ 1 and 2 as coextensive appears even more clearly from his answer the following day when asked by Senator Cowan whether there was "not a provision [in the bill] by which State officers are to be punished?" Senator Trumbull replied: "Not State officers especially, but everybody who violates the law. It is the intention to punish everybody who violates the law. " [ Footnote 3/19 ] Page 392 U. S. 459 On January 29, Senator Trumbull also uttered the first of several remarkably similar and wholly unambiguous statements which indicated that the bill was aimed only at "state action." He said: "[This bill] may be assailed as drawing to the Federal Government powers that properly belong to 'states,' but I apprehend, rightly considered, it is not obnoxious to that objection. It will have no operation in any State where the laws are equal, where all persons have the same civil rights without regard to color or race. It will have no operation in the State of Kentucky when her slave code and all her laws discrimination between persons on account of race or color shall be abolished. [ Footnote 3/20 ]" Senator Trumbull several times reiterated this view. On February 2, replying to Senator Davis of Kentucky, he said: "Why, sir, if the State of Kentucky makes no discrimination in civil rights between its citizens, this bill has no operation whatever in the State of Kentucky. Are all the rights of the people of Kentucky gone because they cannot discriminate and punish one man for doing a thing that they do not punish another for doing? The bill draws to the Federal Page 392 U. S. 460 Government no power whatever if the States will perform their constitutional obligations. [ Footnote 3/21 ]" On April 4, after the President's veto of the bill, Senator Trumbull stated that, "If an offense is committed against a colored person simply because he is colored, in a State where the law affords him the same protection as if he were white, this act neither has nor was intended to have anything to do with his case, because he has adequate remedies in the State courts. . . . [ Footnote 3/22 ]" Later the same day, he said: "This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union. [ Footnote 3/23 ]" The remarks just quoted constitute the plainest possible statement that the civil rights bill was intended to apply only to state-sanctioned conduct, and not to purely private action. The Court has attempted to negate the force of these statements by citing other declarations by Senator Trumbull and others that the bill would operate everywhere in the country. See ante at 392 U. S. 426 , n. 35. However, the obvious and natural way to reconcile these two sets of statements is to read the ones about the bill's nationwide application as declarations that the enactment of a racially discriminatory law in any State would bring the bill into effect there. [ Footnote 3/24 ] It seems to me that Page 392 U. S. 461 very great weight must be given these statements of Senator Trumbull, for they were clearly made to reassure Northern and Border State Senators about the extent of the bill's operation in their States. On April 4, Senator Trumbull gave two additional indications that the bill was intended to reach only state-sanctioned action. The first occurred during Senator Trumbull's defense of the part of § 3 of the bill which gave federal courts jurisdiction "of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts . . . of the State or locality where they may be any of the rights secured to them by the first section of this act. . . ." Senator Trumbull said: "If it be necessary in order to protect the freedman in his rights that he should have authority to go into the Federal courts in all cases where a custom prevails in a State, or where there is a statute law of the State discriminating against him, I think we have the authority to confer that jurisdiction under the second clause of the [Thirteenth Amendment]. [ Footnote 3/25 ]" If the bill had been intended to reach purely private discrimination, it seems very strange that Senator Trumbull did not think it necessary to defend the surely more dubious federal jurisdiction over cases involving no state action whatsoever. A few minutes later, Senator Trumbull reiterated that his reason for introducing the civil rights bill was to bring about "the passage of a law by Congress securing equality in civil rights when denied by State authorities to freedmen and all other inhabitants of the United States. . . . [ Footnote 3/26 ]" Thus, the Senate debates contain many explicit statements by the bill's own author, to whom the Senate naturally Page 392 U. S. 462 looked for an explanation of its terms, indicating that the bill would prohibit only state-sanctioned discrimination. The Court puts forward in support of its construction an impressive number of quotations from and citations to the Senate debates. However, upon more circumspect analysis than the Court has chosen to give, virtually all of these appear to be either irrelevant or equally consistent with a "state action" interpretation. The Court's mention, ante at 392 U. S. 427 , of a reference in the Senate debates to "white employers who refused to pay their Negro workers" surely does not militate against a "state action" construction, since "state action" would include conduct pursuant to "custom," and there was a very strong "custom" of refusing to pay slaves for work done. The Court's citation, ante at 392 U. S. 427 -428, of Senate references to "white citizens who assaulted Negroes" is not in point, for the debate cited by the Court concerned the Freedmen's bill, not the civil rights bill. [ Footnote 3/27 ] The former, by its terms, forbade discrimination pursuant to "prejudice," as well as "custom," and, in any event, neither bill provided a remedy for the victim of a racially motivated assault. [ Footnote 3/28 ] The Court's quotation, ante at 392 U. S. 429 -430, of Senator Trumbull's December 13 reference to the then-embryonic civil rights bill is also compatible with a "state action" interpretation, at least when it is recalled that the unedited quotation, see supra at 392 U. S. 455 , includes a statement that Page 392 U. S. 463 the second clause of the Thirteenth Amendment, the authority for the proposed bill, was intended solely as a check on state legislatures. Senator Trumbull's declaration the following day that the forthcoming bill would be aimed at discrimination pursuant to "a prevailing public sentiment" as well as to legislation, see ante at 392 U. S. 431 , is also consistent with a "state action" reading of the bill, for the bill explicitly prohibited actions done under color of "custom" as well as of formal laws. The three additional statements of Senator Trumbull and the remarks of senatorial opponents of the bill, quoted by the Court, ante at 392 U. S. 431 -433, to show the bill's sweeping scope, are entirely ambiguous as to whether the speakers thought the bill prohibited only state-sanctioned conduct or reached wholly private action as well. Indeed, if the bill's opponents thought that it would have the latter effect, it seems a little surprising that they did not object more strenuously and explicitly. [ Footnote 3/29 ] The remark of Senator Lane which is quoted by the Court, ante at 392 U. S. 433 , to prove that he viewed the bill as reaching " the white man . . . [who] would invoke the power of local prejudice' against the Negro," seems to have been quoted out of context. The quotation is taken from a part of Senator Lane's speech in which he defended the section of the bill permitting the President to invoke military authority when necessary to enforce the bill. After noting that there might be occasions " [w]here organized resistance to the legal authority assumes that shape that the officers cannot execute a writ," [ Footnote 3/30 ] Senator Lane concluded that, "if [the white man] would invoke the power of local prejudice to override the laws of the country, this is no Government unless the military may be called in to enforce the order of the Page 392 U. S. 464 civil courts and obedience to the laws of the country." [ Footnote 3/31 ] It seems to me manifest that, taken in context, this remark is beside the point in this case. The post-veto remarks of opponents of the bill, cited by the Court, ante at 392 U. S. 435 , also are inconclusive. Once it is recognized that the word "right" as used in the bill is ambiguous, then Senator Cowan's statement, ante at 392 U. S. 435 , that the bill would confer "the right . . . to purchase . . . real estate . . . without any qualification" [ Footnote 3/32 ] must inevitably share that ambiguity. The remarks of Senator Davis, ibid., with respect to rental of hotel rooms and sale of church pews are, when viewed in context, even less helpful to the Court's thesis. For these comments were made immediately following Senator Davis' plaintive acknowledgment that "this measure proscribes all discriminations . . . that may be made . . . by any 'ordinance, regulation, or custom,' as well as by 'law or statute.' [ Footnote 3/33 ]" Senator Davis then observed that ordinances, regulations, and customs presently conferred upon white persons the most comfortable accommodations in ships and steamboats, hotels, churches and railroad cars, and stated that "[t]his bill . . . declares all persons who enforce those distinctions to be criminals against the United States. . . ." [ Footnote 3/34 ] Thus, Senator Davis not only tied these obnoxious effects of the bill to its "customs" provision, but alleged that they were brought about by § 2, as well as § 1. There is little wonder that his remarks "elicited no reply," see ibid., from the bill's supporters. The House debates are even fuller of statements indicating that the civil rights bill was intended to reach only state-endorsed discrimination. Representative Wilson Page 392 U. S. 465 was the hill's sponsor in the House. On the very first day of House debate, March 1, Representative Wilson said, in explaining the bill: . "[I]f the States, seeing that we have citizens of different races and colors, would but shut their eyes to these differences and legislate, so far at least as regards civil rights and immunities, as though all citizens were of one race or color, our troubles as a nation would be well nigh over. . . . It will be observed that the entire structure of this bill rests on the discrimination relative to civil rights and immunities made by the States on 'account of race, color, or previous condition of slavery.' [ Footnote 3/35 ]" A few minutes later, Representative Wilson said: "Before our Constitution was formed, the great fundamental rights [which are embodied in this bill] belonged to every person who became a member of our great national family. . . . The entire machinery of government . . . was designed, among other things, to secure a more perfect enjoyment of these rights. . . . I assert that we possess the power to do those things which Governments are organized to do; that we may protect a citizen of the United States against a violation of his rights by the law of a single State; . . . that this power permeates our whole system, is a part of it, without which the States can run riot over every fundamental right belonging to citizens of the United States. . . . [ Footnote 3/36 ]" These statements surely imply that Representative Wilson believed the bill to be aimed at state-sanctioned discrimination, and not at purely private discrimination, Page 392 U. S. 466 which, of course, existed unhindered "[b]efore our Constitution was formed." Other congressmen expressed similar views. On March 2, Representative Thayer, one of the bill's supporters, said: "The events of the last four years . . . have changed [the freedmen] from a condition of slavery to that of freedom. The practical question now to be decided is whether they shall be, in fact, freemen. It is whether they shall have the benefit of this great charter of liberty given to them by the American people." " Sir, if it is competent for the new-formed Legislatures of the rebel States to enact laws . . . which declare, for example, that they shall not have the privilege of purchasing a home for themselves and their families; . . . then I demand to know of what practical value is the amendment abolishing slavery . . . ? [ Footnote 3/37 ]" A few minutes later, he said: "Do you give freedom to a man when you allow him to be deprived of those great natural rights to which every man is entitled by nature? . . . [W]hat kind of freedom is that by which the man placed in a state of freedom is subject to the tyranny of laws which deprive him of [those] rights . . . ? [ Footnote 3/38 ]" A little later, Representative Thayer added: "[The freedmen] are entitled to the benefit of that guarantee of the Constitution which secures to every citizen the enjoyment of life, liberty, and property, and no just reason exists why they should not enjoy the protection of that guarantee. . . . " Page 392 U. S. 467 "What is the necessity which gives occasion for that protection? Sir, in at least six of the lately rebellious States, the reconstructed Legislatures of those States have enacted laws which, if permitted to be enforced, would strike a fatal blow at the liberty of the freedmen. . . . [ Footnote 3/39 ]" An opponent of the bill, Representative Bingham, said on March 9: "[W]hat, then, is proposed by the provision of the first section? Simply to strike down by congressional enactment every State constitution which makes a discrimination on account of race or color in any of the civil rights of the citizen. [ Footnote 3/40 ]" Representative Shellabarger, a supporter of the bill, discussed it on the same day. He began by stating that he had no doubt of the constitutionality of § 2 of the bill, provided Congress might enact § 1. With respect to § 1, he said: "Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike. . . . Self-evidently, this is the whole effect of this first section. It secures . . . equality of protection in those enumerated civil rights which the States may deem proper to confer upon any races. . . . It must . . . be noted that the violations of citizens' rights, which are reached and punished by this bill, are those which are inflicted under 'color of law,' &c. The bill does not reach mere private wrongs, but only those done under color of state authority. . . . [I]ts whole force is expended in defeating an attempt, under State laws, to deprive races and the Page 392 U. S. 468 members thereof as such of the rights enumerated in this act. This is the whole of it. [ Footnote 3/41 ]" Thus, Representative Shellabarger said in so many words that the bill had no impact on "mere private wrongs." After the President's veto of the bill, Representative Lawrence, a supporter, stated his views. He said: "The bill does not declare who shall or shall not have the right to sue, give evidence, inherit, purchase, and sell property. These questions are left to the States to determine, subject only to the limitation that there are some inherent and inalienable rights pertaining to every citizen which cannot be abolished or abridged by State constitutions or laws. . . ." "Now there are two ways in which a State may undertake to deprive citizens of these . . . rights: either by prohibitory laws or by a failure to protect any one of them." "If the people of a State should become hostile to a large class of naturalized citizens and should enact laws to prohibit them and no other citizens . . . from inheriting, buying, holding, or selling property, . . . that would be prohibitory legislation. If the State should simply enact laws for native-born citizens and provide no law under which naturalized citizens could enjoy any one of these rights, and should deny them all protection by civil process or penal enactments, that would be a denial of justice. [ Footnote 3/42 ] " Page 392 U. S. 469 From this passage, it would appear that Representative Lawrence conceived of the word "right" in § 1 of the bill as referring to a right to equal legal status, and that he believed that the sole effect of the bill was to prohibit state-imposed discrimination. The Court quotes and cites a number of passages from the House debates in aid of its construction of the bill. As in the case of the Senate debates, most of these appear upon close examination to provide little support. The first significant citation, ante at 392 U. S. 425 , n. 33, is a dialogue between Representative Wilson and Representative Loan, another of the bill's supporters. The full exchange went as follows: "Mr. LOAN. Mr. Speaker, I . . . ask the chairman . . . why the committee limit the provisions of the second section to those who act under the color of law. Why not let them apply to the whole community where the acts are committed?" "Mr. WILSON, of Iowa. That grows out of the fact that there is discrimination in reference to civil rights under the local laws of the States. Therefore we provide that the persons who under the color of these local laws should do these things shall be liable to this punishment." "Mr. LOAN. What penalty is imposed upon others than officers who inflict these wrongs on the citizen?" "Mr. WILSON, of Iowa. We are not making a general criminal code for the States." "Mr. LOAN. Why not abrogate those laws instead of inflicting penalties upon officers who execute writs under them?" "Mr. WILSON, of Iowa. A law without a sanction is of very little force." "Mr. LOAN. Then why not put it in the bill directly? " Page 392 U. S. 470 "Mr. WILSON, of Iowa. That is what we are trying to do. [ Footnote 3/43 ]" The interpretation which the Court places on Representative Wilson's remarks, see ante at 392 U. S. 425 , n. 33, is a conceivable one. [ Footnote 3/44 ] However, it is equally likely that, since both participants in the dialogue professed concern solely with § 2 of the bill, their remarks carried no implication about the scope of § 1. Moreover, it is possible to read the entire exchange as concerned with discrimination in communities having discriminatory laws, with Representative Loan urging that the laws should be abrogated directly or that all persons, not merely officers, who discriminated pursuant to them, should be criminally punishable. The next significant reliance upon the House debates is the Court's mention of references in the debates "to white employers who refused to pay their Negro workers, white planters who agreed among themselves not to hire freed slaves without the permission of their former masters, white citizens who assaulted Negroes or who combined to drive them out of their communities." Ante at 392 U. S. 427 -428. [ Footnote 3/45 ] (Footnotes omitted.) As was pointed out in the discussion of the Senate debates, supra, at 392 U. S. 462 , the references to white men's refusals to pay freedmen Page 392 U. S. 471 and their agreements not to hire freedmen without their "masters'" consent are by no means contrary to a "state action" view of the civil rights bill, since the bill expressly forbade action pursuant to "custom," and both of these practices reflected "customs" from the time of slavery. The Court cites two different House references to assaults on Negroes by whites. The first was by Congressman Windom, [ Footnote 3/46 ] and close examination reveals that his only mention of assaults was with regard to a Texas "pass system," under which freedmen were whipped if found abroad without passes, and a South Carolina law permitting freedmen to be whipped for insolence. [ Footnote 3/47 ] Since these assaults were sanctioned by law, or at least by "custom," they would be reached by the bill even under a "state action" interpretation. The other allusion to assaults, as well as the mention of combinations of whites to drive freedmen from communities, occurred in a speech by Representative Lawrence. [ Footnote 3/48 ] These references were shortly preceded by the remarks of Congressman Lawrence quoted supra at 392 U. S. 468 , and were immediately followed by his comment that, " If States should undertake to authorize such offenses or deny to a class of citizens all protection against them, we may then inquire whether the nation itself may be destroyed. . . . [ Footnote 3/49 ]" These fore and aft remarks imply that Congressman Lawrence's concern was that the activities referred to would receive state sanction. The Court, ante at 392 U. S. 428 , n. 40, quotes a statement of Representative Eldridge, an opponent of the bill, in which he mentioned references by the bill's supporters to "individual cases of wrong perpetrated upon Page 392 U. S. 472 the freedmen of the South. . . ." [ Footnote 3/50 ] However, up to that time, there had been no mention whatever in the House debates of any purely private discrimination, [ Footnote 3/51 ] so one can only conclude that, by "individual cases," Representative Eldridge meant "isolated cases," not "cases of purely private discrimination." The last significant reference [ Footnote 3/52 ] by the Court to the House debates is its statement, ante at 392 U. S. 434 , that "Representative Cook of Illinois thought that, without appropriate federal legislation, any 'combination of men in [a] neighborhood [could] prevent [a Negro] from having any chance' to enjoy" the benefits of the Thirteenth Amendment. This quotation seems to be taken out of context. What Representative Cook said was: "[W]hen those rights which are enumerated in this bill are denied to any class of men on account of race or color, when they are subject to a system of vagrant laws which sells them into slavery or involuntary servitude, which operates upon them as upon no other part of the community, they are not secured in the rights of freedom. If a man can be sold, the man is a slave. If he is nominally freed by the amendment to the Constitution, . . . he has simply the labor of his hands on which he can depend. Any combination of men in his neighborhood can prevent him from having any chance to support himself by his labor. They can pass law that a man not supporting himself by labor shall Page 392 U. S. 473 be deemed a vagrant, and that a vagrant shall be sold. [ Footnote 3/53 ]" These remarks clearly were addressed to discriminations effectuated by law, or sanctioned by "custom." As such, they would have been reached by the bill even under a "state action" interpretation. D The foregoing analysis of the language, structure, and legislative history of the 1866 Civil Rights Act shows, I believe, that the Court's thesis that the Act was meant to extend to purely private action is open to the most serious doubt, if indeed it does not render that thesis wholly untenable. Another, albeit less tangible, consideration points in the same direction. Many of the legislators who took part in the congressional debates inevitably must have shared the individualistic ethic of their time, which emphasized personal freedom [ Footnote 3/54 ] and embodied a distaste for governmental interference which was soon to culminate in the era of laissez-faire. [ Footnote 3/55 ] It seems to me that most of these men would have regarded Page 392 U. S. 474 it as a great intrusion on individual liberty for the Government to take from a man the power to refuse for personal reasons to enter into a purely private transaction involving the disposition of property, albeit those personal reasons might reflect racial bias. It should be remembered that racial prejudice was not uncommon in 1866, even outside the South. [ Footnote 3/56 ] Although Massachusetts had recently enacted the Nation's first law prohibiting racial discrimination in public accommodations, [ Footnote 3/57 ] Negroes could not ride within Philadelphia streetcars [ Footnote 3/58 ] or attend public schools with white children in New York City. [ Footnote 3/59 ] Only five States accorded equal voting rights to Negroes, [ Footnote 3/60 ] and it appears that Negroes were allowed to serve on juries only in Massachusetts. [ Footnote 3/61 ] Residential segregation was the prevailing pattern almost everywhere Page 392 U. S. 475 in the North. [ Footnote 3/62 ] There were no state "fair housing" laws in 1866, and it appears that none had ever been proposed. [ Footnote 3/63 ] In this historical context, I cannot conceive that a bill thought to prohibit purely private discrimination not only in the sale or rental of housing, but in all property transactions, would not have received a great deal of criticism explicitly directed to this feature. The fact that the 1866 Act received no criticism of this kind [ Footnote 3/64 ] is, for me, strong additional evidence that it was not regarded as extending so far. In sum, the most which can be said with assurance about the intended impact of the 1866 Civil Rights Act upon purely private discrimination is that the Act probably was envisioned by most members of Congress as prohibiting official, community-sanctioned discrimination in the South, engaged in pursuant to local "customs" which in the recent time of slavery probably were embodied in laws or regulations. [ Footnote 3/65 ] Acts done under the Page 392 U. S. 476 color of such "customs" were, of course, said by the Court in the Civil Rights Cases, 109 U. S. 3 , to constitute "state action" prohibited by the Fourteenth Amendment. See id. at 109 U. S. 16 , 109 U. S. 17 , 21. Adoption of a "state action" construction of the Civil Rights Act would therefore have the additional merit of bringing its interpretation into line with that of the Fourteenth Amendment, which this Court has consistently held to reach only "state action." This seems especially desirable in light of the wide agreement that a major purpose of the Fourteenth Amendment, at least in the minds of its congressional proponents, was to assure that the rights conferred by the then recently enacted Civil Rights Act could not be taken away by a subsequent Congress. [ Footnote 3/66 ] II The foregoing, I think, amply demonstrates that the Court has chosen to resolve this case by according to a loosely worded statute a meaning which is open to the strongest challenge in light of the statute's legislative history. In holding that the Thirteenth Amendment is sufficient constitutional authority for § 1982 as interpreted, the Court also decides a question of great importance. Even contemporary supporters of the aims of the 1866 Civil Rights Act doubted that those goals could constitutionally be achieved under the Thirteenth Amendment, [ Footnote 3/67 ] and this Court has twice expressed similar Page 392 U. S. 477 doubts. See Hodges v. United States, 203 U. S. 1 , 203 U. S. 16 -18; Corrigan v. Buckley, 271 U. S. 323 , 271 U. S. 330 . But cf. Civil Rights Cases, 109 U. S. 3 , 109 U. S. 22 . Thus, it is plain that the course of decision followed by the Court today entails the resolution of important and difficult issues. The only apparent way of deciding this case without reaching those issues would be to hold that the petitioners are entitled to relief on the alternative ground advanced by them: that the respondents' conduct amounted to "state action" forbidden by the Fourteenth Amendment. However, that route is not without formidable obstacles of its own, for the opinion of the Court of Appeals makes it clear that this case differs substantially from any "state action" case previously decided by this Court. See 379 F.2d at 40-45. The fact that a case is "hard" does not, of course, relieve a judge of his duty to decide it. Since the Court did vote to hear this case, I normally would consider myself obligated to decide whether the petitioners are entitled to relief on either of the grounds on which they rely. After mature reflection, however, I have concluded that this is one of those rare instances in which an event which occurs after the hearing of argument so diminishes a case's public significance, when viewed in light of the difficulty of the questions presented, as to justify this Court in dismissing the writ as improvidently granted. The occurrence to which I refer is the recent enactment of the Civil Rights Act of 1968, Pub.L. 90-284, 82 Stat. 73. Title VIII of that Act contains comprehensive "fair housing" provisions, which, by the terms of § 803, will become applicable on January 1, 1969, to persons who, like the petitioners, attempt to buy houses from developers. Under those provisions, such persons will be entitled to injunctive relief and damages from developers Page 392 U. S. 478 who refuse to sell to them on account of race or color, unless the parties are able to resolve their dispute by other means. Thus, the type of relief which the petitioners seek will be available within seven months' time under the terms of a presumptively constitutional Act of Congress. [ Footnote 3/68 ] In these circumstances, it seems obvious that the case has lost most of its public importance, and I believe that it would be much the wiser course for this Court to refrain from deciding it. I think it particularly unfortunate for the Court to persist in deciding this case on the basis of a highly questionable interpretation of a sweeping, century-old statute which, as the Court acknowledges, see ante at 392 U. S. 415 , contains none of the exemptions which the Congress of our own time found it necessary to include in a statute regulating relationships so personal in nature. In effect, this Court, by its construction of § 1982, has extended the coverage of federal "fair housing" laws far beyond that which Congress, in its wisdom, chose to provide in the Civil Rights Act of 1968. The political process now having taken hold again in this very field, I am at a loss to understand why the Court should have deemed it appropriate or, in the circumstances of this case, necessary to proceed with such precipitate and insecure strides. I am not dissuaded from my view by the circumstance that the 1968 Act was enacted after oral argument in this case, at a time when the parties and amici curiae had invested time and money in anticipation of a decision on the merits, or by the fact that the 1968 Act apparently will not entitle these petitioners to the relief which they seek. [ Footnote 3/69 ] For the certiorari jurisdiction was not Page 392 U. S. 479 conferred upon this Court "merely to give the defeated party in the . . . Court of Appeals another hearing," Magnum Co. v. Coty, 262 U. S. 159 , 262 U. S. 163 , or "for the benefit of the particular litigants," Rice v. Sioux City Cemetery, 349 U. S. 70 , 349 U. S. 74 , but to decide issues "the settlement of which is of importance to the public, as distinguished from . . . the parties," Layne & Bowler Corp. v. Western Well Works, Inc., 261 U. S. 387 , 261 U. S. 393 . I deem it far more important that this Court should avoid, if possible, the decision of constitutional and unusually difficult statutory questions than that we fulfill the expectations of every litigant who appears before us. One prior decision of this Court especially suggests dismissal of the writ as the proper course in these unusual circumstances. In Rice v. Sioux City Cemetery, supra, the issue was whether a privately owned cemetery might defend a suit for breach of a contract to bury on the ground that the decedent was a Winnebago Indian and the contract restricted burial privileges to Caucasians. In considering a petition for rehearing following an initial affirmance by an equally divided Court, there came to the Court's attention for the first time an Iowa statute which prohibited cemeteries from discriminating on account of race, but which would not have benefited the Rice petitioner because of an exception for "pending litigation." Mr. Justice Frankfurter, speaking for a majority of the Court, held that the writ should be dismissed. He pointed out that the case presented "evident difficulties," 349 U.S. at 349 U. S. 77 , and noted that, "[h]ad the statute been properly brought to our attention . . . , the case would have assumed such an isolated significance that it would hardly have been brought here in the first instance." Id. at 349 U. S. 76 -77. This case certainly presents difficulties as substantial as those in Rice. Compare what has been said in this opinion with 349 U.S. Page 392 U. S. 480 at 349 U. S. 72 -73; see also Bell v. Maryland, 378 U. S. 226 . And if the petition for a writ of certiorari in this case had been filed a few months after, rather than a few months before, the passage of the 1968 Civil Rights Act, I venture to say that the case would have been deemed to possess such "isolated significance," in comparison with its difficulties, that the petition would not have been granted. For these reasons, I would dismiss the writ of certiorari as improvidently granted. [ Footnote 3/1 ] This "state action" argument emphasizes the respondents' role as housing developers exercising continuing authority over a suburban housing complex with about 1,000 inhabitants. [ Footnote 3/2 ] The Civil Rights Act of 1968, Pub.L. 90-284, 82 Stat. 73. [ Footnote 3/3 ] Id. §§ 801-819. [ Footnote 3/4 ] See ante at 392 U. S. 417 , n. 21. [ Footnote 3/5 ] See also Virginia v. Rives, 100 U. S. 313 , 100 U. S. 317 -318. [ Footnote 3/6 ] Section 1978 of the Revised Statutes. [ Footnote 3/7 ] See also Buchanan v. Warley, 245 U. S. 60 , 245 U. S. 78 -79. [ Footnote 3/8 ] It seems to me that this passage is not dictum, as the Court terms it, ante at 392 U. S. 419 and n. 25, but a holding. For, if the Court had held the covenants in question invalid as between the parties, then it would not have had to rely upon a finding of "state action." [ Footnote 3/9 ] Despite the Court's view that this reading flies in the face of the "plain and unambiguous terms" of the statute, see ante at 392 U. S. 420 , it is not without precedent. In the Civil Rights Cases, 109 U. S. 3 , the Court said of identical language in the predecessor statute to § 1982: "[C]ivil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority. . . . The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true . . . , but, if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual cannot deprive a man of his right . . . to hold property, to buy and sell . . . ; he may, by force or fraud, interfere with the enjoyment of the right in a particular case; . . . but, unless protected in these wrongful acts by some shield of State law or State authority, he cannot destroy or injure the right. . . ." 109 U.S. at 109 U. S. 17 . [ Footnote 3/10 ] The Court does not claim that the deletion from § 1 of the statute, in 1874, of the words "any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding" was intended to have any substantive effect. See ante at 392 U. S. 422 , n. 29. [ Footnote 3/11 ] See Cong.Globe, 39th Cong., 1st Sess., 392. [ Footnote 3/12 ] Id. at 43. [ Footnote 3/13 ] See ibid. [ Footnote 3/14 ] See Cong.Globe, 39th Cong., 1st Sess., 129. [ Footnote 3/15 ] Freedmen's bill, § 7. The text of the bill may be found in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 72 (1871). The Freedmen's bill was passed by both the Senate and the House, but the Senate failed to override the President's veto. See Cong.Globe, 39th Cong., 1st Sess., 421, 688, 742, 748, 775, 915-916, 943. [ Footnote 3/16 ] Section 7 of the Freedmen's bill would have permitted the President to extend "military protection and jurisdiction" over all cases in which the specified rights were denied, while § 3 of the Civil Rights Act merely gave the federal courts concurrent jurisdiction over such actions. Section 8 of the Freedmen's bill would have allowed agents of the Freedmen's Bureau to try and convict those who violated the bill's criminal provisions, while § 3 of the Civil Rights Act only gave the federal courts exclusive jurisdiction over such actions. [ Footnote 3/17 ] Cong.Globe, 39th Cong., 1st Sess., 474. (Emphasis added.) [ Footnote 3/18 ] Id. at 475. (Emphasis added.) [ Footnote 3/19 ] Id. at 500. (Emphasis added.) The Civil Rights Cases, 109 U. S. 3 , suggest how Senator Trumbull might have expected § 2 to affect persons other than "officers" in spite of its "under color" language, for it was there said in dictum that: "The Civil Rights Bill . . . is analogous . . . to [a law] under the original Constitution declaring that the validity of contracts should not be impaired, and that, if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the courts of the United States, with the addition of a penalty for setting up such an unjust and unconstitutional defence. " 109 U.S. at 109 U. S. 17 . (Emphasis added.) [ Footnote 3/20 ] Cong.Globe, 39th Cong., 1st Sess., 476. (Emphasis added.) [ Footnote 3/21 ] Id. at 600. (Emphasis added.) [ Footnote 3/22 ] Id. at 1758 [ Footnote 3/23 ] Id. at 1761. (Emphasis added.) [ Footnote 3/24 ] Moreover, a few Northern States apparently did have laws which denied to Negroes rights enumerated in the Act. See G. Stephenson, Race Distinctions in American Law 36-39 (1910); L. Litwack, North of Slavery: The Negro in the Free States, 1790-1860, at 93-94 (1961). [ Footnote 3/25 ] Cong.Globe, 39th Cong., 1st Sess., 1759. [ Footnote 3/26 ] Id. at 1760. (Emphasis added.) [ Footnote 3/27 ] See Cong.Globe, 39th Cong., 1st Sess., 339-340. [ Footnote 3/28 ] The Court also gives prominence, see ante at 392 U. S. 428 -429, to a report by General Carl Schurz which described private as well as official discrimination against freedmen in the South. However, it is apparent that the Senate regarded the report merely as background, and it figured relatively little in the debates. Moreover, to the extent that the described discrimination was the product of "custom," it would have been prohibited by the bill. [ Footnote 3/29 ] See infra at 392 U. S. 473 -475 [ Footnote 3/30 ] Cong.Globe, 39th Cong., 1st Sess., 603. [ Footnote 3/31 ] Ibid. [ Footnote 3/32 ] See Cong.Globe, 39th Cong., 1st Sess., 1781. [ Footnote 3/33 ] Cong.Globe, 39th Cong., 1st Sess., Appendix, 183. [ Footnote 3/34 ] Ibid. [ Footnote 3/35 ] Cong.Globe, 39th Cong., 1st Sess., 111. (Emphasis added.) [ Footnote 3/36 ] Id. at 1119. (Emphasis added.) [ Footnote 3/37 ] Id. at 1151. (Emphasis added.) [ Footnote 3/38 ] Id. at 1152. (Emphasis added.) [ Footnote 3/39 ] Id. at 1153. (Emphasis added.) [ Footnote 3/40 ] Id. at 1291. (Emphasis added.) [ Footnote 3/41 ] Id. at 1293-1294. It is quite clear that Representative Shellabarger was speaking of the bill's first section, for he did not mention the second section until later in his speech, and then only briefly, and in terms which indicated that he thought it coextensive with the first ("I cannot remark on the second section further than to say that it is the ordinary case of providing punishment for violating a law of Congress."). See id. at 1294. [ Footnote 3/42 ] Cong.Globe, 39th Cong., 1st Sess., 1832-1833. (Emphasis added.) [ Footnote 3/43 ] Id. at 1120. [ Footnote 3/44 ] It is worthy of note, however, that, if Representative Wilson believed that § 2 of the bill would apply only to state officers, and not to other members of the community, he apparently differed from the bill's author. See the remarks of Senator Trumbull quoted supra at 392 U. S. 458 . [ Footnote 3/45 ] The Court's reliance, see ante at 392 U. S. 425 , n. 33, on the statement of Representative Shellabarger that "the violations of citizens' rights, which are reached and punished by this bill, are those which are . . . done under color of state authority . . . ," Cong.Globe, 39th Cong., 1st Sess., 1294, seems very misplaced when the statement is taken in context. A fuller version of Representative Shellabarger's remarks will be found supra at 392 U. S. 467 -468. [ Footnote 3/46 ] See Cong.Globe, 39th Cong., 1st Sess., 1160. [ Footnote 3/47 ] See ibid. [ Footnote 3/48 ] See Cong.Globe, 39th Cong., 1st Sess., 1835. [ Footnote 3/49 ] Ibid. (Emphasis added.) [ Footnote 3/50 ] Cong.Globe, 39th Cong., 1st Sess., 1156. [ Footnote 3/51 ] See id. at 1115-1124, 1151-1155. [ Footnote 3/52 ] The emphasis given by the Court to the statement of Representative Thayer which is quoted ante at 392 U. S. 433 -434 surely evaporates when the statement is viewed in conjunction with Representative Thayer's immediately following remarks, quoted supra at 392 U. S. 466 -467. [ Footnote 3/53 ] Id. at 1124. (Emphasis added.) Earlier in the same speech, Representative Cook had described actual vagrancy laws which had recently been passed by reconstructed Southern legislatures. See id. at 1123-1124. [ Footnote 3/54 ] An eminent American historian has said that the events of the last third of the 19th century took place "in a framework of pioneer individualistic mores. . . ." S. Morison, The Oxford History of the American People 788 (1965). See also 3 V. Parrington, Main Currents in American Thought 7-22 (1930). [ Footnote 3/55 ] It has been suggested that the effort of the congressional radicals to enact a program of land reform in favor of the freedmen during Reconstruction failed in part because it smacked too much of "paternalism" and interference with property rights. See K. Stampp, The Era of Reconstruction 126-131 (1965). [ Footnote 3/56 ] See generally M. Konvitz & T. Leskes, A Century of Civil Rights (1961); L. Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (1961); K. Stampp, supra, at 12-17; G. Stephenson, Race Distinctions in American Law (1910); Maslow & Robison, Civil Rights Legislation and the Fight for Equality, 1862-1952, 20 U.Chi.L.Rev. 363 (1953). [ Footnote 3/57 ] See M. Konvitz & T. Leskes, supra, at 155-156; 1864-1865 Mass. Acts and Resolves 650. [ Footnote 3/58 ] Negroes were permitted to ride only on the front platforms of the cars. See L. Litwack, supra, at 112. [ Footnote 3/59 ] Negro students in New York City were compelled to attend separate schools, called African schools, under authority of an 1864 New York State statute which empowered school officials to establish separate, equal schools for Negro children. See L. Litwack, supra, at 121, 133-134, 136, 151; G. Stephenson, supra, at 185; 1864 N.Y.Laws 1281. In 1883, the New York Court of Appeals held that students in Brooklyn might constitutionally be segregated pursuant to the statute. See People ex rel. King v. Gallagher, 93 N.Y. 438. In 1900, the statute was finally repealed and segregation legally forbidden. See 1900 N.Y.Laws, Vol. II, at 1173. [ Footnote 3/60 ] See L. Litwack, supra, at 91-92. The States were Massachusetts, Rhode Island, Maine, New Hampshire, and Vermont. See id. at 91. [ Footnote 3/61 ] See L. Litwack, supra, at 94. [ Footnote 3/62 ] See id. at 168-170. [ Footnote 3/63 ] It has been noted that: "Residential housing, despite its importance . . . , appears to be the last of the major areas of discrimination that the states have been willing to attack." M. Konvitz & T. Leskes, supra, at 236. And, as recently as 1953, it could be said: "Bills have been introduced in state legislatures to forbid racial or religious discrimination in 'multiple dwellings' (those housing three or more families), . . . but these proposals have not been considered seriously by any legislative body." Maslow & Robison, supra, at 408. (Footnotes omitted.) [ Footnote 3/64 ] In contrast, the bill was repeatedly and vehemently attacked, in the face of emphatic denials by its sponsors, on the ground that it allegedly would invalidate two types of state laws: those denying Negroes equal voting rights and those prohibiting intermarriage. See, e.g., Cong.Globe, 39th Cong., 1st Sess., 598, 600, 604, 606, 1121, 1157, 1263. [ Footnote 3/65 ] The petitioners do not argue, and the Court does not suggest, that the discrimination complained of in this case was the product of such a "custom." [ Footnote 3/66 ] See, e.g., H. Flack, The Adoption of the Fourteenth Amendment 94 (1908); J. James, The Framing of the Fourteenth Amendment 126-128, 179 (1956); 2 S. Morison H. Commager, The Growth of the American Republic 39 (4th ed.1950); K. Stampp, supra, at 136; J. tenBroek, Equal Under Law 224 (1965); L. Warsoff, Equality and the Law 126 (1938). [ Footnote 3/67 ] See, e.g., Cong.Globe, 39th Cong., 1st Sess., 504-505 (Senator Johnson); id. at 1291-1293 (Representative Bingham). [ Footnote 3/68 ] of course, the question of the constitutionality of the "fair housing" provisions of the 1968 Civil Rights Act is not before us, and I intend no implication about how I would decide that issue. [ Footnote 3/69 ] See ante at 392 U. S. 417 , n. 21.

In *Jones v. Alfred H. Mayer Co.* (1968), the United States Supreme Court ruled that 42 U.S.C. § 1982, a federal law prohibiting racial discrimination in the sale or rental of property, applies to private actors and not just state action. The Court interpreted the language and legislative history of § 1982, part of the Civil Rights Act of 1866, as intending to prohibit all forms of racial discrimination in the sale or rental of property, regardless of whether that discrimination was aided by governmental action. This decision affirmed the right of citizens to be free from racial discrimination in housing, enforceable through private legal action.

Property Rights & Land Use

Lloyd Corp., Ltd. v. Tanner

https://supreme.justia.com/cases/federal/us/407/551/

U.S. Supreme Court Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) Lloyd Corp., Ltd. v. Tanner No. 71-492 Argued April 18, 1972 Decided June 22, 1972 407 U.S. 551 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondents sought to distribute handbills in the interior mall area of petitioner's large privately owned shopping center. Petitioner had a strict no-handbilling rule. Petitioner's security guards requested respondents under threat of arrest to stop the handbilling, suggesting that they could resume their activities on the public streets and sidewalks adjacent to but outside the center, which respondents did. Respondents, claiming that petitioner's action violated their First Amendment rights, thereafter brought this action for injunctive and declaratory relief. The District Court, stressing that the center is "open to the general public" and "the functional equivalent of a public business district," and relying on Marsh v. Alabama, 326 U. S. 501 , and Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 , held that petitioner's policy of prohibiting handbilling within the mall violated respondents' First Amendment rights. The Court of Appeals affirmed. Held: There has been no dedication of petitioner's privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center's operations, and petitioner's property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner's tenants. The facts in this case are significantly different from those in Marsh, supra, which involved a company town with "all the attributes" of a municipality, and Logan Valley, supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling. Pp. 407 U. S. 556 -570. 446 F.2d 545, reversed and remanded. Page 407 U. S. 552 POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 407 U. S. 570 . MR. JUSTICE POWELL delivered the opinion of the Court. This case presents the question reserved by the Court in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), as to the right of a privately owned shopping center to prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations. Relying primarily on Marsh v. Alabama, 326 U. S. 501 (1946), and Logan Valley, the United States District Court for the District of Oregon sustained an asserted First Amendment right to distribute handbills in petitioner's shopping center, and issued a permanent injunction restraining petitioner from interfering with such right. 308 F. Supp. 128 (1970). The Court of Appeals for the Ninth Circuit affirmed, 446 F.2d 545 (1971). We granted certiorari to consider petitioner's contention that the decision below Page 407 U. S. 553 violates rights of private property protected by the Fifth and Fourteenth Amendments. 404 U.S. 1037 (1972). Lloyd Corp., Ltd. (Lloyd), owns a large, modern retail shopping center in Portland, Oregon. Lloyd Center embraces altogether about 50 acres, including some 20 acres of open and covered parking facilities which accommodate more than 1,000 automobiles. It has a perimeter of almost one and one-half miles, bounded by four public streets. It is crossed in varying degrees by several other public streets, all of which have adjacent public sidewalks. Lloyd owns all land and buildings within the Center except these public streets and sidewalks. There are some 60 commercial tenants, including small shops and several major department stores. The Center embodies a relatively new concept in shopping center design. The stores are all located within a single large, multi-level building complex sometimes referred to as the "Mall." Within this complex, in addition to the stores, there are parking facilities, malls, private sidewalks, stairways, escalators, gardens, an auditorium, and a skating rink. Some of the stores open directly on the outside public sidewalks, but most open on the interior privately owned malls. Some stores open on both. There are no public streets or public sidewalks within the building complex, which is enclosed and entirely covered except for the landscaped portions of some of the interior malls. The distribution of the handbills occurred in the malls. They are a distinctive feature of the Center, serving both utilitarian and esthetic functions. Essentially, they are private, interior promenades with 10-foot sidewalks serving the stores, and with a center strip 30 feet wide in which flowers and shrubs are planted, and statuary, fountains, benches, and other amenities are located. There is no vehicular traffic on the malls. An architectural Page 407 U. S. 554 expert described the purpose of the malls as follows: "In order to make shopping easy and pleasant, and to help realize the goal of maximum sales [for the Center], the shops are grouped about special pedestrian ways or malls. Here, the shopper is isolated from the noise, fumes, confusion and distraction which he normally finds along city streets, and a controlled, carefree environment is provided. . . . [ Footnote 1 ]" Although the stores close at customary hours, the malls are not physically closed, as pedestrian window shopping is encouraged within reasonable hours. [ Footnote 2 ] LIoyd employs 12 security guards, who are commissioned as such by the city of Portland. The guards have police authority within the Center, wear uniforms similar to those worn by city police, and are licensed to carry handguns. They are employed by and subject to the control of Lloyd. Their duties are the customary ones, including shoplifting surveillance and general security. At a few places within the Center, small signs are embedded in the sidewalk which state: "NOTICE -- Areas In Lloyd Center Used By The Page 407 U. S. 555 Public Are Not Public Ways But Are For The Use Of Lloyd Center Tenants And The Public Transacting Business With Them. Permission To Use Said Areas May Be Revoked At Any Time. Lloyd Corporation, Ltd." The Center is open generally to the public, with a considerable effort being made to attract shoppers and prospective shoppers, and to create "customer motivation" as well as customer goodwill in the community. In this respect, the Center pursues policies comparable to those of major stores and shopping centers across the country, although the Center affords superior facilities for these purposes. Groups and organizations are permitted, by invitation and advance arrangement, to use the auditorium and other facilities. Rent is charged for use of the auditorium except with respect to certain civic and charitable organizations, such as the Cancer Society and Boy and Girl Scouts. The Center also allows limited use of the malls by the American Legion to sell poppies for disabled veterans, and by the Salvation Army and Volunteers of America to solicit Christmas contributions. It has denied similar use to other civic and charitable organizations. Political use is also forbidden, except that presidential candidates of both parties have been allowed to speak in the auditorium. [ Footnote 3 ] The Center had been in operation for some eight years when this litigation commenced. Throughout this period, it had a policy, strictly enforced, against the distribution of handbills within the building complex and its malls. No exceptions were made with respect to handbilling, which was considered likely to annoy customers, to create litter, potentially to create disorders, Page 407 U. S. 556 and generally to be incompatible with the purpose of the Center and the atmosphere sought to be preserved. On November.14, 1968, the respondents in this case distributed within the Center handbill invitations to a meeting of the "Resistance Community" to protest the draft and the Vietnam war. The distribution, made in several different places on the mall walkways by five young people, was quiet and orderly, and there was no littering. There was a complaint from one customer. Security guards informed the respondents that they were trespassing, and would be arrested unless they stopped distributing the handbills within the Center. [ Footnote 4 ] The guards suggested that respondents distribute their literature on the public streets and sidewalks adjacent to but outside of the Center complex. Respondents left the premises as requested "to avoid arrest" and continued the handbilling outside. Subsequently this suit was instituted in the District Court, seeking declaratory and injunctive relief. I The District Court, emphasizing that the Center "is open to the general public," found that it is "the functional equivalent of a public business district." 308 F. Supp. at 130. That court then held that Lloyd's "rule prohibiting the distribution of handbills within the Mall violates . . . First Amendment rights." 308 F. Supp. at 131. In a per curiam opinion, the Court of Appeals held that it was bound by the "factual determination" as to the character of the Center, and concluded that the decisions of this Court in Marsh v. Alabama, 326 U. S. 501 (1946), and Amalgamated Food Page 407 U. S. 557 Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), compelled affirmance. [ Footnote 5 ] Marsh involved Chickasaw, Alabama, a company town wholly owned by the Gulf Shipbuilding Corp. The opinion of the Court, by Mr. Justice Black, described Chickasaw as follows: "Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town s policeman. Merchants and service establishments have rented the stores and business places on the business block, and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and, according to all indications, the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop Page 407 U. S. 558 highway traffic from coming onto the business block, and, upon arrival, a traveler may make free use of the facilities available there. In short, the town and its shopping district are accessible to and freely used by the public in general, and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." 326 U.S. at 326 U. S. 502 -503. A Jehovah's Witness undertook to distribute religious literature on a sidewalk near the post office, and was arrested on a trespassing charge. In holding that First and Fourteenth Amendment rights were infringed, the Court emphasized that the business district was within a company-owned town, an anachronism long prevalent in some southern States and now rarely found. [ Footnote 6 ] In Logan Valley, the Court extended the rationale of Marsh to peaceful picketing of a store located in a large shopping center, known as Logan Valley Mall, near Altoona, Pennsylvania. Weis Markets, Inc. (Weis), an original tenant, had opened a supermarket in one of the larger stores and was employing a wholly nonunion staff. Within 10 days after Weis opened, members of Amalgamated Food Employees Union Local 590 (Union) began picketing Weis, carrying signs stating that it was a nonunion market and that its employees were not receiving union wages or other union benefits. The picketing, conducted by nonemployees, was carried out Page 407 U. S. 559 almost entirely in the parcel pickup area immediately adjacent to the store and on portions of the adjoining parking lot. The picketing was peaceful, with the number of pickets varying from four to 13. Weis and Logan Valley Plaza, Inc., sought and obtained an injunction against this picketing. The injunction required that all picketing be confined to public areas outside the shopping center. On appeal, the Pennsylvania Supreme Court affirmed the issuance of the injunction, and this Court granted certiorari. In framing the question, this Court stated: "The case squarely presents . . . the question whether Pennsylvania's generally valid rules against trespass to private property can be applied in these circumstances to bar petitioners from the Weis and Logan premises." 391 U.S. at 391 U. S. 315 . The Court noted that the answer would be clear "if the shopping center premises were not privately owned, but instead constituted the business area of a municipality." Ibid. In the latter situation, it has often been held that publicly owned streets, sidewalks, and parks are so historically associated with the exercise of First Amendment rights that access to them for purposes of exercising such rights cannot be denied absolutely. Lovell v. Griffin, 303 U. S. 444 (1938); Hague v. CIO, 307 U. S. 496 (1939); Schneider v. State, 308 U. S. 147 (1939); Jamison v. Texas, 318 U. S. 413 (1943). The Court then considered Marsh v. Alabama, supra, and concluded that: "The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh. " 391 U.S. at 391 U. S. 318 . But the Court was careful not to go further and say that, for all purposes and uses, the privately owned streets, Page 407 U. S. 560 sidewalks, and other areas of a shopping center are analogous to publicly owned facilities: "All we decide here is that, because the shopping center serves as the community business block 'and is freely accessible and open to the people in the area and those passing through,' Marsh v. Alabama, 326 U.S. at 326 U. S. 508 , the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put." Id. at 391 U. S. 319 -320. The Court noted that the scope of its holding was limited, and expressly reserved judgment on the type of issue presented in this case: "The picketing carried on by petitioners was directed specifically at patrons of the Weis Market located within the shopping center, and the message sought to be conveyed to the public concerned the manner in which that particular market was being operated. We are, therefore, not called upon to consider whether respondents' property rights could, consistently with the First Amendment, justify a bar on picketing which was not thus directly related in its purpose to the use to which the shopping center property was being put." Id. at 391 U. S. 320 n. 9. The Court also took specific note of the facts that the Union's picketing was "directed solely at one establishment within the shopping center," id. at 391 U. S. 321 , and that the public berms and sidewalks were "from 350 to 500 feet away from the Weis store." Id. at 391 U. S. 322 . This distance made it difficult "to communicate [with] patrons of Weis" and "to limit [the] effect [of Page 407 U. S. 561 the picketing] to Weis only." Id. at 391 U. S. 322 , 323. [ Footnote 7 ] Logan Valley was decided on the basis of this factual situation, and the facts in this case are significantly different. II The courts below considered the critical inquiry to be whether Lloyd Center was "the functional equivalent of a public business district." [ Footnote 8 ] This phrase was first used in Logan Valley, but its genesis was in Marsh. It is well to consider what Marsh actually decided. As noted above, it involved an economic anomaly of the past, "the company town." One must have seen such towns to understand that, "functionally," they were no different from municipalities of comparable size. They developed primarily in the Deep South to meet economic conditions, especially those which existed following the Civil War. Impoverished States, and especially backward areas thereof, needed an influx of industry and capital. Corporations, attracted to the area by natural resources and abundant labor, were willing to assume the role of local government. Quite literally, towns Page 407 U. S. 562 were built and operated by private capital with all of the customary services and utilities normally afforded by a municipal or state government: there were streets, sidewalks, sewers, public lighting, police and fire protection, business and residential areas, churches, postal facilities, and sometimes schools. In short, as Mr. Justice Black said, Chickasaw, Alabama, had "all the characteristics of any other American town." 326 U.S. at 326 U. S. 502 . The Court simply held that, where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied where exercised in the customary manner on the town's sidewalks and streets. Indeed, as title to the entire town was held privately, there were no publicly owned streets, sidewalks, or parks where such rights could be exercised. Logan Valley extended Marsh to a shopping center situation in a different context from the company town setting, but it did so only in a context where the First Amendment activity was related to the shopping center's operations. There is some language in Logan Valley, unnecessary to the decision, suggesting that the key focus of Marsh was upon the "business district," and that, whenever a privately owned business district serves the public generally, its sidewalks and streets become the functional equivalents of similar public facilities. [ Footnote 9 ] As Mr. Justice Black's dissent in Logan Valley emphasized, this would be an incorrect interpretation of the Court's decision in Marsh: [ Footnote 10 ] " Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special Page 407 U. S. 563 situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. The particular company town involved was Chickasaw, Alabama, which, as we stated in the opinion, except for the fact that it" "is owned by the Gulf Shipbuilding Corporation . . . has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a 'business block' on which business places are situated." "326 U.S. at 326 U. S. 502 . Again, toward the end of the opinion, we emphasized that 'the town of Chickasaw does not function differently from any other town.' 326 U.S. at 326 U. S. 508 . I think it is fair to say that the basis on which the Marsh decision rested was that the property involved encompassed an area that, for all practical purposes, had been turned into a town; the area had all the attributes of a town, and was exactly like any other town in Alabama." 391 U.S. at 391 U. S. 330 -331. The holding in Logan Valley was not dependent upon the suggestion that the privately owned streets and sidewalks of a business district or a shopping center are the equivalent, for First Amendment purposes, of municipally owned streets and sidewalks. No such expansive reading of the opinion of the Court is necessary or appropriate. The opinion was carefully phrased to limit its holding to the picketing involved, where the picketing was "directly related in its purpose to the use to which the shopping center property was being put," 391 U.S. at 391 U. S. 320 n. 9, and where the store was located in the center of a large private enclave, with the consequence that no other reasonable opportunities for the pickets to convey their message to their intended audience were available. Page 407 U. S. 564 Neither of these elements is present in the case now before the Court. A The handbilling by respondents in the malls of Lloyd Center had no relation to any purpose for which the center was built and being used. [ Footnote 11 ] It is nevertheless argued by respondents that, since the Center is open to the public, the private owner cannot enforce a restriction against handbilling on the premises. The thrust of this argument is considerably broader than the rationale of Logan Valley. It requires no relationship, direct or indirect, between the purpose of the expressive activity and the business of the shopping center. The message sought to be conveyed by respondents was directed to all members of the public, not solely to patrons of Lloyd Center or of any of its operations. Respondents could have distributed these handbills on any public street, on any public sidewalk, in any public park, or in any public building in the city of Portland. Respondents' argument, even if otherwise meritorious, misapprehends the scope of the invitation extended to the public. The invitation is to come to the Center to do business with the tenants. It is true that facilities at the Center are used for certain meetings and Page 407 U. S. 565 for various promotional activities. The obvious purpose, recognized widely as legitimate and responsible business activity, is to bring potential shoppers to the Center, to create a favorable impression, and to generate goodwill. There is no open-ended invitation to the public to use the Center for any and all purposes, however incompatible with the interests of both the stores and the shoppers whom they serve. MR. JUSTICE WHITE, dissenting in Logan Valley, noted the limited scope of a shopping center's invitation to the public: "In no sense are any parts of the shopping center dedicated to the public for general purposes. . . . The public is invited to the premises, but only in order to do business with those who maintain establishments there. The invitation is to shop for the products which are sold. There is no general invitation to use the parking lot, the pickup zone, or the sidewalk except as an adjunct to shopping. No one is invited to use the parking lot as a place to park his car while he goes elsewhere to work. The driveways and lanes for auto traffic are not offered for use as general thoroughfares leading from one public street to another. Those driveways and parking spaces are not public streets, and thus available for parades, public meetings, or other activities for which public streets are used." 391 U.S. at 391 U. S. 338 . It is noteworthy that respondents' argument based on the Center's being "open to the public" would apply in varying degrees to most retail stores and service establishments across the country. They are all open to the public in the sense that customers and potential customers are invited and encouraged to enter. In terms of being open to the public, there are differences only Page 407 U. S. 566 of degree -- not of principle -- between a free-standing store and one located in a shopping center, between a small store and a large one, between a single store with some malls and open areas designed to attract customers and Lloyd Center, with its elaborate malls and interior landscaping. B A further fact, distinguishing the present case from Logan Valley, is that the Union pickets in that case would have been deprived of all reasonable opportunity to convey their message to patrons of the Weis store had they been denied access to the shopping center. [ Footnote 12 ] The situation at Lloyd Center was notably different. The central building complex was surrounded by public sidewalks, totaling 66 linear blocks. All persons who enter or leave the private areas within the complex must cross public streets and sidewalks, either on foot or in automobiles. When moving to and from the privately Page 407 U. S. 567 owned parking lots, automobiles are required by law to come to a complete stop. Handbills may be distributed conveniently to pedestrians, and also to occupants of automobiles, from these public sidewalks and streets. Indeed, respondents moved to these public areas and continued distribution of their handbills after being requested to leave the interior malls. It would be an unwarranted infringement of property rights to require them to yield to the exercise of First Amendment rights under circumstances where adequate alternative avenues of communication exist. Such an accommodation would diminish property rights without significantly enhancing the asserted right of free speech. In ordering this accommodation, the courts below erred in their interpretation of this Court's decisions in Marsh and Logan Valley. III The basic issue in this case is whether respondents, in the exercise of asserted First Amendment rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only. The Due Process Clauses of the Fifth and Fourteenth Amendments are also relevant to this case. They provide that "[n]o person shall . . . be deprived of life, liberty, or property, without due process of law." There is the further proscription in the Fifth Amendment against the taking of "private property . . . for public use, without just compensation." Although accommodations between the values protected by these three Amendments are sometimes necessary, Page 407 U. S. 568 and the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only. Even where public property is involved, the Court has recognized that it is not necessarily available for speaking, picketing, or other communicative activities. Mr. Justice Black, speaking for the Court in Adderley v. Florida, 385 U. S. 39 (1966), said: "The State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated. For this reason, there is no merit to the petitioners' argument that they had a constitutional right to stay on the property, over the jail custodian's objections, because this "area chosen for the peaceful civil rights demonstration was not only reasonable' but also particularly appropriate. . . ." Such an argument has as its major unarticulated premise the assumption that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please. That concept of constitutional law was vigorously and forthrightly rejected in two of the cases petitioner rely on, Cox v. Louisiana, [379 U.S.] at 379 U. S. 554 -555 and 379 U. S. 563 -564. We reject it again. The United States Constitution does not forbid a State to control the use of its own property for its own lawful nondiscriminatory purpose." 385 U.S. at 385 U. S. 47 -48. Respondents contend, however, that the property of a large shopping center is "open to the public," serves the same purposes as a "business district" of a municipality, and therefore has been dedicated to certain types Page 407 U. S. 569 of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town. The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, Marsh v. Alabama, supra, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. [ Footnote 13 ] In effect, the owner of the company town was performing the full spectrum of municipal powers, and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power. Nor does property lose its private character merely because the public is generally invited to use it for designated purposes. Few would argue that a free-standing store, with abutting parking space for customers, assumes significant public attributes merely because the public is invited to shop there. Nor is size alone the controlling factor. The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center. This is not to say that no differences may exist with respect to government regulation Page 407 U. S. 570 or rights of citizens arising by virtue of the size and diversity of activities carried on within a privately owned facility serving the public. There will be, for example, problems with respect to public health and safety which vary in degree and in the appropriate government response, depending upon the size and character of a shopping center, an office building, a sports arena, or other large facility serving the public for commercial purposes. We do say that the Fifth and Fourteenth Amendment rights of private property owners, as well as the First Amendment rights of all citizens, must be respected and protected. The Framers of the Constitution certainly did not think these fundamental rights of a free society are incompatible with each other. There may be situations where accommodations between them, and the drawing of lines to assure due protection of both, are not easy. But on the facts presented in this case, the answer is clear. We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights. Accordingly, we reverse the judgment and remand the case to the Court of Appeals with directions to vacate the injunction. It is so ordered. [ Footnote 1 ] App. 254. [ Footnote 2 ] The manager of the Center testified: "Q. Turning now to the general policy in operation of the Lloyd Center, it's true that the malls and walkways within the center are open 24 hours a day; is that right?" "A. Well, they aren't physically closed such as putting a gate across, no. But, they are not -- when people are there after hours, they are watched. And, if it is too late at night, they are told the places are closed and they should leave." "Q. If I wanted to walk through the center malls of Lloyd Center at 3:00 in the morning, would anyone stop me?" "A. Depending on who the officer was on duty as to what he is supposed to do. But they would have made inquiry and followed you to see what you are doing." App. 49. [ Footnote 3 ] The manager of the Center, explaining why presidential candidates were allowed to speak, said: "We do that for one reason, and that is great public interest. It . . . brings a great many people to Lloyd Center who may shop before they leave." App. 51. [ Footnote 4 ] The city of Portland has an ordinance which makes it unlawful to trespass on private property. Portland, Ore., Police Code § 16613. [ Footnote 5 ] The Court of Appeals also relied on Wolin v. Port of New York Authority, 392 F.2d 83 (CA2 1968). [ Footnote 6 ] In commenting on the necessity for citizens who reside in company towns to have access to information, the Court said: "Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens, they must make decisions which affect the welfare of community and nation. To act as good citizens, they must be informed." 326 U.S. at 326 U. S. 508 . [ Footnote 7 ] The Court also commented on the increasing role of shopping centers and on the problem which they would present with respect to union activities if picketing were totally proscribed within shopping center areas: "Business enterprises located in downtown areas [on public streets and sidewalks] would be subject to on-the-spot public criticism for their [labor] practices, but businesses situated in the suburbs could largely immunize themselves from similar criticism by creating a cordon sanitaire of parking lots around their stores." 391 U.S. at 391 U. S. 324 -325. The concurring opinion of MR. JUSTICE DOUGLAS also emphasized the related purpose of the picketing in Logan Valley: "Picketing in regard to labor conditions at the Weis Supermarket is directly related to that shopping center business." 391 U.S. at 391 U. S. 326 . [ Footnote 8 ] 308 F. Supp. 128 , 130, 132 (Ore.1970); 446 F.2d 545, 546 (CA9 1971). [ Footnote 9 ] Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 , 391 U. S. 319 (1968). [ Footnote 10 ] As Mr. Justice Black was the author of the Court's opinion in Marsh, his analysis of its rationale is especially meaningful. [ Footnote 11 ] The injunction issued against Lloyd is comprehensive. It enjoins Lloyd (and others in active concert or participation with it) from "preventing or interfering with the distribution of noncommercial handbills in a peaceful and orderly manner in the malls and walkways within Lloyd Center at times when they are open to general public access." There is no limitation as to type of literature distributed except that it must be "noncommercial." Nor, indeed, is there any limitation in this injunction as to the number of persons participating in such activities or the frequency thereof. Irrespective of how controversial, offensive, distracting, or extensive the distributions may be, Lloyd has been ordered to allow all noncommercial handbilling which anyone desires to undertake within its private premises. [ Footnote 12 ] The Court's opinion in Logan Valley described the obstacles resulting from the location of the Weis store in the shopping center, and its relation to public streets and sidewalks: "Petitioners' picketing was directed solely at one establishment within the shopping center. The berms surrounding the center are from 350 to 500 feet away from the Weis store. All entry onto the mall premises by customers of Weis, so far as appears, is by vehicle from the roads alongside which the berms run. Thus, the placard bearing the message which petitioners seek to communicate to patrons of Weis must be read by those to whom they are directed either at a distance so great as to render them virtually indecipherable -- where the Weis customers are already within the mall -- or while the prospective reader is moving by car from the roads onto the mall parking areas via the entranceways cut through the berms. In addition, the pickets are placed in some danger by being forced to walk along heavily traveled roads along which traffic moves constantly at rates of speed varying from moderate to high. Likewise, the task of distributing handbills to persons in moving automobiles is vastly greater (and more hazardous) than it would be were petitioners permitted to pass them out within the mall to pedestrians." 391 U.S. at 391 U. S. 321 -322. [ Footnote 13 ] Mr. Justice Black, dissenting in Logan Valley, emphasized the distinction between a privately owned shopping center and the "company town" involved in Marsh, which he said had assumed " all the attributes" of a municipality. 391 U.S. at 391 U. S. 332 . (Original emphasis.) MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. JUSTICE STEWART join, dissenting. Donald Tanner, Betsy Wheeler, and Susan Roberts (respondents) brought this action for a declaratory judgment that they have the right under the First and Fourteenth Amendments to the United States Constitution to distribute handbills in a shopping center owned by petitioner and an injunction to enforce that right. Page 407 U. S. 571 Relying primarily on our very recent decision in Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U. S. 308 (1968), the United States District Court for the District of Oregon granted the relief requested. 308 F. Supp. 128 (1970). The United States Court of Appeals for the Ninth Circuit affirmed. 446 F.2d 545 (1971). Today, this Court reverses the judgment of the Court of Appeals and attempts to distinguish this case from Logan Valley. In my view, the distinction that the Court sees between the cases does not exist. As I read the opinion of the Court, it is an attack not only on the rationale of Logan Valley, but also on this Court's longstanding decision in Marsh v. Alabama, 326 U. S. 501 (1946). Accordingly, I dissent. I Lloyd Center is a large, modern retail shopping center in Portland, Oregon. Sprawling over 50 acres of land, the Center offers to shoppers more than 60 commercial businesses and professional offices. It also affords more than 850,000 square feet of open and covered off-street parking space -- enough to accommodate more than 1,000 vehicles. Bounded by four public streets, Lloyd Center has a perimeter of almost one and one-half miles. Four public streets running east-west and one running north-south traverse the Center, and at least six other public streets run partly into or around it. All of these streets have adjacent sidewalks. These streets and sidewalks are the only parts of the Center that are not privately owned. The principal portion of the Center is occupied by a shopping area called the "Mall." Covering approximately 25 acres of land and having a perimeter of four-fifths of a mile, the Mall, in the words of the District Court, "is a multi-level complex of buildings, parking facilities, sub-malls, sidewalks, stairways, elevators, escalators, Page 407 U. S. 572 bridges, and gardens, and contains a skating rink, statues, murals, benches, directories, information booths, and other facilities designed to attract visitors and make them comfortable." 308 F. Supp. at 129. No public streets cross the Mall, but some stores face those streets that form the perimeter, and it is possible to enter those stores from public sidewalks. Other stores are located in the interior of the Mall, and can only be reached by using privately owned walkways. On November 14, 1968, respondents entered the Mall and distributed handbills inviting the public to a meeting to protest the draft and the Vietnam war. The distribution was peaceful, nondisruptive, and litter-free. Security guards employed by the Center approached respondents, indicated that the Center did not permit handbilling in the Mall, suggested that they distribute their materials on the public sidewalks and streets, and informed them that they could be arrested if they persisted in handbilling within the privately owned portions of the Center. These guards wore uniforms that were virtually identical to those worn by regular Portland police, and they possessed full police authority. Believing that they would be arrested if they did not leave the Mall, respondents departed, and subsequently filed this lawsuit. [ Footnote 2/1 ] A. The question presented by this case is whether one of the incidents of petitioner's private ownership of the Lloyd Center is the power to exclude certain Page 407 U. S. 573 forms of speech from its property. In other words, we must decide whether ownership of the Center gives petitioner unfettered discretion to determine whether or not it will be used as a public forum. This Court held in Marsh v. Alabama, supra, that, even though property is privately owned, under some circumstances, it may be treated as though it were publicly held, at least for purposes of the First Amendment. In Marsh, a member of the Jehovah's Witnesses religious sect was arrested and convicted of violating Alabama's criminal trespass statute when she undertook to distribute religious literature in the downtown shopping area of a privately owned town without permission of the owner. The Court reasoned that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id. at 326 U. S. 506 . Noting that the stifling effect produced by any ban on free expression in a community's central business district was the same whether the ban was imposed by public or private owners, the Court concluded that: "When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. As we have stated before, the right to exercise the liberties safeguarded by the First Amendment 'lies at the foundation of free government by free men,' and we must in all cases 'weigh the circumstances and . . . appraise the . . . reasons . . . in support of the regulation . . . of the rights.' . . . In our view, the circumstance that the property rights to the premises where the deprivation of liberty here involved took place were held by others than the public is not sufficient Page 407 U. S. 574 to justify the State's permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute." (Footnotes and citations omitted.) Id. at 326 U. S. 509 . We relied heavily on Marsh in deciding Logan Valley, supra. In Logan Valley, a shopping center in its formative stages contained a supermarket and department store. The supermarket employed a staff composed of only nonunion employees. Members of Amalgamated Food Employees Union, Local 590, began to picket the market with signs stating that the market's employees were not receiving union wages or union benefits. The picketing was carried out almost entirely in the parcel pickup area and that portion of the parking lot immediately adjacent thereto. 391 U.S. at 391 U. S. 311 . The supermarket sought and obtained an injunction from a Pennsylvania state court prohibiting the union members from trespassing upon the parking areas or in the store, the effect of which was to prohibit picketing and handbilling on any part of the private property and to relegate the union members to carrying signs on the publicly owned earthen berms that surrounded the shopping center. [ Footnote 2/2 ] Finding that the shopping center was the functional equivalent of the business district involved in Marsh, we could see "no reason why access to a business district in a company town, for the purpose of exercising First Amendment rights, should be constitutionally required, Page 407 U. S. 575 while access for the same purpose to property functioning as a business district should be limited simply because the property surrounding the 'business district' is not under the same ownership." Id. at 391 U. S. 319 . Thus, we held that the union activity was constitutionally protected. B. In the instant case, the District Court found that "the Mall is the functional equivalent of a public business district" within the meaning of Marsh and Logan Valley. The Court of Appeals specifically affirmed this finding, and it is overwhelmingly supported by the record. The Lloyd Center is similar to Logan Valley Plaza in several respects: both are bordered by public roads, and the entrances of both lead directly into the public roads; both contain large parking areas and privately owned walkways leading from store to store; and the general public has unrestricted access to both. The principal differences between the two centers are that the Lloyd Center is larger than Logan Valley, that Lloyd Center contains more commercial facilities, that Lloyd Center contains a range of professional and nonprofessional services that were not found in Logan Valley, and that Lloyd Center is much more intertwined with public streets than Logan Valley. Also, as in Marsh, supra, Lloyd's private police are given full police power by the city of Portland, even though they are hired, fired, controlled, and paid by the owners of the Center. This was not true in Logan Valley. In 1954, when Lloyd's owners first acquired land for the Center, the city of Portland vacated about eight acres of public streets for their use. The ordinance accomplishing the vacation sets forth the city's view of the Center's function: "WHEREAS the Council finds that the reason for these vacations is for general building purposes to Page 407 U. S. 576 be used in the development of a general retail business district and the development of an adequate parking area to support said district; . . . the Council . . . finds that, in order to develop a large retail unit such as contemplated by Lloyd Corporation, Ltd., it is necessary to vacate the streets above mentioned. . . ." (Emphasis added.) Ordinance No. 101288, Nov. 10, 1954, App. 202. The 1954 ordinance also indicates that the city of Portland was aware that, as Lloyd Center developed, it would be necessary for the city to build new streets and to take other steps to control the traffic flow that the Center would engender. App. 202, 208-209. In 1958, an emergency ordinance was passed giving the Lloyd Center an extension of time to meet various conditions on which the 1954 vacations were made. The city council viewed the projected Center as offering an "opportunity for much needed employment" and concluded that the emergency ordinance was "necessary for the immediate preservation of the public health, peace and safety of the city of Portland." Ordinance No. 107641, March 20, 1958, App. 196. In sum, the Lloyd Center is an integral part of the Portland community. From its inception, the city viewed it as a "business district" of the city, and depended on it to supply much-needed employment opportunities. To insure the success of the Center, the city carefully integrated it into the pattern of streets already established, and planned future development of streets around the Center. It is plain, therefore, that Lloyd Center is the equivalent of a public "business district" within the meaning of Marsh and Logan Valley. In fact, the Lloyd Center is much more analogous to the company town in Marsh than was the Logan Valley Plaza. Petitioner agrees with our decision in Logan Valley that it is proper for courts to treat shopping centers Page 407 U. S. 577 differently from other privately owned property, like private residences. The Brief for Petitioner states at pages 9-10 that "[a] shopping center, which falls somewhere between the extremes of a company town and a private residence, is neither absolutely subject to the control of the owner nor is it absolutely open to all those wishing to engage in speech activities. . . ." " * * * *" "Each case requires an appropriate resolution of the conflicting interests of shopping center owners and those seeking to engage in speech activities on shopping center premises." Petitioner contends that our decision in Logan Valley struck the appropriate balance between First Amendment and private property interests. The argument is made, however, that this case should be distinguished from Logan Valley, and this is the argument that the Court accepts. II As I have pointed out above, Lloyd Center is even more clearly the equivalent of a public business district than was Logan Valley Plaza. The First Amendment activity in both Logan Valley and the instant case was peaceful and nondisruptive, and both cases involve traditionally acceptable modes of speech. Why then should there be a different result here? The Court's answer is that the speech in this case was directed at topics of general interest -- the Vietnam war and the draft -- whereas the speech in Logan Valley was directed to the activities of a store in the shopping center, and that this factual difference is of constitutional dimensions. I cannot agree. A. It is true that, in Logan Valley, we explicitly left open the question whether "property rights could, consistently Page 407 U. S. 578 with the First Amendment, justify a bar on picketing [or handbilling] which was not . . . directly related in its purpose to the use to which the shopping center property was being put." 391 U.S. at 391 U. S. 320 n. 9. But I believe that the Court errs in concluding that this issue must be faced in the instant case. The District Court observed that Lloyd Center invites schools to hold football rallies, presidential candidates to give speeches, and service organizations to hold Veterans Day ceremonies on its premises. The court also observed that the Center permits the Salvation Army, the Volunteers of America, and the American Legion to solicit funds in the Mall. Thus, the court concluded that the Center was already open to First Amendment activities, and that respondents could not constitutionally be excluded from distributing leaflets solely because Lloyd Center was not enamored of the form or substance of their speech. The Court of Appeals affirmed, taking the position that it was not extending either Logan Valley or Marsh. In other words, the District Court found that Lloyd Center had deliberately chosen to open its private property to a broad range of expression and that having done so it could not constitutionally exclude respondents, and the Court of Appeals affirmed this finding. Petitioner apparently concedes that, if the lower courts are correct, respondents should prevail. Brief for Petitioner 19. This concession is, in fact, mandated by our decision in Logan Valley, in which we specifically held that members of the public may exercise their First Amendment rights on the premises of a shopping center that is the functional equivalent of a business district if their activity is "generally consonant with the use to which the property is actually put." 391 U.S. at 391 U. S. 320 . If the property of Lloyd Center is generally open to First Amendment activity, respondents cannot be excluded. Page 407 U. S. 579 On Veterans Day, Lloyd Center allows organizations to parade through the Center with flags, drummers, and color guard units and to have a speaker deliver an address on the meaning of Veterans Day and the valor of American soldiers. Presidential candidates have been permitted to speak without restriction on the issues of the day, which presumably include war and peace. The American Legion is annually given permission to sell poppies in the Mall because Lloyd Center believes that "veterans . . . deserves [ sic ] some comfort and support by the people of the United States." [ Footnote 2/3 ] In light of these facts, I perceive no basis for depriving respondents of the opportunity to distribute leaflets inviting patrons of the Center to attend a meeting in which different points of view would be expressed from those held by the organizations and persons privileged to use Lloyd Center as a forum for parading their ideas and symbols. I believe that the lower courts correctly held that respondents' activities were directly related in purpose to the use to which the shopping center was being put. In my view, therefore, this case presents no occasion to consider whether or not Logan Valley should be extended. But, the Court takes a different view and concludes that Lloyd Center was never opened to First Amendment activity. Even if I could agree with the Court on this point, I would not reach a different result in this case. B. If respondents had distributed handbills complaining about one or more stores in Lloyd Center or about Page 407 U. S. 580 the Center itself, petitioner concedes that our decision in Logan Valley would insulate that conduct from proscription by the Center. [ Footnote 2/4 ] I cannot see any logical reason to treat differently speech that is related to subjects other than the Center and its member stores. We must remember that it is a balance that we are striking -- a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property. When the competing interests are fairly weighed, the balance can only be struck in favor of speech. Members of the Portland community are able to see doctors, dentists, lawyers, bankers, travel agents, and persons offering countless other services in Lloyd Center. They can buy almost anything that they want or need there. For many Portland citizens, Lloyd Center will so completely satisfy their wants that they will have no reason to go elsewhere for goods or services. If speech is to reach these people, it must reach them in Lloyd Center. The Center itself recognizes this. For example, in 1964, its director of public relations offered candidates for President and Vice President the use of the center for political speeches, boasting "that our convenient location and setting would provide the largest audience [the candidates] could attract in Oregon." App. 187. For many persons who do not have easy access to television, radio, the major newspapers, and the other forms of mass media, the only way they can express themselves to a broad range of citizens on issues of general public concern is to picket, or to handbill, or to utilize other Page 407 U. S. 581 free or relatively inexpensive means of communication. The only hope that these people have to be able to communicate effectively is to be permitted to speak in those areas in which most of their fellow citizens can be found. One such area is the business district of a city or town or its functional equivalent. [ Footnote 2/5 ] And this is why respondents have a tremendous need to express themselves within Lloyd Center. Petitioner's interests, on the other hand, pale in comparison. For example, petitioner urges that respondents' First Amendment activity would disturb the Center's customers. It is undisputed that some patrons will be disturbed by any First Amendment activity that goes on, regardless of its object. But, there is no evidence to Page 407 U. S. 582 indicate that speech directed to topics unrelated to the shopping center would be more likely to impair the motivation of customers to buy than speech directed to the uses to which the Center is put, which petitioner concedes is constitutionally protected under Logan Valley. On the contrary, common sense would indicate that speech that is critical of a shopping center or one or more of its stores is more likely to deter consumers from purchasing goods or services than speech on any other subject. Moreover, petitioner acknowledges that respondents have a constitutional right to "leaflet" on any subject on public streets and sidewalks within Lloyd Center. It is difficult for me to understand why leafletting in the Mall would be so much more disturbing to the Center's customers. I also find patently frivolous petitioner's argument that, if handbilling in the Mall is permitted, Lloyd Center would face inordinate difficulties in removing litter from its premises. The District Court found that respondents' activities were litter-free. Assuming, arguendo, that, if respondents had been permitted to continue their activities, litter might have resulted, I think that it is immediately apparent that, even if respondents confined their activities to the public streets and sidewalks of the Center as Lloyd's private police suggested, litter would have been a problem as the recipients of the handbills carried them to the shopping and parking areas. Petitioner concedes that it would have had to remove this litter. There is no evidence that the amount of litter would have substantially increased if respondents distributed the leaflets within the Mall. But, even assuming that the litter might have increased, that is not a sufficient reason for barring First Amendment activity. See, e.g., Schneider v. State, 308 U. S. 147 (1939). If petitioner is truly concerned about litter, it should accept a previous suggestion by this Court and prosecute those Page 407 U. S. 583 who throw handbills away, not those who use them for communicative purposes. [ Footnote 2/6 ] Id. at 308 U. S. 162 . In sum, the balance plainly must be struck in favor of speech. C. Petitioner's other grounds for denying respondents access to the Mall can be dealt with quickly. The assertion is made that petitioner had the right to regulate the manner in which First Amendment activity took place on its property, and that, because the public streets and sidewalks inside the Center offered sufficient access to the public, it was permissible to deny respondents use of the Mall. The District Court found that certain stores in the Center could only be reached by using the private walkways of the Mall. Those persons who drove into the Center, parked in the privately owned parking lots, and who entered the stores accessible only through the Mall could not be safely reached from the public streets and sidewalks. Hence, the District Court properly found that the Mall was the only place where respondents had reasonable access to all of Lloyd Center's patrons. [ Footnote 2/7 ] 308 F. Supp. at 131. At one point in this Page 407 U. S. 584 litigation, petitioner also attempted to assert that it was entitled to bar respondents' distribution of leaflets on the ground that the leaflets violated the Selective Service laws. The District Court found that this contention was without merit. 308 F. Supp. at 132-133. It seems that petitioner has abandoned the contention in this Court. In any event, it is meritless for the reasons given by the District Court. III In his dissenting opinion in Logan Valley, 391 U.S. at 391 U. S. 339 , MR. JUSTICE WHITE said that the rationale of that case would require affirmance of a case like the instant one. MR. JUSTICE WHITE, at that time, was convinced that our decision in Logan Valley, incorrect though he thought it to be, required that all peaceful and nondisruptive speech be permitted on private property that was the functional equivalent of a public business district. As stated above, I believe that the earlier view of MR. JUSTICE WHITE is the correct one, that there is no legitimate way of following Logan Valley and not applying it to this case. But one may suspect from reading the opinion of the Court that it is Logan Valley itself that the Court finds bothersome. The vote in Logan Valley was 6-3, and that decision is only four years old. But, I am aware that the composition of this Court has radically changed in four years. The fact remains that Logan Valley is binding unless and until it is overruled. There is no valid distinction between that case and this one, and, therefore, the results in both cases should be the same. Page 407 U. S. 585 While the majority is obviously troubled by the rationale of Logan Valley, it is interesting that none of the participants in this litigation have experienced any similar difficulty. Lloyd Corp. urges that Logan Valley was correctly decided, that it struck a balance that the First Amendment required us to strike, and that it has fully complied with Logan Valley with respect to labor activity. The American Retail Federation urges in its Brief as amicus curiae that a balance must be struck between the property interests of shopping center owners and the First Amendment interests of shopping center users. It does not urge that Logan Valley was incorrectly decided in any way. It is true that Lloyd Corp. and the American Retail Federation ask the Court to distinguish this case from Logan Valley, but what is more important is that they recognize that, when massive areas of private property are opened to the public, the First Amendment may come into play. They would like, of course, to limit the impact of speech on their private property, but whether or not they can do so consistently with the First Amendment is a question that this Court must resolve. We noted in Logan Valley that the large-scale movement of this country's population from the cities to the suburbs has been accompanied by the growth of suburban shopping centers. In response to this phenomenon, cities like Portland are providing for large-scale shopping areas within the city. It is obvious that privately owned shopping areas could prove to be greatly advantageous to cities. They are totally self-sufficient, needing no financial support from local government; and if, as here, they truly are the functional equivalent of a public business area, the city reaps the advantages of having such an area without paying for them. Some of the advantages are an increased tax base, a drawing attraction for residents, and a stimulus to further growth. Page 407 U. S. 586 It would not be surprising in the future to see cities rely more and more on private businesses to perform functions once performed by governmental agencies. The advantage of reduced expenses and an increased tax base cannot be overstated. As governments rely on private enterprise, public property decreases in favor of privately owned property. It becomes harder and harder for citizens to find means to communicate with other citizens. Only the wealthy may find effective communication possible unless we adhere to Marsh v. Alabama and continue to hold that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it," 326 U.S. at 326 U. S. 506 . When there are no effective means of communication, free speech is a mere shibboleth. I believe that the First Amendment requires it to be a reality. Accordingly, I would affirm the decision of the Court of Appeals. [ Footnote 2/1 ] There is some conflict in the testimony as to precisely what the guards told respondents with respect to the likelihood that they would be arrested if they did not leave the Mall. The Agreed Facts in the Pretrial Order states that the guards said that respondents could be arrested if they refused to leave. The District Court found that the guards caused respondents to believe that they would be arrested, and that this was the reason that they left the Mall. The Court of Appeals affirmed this finding, and it is supported by the record. [ Footnote 2/2 ] Logan Valley involved both picketing and handbilling, since the effect of the state court injunction was to ban both forms of expression. 391 U.S. at 391 U. S. 322 -323 and n. 12. We made it clear in Logan Valley that, while there were obvious differences between picketing and handbilling, both involved a modicum of a burden on property. We held that neither could be barred from a shopping center that was the functional equivalent of a public business district. Id. at 391 U. S. 315 -316. [ Footnote 2/3 ] App. 62 (testimony of R. Horn, manager of Lloyd Center). It is widely known that the American Legion is a Veteran's organization. See 1 Encyclopedia of Associations 997 (7th ed.1972). It is also common knowledge that the poppy is the symbol sold by the Legion to finance various of its activities. At times, the proceeds from selling poppies were used to finance lobbying and other activities directed at increasing the military capacity of the United States. R. Jones, A History of the American Legion 330-332 (1946). [ Footnote 2/4 ] The record indicates that, when unions have picketed inside the Mall, Lloyd Center has voiced no objections. App. 108 (testimony of R. Horn, manager of Lloyd Center). It is apparent that petitioner has no difficulty in accepting our decision in Logan Valley and in complying with it. [ Footnote 2/5 ] It is evident from the Court's opinion that the majority fails to grasp the essence of our decision in Logan Valley. The Court notes that there is a difference between a free-standing store and one located in a shopping center, and between small stores and extremely large ones, but suggests that, because the difference is "of degree, not of principle" it is unimportant. This flies directly in the face of Logan Valley, where we said that as private property expands to the point where it becomes, in reality, the business district of a community, the rights of the owners to proscribe speech on the part of those invited to use the property diminish. When the Court states that this was broad language that was somehow unnecessary to our decision, it betrays its misunderstanding of the holding. As Mr. Justice Black and MR. JUSTICE WHITE both pointed out in dissent in Logan Valley, there was really only one issue before the Court -- i.e., whether the Logan Valley Plaza was prevented by the Fourteenth Amendment from inhibiting speech even though it was private property. The critical issue was whether the private property had sufficient "public" qualities to warrant a holding that the Fourteenth Amendment reached it. We answered this question in the affirmative, and the answer was the pivotal factor in our decision. Every member of the Court was acutely aware that we were dealing with degrees, not absolutes. But we found that degrees of difference can be of constitutional dimension. While any differences between the instant case and Logan Valley are immaterial in my view, such differences as there are make this a clearer case of illegal state action. [ Footnote 2/6 ] Since petitioner's security guards have full police power, they can enforce state laws against littering, just as they have enforced laws against loitering in the past. App. 45 (testimony of R. Horn, manager of Lloyd Center). [ Footnote 2/7 ] The Court implies that it is willing to reverse both lower courts and hold that their findings that alternative forums for leafletting in Lloyd Center were either not as effective as the Mall or dangerous are clearly erroneous. I too have read the record in this case, and I find no warrant for such a holding. The record plainly shows that it was impossible to reach many of the shoppers in the Center without using the Mall unless respondents were willing to approach cars as they were leaving the center. The District Court and the Court of Appeals took the view that requiring respondents to run from the sidewalk, to knock on car windows, to ask that the windows be rolled down so that a handbill could be distributed, to offer the handbill, run back to the sidewalk, and to repeat this gesture for every automobile leaving Lloyd Center involved hazards not only to respondents but also to other pedestrians and automobile passengers. Having never seen Lloyd Center, except in photographs contained in the record, and having absolutely no idea of the amount of traffic entering or leaving the Center, the Court cavalierly overturns the careful findings of facts below. This, in my opinion, exceeds even the most expansive view of the proper appellate function of this Court.

The Supreme Court held that a privately owned shopping center could prohibit the distribution of handbills on its property, as it had not been dedicated to public use and retained its private character, even though it was open to the general public. This case differed from previous rulings as the handbilling was unrelated to any activity within the center, and adequate alternative means of communication existed.

Property Rights & Land Use

Pruneyard Shopping Center v. Robins

https://supreme.justia.com/cases/federal/us/447/74/

U.S. Supreme Court Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 (1980) Pruneyard Shopping Center v. Robins No. 79-289 Argued March 18, 1980 Decided June 9, 1980 447 U.S. 74 APPEAL FROM THE SUPREME COURT OF CALIFORNIA Syllabus Soon after appellees had begun soliciting in appellant privately owned shopping center's central courtyard for signatures from passersby for petitions in opposition to a United Nations resolution, a security guard informed appellees that they would have to leave because their activity violated shopping center regulations prohibiting any visitor or tenant from engaging in any publicly expressive activity that is not directly related to the center's commercial purposes. Appellees immediately left the premises and later filed suit in a California state court to enjoin the shopping center and its owner (also an appellant) from denying appellees access to the center for the purpose of circulating their petitions. The trial court held that appellees were not entitled under either the Federal or California Constitution to exercise their asserted rights on the shopping center property, and the California Court of Appeal affirmed. The California Supreme Court reversed, holding that the California Constitution protects speech and petitioning, reasonably exercised, in shopping centers even when the center is privately owned, and that such result does not infringe appellants' property rights protected by the Federal Constitution. Held: 1. This case is properly before this Court as an appeal under 28 U.S.C. § 1257(2). A state constitutional provision is a "statute" within the meaning of § 1257(2), and in deciding that the State Constitution gave appellees the right to solicit signatures on appellants' property, the California Supreme Court rejected appellants' claim that recognition of such a right violated their "right to exclude others," a fundamental component of their federally protected property rights. Pp. 447 U. S. 79 -80. 2. State constitutional provisions, as construed to permit individuals reasonably to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, do not violate the shopping center owner's property rights under the Fifth and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. Pp. 447 U.S. 88 . (a) The reasoning in Lloyd Corp. v. Tanner, 407 U. S. 551 -- which Page 447 U. S. 75 held that the First Amendment does not prevent a private shopping center owner from prohibiting the distribution on center premises of handbills unrelated to the center's operations -- does not ex proprio vigore limit a State's authority to exercise its police power or its sovereign right to adopt in its own constitution individual liberties more expansive than those conferred by the Federal Constitution. And a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. Pp. 447 U. S. 80 -81. (b) The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants' property rights under the Taking Clause of the Fifth Amendment, appellants having failed to demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a "taking." Kaiser Aetna v. United States, 444 U. S. 164 , distinguished. And there is no merit to appellants' argument that they have been denied property without due process of law, where they have failed to show that the due process test whereby the challenged law must not be unreasonable, arbitrary, or capricious and the means selected must have a real and substantial relation to the objective to be obtained, is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. Pp. 447 U. S. 82 -85. (c) Nor have appellants' First Amendment rights been infringed by the California Supreme Court's decision. The shopping center, by choice of its owner, is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants' property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers. Wooley v. Maynard, 430 U. S. 705 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 ; and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 , distinguished. Pp. 447 U. S. 85 -88. 23 Cal. 3d 899 , 592 P.2d 341, affirmed. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, MARSHALL, and STEVENS, JJ., joined; in Parts I, II, III, and IV of which WHITE and POWELL, JJ., joined; and Page 447 U. S. 76 in all but one sentence of which BLACKMUN, J., joined. MARSHALL, J., filed a concurring opinion, post, p. 447 U. S. 89 . WHITE, J., filed an opinion concurring in part and in the judgment, post, p. 447 U. S. 95 . POWELL, J., filed an opinion concurring in part and in the judgment, in which WHITE, J., joined, post, p. 447 U. S. 96 . BLACKMUN, J., filed a statement concurring in part, post, p. 447 U.S. 88 . MR. JUSTICE REHNQUIST delivered the opinion of the Court. We postponed jurisdiction of this appeal from the Supreme Court of California to decide the important federal constitutional questions it presented. Those are whether state constitutional provisions, which permit individuals to exercise free speech and petition rights on the property of a privately owned shopping center to which the public is invited, violate the shopping center owner's property rights under the Fifth Page 447 U. S. 77 and Fourteenth Amendments or his free speech rights under the First and Fourteenth Amendments. I Appellant PruneYard is a privately owned shopping center in the City of Campbell, Cal. It covers approximately 21 acres -- 5 devoted to parking and 16 occupied by walkways, plazas, sidewalks, and buildings that contain more than 65 specialty shops, 10 restaurants, and a movie theater. The PruneYard is open to the public for the purpose of encouraging the patronizing of its commercial establishments. It has a policy not to permit any visitor or tenant to engage in any publicly expressive activity, including the circulation of petitions, that is not directly related to its commercial purposes. This policy has been strictly enforced in a nondiscriminatory fashion. The PruneYard is owned by appellant Fred Sahadi. Appellees are high school students who sought to solicit support for their opposition to a United Nations resolution against "Zionism." On a Saturday afternoon they set up a card table in a corner of PruneYard's central courtyard. They distributed pamphlets and asked passersby to sign petitions, which were to be sent to the President and Members of Congress. Their activity was peaceful and orderly, and, so far as the record indicates, was not objected to by PruneYard's patrons. Soon after appellees had begun soliciting signatures, a security guard informed them that they would have to leave because their activity violated PruneYard regulations. The guard suggested that they move to the public sidewalk at the PruneYard's perimeter. Appellees immediately left the premises and later filed this lawsuit in the California Superior Court of Santa Clara County. They sought to enjoin appellants from denying them access to the PruneYard for the purpose of circulating their petitions. The Superior Court held that appellees were not entitled under either the Federal or California Constitution to exercise Page 447 U. S. 78 their asserted rights on the shopping center property. App. to Juris.Statement A-2. It concluded that there were "adequate, effective channels of communication for [appellees] other than soliciting on the private property of the [PruneYard]." Id. at A-3. The California Court of Appeal affirmed. The California Supreme Court reversed, holding that the California Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." 23 Cal. 3d 899 , 910, 592 P.2d 341, 347 (1979). It concluded that appellees were entitled to conduct their activity on PruneYard property. In rejecting appellants' contention that such a result infringed property rights protected by the Federal Constitution, the California Supreme Court observed: "'It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment. As a result of advertising and the lure of a congenial environment, 25,000 persons are induced to congregate daily to take advantage of the numerous amenities offered by the [shopping center there]. A handful of additional orderly persons soliciting signatures and distributing handbills in connection therewith, under reasonable regulations adopted by defendant to assure that these activities do not interfere with normal business operations ( see Diamond [v. Bland, 3 Cal. 3d 653 , 665, 477 P.2d 733, 741 (1970)]) would not markedly dilute defendant's property rights.' ([ Diamond v. Bland, 11 Cal. 3d 331 , 345, 521 P.2d 460, 470 (1974)] (dis. opn. of Mosk, J.).)" Id. at 910-911, 592 P.2d at 347-348. The California Supreme Court thus expressly overruled its earlier decision in Diamond v. Bland, 11 Cal. 3d 331 , 521 P.2d 460 ( Diamond II ), cert. denied, 419 U.S. 885 (1974), which had reached an opposite conclusion. 23 Cal.3d at Page 447 U. S. 79 910, 592 P.2d at 347. [ Footnote 1 ] Before this Court, appellants contend that their constitutionally established rights under the Fourteenth Amendment to exclude appellees from adverse use of appellants' private property cannot be denied by invocation of a state constitutional provision or by judicial reconstruction of a State's laws of private property. We postponed consideration of the question of jurisdiction until the hearing of the case on the merits. 444 U.S. 949. We now affirm. II We initially conclude that this case is properly before us as an appeal under 28 U.S.C. § 1257(2). It has long been established that a state constitutional provision is a "statute" within the meaning of § 1257(2). See, e.g., Torcaso v. Watkins, 367 U. S. 488 , 367 U. S. 489 (1961); Adamson v. California, 332 U. S. 46 , 332 U. S. 48 , n. 2 (1947); Railway Express Agency, Inc. v. Virginia, 282 U. S. 440 (1931). Here the California Supreme Court decided that Art. 1, §§ 2 and 3, of the California Constitution gave appellees the right to solicit signatures on appellants' property in exercising their state rights of free expression and petition. [ Footnote 2 ] In so doing, the California Supreme Court Page 447 U. S. 80 rejected appellants' claim that recognition of such a right violated appellants' "right to exclude others," which is a fundamental component of their federally protected property rights. Appeal is thus the proper method of review. III Appellants first contend that Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), prevents the State from requiring a private shopping center owner to provide access to persons exercising their state constitutional rights of free speech and petition when adequate alternative avenues of communication are available. Lloyd dealt with the question whether, under the Federal Constitution, a privately owned shopping center may prohibit the distribution of handbills on its property when the handbilling is unrelated to the shopping center's operations. Id. at 407 U. S. 552 . The shopping center had adopted a strict policy against the distribution of handbills within the building complex and its malls, and it made no exceptions to this rule. Id. at 407 U. S. 555 . [ Footnote 3 ] Respondents in Lloyd argued that, because the shopping center was open to the public, the First Amendment prevents the private owner from enforcing the handbilling restriction on shopping center premises. Id. at 407 U. S. 564 . [ Footnote 4 ] Page 447 U. S. 81 In rejecting this claim, we substantially repudiated the rationale of Food Employees v. Logan Valley Plaza, 391 U. S. 308 (198), which was later overruled in Hudgens v. NLRB, 424 U. S. 507 (1976). We stated that property does not "lose its private character merely because the public is generally invite to use it for designated purposes," and that " [t]he essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center." 407 U.S. at 407 U. S. 569 . Our reasoning in Lloyd, however, does not, ex proprio vigore, limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution. Cooper v. California, 386 U. S. 58 , 386 U. S. 62 (1967). See also 407 U.S. at 407 U. S. 569 -570. In Lloyd, supra, there was no state constitutional or statutory provision that had been construed to create rights to the use of private property by strangers, comparable to those found to exist by the California Supreme Court here. It is, of course, well established that a State, in the exercise of its police power, may adopt reasonable restrictions on private property so long as the restrictions do not amount to a taking without just compensation or contravene any other federal constitutional provision. See, e.g., Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976). Lloyd held that, when a shopping center owner opens his private property to the public for the purpose of shopping, the First Amendment to the United States Constitution does not thereby create individual rights in expression beyond those already existing under applicable law. See also Hudgens v. NLRB, supra at 424 U. S. 517 -521. Page 447 U. S. 82 IV Appellants next contend that a right to exclude others underlies the Fifth Amendment guarantee against the taking of property without just compensation and the Fourteenth Amendment guarantee against the deprivation of property without due process of law. [ Footnote 5 ] It is true that one of the essential sticks in the bundle of property rights is the right to exclude others. Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 179 -10 (1979). And here there has literally been a "taking" of that right to the extent that the California Supreme Court has interpreted the State constitution to entitle its citizens to exercise free expression and petition rights on shopping center property. [ Footnote 6 ] But it is well established that "not every destruction or injury to property by governmental action has been held to be a taking' in the constitutional sense." Armstrong v. United States, 364 U. S. 40 , 364 U. S. 48 (1960). Rather, the determination whether a state law unlawfully infringes a landowner's property in Page 447 U. S. 83 violation of the Taking Clause requires an examination of whether the restriction on private property "forc[es] some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Id. at 364 U. S. 49 . [ Footnote 7 ] This examination entails inquiry into such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations. Kaiser Aetna v. United States, supra, at 444 U. S. 175 . When "regulation goes too far, it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 (1922). Here the requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property clearly does not amount to an unconstitutional infringement of appellants' property right under the Taking Clause. There is nothing to suggest that preventing appellants from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center. The PruneYard is a large commercial complex that covers several city blocks, contains numerous separate business establishments, and is open to the public at large. The decision of the California Supreme Court makes it clear that the PruneYard may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions. Appellees were orderly, and they limited their activity to the Page 447 U. S. 84 common areas of the shopping center. In these circumstances, the fact that they may have "physically invaded" appellants' property cannot be viewed as determinative. This case is quite different from Kaiser Aetna v. United States, supra. Kaiser Aetna was a case in which the owners of a private pond had invested substantial amounts of money in dredging the pond, developing it into an exclusive marina, and building a surrounding marina community. The marina was open only to fee-paying members, and the fees were paid in part to "maintain the privacy and security of the pond." Id. at 444 U. S. 168 . The Federal Government sought to compel free public use of the private marina on the ground that the marina became subject to the federal navigational servitude because the owners had dredged a channel connecting it to "navigable water." The Government's attempt to create a public right of access to the improved pond interfered with Kaiser Aetna's "reasonable investment backed expectations." We held that it went "so far beyond ordinary regulation or improvement for navigation as to amount to a taking. . . ." Id. at 444 U. S. 178 . Nor, as a general proposition, is the United States, as opposed to the several States, possessed of residual authority that enables it to define "property" in the first instance. A State is, of course, bound by the Just Compensation Clause of the Fifth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 233 , 236-237 (1897), but here appellants have failed to demonstrate that the "right to exclude others" is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a "taking." There is also little merit to appellants' argument that they have been denied their property without due process of law. In Nebbia v. New York, 291 U. S. 502 (1934), this Court stated: "[N]either property rights nor contract rights are absolute. . . . Equally fundamental with the private right Page 447 U. S. 85 is that of the public to regulate it in the common interest. . . ." " * * * *" ". . . [T]he guaranty of due process, as has often been held, demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the objective sought to be attained." Id. at 291 U. S. 523 , 291 U. S. 525 . See also Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949); Exxon Corp. v. Governor of Maryland, 437 U. S. 117 , 437 U. S. 124 -125 (1978). Appellants have failed to provide sufficient justification for concluding that this test is not satisfied by the State's asserted interest in promoting more expansive rights of free speech and petition than conferred by the Federal Constitution. [ Footnote 8 ] V Appellants finally contend that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others. [ Footnote 9 ] They Page 447 U. S. 86 state that, in Wooley v. Maynard, 430 U. S. 705 (1977), this Court concluded that a State may not constitutionally require an individual to participate in the dissemination of an ideological Page 447 U. S. 87 message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public. This rationale applies here, they argue, because the message of Wooley is that the State may not force an individual to display any message at all. Wooley, however, was a case in which the government itself prescribed the message, required it to be displayed openly on appellee's personal property that was used "as part of his daily life," and refused to permit him to take any measures to cover up the motto even though the Court found that the display of the motto served no important state interest. Here, by contrast, there are a number of distinguishing factors. Most important, the shopping center, by choice of its owner, is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please. The views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Second, no specific message is dictated by the State to be displayed on appellants' property. There consequently is no danger of governmental discrimination for or against a particular message. Finally, as far as appears here, appellants can expressly disavow any connection with the message by simply posting signs in the area where the speakers or handbillers stand. Such signs, for example, could disclaim any sponsorship of the message and could explain that the persons are communicating their own messages by virtue of state law. Appellants also argue that their First Amendment rights have been infringed in light of West Virginia State Board of Page 447 U. S. 88 Education v. Barnette, 319 U. S. 624 (1943), and Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). Barnette is inapposite, because it involved the compelled recitation of a message containing an affirmation of belief. This Court held such compulsion unconstitutional because it "require[d] the individual to communicate by word and sign his acceptance" of government-dictated political ideas, whether or not he subscribed to them. 319 U.S. at 319 U. S. 633 . Appellants are not similarly being compelled to affirm their belief in any governmentally prescribed position or view, and they are free to publicly dissociate themselves from the views of the speakers or handbillers. Tornillo struck down a Florida statute requiring a newspaper to publish a political candidate's reply to criticism previously published in that newspaper. It rests on the principle that the State cannot tell a newspaper what it must print. The Florida statute contravened this principle in that it "exact[ed] a penalty on the basis of the content of a newspaper." 418 U.S. at 418 U. S. 256 . There also was a danger in Tornillo that the statute would "dampe[n] the vigor and limi[t] the variety of public debate" by deterring editors from publishing controversial political statements that might trigger the application of the statute. Id. at 447 U. S. 257 . Thus, the statute was found to be an "intrusion into the function of editors." Id. at 447 U. S. 258 . These concerns obviously are not present here. We conclude that neither appellants' federally recognized property rights nor their First Amendment right have been infringed by the California Supreme Court's decision recognizing a right of appellees to exercise state-protected rights of expression and petition on appellants' property. The judgment of the Supreme Court of California is therefore Affirmed. MR. JUSTICE BLACKMUN joins the opinion of the Court except that sentence thereof, ante at 447 U. S. 84 , which reads: "Nor Page 447 U. S. 89 as a general proposition is the United States, as opposed to the several States, possessed of residual authority that enables it to define 'property' in the first instance." [ Footnote 1 ] The California Supreme Court, in Diamond II, had reasoned: "In this case, as in Lloyd [Corp. v. Tanner, 407 U. S. 551 (1972)], plaintiffs have alternative, effective channels of communication, for the customers and employees of the center may be solicited on any public sidewalks, parks and streets adjacent to the Center and in the communities in which such persons reside. Unlike the situation in Marsh [v. Alabama, 326 U. S. 501 (1946)] and [ Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968)], no reason appears why such alternative means of communication would be ineffective, and plaintiffs concede that, unlike Logan, their initiative petition bears no particular relation to the shopping center, its individual stores, or patrons." 11 Cal. 3d at 335, 521 P.2d at 463. Diamond II thus held that the shopping center owner's property rights outweighed the rights of free expression and petition asserted by the plaintiffs. Ibid. [ Footnote 2 ] Article 1, § 2, of the California Constitution provides: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for tho abuse of this right. A law may not restrain or abridge liberty of speech or press." Article 1, § 3, of the California Constitution provides: "[P]eople have the right to . . . petition government for redress of grievances." [ Footnote 3 ] The center had banned handbilling because it "was considered likely to annoy customers, to create litter, potentially to create disorders, and generally to be incompatible with the purpose of the Center and the atmosphere sought to be preserved." 407 U.S. at 407 U. S. 555 -556. [ Footnote 4 ] Respondents relied on Marsh v. Alabama, 326 U. S. 501 (1946), and Food Employees v. Logan Valley Plaza, 391 U. S. 308 (168), in support of their claim that the shopping center's permission to the public to enter its property for the purpose of shopping caused its property to lose its private character, thereby permitting members of the public to exercise the same free speech rights as they would have on similar public facilities or the streets of a city or town. Both of those cases, however, involved no state law authorizing the conduct of the solicitors or handbillers. [ Footnote 5 ] Appellants do not maintain that this is a condemnation case. Reply Brief for Appellants 2. Rather, they argue that "[t] he rights of a property owner . . . are rooted in the Fifth Amendment guarantee against the taking of property without just compensation, and are incorporated in the Fourteenth Amendment guarantee against the deprivation of property without due process of law." Brief for Appellants 10. Here, of course, if the law required the conclusion that there was a "taking," there was concededly no compensation, just or otherwise, paid to appellants. This argument falls within appellants' contention that Lloyd is controlling, see 407 U.S. at 407 U. S. 567 , and was adequately presented below. See New York ex rel. Bryant v. Zimmerman, 278 U. S. 63 , 278 U. S. 67 (1928). [ Footnote 6 ] The term "property" as used in the Taking Clause includes the entire "group of rights inhering in the citizen's [ownership]." United States v. General Motors Corp., 323 U. S. 373 (1945). It is not used in the "vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] denote[s] the group of rights inhering in the citizen's relation to the physical thing, as the right to possess, use and dispose of it. . . . The constitutional provision is addressed to every sort of interest the citizen may possess." Id. at 323 U. S. 377 -378. [ Footnote 7 ] Thus, as this Court stated in Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 325 (1893), a case which has since been characterized as resting primarily on "estoppel," see, e.g., United States v. Rands, 389 U. S. 121 , 389 U. S. 126 (1967), the Fifth Amendment "prevents the public from loading upon one individual more than his just share of the burdens of government, and says that, when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him." See also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 123 -125 (1978); Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 416 (1922). [ Footnote 8 ] Although appellants contend there are adequate alternative avenues of communication available for appellees, it does not violate the United States Constitution for the State Supreme Court to conclude that access to appellants' property in the manner required here is necessary to the promotion of state-protected rights of free speech and petition. [ Footnote 9 ] Appellees contend that this issue is not properly before us because appellants have not met their burden of showing that it was raised in the state courts. It is well settled that, in challenging the validity of a state law on the ground that it is repugnant to the Constitution of the United States, "[n]o particular form of words or phrases is essential, but only that the claim of invalidity on the ground therefor be brought to the attention of the state court with fair precision and in due time. And if the record as a whole shows either expressly or by clear intendment that this was done, the claim is to be regarded as having been adequately presented." New York ex rel. Bryant v. Zimmerman, 278 U.S. at 278 U. S. 67 . Before the Supreme Court of California, appellants argued: "The constitutional right to exclude potential communicants from private property is inextricably intertwined with the right of the property owner to select the way he wishes to use his property. . . . The right, which has been recognized as deriving from the owner's status as owner, also derives from the owner's status as himself a potential communicant. Defendant urges that his constitutional right to free speech would be infringed if he were required to make his property available to others for the purpose of their expressive activity." Brief in Response to Amici Curiae Briefs in No. S.F. 23812, p. 39 (Sup.Ct.Cal.). In making this argument, appellants explicitly relied on Wooley v. Maynard, 430 U. S. 705 (1977), and West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943). Brief in Response to Amici Curiae Briefs, supra at 40-42. Before this Court, appellants contend that "[t] he constitutional rights of private property owners also have their origins in the First Amendment right of the property owner not to be forced by the state to use his property as a forum for the speech of others." Brief for Appellants 12. See also Juris.Statement 12. And appellants, throughout this litigation, have been asserting their federal constitutional right to prohibit public expressive activity on their property that is not directly related to PruneYard's commercial purposes. In addition, this Court has held federal claims to have been adequately presented even though not raised in lower state courts when the highest state court renders an unexpected interpretation of state law or reverses its prior interpretation. Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673 , 281 U. S. 677 -678 (1930); Missouri ex rel. Missouri Ins. Co. v. Gehner, 281 U. S. 313 , 281 U. S. 320 (1930); Saunders v. Shaw, 244 U. S. 317 , 244 U. S. 320 (1917). Here, prior to its decision below, the California Supreme Court had expressly decided to follow Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), in defining the scope of state constitutional rights of free speech and petition. Diamond II, 11 Cal. 3d at 335, 521 P.2d at 463. It was not until the instant case that the California Supreme Court overruled Diamond II, supra, and held that the California Constitution can and does require shopping center owners to grant access to individuals exercising their state rights of free expression and petition. Prior to reaching the California Supreme Court, appellants argued that the Diamond II decision bound the California Superior Court and Court of Appeal to rule in appellants' favor. Appellants prevailed in these courts, and Diamond II was held to be controlling. Once before the California Supreme Court, as noted above, appellants explicitly presented their federal constitutional right t.o prohibit public expression on their property in terms of Wooley and Barnette. It was not until that time that they could have reasonably expected that the validity of the earlier Diamond II decision would be questioned. In these circumstances, we conclude that appellants have adequately raised the federal question. MR. JUSTICE MARSHALL, concurring. I join the opinion of the Court, but write separately to make a few additional points. I In Food Employees v. Logan Valley Plaza, 391 U. S. 308 (1968), this Court held that the First and Fourteenth Amendments prevented a state court from relying on its law of trespass to enjoin the peaceful picketing of a business enterprise located within a shopping center. The Court concluded that, because the shopping center "serves as the community business block" and is open to the general public, "the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises." Id. at 391 U. S. 319 . The Court rejected the suggestion that such an abrogation of the state law of trespass would intrude on the constitutionally protected property rights of shopping center owners. And it emphasized that the shopping center was open to the public, and that reasonable restrictions on the exercise of communicative activity would be permitted. "[N]o meaningful claim to protection of a right of privacy can be advanced by respondents here. Nor on the facts of the case can any significant claim to protection of the normal business operation of the property be raised. Naked title is essentially all that is at issue." Id. at 391 U. S. 324 . The Court in Logan Valley emphasized that, if the property rights of shopping center owners were permitted to overcome the First Amendment rights of prospective petitioners, a significant intrusion on communicative activity would result. Because "[t]he large-scale movement of this country's population from the cities to the suburbs has been accompanied Page 447 U. S. 90 by the advent of the suburban shopping center," a contrary decision would have "substantial consequences for workers seeking to challenge substandard working conditions, consumers protesting shoddy or overpriced merchandise, and minority groups seeking nondiscriminatory hiring policies." Ibid. In light of these realities, we concluded that the First and Fourteenth Amendments prohibited the State from using its trespass laws to prevent the exercise of expressive activities on privately owned shopping centers, at least when those activities were related to the operations of the store at which they were directed. In Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), the Court confined Logan Valley to its facts, holding that the First and Fourteenth Amendments were not violated when a State prohibited petitioning that was not designed to convey information with respect to the operation of the store that was being picketed. The Court indicated that a contrary result would constitute "an unwarranted infringement of property rights." 407 U.S. at 407 U. S. 567 . And in Hudgens v. NLRB, 424 U. S. 507 (1976), the Court concluded that Lloyd had in fact overruled Logan Valley. I continue to believe that Logan Valley was rightly decided, and that both Lloyd and Hudgens were incorrect interpretations of the First and Fourteenth Amendments. State action was present in all three cases. In all of them, the shopping center owners had opened their centers to the public at large, effectively replacing the State with respect to such traditional First Amendment forums as streets, sidewalks, and parks. The State had, in turn, made its laws of trespass available to shopping center owners, enabling them to exclude those who wished to engage in expressive activity on their premises. [ Footnote 2/1 ] Page 447 U. S. 91 Rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication. I continue to believe, then, that "the Court's rejection of any role for the First Amendment in the privately owned shopping center complex stems . . . from an overly formalistic view of the relationship between the institution of private ownership of property and the First Amendment's guarantee of freedom of speech." Hudgens v. NLRB, supra at 424 U. S. 542 (dissenting opinion). II In the litigation now before the Court, the Supreme Court of California construed the California Constitution to protect precisely those rights of communication and expression that were at stake in Logan Valley, Lloyd, and Hudgens. The California court concluded that its State "[C]onstitution broadly proclaims speech and petition rights. Shopping centers to which the public is invited can provide an essential and invaluable forum for exercising those rights." 23 Cal. 3d 899 , 910, 592 P.2d 341, 347 (1979). Like the Court in Logan Valley, the California court found that access to shopping centers was crucial to the exercise of rights of free expression. And like the Court in Logan Valley, the California court rejected the suggestion that the Fourteenth Amendment barred the intrusion on the property rights of the shopping center owners. I applaud the court's decision, which is a part of a very healthy trend of affording state constitutional provisions a more expansive interpretation than this Court has given to the Federal Constitution. See Brennan State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). Appellants, of course, take a different view. They contend that the decision below amounts to a constitutional "taking" or a deprivation of their property without due process of law. Lloyd, they claim, did not merely overrule Logan Page 447 U. S. 92 Valley's First Amendment holding; it overruled its due process ruling as well, recognizing a federally protected right on the part of shopping center owners to enforce the preexisting state law of trespass by excluding those who engage in communicative activity on their property. In my view, the issue appellants present is largely a restatement of the question of whether and to what extent a State may abrogate or modify common law rights. Although the cases in this Court do not definitively resolve the question, they demonstrate that appellants' claim has no merit. Earlier this Term, in Martinez v. California, 444 U. S. 277 (1980), the Court was also confronted with a claim that the abolition of a cause of action previously conferred by state law was an impermissible taking of "property." We responded that, even if a preexisting state law remedy "is a species of 'property' protected by the Due Process Clause, . . . it would remain true that the State's interest in fashioning its own rules of tort law is paramount to any discernible federal interest, except perhaps an interest in protecting the individual citizen from state action that is wholly arbitrary or irrational." Id. at 444 U. S. 281 -282. Similarly, in the context of a claim that a guest statute impermissibly abrogated common law rights of tort, the Court observed that the Due Process Clause does not forbid the "creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object." Silver v. Silver, 280 U. S. 117 , 280 U. S. 122 (1929). And in Munn v. Illinois, 94 U. S. 113 (1877), the Court upheld a statute limiting the permissible rate for the warehousing of grain. "A person has no property, no vested interest, in any rule of the common law. . . . Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will . . . of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the Page 447 U. S. 93 common law as they are developed, and to adapt it to the changes of time and circumstances." Id. at 94 U. S. 134 . See also Second Employers' Liability Cases, 223 U. S. 1 , 223 U. S. 50 (1912); Crowell v. Benson, 285 U. S. 22 , 285 U. S. 41 (1932). Appellants' claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State, notwithstanding the California Supreme Court's finding that state-created rights of expressive activity would be severely hindered if shopping centers were closed to expressive activities by members of the public. If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U. S. 45 (1905), when common law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result. On the other hand, I do not understand the Court to suggest that rights of property are to be defined solely by state law, or that there is no federal constitutional barrier to the abrogation of common law rights by Congress or a state government. The constitutional terms "life, liberty, and property" do not derive their meaning solely from the provisions of positive law. They have a normative dimension as well, establishing a sphere of private autonomy which government is bound to respect. [ Footnote 2/2 ] Quite serious constitutional questions might be raised if a legislature attempted to abolish certain Page 447 U. S. 94 categories of common law rights in some general way. Indeed, our cases demonstrate that there are limits on governmental authority to abolish "core" common law rights, including rights against trespass, at least without a compelling showing of necessity or a provision for a reasonable alternative remedy. [ Footnote 2/3 ] That "core" has not been approached in this case. The California Supreme Court's decision is limited to shopping centers, which are already open to the general public. The owners are permitted to impose reasonable restrictions on expressive activity. There has been no showing of interference with appellants' normal business operations. The California court has not permitted an invasion of any personal sanctuary. Cf. Stanley v. Georgia, 394 U. S. 557 (1969). No rights of privacy are implicated. In these circumstances, Page 447 U. S. 95 there is no basis for strictly scrutinizing the intrusion authorized by the California Supreme Court. I join the opinion of the Court. [ Footnote 2/1 ] In this respect, the cases resembled Shelley v. Kraemer, 334 U. S. 1 (1948), and New York Times Co. v. Sullivan, 376 U. S. 254 (1964), in which the common law rules of contract and tort were held to constitute state action for Fourteenth Amendment purposes. [ Footnote 2/2 ] This understanding is embodied in cases in the procedural due process area holding that at least some "grievous losses" amount to deprivation of "liberty" or "property" within the meaning of the Due Process Clause, even if those losses are not protected by statutory or common law. See Vitek v. Jones, 445 U. S. 480 , 445 U. S. 488 -489 (1980), and cases cited; Mathews v. Eldridge, 424 U. S. 319 , 424 U. S. 333 (1976). See also Meachum v. Fano, 427 U. S. 215 , 427 U. S. 229 (1976) (STEVENS, J., dissenting). [ Footnote 2/3 ] For example, in Ingraham v. Wright, 430 U. S. 651 (1977), the Court found a constitutional liberty interest in freedom from corporal punishment, in large part on the ground that that interest was protected at common law. The Court stated that the "Due Process Clause . . . was intended to give Americans at least the protection against governmental power that they had enjoyed as Englishmen against the power of the Crown. The liberty preserved from deprivation without due process included the right 'generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.'" Id. at 430 U. S. 672 -673 (citation omitted). In Duke Power Co. v. Carolina Environmental Study Group, 438 U. S. 59 , 438 U. S. 88 (1978), the Court reserved the question whether, in creating a compensation scheme for victims of nuclear accidents, Congress was constitutionally obliged to "provide a reasonable substitute remedy" for the abrogation of common law rights of tort. Similarly, in New York Central R. Co. v. White, 243 U. S. 188 , 243 U. S. 201 (1917), the Court expressed uncertainty as to whether "a State might, without violence to the constitutional guaranty of 'due process of law,' suddenly set aside all common law rules respecting liability as between employer and employee, without providing a reasonably just substitute," and "doubted whether the State could abolish all rights of action on the one hand, or all defenses on the other, without setting up something adequate in their stead." MR. JUSTICE WHITE, concurring in part and concurring in the judgment. I join MR. JUSTICE POWELL's concurring opinion, but with these additional remarks. The question here is whether the Federal Constitution forbids a State to implement its own free-speech guarantee by requiring owners of shopping centers to permit entry on their property for the purpose of communicating with the public about subjects having no connection with the shopping centers' business. The Supreme Court of California held that in the circumstances of this case the federally protected property rights of appellants were not infringed. The state court recognized, however, that reasonable time and place limitations could be imposed and that it was dealing with the public or common areas in a large shopping center, and not with an individual retail establishment within or without the shopping center or with the property or privacy rights of a homeowner. On the facts before it, "[a] handful of additional orderly persons soliciting signatures and distributing handbills . . . would not markedly dilute defendant's property rights." 23 Cal. 3d 899 , 911, 592 P.2d 341, 347-348 (1979). I agree that, on the record before us, there was not an unconstitutional infringement of appellants' property rights. But it bears pointing out that the Federal Constitution does not require that a shopping center permit distributions or solicitations on its property. Indeed, Hudgens v. NLRB, 424 U. S. 507 (1976), and Lloyd Corp. v. Tanner, 407 U. S. 551 (1972), hold that the First and Fourteenth Amendments do not prevent the property owner from excluding those who would demonstrate or communicate on his property. Insofar as the Federal Constitution is concerned, therefore, a State may Page 447 U. S. 96 decline to construe its own constitution so as to limit the property rights of the shopping center owner. The Court also affirms the California Supreme Court's implicit holding that appellants' own free-speech rights under the First and Fourteenth Amendments were not infringed by requiring them to provide a forum for appellees to communicate with the public on shopping center property. I concur in this judgment, but I agree with MR. JUSTICE POWELL that there are other circumstances that would present a far different First Amendment issue. May a State require the owner of a shopping center to subsidize any and all political, religious, or social action groups by furnishing a convenient place for them to urge their views on the public and to solicit funds from likely prospects? Surely there are some limits on state authority to impose such requirements; and in this respect, I am not in entire accord with 447 U. S. MR. JUSTICE POWELL, with whom MR JUSTICE WHITE joins, concurring in part and in the judgment. Although I join the judgment, I do not agree with all of the reasoning in 447 U. S. I join Parts I-IV on the understanding that our decision is limited to the type of shopping center involved in this case. Significantly different questions would be presented if a State authorized strangers to picket or distribute leaflets in privately owned, freestanding stores and commercial premises. Nor does our decision today apply to all "shopping centers." This generic term may include retail establishments that vary widely in size, location, and other relevant characteristics. Even large establishments may be able to show that the number or type of persons wishing to speak on their premises would create a substantial annoyance to customers that could be eliminated only by elaborate, expensive, and possibly unenforceable time, place, and manner restrictions. As the Court observes, state power to regulate private property is limited to the adoption of reasonable restrictions that "do not amount to a taking without Page 447 U. S. 97 just compensation or contravene any other federal constitutional provision." Ante at 447 U. S. 81 . I Restrictions on property use, like other state laws, are invalid if they infringe the freedom of expression and belief protected by the First and Fourteenth Amendments. In Part V of today's opinion, the Court rejects appellants' contention that "a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others." Ante at 447 U. S. 85 . I agree that the owner of this shopping center has failed to establish a cognizable First Amendment claim in this case. But some of the language in the Court's opinion is unnecessarily, and perhaps confusingly, broad. In my view, state action that transforms privately owned property into a forum for the expression of the public's views could raise serious First Amendment questions. The State may not compel a person to affirm a belief he does not hold. See Wooley v. Maynard, 430 U. S. 705 (1977); West Virginia State Board of Education v. Barnette, 319 U. S. 624 (1943). Whatever the full sweep of this principle, I do not believe that the result in Wooley v. Maynard, supra, would have hanged had the State of New Hampshire directed its citizens to place the slogan "Live Free or Die" in their shop windows, rather than on their automobiles. In that case, we said that "[a] system which secures the right to proselytize religious, political, and ideological causes must also guarantee the concomitant right to decline to foster such concepts." 430 U.S. at 430 U. S. 714 . This principle, on its face, protects a person who refuses to allow use of his property as a marketplace for the ideas of others. And I can find no reason to exclude the owner whose property is "not limited to [his] personal use. . . ." Ante at 447 U. S. 87 . A person who has merely invited the public onto his property for commercial purposes cannot fairly be said to have relinquished his right to decline "to be Page 447 U. S. 98 an instrument for fostering public adherence to an ideological point of view he finds unacceptable." Wooley v. Maynard, supra at 430 U. S. 715 . [ Footnote 3/1 ] As the Court observes, this case involves only a state-created right of limited access to a specialized type of property. Ante at 447 U. S. 87 , 447 U. S. 87 -88. But even when no particular message is mandated by the State, First Amendment interests are affected by state action that forces a property owner to admit third-party speakers. In many situations, a right of access is no less intrusive than speech compelled by the State itself. For example, a law requiring that a newspaper permit others to use its columns imposes an unacceptable burden upon the newspaper's First Amendment right to select material for publication. Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974). See also Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U. S. 94 , 412 U. S. 117 (1973) (plurality opinion). Such a right of access burdens the newspaper's "fundamental right to decide what to print or omit." Wooley v. Maynard, supra at 430 U. S. 714 ; see Miami Herald Publishing Co. v. Tornillo, supra, at 418 U. S. 257 . As such, it is tantamount to compelled affirmation, and, thus, presumptively unconstitutional. [ Footnote 3/2 ] Page 447 U. S. 99 The selection of material for publication is not generally a concern of shopping centers. But similar speech interests are affected when listeners are likely to identify opinions expressed by members of the public on commercial property as the views of the owner. If a state law mandated public access to the bulletin board of a freestanding store, hotel, office, or small shopping center, customers might well conclude that the messages reflect the view of the proprietor. The same would be true if the public were allowed to solicit or distribute pamphlets in the entrance area of a store or in the lobby of a private building. The property owner or proprietor would be faced with a choice: he either could permit his customers to receive a mistaken impression or he could disavow the messages. Should he take the first course, he effectively has been compelled to affirm someone else's belief. Should he choose the second, he has been forced to speak when he would prefer to remain silent. In short, he has lost control over his freedom to speak or not to speak on certain issues. The mere fact that he is free to dissociate himself from the views expressed on his property, see ante at 447 U. S. 87 , cannot restore his "right to refrain from speaking at all." Wooley v. Maynard, supra at 430 U. S. 714 . A property owner also may be faced with speakers who wish to use his premises as a platform for views that he finds morally repugnant. Numerous examples come to mind. A minority-owned business confronted with leaflet distributors from the American Nazi Party or the Ku Klux Klan, a church-operated enterprise asked to host demonstrations in favor of abortion, or a union compelled to supply a forum to right-to-work advocates could be placed in an intolerable position if state law requires it to make its private property available to anyone who wishes to speak. The strong emotions evoked by speech Page 447 U. S. 100 in such situations may virtually compel the proprietor to respond. The pressure to respond is particularly apparent when the owner has taken a position opposed to the view being expressed on his property. But an owner who strongly objects to some of the causes to which the state-imposed right of access would extend may oppose ideological activities "of any sort" that are not related to the purposes for which he has invited the public onto his property. See Abood v. Detroit Board of Education, 431 U. S. 209 , 431 U. S. 213 , 431 U. S. 241 (1977). To require the owner to specify the particular ideas he finds objectionable enough to compel a response would force him to relinquish his "freedom to maintain his own beliefs without public disclosure." Ibid. [ Footnote 3/3 ] Thus, the right to control one's own speech may be burdened impermissibly even when listeners will not assume that the messages expressed on private property are those of the owner. [ Footnote 3/4 ] II One easily can identify other circumstances in which a right of access to commercial property would burden the owner's First and Fourteenth Amendment right to refrain from Page 447 U. S. 101 speaking. But appellants have identified no such circumstance. Nor did appellants introduce evidence that would support a holding in their favor under either of the legal theories outlined above. On the record before us, I cannot say that customers of this vast center would be likely to assume that appellees' limited speech activity expressed the views of the PruneYard or of its owner. The shopping center occupies several city blocks. It contains more than 65 shops, 10 restaurants, and a theater. Interspersed among these establishments are common walkways and plazas designed to attract the public. See ante at 447 U. S. 77 , 447 U. S. 83 . Appellees are high school students who set up their card table in one corner of a central courtyard known as the "Grand Plaza." App. to Juris.Statement B-2. They showed passersby several petitions and solicited signatures. Persons solicited could not reasonably have believed that the petitions embodied the views of the shopping center merely because it owned the ground on which they stood. Appellants have not alleged that they object to the ideas contained in the appellees' petitions. Nor do they assert that some groups who reasonably might be expected to speak at the PruneYard will express views that are so objectionable as to require a response even when listeners will not mistake their source. The record contains no evidence concerning the numbers or types of interest groups that may seek access to this shopping center, and no testimony showing that the appellants strongly disagree with any of them. Because appellants have not shown that the limited right of access held to be afforded by the California Constitution burdened their First and Fourteenth Amendment rights in the circumstances presented, I join the judgment of the Court. I do not interpret our decision today as a blanket approval for state efforts to transform privately owned commercial property into public forums. Any such state action would raise substantial federal constitutional questions not present in this case. [ Footnote 3/1 ] Cf. Lloyd Corp. v. Tanner, 407 U. S. 551 , 407 U. S. 569 (1972) ("property [does not] lose its private character merely because the public is generally invited to use it for designated purposes"). [ Footnote 3/2 ] Even if a person's own speech is not affected by a right of access to his property, a requirement that he lend support to the expression of a third party's views may burden impermissibly the freedoms of association and belief protected by the First and Fourteenth Amendments. In Abood v. Detroit Board of Education, 431 U. S. 209 , 431 U. S. 235 (1977), we held that a State may not require a person "to contribute to the support of an ideological cause he may oppose. . . ." To require a landowner to supply a forum for causes he finds objectionable also might be an unacceptable "compelled subsidization" in some circumstances. Id. at 431 U. S. 237 ; cf. Central Hardware Co. v. NLRB, 407 U. S. 539 , 407 U. S. 543 -545 (1972) ("property rights" may permit exclusion of union organizers); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 , 351 U. S. 112 (1956) (same). See generally Eastex, Inc. v. NLRB, 437 U. S. 556 , 437 U. S. 571 -576 (1978); Hudgens v. NLRB, 424 U. S. 507 , 424 U. S. 521 -522 (1976). The appellants do not argue, however, that Abood supports the claimed right to exclude speakers from their property. Nor have they alleged that they disagree with the messages at issue in this case. See infra at 447 U. S. 101 . [ Footnote 3/3 ] The problem is compounded where, as in shopping centers or in the lobby areas of hotels and office buildings, stores are leased to different proprietors with divergent views. [ Footnote 3/4 ] In a proper case, the property owner also may be protected by the principle that "a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch." Stanley v. Georgia, 394 U. S. 557 , 394 U. S. 565 (1969). Observing that a State has no interest in controlling the moral content of a person's thoughts, ibid., the Court in Stanley invalidated a law imposing criminal penalties for the private possession of obscenity. Stanley prevents a State from removing from the home expressive materials that a person may wish to peruse privately. The same principle may extend to state action that forces individual exposure to third-party messages. Thus, a law that required homeowners to permit speakers to congregate on their front lawns would be a massive, and possibly unconstitutional, intrusion into personal privacy and freedom of belief. No such problem arises in this case.

The case of Pruneyard Shopping Center v. Robins (1980) concerned the right of individuals to exercise free speech and petition rights on private property, specifically in a shopping center. The U.S. Supreme Court upheld the California Supreme Court's decision, which recognized that the California Constitution protects speech and petitioning in shopping centers, even privately owned ones, without infringing on the owner's property rights under the U.S. Constitution. The Court clarified that while private property owners have the right to exclude others under the Fifth and Fourteenth Amendments, this does not restrict a state's authority to permit individuals to exercise their free speech and petition rights on said property. The Court also addressed the potential conflict with the owner's free speech rights, suggesting that while a landowner cannot be compelled to support third-party views, the case at hand did not involve such a scenario, and the owner had not alleged disagreement with the messages being conveyed. This verdict set a precedent for balancing free speech rights with private property rights, establishing that states have the authority to grant individuals broader liberties than those conferred by the Federal Constitution without infringing on constitutional protections.

Property Rights & Land Use

Village of Belle Terre v. Boraas

https://supreme.justia.com/cases/federal/us/416/1/

U.S. Supreme Court Village of Belle Terre v. Boraas, 416 U.S. 1 (1974) Village of Belle Terre v. Boraas No. 73-191 Argued February 19-20, 1974 Decided April 1, 1974 416 U.S. 1 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Syllabus A New York village ordinance restricted land use to one-family dwellings, defining the word "family" to mean one or more persons related by blood, adoption, or marriage, or not more than two unrelated persons, living and cooking together as a single housekeeping unit and expressly excluding from the term lodging, boarding, fraternity, or multiple dwelling houses. After the owners of a house in the village, who had leased it to six unrelated college students, were cited for violating the ordinance, this action was brought to have the ordinance declared unconstitutional as violative of equal protection and the rights of association, travel, and privacy. The District Court held the ordinance constitutional, and the Court of Appeals reversed. Held: 1. Economic and social legislation with respect to which the legislature has drawn lines in the exercise of its discretion will be upheld if it is "reasonable, not arbitrary," and bears "a rational relationship to a [permissible] state objective," Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 , and here the ordinance -- which is not aimed at transients and involves no procedural disparity inflicted on some but not on others or deprivation of any "fundamental" right -- meets that constitutional standard, and must be upheld as valid land use legislation addressed to family needs. Berman v. Parker, 348 U. S. 26 . Pp. 416 U. S. 7 -9. Page 416 U. S. 2 2. The fact that the named tenant appellees have vacated the house does not moot this case, as the challenged ordinance continues to affect the value of the property. Pp. 416 U. S. 9 -10. 476 F.2d 806, reversed. DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., post, p. 416 U. S. 10 , and MARSHALL, J., post, p. 416 U. S. 12 , filed dissenting opinions. MR. JUSTICE DOUGLAS delivered the opinion of the Court. Belle Terre is a village on Long Island's north shore of about 220 homes inhabited by 700 people. Its total land area is less than one square mile. It has restricted land use to one-family dwellings excluding lodging houses, boarding houses, fraternity houses, or multiple-dwelling houses. The word "family," as used in the ordinance means, "[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit, though not related by blood, adoption, or marriage shall be deemed to constitute a family." Appellees, the Dickmans, are owners of a house in the village, and leased it in December, 1971, for a term of 18 months to Michael Truman. Later, Bruce Boraas became a co-lessee. Then Anne Parish moved into the house, along with three others. These six are students at nearby State University at Stony Brook, and none is Page 416 U. S. 3 related to the other by blood, adoption, or marriage. When the village served the Dickmans with an "Order to Remedy Violations" of the ordinance, [ Footnote 1 ] the owners plus three tenants [ Footnote 2 ] thereupon brought this action under 42 U.S.C. § 1983 for an injunction and a judgment declaring the ordinance unconstitutional. The District Court held the ordinance constitutional, 367 F. Supp. 136 , and the Court of Appeals reversed, one judge dissenting, 476 F.2d 806. The case is here by appeal, 28 U.S.C. § 1254(2); and we noted probable jurisdiction, 414 U.S. 907. This case brings to this Court a different phase of local zoning regulations from those we have previously reviewed. Euclid v. Ambler Realty Co., 272 U. S. 365 , involved a zoning ordinance classifying land use in a given area into six categories. The Dickmans' tracts fell under three classifications: U-2, which included two-family dwellings; U-3, which included apartments, hotels, churches, schools, private clubs, hospitals, city hall and the like; and U-6, which included sewage disposal plants, incinerators, scrap storage, cemeteries, oil and gas storage and so on. Heights of buildings were prescribed for each zone; also, the size of land areas required for each kind of use was specified. The land in litigation was vacant and being held for industrial development, and evidence was introduced showing that, under the restricted-use Page 416 U. S. 4 ordinance, the land would be greatly reduced in value. The claim was that the landowner was being deprived of liberty and property without due process within the meaning of the Fourteenth Amendment. The Court sustained the zoning ordinance under the police power of the State, saying that the line, "which in this field separates the legitimate from the illegitimate assumption of power, is not capable of precise delimitation. It varies with circumstances and conditions." Id. at 272 U. S. 387 . And the Court added: "A nuisance may be merely a right thing in the wrong place, -- like a pig in the parlor, instead of the barnyard. If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control." Id. at 272 U. S. 388 . The Court listed as considerations bearing on the constitutionality of zoning ordinances the danger of fire or collapse of buildings, the evils of overcrowding people, and the possibility that "offensive trades, industries, and structures" might "create nuisance" to residential sections. Ibid. But even those historic police power problems need not loom large or actually be existent in a given case. For the exclusion of "all industrial establishments" does not mean that "only offensive or dangerous industries will be excluded." Ibid. That fact does not invalidate the ordinance; the Court held: "The inclusion of a reasonable margin to insure effective enforcement will not put upon a law, otherwise valid, the stamp of invalidity. Such laws may also find their justification in the fact that, in some fields, the bad fades into the good by such insensible degrees that the two are not capable of being readily distinguished and separated in terms of legislation." Id. at 272 U. S. 388 -389. Page 416 U. S. 5 The main thrust of the case in the mind of the Court was in the exclusion of industries and apartments, and, as respects that, it commented on the desire to keep residential areas free of "disturbing noises"; "increased traffic"; the hazard of "moving and parked automobiles"; the "depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities." Id. at 272 U. S. 394 . The ordinance was sanctioned because the validity of the legislative classification was "fairly debatable," and therefore could not be said to be wholly arbitrary. Id. at 272 U. S. 388 . Our decision in Berman v. Parker, 348 U. S. 26 , sustained a land use project in the District of Columbia against a landowner's claim that the taking violated the Due Process Clause and the Just Compensation Clause of the Fifth Amendment. The essence of the argument against the law was, while taking property for ridding an area of slums was permissible, taking it "merely to develop a better balanced, more attractive community" was not, id. at 348 U. S. 31 . We refused to limit the concept of public welfare that may be enhanced by zoning regulations. [ Footnote 3 ] We said: "Miserable and disreputable housing conditions may do more than spread disease and crime and immorality. Page 416 U. S. 6 They may also suffocate the spirit by reducing the people who live there to the status of cattle. They may indeed make living an almost insufferable burden. They may also be an ugly sore, a blight on the community which robs it of charm, which makes it a place from which men turn. The misery of housing may despoil a community as an open sewer may ruin a river." "We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive. . . . The values it represents are spiritual, as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well balanced as well as carefully patrolled." Id. at 348 U. S. 32 -33. If the ordinance segregated one area only for one race, it would immediately be suspect under the reasoning of Buchanan v. Warley, 245 U. S. 60 , where the Court invalidated a city ordinance barring a black from acquiring real property in a white residential area by reason of an 1866 Act of Congress, 14 Stat. 27, now 42 U.S.C. § 1982, and an 1870 Act, § 17, 16 Stat. 144, now 42 U.S.C. § 1981, both enforcing the Fourteenth Amendment. 245 U.S. at 245 U. S. 78 -82. See Jones v. Mayer Co., 392 U. S. 409 . In Seattle Trust Co. v. Roberge, 278 U. S. 116 , Seattle had a zoning ordinance that permitted a " philanthropic home for children or for old people'" in a particular district "'when the written consent shall have been obtained of the owners of two-thirds of the property within four hundred (400) feet of the proposed building.'" Id. at 278 U. S. 118 . The Court held that provision of the ordinance unconstitutional, saying that the existing owners could "withhold consent for selfish reasons or arbitrarily, and Page 416 U. S. 7 may subject the trustee [owner] to their will or caprice." Id. at 278 U. S. 122 . Unlike the billboard cases ( e.g., Cusack Co. v. City of Chicago, 242 U. S. 526 ), the Court concluded that the Seattle ordinance was invalid, since the proposed home for the aged poor was not shown by its maintenance and construction "to work any injury, inconvenience or annoyance to the community, the district or any person." 278 U.S. at 278 U. S. 122 . The present ordinance is challenged on several grounds: that it interferes with a person's right to travel; that it interferes with the right to migrate to and settle within a State; that it bars people who are uncongenial to the present residents; that it expresses the social preferences of the residents for groups that will be congenial to them; that social homogeneity is not a legitimate interest of government; that the restriction of those whom the neighbors do not like trenches on the newcomers' rights of privacy; that it is of no rightful concern to villagers whether the residents are married or unmarried; that the ordinance is antithetical to the Nation's experience, ideology, and self-perception as an open, egalitarian, and integrated society. [ Footnote 4 ] We find none of these reasons in the record before us. It is not aimed at transients. Cf. Shapiro v. Thompson, 394 U. S. 618 . It involves no procedural disparity inflicted on some but not on others, such as was presented by Griffin v. Illinois, 351 U. S. 12 . It involves no "fundamental" right guaranteed by the Constitution, such as voting, Harper v. Virginia Board, 383 U. S. 663 ; the right of association, NAACP v. Alabama, 357 U. S. 449 ; the right of access to the courts, NAACP v. Button, 371 U. S. 415 ; or any rights of privacy, cf. 381 U. S. Connecticut, Page 416 U. S. 8 381 U. S. 479 ; Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 -454. We deal with economic and social legislation, where legislatures have historically drawn lines which we respect against the charge of violation of the Equal Protection Clause if the law be " reasonable, not arbitrary'" (quoting Royster Guano Co. v. Virginia, 253 U. S. 412 , 253 U. S. 415 ), and bears "a rational relationship to a [permissible] state objective." Reed v. Reed, 404 U. S. 71 , 404 U. S. 76 . It is said, however, that, if two unmarried people can constitute a "family," there is no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included. [ Footnote 5 ] That exercise of discretion, however, is a legislative, not a judicial, function. It is said that the Belle Terre ordinance reeks with an animosity to unmarried couples who live together. [ Footnote 6 ] There is no evidence to support it, and the provision of the ordinance bringing within the definition of a "family" two unmarried people belies the charge. Page 416 U. S. 9 The ordinance places no ban on other forms of association, for a "family" may, so far as the ordinance is concerned, entertain whomever it likes. The regimes of boarding houses, fraternity houses, and the like present urban problems. More people occupy a given space; more cars rather continuously pass by; more cars are parked; noise travels with crowds. A quiet place where yards are wide, people few, and motor vehicles restricted are legitimate guidelines in a land use project addressed to family needs. This goal is a permissible one within Berman v. Parker, supra. The police power is not confined to elimination of filth, stench, and unhealthy places. It is ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people. The suggestion that the case may be moot need not detain us. A zoning ordinance usually has an impact on the value of the property which it regulates. But in spite of the fact that the precise impact of the ordinance sustained in Euclid on a given piece of property was not known, 272 U.S. at 272 U. S. 397 , the Court, considering the matter a controversy in the realm of city planning, sustained the ordinance. Here we are a step closer to the impact of the ordinance on the value of the lessor's property. He has not only lost six tenants and acquired only two in their place; it is obvious that the scale of rental values rides on what we decide today. When Berman reached us, it was not certain whether an entire tract would be taken or only the buildings on it and a scenic easement. 348 U.S. at 348 U. S. 36 . But that did not make the case any the less a controversy in the constitutional sense. When Mr. Justice Holmes said for the Court in Block v. Hirsh, 256 U. S. 135 , 256 U. S. 155 , "property rights may be cut down, and to that extent taken, without Page 416 U. S. 10 pay," he stated the issue here. As is true in most zoning cases, the precise impact on value may, at the threshold of litigation over validity, not yet be known. Reversed. [ Footnote 1 ] Younger v. Harris, 401 U. S. 37 , is not involved here, as, on August 2, 1972, when this federal suit was initiated, no state case had been started. The effect of the "Order to Remedy Violations" was to subject the occupants to liability commencing August 3, 1972. During the litigation, the lease expired and it was extended. Anne Parish moved out. Thereafter, the other five students left, and the owners now hold the home out for sale or rent, including to student groups. [ Footnote 2 ] Truman, Boraas, and Parish became appellees but not the other three. [ Footnote 3 ] Vermont has enacted comprehensive state-wide land use controls which direct local boards to develop plans ordering the uses of local land, inter alia, to "create conditions favorable to transportation, health, safety, civic activities and educational and cultural opportunities, [and] reduce the wastes of financial and human resources which result from either excessive congestion or excessive scattering of population. . . ." Vt.Stat.Ann., Tit. 10, § 6042 (1973). Federal legislation has been proposed designed to assist States and localities in developing such broad objective land use guidelines. See Senate Committee on Interior and Insular Affairs, Land Use Policy and Planning Assistance Act, S.Rep. No. 93-197 (1973). [ Footnote 4 ] Many references in the development of this thesis are made to F. Turner, The Frontier in American History (1920), with emphasis on his theory that "democracy [is] born of free land." Id. at 32. [ Footnote 5 ] Mr. Justice Holmes made the point a half century ago. "When a legal distinction is determined, as no one doubts that it may be, between night and day, childhood and maturity, or any other extremes, a point has to be fixed or a line has to be drawn, or gradually picked out by successive decisions, to mark where the change takes place. Looked at by itself, without regard to the necessity behind it, the line or point seems arbitrary. It might as well or nearly as well be a little more to one side or the other. But when it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark." Louisville Gas Co. v. Coleman, 277 U. S. 32 , 277 U. S. 41 (dissenting opinion). [ Footnote 6 ] Department of Agriculture v. Moreno, 413 U. S. 528 , is therefore inapt, as, there, a household containing anyone unrelated to the rest was denied food stamps. MR. JUSTICE BRENNAN, dissenting. The constitutional challenge to the village ordinance is premised solely on alleged infringement of associational and other constitutional rights of tenants. But the named tenant appellees have quit the house, thus raising a serious question whether there now exists a cognizable "case or controversy" that satisfies that indispensable requisite of Art. III of the Constitution. Existence of a case or controversy must, of course, appear at every stage of review, see, e.g., Roe v. Wade, 410 U. S. 113 , 410 U. S. 125 (1973); Steffel v. Thompson, 415 U. S. 452 , 415 U. S. 459 n. 10 (1974). In my view, it does not appear at this stage of this case. Plainly, there is no case or controversy as to the named tenant appellees, since, having moved out, they no longer have an interest, associational, economic or otherwise, to be vindicated by invalidation of the ordinance. Whether there is a cognizable case or controversy must therefore turn on whether the lessor appellees may attack the ordinance on the basis of the constitutional rights of their tenants. The general "weighty" rule of practice is "that a litigant may only assert his own constitutional rights or immunities," United States v. Raines, 362 U. S. 17 , 362 U. S. 22 (1960). A pertinent exception, however, ordinarily limits a litigant to the assertion of the alleged denial of another's constitutional rights to situations in which there is: (1) evidence that as a direct consequence of the denial of constitutional rights of the others, the litigant faces substantial economic injury, Pierce v. Society of Page 416 U. S. 11 Sisters, 268 U. S. 510 , 268 U. S. 535 -536 (1925); Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 255 -256 (1953), or criminal prosecution, Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 481 (1965); Eisenstadt v. Baird, 405 U. S. 438 (1972), and (2) a showing that the litigant's and the others' interests intertwine and, unless the litigant may assert the constitutional rights of the others, those rights cannot effectively be vindicated. Griswold v. Connecticut, supra; Eisenstadt v. Baird, supra; see also NAACP v. Alabama, 357 U. S. 449 (1958). In my view, lessor appellees do not, on the present record, satisfy either requirement of the exception. Their own brief negates any claim that they face economic loss. The brief states that "there is nothing in the record to support the contention that, in a middle class, suburban residential community like Belle Terre, traditional families are willing to pay more or less than students with limited means like the Appellees." Brief for Appellees 54-55. And whether they face criminal prosecution for violations of the ordinance is at least unclear. The criminal summons served on them on July 19, 1972, was withdrawn because not preceded, as required by the village's procedure, by an order requiring discontinuance of violations within 48 hours. An order to discontinue violation was served thereafter on July 31, but was not followed by service of a criminal summons when the violation was not discontinued within 48 hours. * The Court argues that, because a zoning ordinance "has an impact on the value of the property which it regulates," there is a cognizable case or controversy. But Page 416 U. S. 12 even if lessor appellees for that reason have a personal stake, and we were to concede that landlord and tenant interests intertwine in respect of the ordinance, I cannot see, on the present record, how it can be concluded that "it would be difficult, if not impossible," Barrows v. Jackson, supra, at 346 U. S. 257 , for present or prospective unrelated tenant groups of more than two to assert their own rights before the courts, since the departed tenant appellees had no difficulty in doing so. Thus, the second requirement of the exception would not presently appear to be satisfied. Accordingly, it is irrelevant that the house was let, as we are now informed, to other unrelated tenants on a month-to-month basis after the tenant appellees moved out. None of the new tenants has sought to intervene in this suit. Indeed, for all that appears, they too may have moved out and the house may be vacant. I dissent, and would vacate the judgment of the Court of Appeals and remand to the District Court for further proceedings. If the District Court determines that a cognizable case or controversy no longer exists, the complaint should be dismissed. Golden v. Zwickler, 394 U. S. 103 (1969). * In these circumstances, I agree with the Court that no criminal action was "pending" when this suit was brought, and that, therefore, the District Court correctly declined to apply the principles of Younger v. Harris, 401 U. S. 37 (1971). MR. JUSTICE MARSHALL, dissenting. This case draws into question the constitutionality of a zoning ordinance of the incorporated village of Belle Terre, New York, which prohibits groups of more than two unrelated persons, as distinguished from groups consisting of any number of persons related by blood, adoption, or marriage, from occupying a residence within the confines of the township. [ Footnote 2/1 ] Lessor-appellees, the two owners of a Belle Terre residence, and three unrelated student tenants challenged the ordinance on the ground that it establishes a classification between households of Page 416 U. S. 13 related and unrelated individuals, which deprives them of equal protection of the laws. In my view, the disputed classification burdens the students' fundamental rights of association and privacy guaranteed by the First and Fourteenth Amendments. Because the application of strict equal protection scrutiny is therefore required, I am at odds with my Brethren's conclusion that the ordinance may be sustained on a showing that it bears a rational relationship to the accomplishment of legitimate governmental objectives. I am in full agreement with the majority that zoning is a complex and important function of the State. It may indeed be the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life. I therefore continue to adhere to the principle of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926), that deference should be given to governmental judgments concerning proper land use allocation. That deference is a principle which has served this Court well, and which is necessary for the continued development of effective zoning and land use control mechanisms. Had the owners alone brought this suit alleging that the restrictive ordinance deprived them of their property or was an irrational legislative classification, I would agree that the ordinance would have to be sustained. Our role is not and should not be to sit as a zoning board of appeals. I would also agree with the majority that local zoning authorities may properly act in furtherance of the objectives asserted to be served by the ordinance at issue here: restricting uncontrolled growth, solving traffic problems, keeping rental costs at a reasonable level, and making the community attractive to families. The police power which provides the justification for zoning is not narrowly Page 416 U. S. 14 confined. See Berman v. Parker, 348 U. S. 26 (1954). And it is appropriate that we afford zoning authorities considerable latitude in choosing the means by which to implement such purposes. But deference does not mean abdication. This Court has an obligation to ensure that zoning ordinances, even when adopted in furtherance of such legitimate aims, do not infringe upon fundamental constitutional rights. When separate but equal was still accepted constitutional dogma, this Court struck down a racially restrictive zoning ordinance. Buchanan v. Warley, 245 U. S. 60 (1917). I am sure the Court would not be hesitant to invalidate that ordinance today. The lower federal courts have considered procedural aspects of zoning, [ Footnote 2/2 ] and acted to insure that land use controls are not used as means of confining minorities and the poor to the ghettos of our central cities. [ Footnote 2/3 ] These are limited but necessary intrusions on the discretion of zoning authorities. By the same token, I think it clear that the First Amendment provides some limitation on zoning laws. It is inconceivable to me that we would allow the exercise of the zoning power to burden First Amendment freedoms, as by ordinances that restrict occupancy to individuals adhering to particular religious, political, or scientific beliefs. Zoning officials properly concern Page 416 U. S. 15 themselves with the uses of land -- with, for example, the number and kind of dwellings to be constructed in a certain neighborhood or the number of persons who can reside in those dwellings. But zoning authorities cannot validly consider who those persons are, what they believe, or how they choose to live, whether they are Negro or white, Catholic or Jew, Republican or Democrat, married or unmarried. My disagreement with the Court today is based upon my view that the ordinance in this case unnecessarily burdens appellees' First Amendment freedom of association and their constitutionally guaranteed right to privacy. Our decisions establish that the First and Fourteenth Amendments protect the freedom to choose one's associates. NAACP v. Button, 371 U. S. 415 , 371 U. S. 430 (1963). Constitutional protection is extended not only to modes of association that are political in the usual sense, but also to those that pertain to the social and economic benefit of the members. Id. at 371 U. S. 430 -431; Brotherhood of Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964). See United Transportation Union v. State Bar of Michigan, 401 U. S. 576 (1971); Mine Workers v. Illinois State Bar Assn., 389 U. S. 217 (1967). The selection of one's living companions involves similar choices as to the emotional, social, or economic benefits to be derived from alternative living arrangements. The freedom of association is often inextricably entwined with the constitutionally guaranteed right of privacy. The right to "establish a home" is an essential part of the liberty guaranteed by the Fourteenth Amendment. Meer v. Nebraska, 262 U. S. 390 , 262 U. S. 399 (1923); Griswold v. Connecticut, 381 U. S. 479 , 381 U. S. 495 (1965) (Goldberg, J., concurring). And the Constitution secures to an individual a freedom "to satisfy his intellectual and emotional needs in the privacy of his own home." Stanley Page 416 U. S. 16 v. Georgia, 394 U. S. 557 , 394 U. S. 565 (1969); see Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 667 (1973). Constitutionally protected privacy is, in Mr. Justice Brandeis' words, "as against the Government, the right to be let alone . . . the right most valued by civilized man." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 478 (1928) (dissenting opinion). The choice of household companions -- of whether a person's "intellectual and emotional needs" are best met by living with family, friends, professional associates, or others -- involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution. See Roe v. Wade, 410 U. S. 113 , 410 U. S. 153 (1973); Eisenstadt v. Baird, 405 U. S. 438 , 405 U. S. 453 (1972); Stanley v. Georgia, supra, at 394 U. S. 564 -565; Griswold v. Connecticut, supra, at 381 U. S. 483 , 381 U. S. 486 ; Olmstead v. United States, supra at 277 U. S. 478 (Brandeis, J., dissenting); Moreno v. Department of Agriculture, 345 F. Supp. 310 , 315 (DC 1972), aff'd, 413 U. S. 413 U.S. 528 (1973). The instant ordinance discriminates on the basis of just such a personal lifestyle choice as to household companions. It permits any number of persons related by blood or marriage, be it two or twenty, to live in a single household, but it limits to two the number of unrelated persons bound by profession, love, friendship, religious or political affiliation, or mere economics who can occupy a single home. Belle Terre imposes upon those who deviate from the community norm in their choice of living companions significantly greater restrictions than are applied to residential groups who are related by blood or marriage, and compose the established order within the community. [ Footnote 2/4 ] The village has, in Page 416 U. S. 17 effect, acted to fence out those individuals whose choice of lifestyle differs from that of its current residents. [ Footnote 2/5 ] This is not a case where the Court is being asked to nullify a township's sincere efforts to maintain its residential character by preventing the operation of rooming houses, fraternity houses, or other commercial or high-density residential uses. Unquestionably, a town is free to restrict such uses. Moreover, as a general proposition, I see no constitutional infirmity in a town's limiting the density of use in residential areas by zoning regulations which do not discriminate on the basis of constitutionally suspect criteria. [ Footnote 2/6 ] This ordinance, however, limits the density of occupancy of only those homes occupied by unrelated persons. It thus reaches beyond control of the use of land or the density of population and undertakes to regulate the way people choose to associate with each other within the privacy of their own homes. It is no answer to say, as does the majority, that associational interests are not infringed because Belle Terre residents may entertain whomever they choose. Only last Term, MR. JUSTICE DOUGLAS indicated in concurrence that he saw the right of association protected by the First Amendment as involving far more than the right to entertain visitors. He found that right infringed by a restriction on food stamp assistance, penalizing Page 416 U. S. 18 households of "unrelated persons." As MR. JUSTICE DOUGLAS there said, freedom of association encompasses the "right to invite the stranger into one's home" not only for "entertainment," but to join the household as well. Department of Agriculture v. Moreno, 413 U. S. 528 , 413 U. S. 538 -545 (1973) (concurring opinion). I am still persuaded that the choice of those who will form one's household implicates constitutionally protected rights. Because I believe that this zoning ordinance creates a classification which impinges upon fundamental personal rights, it can withstand constitutional scrutiny only upon a clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest, Shapiro v. Thompson, 394 U. S. 618 , 394 U. S. 634 (1969). And, once it be determined that a burden has been placed upon a constitutional right, the onus of demonstrating that no less intrusive means will adequately protect the compelling state interest and that the challenged statute is sufficiently narrowly drawn, is upon the party seeking to justify the burden. See Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); Speiser v. Randall, 357 U. S. 513 , 357 U. S. 525 -526 (1958). A variety of justifications have been proffered in support of the village's ordinance. It is claimed that the ordinance controls population density, prevents noise, traffic and parking problems, and preserves the rent structure of the community and its attractiveness to families. As I noted earlier, these are all legitimate and substantial interests of government. But I think it clear that the means chosen to accomplish these purposes are both overinclusive and underinclusive, and that the asserted goals could be as effectively achieved by means of an ordinance that did not discriminate on the basis of constitutionally protected choices of lifestyle. The ordinance imposes no restriction whatsoever on the number Page 416 U. S. 19 of persons who may live in a house, as long as they are related by marital or sanguinary bonds -- presumably no matter how distant their relationship. Nor does the ordinance restrict the number of income earners who may contribute to rent in such a household, or the number of automobiles that may be maintained by its occupants. In that sense, the ordinance is underinclusive. On the other hand, the statute restricts the number of unrelated persons who may live in a home to no more than two. It would therefore prevent three unrelated people from occupying a dwelling even if among them they had but one income and no vehicles. While an extended family of a dozen or more might live in a small bungalow, three elderly and retired persons could not occupy the large manor house next door. Thus, the statute is also grossly overinclusive to accomplish its intended purposes. There are some 220 residences in Belle Terre, occupied by about 700 persons. The density is therefore just above three per household. The village is justifiably concerned with density of population and the related problems of noise, traffic, and the like. It could deal with those problems by limiting each household to a specified number of adults, two or three perhaps, without limitation on the number of dependent children. [ Footnote 2/7 ] The burden of such an ordinance would fall equally upon all segments of the community. It would surely be better tailored to the goals asserted by the village than the ordinance before us today, for it would more realistically Page 416 U. S. 20 restrict population density and growth and their attendant environmental costs. Various other statutory mechanisms also suggest themselves as solutions to Belle Terre's problems -- rent control, limits on the number of vehicles per household, and so forth, but, of course, such schemes are matters of legislative judgment, and not for this Court. Appellants also refer to the necessity of maintaining the family character of the village. There is not a shred of evidence in the record indicating that, if Belle Terre permitted a limited number of unrelated persons to live together, the residential, familial character of the community would be fundamentally affected. By limiting unrelated households to two persons while placing no limitation on households of related individuals, the village has embarked upon its commendable course in a constitutionally faulty vessel. Cf. Marshall v. United States, 414 U. S. 417 , 414 U. S. 430 (1974) (dissenting opinion). I would find the challenged ordinance unconstitutional. But I would not ask the village to abandon its goal of providing quiet streets, little traffic, and a pleasant and reasonably priced environment in which families might raise their children. Rather, I would commend the village to continue to pursue those purposes, but by means of more carefully drawn and even-handed legislation. I respectfully dissent. [ Footnote 2/1 ] The text of the ordinance is reprinted in part, ante at 416 U. S. 2 . [ Footnote 2/2 ] See Citizens Assn. of Georgetown v. Zoning Comm'n, 155 U.S.App.D.C. 233, 477 F.2d 402 (1973). [ Footnote 2/3 ] See Kennedy Park Homes Assn. v. Lackawanna, 436 F.2d 108 (CA2 1970); Dailey v. City of Lawton, 425 F.2d 1037 (CA10 1970); cf. Gautreau v. City of Chicago, 480 F.2d 210 (CA7 1973); Crow v. Brown, 457 F.2d 788 (CA5 1972); Southern Alameda Spanish Speaking Organization v. Union City, 424 F.2d 291 (CA9 1970). See generally Sager, Tight Little Islands: Exclusionary Zoning, Equal Protection, and the Indigent, 21 Stan.L.Rev. 767 (1969); Note, Exclusionary Zoning and Equal Protection, 84 Harv.L.Rev. 1645 (1971); Note, The Responsibility of Local Zoning Authorities to Nonresident Indigents, 23 Stan.L.Rev. 774 (1971). [ Footnote 2/4 ] "Perhaps in an ideal world, planning and zoning would be done on a regional basis, so that a given community would have apartments, while an adjoining community would not. But as long as we allow zoning to be done community by community, it is intolerable to allow one municipality (or many municipalities) to close its doors at the expense of surrounding communities and the central city." Appeal of Girsh, 437 Pa. 237, 245 n. 4, 263 A.2d 395, 399 n. 4 (1970). [ Footnote 2/5 ] See generally Note, On Privacy: Constitutional Protection for Personal Liberty, 48 N.Y.U.L.Rev. 670, 740-750 (1973). [ Footnote 2/6 ] See Palo Alto Tenants' Union v. Morgan, 487 F.2d 883 (CA9 1973). [ Footnote 2/7 ] By providing an exception for dependent children, the village would avoid any doubts that might otherwise be posed by the constitutional protection afforded the choice of whether to bear a child. See Molino v. Mayor & Council of Glassboro, 116 N.J.Super.195, 281 A.2d 401 (1971); cf. Cleveland Board of Education v. LaFleur, 414 U. S. 632 (1974).

In Village of Belle Terre v. Boraas, the Supreme Court upheld a New York village ordinance that restricted land use to one-family dwellings and defined "family" to exclude groups of more than two unrelated people. The Court found that the ordinance was valid land-use legislation that did not violate equal protection or constitutional rights of association, travel, and privacy. The ordinance was deemed reasonable and rationally related to the legitimate state objective of maintaining the residential, familial character of the community.

Property Rights & Land Use

U.S. v. 50 Acres of Land

https://supreme.justia.com/cases/federal/us/469/24/

U.S. Supreme Court United States v. 50 Acres of Land, 469 U.S. 24 (1984) United States v. 50 Acres of Land No. 83-1170 Argued October 2, 1984 Decided December 4, 1984 469 U.S. 24 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Syllabus In connection with a flood control project, the United States filed proceedings in Federal District Court to condemn approximately 50 acres of land owned by respondent city of Duncanville, Tex., that had been used as a sanitary landfill. The court awarded compensation in the amount of the condemned property's fair market value as determined by the jury, rather than the larger amount fixed by the jury as the reasonable cost to the city of acquiring and developing a substitute facility, which was larger and better than the condemned facility. The court found no basis for departing from the normal market value standard for determining the amount of compensation, but the Court of Appeals reversed and remanded. Held: The Fifth Amendment does not require that the United States pay a public condemnee compensation measured by the cost of acquiring a substitute facility that the condemnee has a duty to acquire, when the market value of the condemned property is ascertainable and when there is no showing of manifest injustice. Pp. 469 U. S. 29 -36. (a) "Just compensation" under the Fifth Amendment normally is to be measured by the market value of the property at the time of the taking, and this case is not one in which an exception is required because fair market value is not ascertainable. The testimony at trial established a fairly robust market for sanitary landfill properties. Nor is an award of compensation measured by market value here fundamentally inconsistent with the basic principles of indemnity embodied in the Just Compensation Clause. Pp. 469 U. S. 29 -31. (b) The text of the Fifth Amendment does not mandate a more favorable rule of compensation for public condemnees than for private parties. The reference to "private property" in the Takings Clause of the Fifth Amendment encompasses the property of state and local governments when it is condemned by the United States, and under this construction the same principles of just compensation presumptively apply to both private and public condemnees. P. 469 U. S. 31 . (c) When the dictum in Brown v. United States, 263 U. S. 78 -- which is the source of the "substitute facilities doctrine" -- is read in the context of the decision in that case, it lends no support to the suggestion that a distinction should be drawn between public and private condemnees. Page 469 U. S. 25 Nor does it shed any light on the proper measure of compensation in this case. Brown merely indicates that it would have been constitutionally permissible for the Federal Government to provide the city with a substitute landfill site instead of compensating it in cash. Pp. 469 U. S. 31 -33. (d) The city's legal obligation to maintain public services that are interrupted by a federal condemnation does not justify a distinction between public and private condemnees for the purpose of measuring "just compensation." The risk that a private condemnee might receive a "windfall" if its compensation were measured by the cost of a substitute facility that was never acquired or was later sold or converted to another use is not avoided by the city's obligation to replace the facility. If the replacement facility is more costly than the condemned facility, it presumably is more valuable, and any increase in the quality of the facility may be as readily characterized as a "windfall" as the award of cash proceeds for a substitute facility that is never built. Moreover, the substitute facilities doctrine, if applied in this case, would diverge from the principle that just compensation must be measured by an objective standard that disregards subjective values which are only of significance to an individual owner. Pp. 469 U. S. 33 -36. 706 F.2d 1356, reversed. STEVENS, J., delivered the opinion for a unanimous Court. O'CONNOR, J., filed a concurring opinion, in which POWELL, J., joined, post,, p. 469 U. S. 37 . JUSTICE STEVENS delivered the opinion of the Court. The Fifth Amendment requires that the United States pay "just compensation" -- normally measured by fair market value [ Footnote 1 ] -- whenever it takes private property for public Page 469 U. S. 26 use. [ Footnote 2 ] This case involves the condemnation of property owned by a municipality. The question is whether a public condemnee is entitled to compensation measured by the cost of acquiring a substitute facility if it has a duty to replace the condemned facility. We hold that this measure of compensation is not required when the market value of the condemned property is ascertainable. I In 1978, as part of a flood control project, the United States condemned approximately 50 acres of land owned by the city of Duncanville, Texas. [ Footnote 3 ] The site had been used since 1969 as a sanitary landfill. In order to replace the condemned landfill, the city acquired a 113.7-acre site and developed it into a larger and better facility. [ Footnote 4 ] In the condemnation proceedings, the city claimed that it was entitled to recover all of the costs incurred in acquiring the substitute site and developing it as a landfill, an amount in excess of $1,276,000. The United States, however, contended that just compensation should be determined by the fair market value of the Page 469 U. S. 27 condemned facility and deposited $199,950 in the registry of the court as its estimation of the amount due. Before trial the Government filed a motion in limine to exclude any evidence of the cost of the substitute facility, arguing that it was not relevant to the calculation of fair market value. Record, Doc. No. 62. The District Court denied the motion, noting that this Court had left open the question of the proper measure of compensation for the condemnation of public property. See United States v. 564.54 Acres of Land, 441 U. S. 506 , 441 U. S. 509 , n. 3 (1979) (Lutheran Synod) . The court concluded that "a complete factual record should be developed from which an independent determination of the appropriate measure of compensation can be made." Record, Doc. No. 111. At trial, both parties submitted evidence on the fair market value of the condemned property [ Footnote 5 ] and on the cost of the substitute landfill facility. [ Footnote 6 ] Responding to special interrogatories, the jury found that the fair market value of the Page 469 U. S. 28 condemned property was $225,000, and that the reasonable cost of a substitute facility was $723,624.01. Record, Doc. Nos.199, 200. The District Court entered judgment for the lower amount plus interest on the difference between that amount and the sum already paid. [ Footnote 7 ] 529 F. Supp. 220 (ND Tex.1981). The District Court explained that the city had not met its "burden of establishing what would be a reasonable cost of a substitute facility." [ Footnote 8 ] In addition, the court was of the view that "substitute facilities compensation should not be awarded in every case where a public condemnee can establish a duty to replace the condemned property, at least where a fair market value can be established." Id. at 222. The court found no basis for departing from the market value standard in this case, and reasoned that the application of the substitute facilities measure of compensation would necessarily provide the city with a "windfall." [ Footnote 9 ] The Court of Appeals reversed and remanded for further proceedings. 706 F.2d 1356 (CA5 1983). It reasoned that the city's loss attributable to the condemnation was "the amount of money reasonably spent . . . to create a functionally equivalent facility." Id. at 1360. If the city was required, either as a matter of law or as a matter of practical Page 469 U. S. 29 necessity, to replace the old landfill facility, the Court of Appeals believed that it would receive no windfall. The court, however, held that the amount of compensation should be adjusted to account for any qualitative differences in the substitute site. Finding that the trial judge's instructions had not adequately informed the jury of its duty to discount the costs of the substitute facility in order to account for its increased capacity and superior quality, see n. 4 supra, the Court of Appeals remanded for a new trial. [ Footnote 10 ] We granted the Government's petition for certiorari, [ Footnote 11 ] 465 U.S. 1098 (1984), and we now reverse with instructions to direct the District Court to enter judgment based on the jury's finding of fair market value. II The Court has repeatedly held that just compensation normally is to be measured by "the market value of the property at the time of the taking contemporaneously paid in money." Olson v. United States, 292 U. S. 246 , 292 U. S. 255 (1934). "Considerations that may not reasonably be held to affect market value are excluded." Id. at 292 U. S. 256 . Deviation from this measure of just compensation has been required only "when market value has been too difficult to find, or when its application would result in manifest injustice to owner or public." United States v. Commodities Trading Corp., 339 U. S. 121 , 339 U. S. 123 (1950); Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 10 , n. 14 (1984). Page 469 U. S. 30 This case is not one in which an exception to the normal measure of just compensation is required because fair market value is not ascertainable. Such cases, for the most part, involve properties that are seldom, if ever, sold in the open market. [ Footnote 12 ] Under those circumstances, "we cannot predict whether the prices previously paid, assuming there have been prior sales, would be repeated in a sale of the condemned property." Lutheran Synod, 441 U.S. at 441 U. S. 513 . In this case, however, the testimony at trial established a fairly robust market for sanitary landfill properties, see n. 5 supra, and the jury's determination of the fair market value of the condemned landfill facility is adequately supported by expert testimony concerning the sale prices of comparable property. Cf. 441 U.S. at 441 U. S. 513 -514. The city contends that in this case an award of compensation measured by market value is fundamentally inconsistent with the basic principles of indemnity embodied in the Just Compensation Clause. If the city were a private party rather than a public entity, however, the possibility that the cost of a substitute facility exceeds the market value of the condemned parcel would not justify a departure from the market value measure. Lutheran Synod, 441 U.S. at 441 U. S. 514 -517. The question -- which we expressly reserved in the Lutheran Synod case [ Footnote 13 ] -- is whether a substitute facilities measure of compensation is mandated by the Constitution [ Footnote 14 ] Page 469 U. S. 31 when the condemnee is a local governmental entity that has a duty to replace the condemned facility. III The text of the Fifth Amendment certainly does not mandate a more favorable rule of compensation for public condemnees than for private parties. To the contrary, the language of the Amendment only refers to compensation for "private property," and one might argue that the Framers intended to provide greater protection for the interests of private parties than for public condemnees. That argument would be supported by the observation that many public condemnees have the power of domain, and thus, unlike private parties, need not rely on the availability of property on the market in acquiring substitute facilities. When the United States condemns a local public facility, the loss to the public entity, to the persons served by it, and to the local taxpayers may be no less acute than the loss in a taking of private property. Therefore, it is most reasonable to construe the reference to "private property" in the Takings Clause of the Fifth Amendment as encompassing the property of state and local governments when it is condemned by the United States. [ Footnote 15 ] Under this construction, the same principles of just compensation presumptively apply to both private and public condemnees. IV The Court of Appeals correctly identified a dictum in Brown v. United States, 263 U. S. 78 (1923), as the source Page 469 U. S. 32 of what has become known as the "substitute facilities doctrine." [ Footnote 16 ] When that passage is read in the context of the Court's decision in that case, it lends no support to the suggestion that a distinction should be drawn between public and private condemnees. Nor does it shed any light on the proper measure of compensation in this case. The facts of the Brown case were, in the Court's word, "peculiar." [ Footnote 17 ] The construction of a reservoir on the Snake River flooded approximately three-quarters of the town of American Falls, Idaho, an area of some 640 acres. To compensate both the public and private owners of the flooded acreage, the Government undertook to relocate most of the town to the other side of the river. The owners of a large tract to be included within the limits of the reconstructed town challenged the Government's power to condemn their property, contending that the transfer of their property to other private persons was not a "public use" as required by the Fifth Amendment. Cf. Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S. 239 -244 (1984). In rejecting that contention, the Court held that the Government's method of compensating the owners of the flooded property was legitimate. Writing for the Court, Chief Justice Taft observed: "The usual and ordinary method of condemnation of the lots in the old town, and of the streets and alleys as town property, would be ill adapted to the exigency. . . . A town is a business center. It is a unit. If three Page 469 U. S. 33 quarters of it is to be destroyed by appropriating it to an exclusive use like a reservoir, all property owners, both those ousted and those in the remaining quarter, as well as the State, whose subordinate agency of government is the municipality, are injured. A method of compensation by substitution would seem to be the best means of making the parties whole. The power of condemnation is necessary to such a substitution. " 263 U.S. at 263 U. S. 82 -83 (emphasis added). Taken in context, the apparent endorsement of compensation by substitution is made in support of the Government's power to condemn the property in Brown and does not state the proper measure of compensation in another case. Lutheran Synod, 441 U.S. at 441 U. S. 509 , n. 3. Brown merely indicates that it would have been constitutionally permissible for the Federal Government to provide the city with a substitute landfill site instead of compensating it in cash. Nothing in Brown implies that the Federal Government has a duty to provide the city with anything more than the fair market value of the condemned property. V In this case, as in most, the market measure of compensation achieves a fair "balance between the public's need and the claimant's loss." United States v. Toronto, Hamilton & Buffalo Navigation Co., 338 U. S. 396 , 338 U. S. 402 (1949). This view is consistent with our holding in Lutheran Synod that fair market value constitutes "just compensation" for those private citizens who must replace their condemned property with more expensive substitutes and with our prior holdings that the Fifth Amendment does not require any award for consequential damages arising from a condemnation. [ Footnote 18 ] Page 469 U. S. 34 The city argues that its responsibility for municipal garbage disposal justifies a departure from the market value measure in this case. This responsibility compelled the city to arrange for a suitable replacement facility or substitute garbage disposal services. [ Footnote 19 ] This obligation to replace a condemned facility, however, is no more compelling than the obligations assumed by private citizens. Even though most private condemnees are not legally obligated to replace property taken by the Government, economic circumstances often force them to do so. When a home is condemned, for example, its owner must find another place to live. The city's legal obligation to maintain public services that are interrupted by a federal condemnation does not justify a distinction between public and private condemnees for the purpose of measuring "just compensation." [ Footnote 20 ] Of course, the decision in Lutheran Synod was based, in part, on a fear that a private condemnee might receive a "windfall" if its compensation were measured by the cost of a substitute facility and "substitute facilities were never acquired, or if acquired, were later sold or converted to another use." 441 U.S. at 441 U. S. 516 . The Court of Appeals suggested that the city's obligation to replace the facility avoids this risk, 706 F.2d at 1360, but we do not agree. If the replacement facility is more costly than the condemned facility, it presumably is more valuable, [ Footnote 21 ] and any increase in the quality Page 469 U. S. 35 of the facility may be as readily characterized as a "windfall" as the award of cash proceeds for a substitute facility that is never built. The Court of Appeals, however, believed that the risk of any windfall could be reduced by discounting the cost of the substitute facility to account for its superior quality. Id. at 1362-1363. This approach would add uncertainty and complexity to the valuation proceeding without any necessary improvement in the process. In order to implement the Court of Appeals' approach, the factfinder would have to make at least two determinations: (i) the reasonable (rather than the actual) replacement cost, which would require an inquiry into the fair market value of the second facility; and (ii) the extent to which the new facility is superior to the old, which would require an analysis of the qualitative differences between the new and the old. It would also be necessary to determine the fair market value of the old property in order to provide a basis for comparison. There is a practical risk that the entire added value will not be calculated correctly; moreover, if it is correctly estimated, the entire process may amount to nothing more than a roundabout method of arriving at the market value of the condemned facility. [ Footnote 22 ] Finally, the substitute facilities doctrine, as applied in this case, diverges from the principle that just compensation must be measured by an objective standard that disregards subjective values which are only of significance to an individual owner. As the Court wrote in Kimball Laundry Co. v. United States, 338 U. S. 1 , 338 U. S. 5 (1949): "The value of property springs from subjective needs and attitudes; its value to the owner may therefore differ widely from its value to the taker. Most things, however, Page 469 U. S. 36 have a general demand which gives them a value transferable from one owner to another. As opposed to such personal and variant standards as value to the particular owner whose property has been taken, this transferable value has an external validity which makes it a fair measure of public obligation to compensate the loss incurred by an owner as a result of the taking of his property for public use. In view, however, of the liability of all property to condemnation for the common good, loss to the owner of nontransferable values deriving from his unique need for property or idiosyncratic attachment to it, like loss due to an exercise of the police power, is properly treated as part of the burden of common citizenship." The subjective elements in the formula for determining the cost of reasonable substitute facilities would enhance the risk of error and prejudice. [ Footnote 23 ] Since the condemnation contest is between the local community and a National Government that may be thought to have unlimited resources, the open-ended character of the substitute facilities standard increases the likelihood that the city would actually derive the windfall that concerned both the District Court and the Court of Appeals. [ Footnote 24 ] "Particularly is this true where these issues are to be left for jury determination, for juries should not be given sophistical and abstruse formulas as the basis for their findings nor be left to apply even sensible formulas to factors that are too elusive." Id. at 338 U. S. 20 . The judgment of the Court of Appeals is reversed. It is so ordered. Page 469 U. S. 37 [ Footnote 1 ] United States v. Miller, 317 U. S. 369 , 317 U. S. 374 (1943) ("what a willing buyer would pay in cash to a willing seller"). [ Footnote 2 ] "[N]or shall private property be taken for public use, without just compensation." U.S.Const., Amdt. 5. [ Footnote 3 ] The United States initiated the condemnation proceedings by filing a declaration of taking under 40 U.S.C. § 258a. Under that procedure the Government deposits the estimated value of the land in the registry of the court. "Title and right to possession thereupon vest immediately in the United States. In subsequent judicial proceedings, the exact value of the land (on the date the declaration of taking was filed) is determined, and the owner is awarded the difference (if any) between the adjudicated value of the land and the amount already received by the owner, plus interest on that difference." Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 5 (1984). [ Footnote 4 ] The new landfill site is larger in acreage than the old facility and because of superior soil and water table conditions it can be excavated to a greater depth. As a result, the capacity of the new facility is 2,100,000 cubic yards while the remaining capacity of the old facility was 650,000 cubic yards. The new facility is expected to remain in service for 41.6 years, or 28.8 years longer than the condemned facility would have remained in service. Tr. 395-397, 399, 402. [ Footnote 5 ] Experts for both the United States and the city agreed that a market for landfill properties existed in the area. A Government witness, for example, testified that there are "private owners of solid waste companies in the market for land for their own solid waste disposal sites. You've got the major corporations in the marketplace securing sites for landfill operations and then you've got all of your City Governments, they're seeking locations to deposit solid waste. And all of these people at one time or another are in the marketplace looking for a site for solid waste disposal." Id. at 297. Based on their evaluation of the recent sale prices of comparable parcels, the experts for the city estimated the value of the condemned facility as between $367,500 and $370,000; experts for the United States estimated its value as between $160,410 and $190,000. Id. at 173, 182, 276, 353. [ Footnote 6 ] The city's Director of Public Works admitted on cross-examination that the city had condemnation powers, but did not use them in acquiring the land for the new facility. Nor did the city bargain over the seller's asking price or have the land appraised prior to the acquisition: "This was the price that he had asked for, what we ended up paying for it." Id. at 93-94. The Government's expert witnesses testified that the city paid considerably more than fair market value for the new land. Id. at 282, 321,357. [ Footnote 7 ] The District Court awarded interest at the statutory rate of six percent, 40 U.S.C. § 258a, because the city had not offered any evidence indicating that a higher rate of interest prevailed. 529 F. Supp. 220 , 223-224 (ND Tex.1981). [ Footnote 8 ] Id. at 221. [ Footnote 9 ] Relying on JUSTICE WHITE's concurring opinion in United States v. 564.54 Acres of Land, 441 U. S. 506 , 441 U. S. 518 (1979) (Lutheran Synod) , the District Court wrote: "When the doctrine of cost of substitute facilities is applied, a windfall necessarily accrues to the condemnee who is awarded an amount sufficient to replace ancient or depleted facilities with brand new facilities. [141 U.S. at 141 U. S. 517 ] (JUSTICE WHITE concurring). See also [United States v.] 564.54 Acres, 576 F.2d 983, 996-1000 (3d Cir.1978) (Judge Stern concurring). By definition, a market value represents approximately what it would cost to purchase the same or similar property in the marketplace." 529 F. Supp. at 222 (emphasis in original). [ Footnote 10 ] "In light of [the remand for a new trial]," the Court of Appeals instructed the District Court to allow the city a second opportunity to present evidence on whether the rate of interest on the condemnation award should exceed the statutory rate of six percent. 706 F.2d at 1364. In view of our disposition of the case, the Court of Appeals' rationale for a new hearing on that issue is no longer valid. [ Footnote 11 ] We denied the petition for certiorari filed by the city challenging the order of a new trial and seeking the entry of judgment on the jury's finding of the cost of the substitute facility. City of Duncanville v. United States, 65 U.S. 1022 (1984). [ Footnote 12 ] "This might be the case, for example, with respect to public facilities such as roads or sewers." Lutheran Synod, 441 U.S. at 441 U. S. 513 . [ Footnote 13 ] "This Court has not passed on the propriety of substitute facilities compensation for public condemnees. . . . In light of our disposition of this case, we express no opinion on the appropriate measure of compensation for publicly owned property." Id. at 441 U. S. 509 , n. 3. [ Footnote 14 ] Congress, of course, has the power to authorize compensation greater than the constitutional minimum. See United States v. General Motors Corp., 323 U. S. 373 , 323 U. S. 382 (1945); see, e.g., Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 84 Stat. 1894, 42 U.S.C. § 4601 et seq. (requiring the payment of relocation assistance to specified persons and businesses displaced as a result of federal and federally assisted programs). [ Footnote 15 ] See United States v. Carmack, 329 U. S. 230 , 329 U. S. 242 (1946): "[W]hen the Federal Government . . . takes for a federal public use the independently held and controlled property of a state or of a local subdivision, the Federal Government recognizes its obligation to pay just compensation for it and it is conceded in this case that the Federal Government must pay just compensation for the land condemned." See also Block v. North Dakota ex rel. Board of University and School Lands, 461 U. S. 273 , 461 U. S. 291 (1983). [ Footnote 16 ] See, e.g., United States v. Certain Property in Borough of Manhattan, 403 F.2d 800, 803 (CA2 1968); United States v. Board of Education of Mineral County, 253 F.2d 760, 763 (CA4 1958). [ Footnote 17 ] "An important town stood in the way of a necessary improvement by the United States. Three-quarters of its streets, alleys and parks and of its buildings, public and private, would have to be abandoned. . . . American Falls is a large settlement for that sparsely settled country and it was many miles from a town of any size in any direction. It was a natural and proper part of the construction of the dam and reservoir to make provision for a substitute town as near as possible to the old one." 263 U.S. at 263 U. S. 81 . [ Footnote 18 ] See United States v. General Motors Corp., 323 U.S. at 323 U. S. 382 ; see generally J. Gelin & D. Miller, Federal Law of Eminent Domain § 2.4(B) (192). [ Footnote 19 ] The Court of Appeals left open the question whether the city was, in fact, under an obligation to replace its landfill facility, 706 F.2d at 1360, n. 6, but for purposes of our decision we assume that it was obligated to do so. [ Footnote 20 ] In holding that the substitute facilities measure of compensation was appropriate in this case, the Court of Appeals did not rely solely on the city's legal obligations to arrange for garbage disposal within the municipality, but also on "any practical, economic or logistical advantages of the city's operation and control of its own sanitary landfill." Ibid. [ Footnote 21 ] "Obviously, replacing the old with a new facility will cost more than the value of the old, but the new facility itself will be more valuable and last longer." Lutheran Synod, 441 U.S. at 441 U. S. 518 (WHITE, J., concurring). [ Footnote 22 ] Indeed, one might infer from the record that this would be the result here. See nn. 1 and | 1 and S. 24fn6|>6, supra. The District Court, in fact, found that an award of fair market value would place the city "in as good a position pecuniarily as if its property had not been taken." 529 F. Supp. at 223. [ Footnote 23 ] Cf. R. Posner, Economic Analysis of Law 402 (2d ed.1977) ("The vogue of cost-benefit analysis has created inflated notions of the effectiveness of analytical techniques in resolving questions of cost and demand"). [ Footnote 24 ] Of course, we express no view on the admissibility of testimony on reproduction cost when it is offered on the issue of fair market value. Cf. United States v. Commodities Trading Corp., 339 U. S. 121 , 339 U. S. 126 (1950). The admissibility of such evidence must be evaluated under the generally applicable rules of evidence. E.g., Fed.Rules Evid. 401-403, 701-705. JUSTICE O'CONNOR, with whom JUSTICE POWELL joins, concurring. I concur in the Court's opinion and judgment that, on the facts of this case, the city of Duncanville is justly compensated by the payment of the market value for the sanitary landfill that was condemned by the Government. I write separately to note that I do not read the Court's opinion to preclude a municipality or other local governmental entity from establishing that payment of market value in a particular case is manifestly unjust and therefore inconsistent with the Just Compensation Clause. See ante at 469 U. S. 29 . When a local governmental entity can prove that the market value of its property deviates significantly from the make-whole remedy intended by the Just Compensation Clause and that a substitute facility must be acquired to continue to provide an essential service, limiting compensation to the fair market value in my view would be manifestly unjust. Because the city of Duncanville did not establish that the market value in this case deviated significantly from the indemnity principle, I agree that the decision of the Court of Appeals should be reversed.

The United States Supreme Court ruled that the government must pay a public condemnee compensation based on the market value of the property at the time of the taking, rather than the cost of acquiring a substitute facility, as long as the market value is ascertainable and there is no manifest injustice. The case centered around the government's condemnation of a sanitary landfill site owned by the city of Duncanville, Texas, for a flood control project. The Court held that the Fifth Amendment's Takings Clause encompasses public property and that the same principles of just compensation apply to both private and public condemnees. The city's legal obligation to replace the landfill facility and the economic advantages of owning its own landfill were not considered sufficient reasons to depart from the normal market value standard for compensation.

Property Rights & Land Use

Hodel v. Irving

https://supreme.justia.com/cases/federal/us/481/704/

U.S. Supreme Court Hodel v. Irving, 481 U.S. 704 (1987) Hodel v. Irving No. 85-637 Argued October 6, 1986 Decided May 18, 1987 481 U.S. 704 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT Syllabus As a means of ameliorating the problem of extreme fractionation of Indian lands that, pursuant to federal statutes dating back to the end of the 19th century, were allotted to individual Indians and held in trust by the United States, and that, through successive generations, had been splintered into multiple undivided interests by descent or devise, Congress enacted § 207 (later amended) of the Indian Land Consolidation Act of 1983. As originally enacted, § 207 provided that no undivided fractional interest in such lands shall descend by intestacy or devise, but, instead, shall escheat to the tribe "if such interest represents 2 percentum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat." No provision for the payment of compensation to the owners of the interests covered by § 207 was made. Appellees are members of the Oglala Sioux Tribe and either are, or represent, heirs or devisees of Tribe members who died while the original terms of § 207 were in effect and who owned fractional interests subject to § 207. Appellees filed suit in Federal District Court, claiming that § 207 resulted in a taking of property without just compensation in violation of the Fifth Amendment. The District Court held that the statute was constitutional, but the Court of Appeals reversed, concluding that appellees' decedents had a right, derived from the original Sioux allotment statute, to control disposition of their property at death, that appellees had standing to invoke such right, and that the taking of the right without compensation to decedents' estates violated the Fifth Amendment. Held: 1. Appellees have standing to challenge § 207, which has deprived them of the fractional interests they otherwise would have inherited. This is sufficient injury-in-fact to satisfy the case-or-controversy requirement of Article III of the Constitution. Moreover, the concerns of the prudential standing doctrine are also satisfied, even though appellees do not assert that their own property rights have been taken unconstitutionally, but rather that their decedents' right to pass the property at death has been taken. For decedent Indians with trust property, federal statutes require the Secretary of the Interior to assume the general Page 481 U. S. 705 role of the executor or administrator of the estate in asserting the decedent's surviving claims. Here, however, the Secretary's responsibilities in that capacity include the administration of the statute that appellees claim is unconstitutional, so that he cannot be expected to assert decedents' rights to the extent that they turn on the statute's constitutionality. Under these circumstances, appellees can appropriately serve as their decedents' representatives for purposes of asserting the latters' Fifth Amendment rights. Pp. 481 U. S. 711 -712. 2. The original version of § 207 effected a "taking" of appellees' decedents' property without just compensation. Determination of the question whether a governmental property regulation amounts to a "taking" requires ad hoc factual inquiries as to such factors as the impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action. Here, the relative impact of § 207 upon appellees' decedents can be substantial. Even assuming, arguendo, that the income generated by the parcels in question may be properly thought of as de minimis, their value may not be. Although appellees' decedents retain full beneficial use of the property during their lifetimes, as well as the right to convey it inter vivos, the right to pass on valuable property to one's heirs is itself a valuable right. However, the extent to which any of appellees' decedents had investment-backed expectations in passing on the property is dubious. Also weighing weakly in favor of the statute is the fact that there is something of an "average reciprocity of advantage," Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 , to the extent that owners of escheatable interests maintain a nexus to the Tribe, and consolidation of lands in the Tribe benefits Tribe members, since consolidated lands are more productive than fractionated lands. But the character of the Government regulation here is extraordinary, since it amounts to virtually the abrogation of the right to pass on property to one's heirs, which right has been part of the Anglo-American legal system since feudal times. Moreover, § 207 effectively abolishes both descent and devise of the property interest even when the passing of the property to the heir might result in consolidation of property -- as, for instance, when the heir already owns another undivided interest in the property -- which is the governmental purpose sought to be advanced. Pp. 481 U. S. 712 -718. 758 F.2d 1260, affirmed. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and SCALIA, JJ., joined. BRENNAN, J., filed a concurring opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 481 U. S. 718 . SCALIA, J., filed a concurring opinion, in which REHNQUIST, C.J., and POWELL, J., joined, post, p. 481 U. S. 719 . Page 481 U. S. 706 STEVENS, J., filed an opinion concurring in the judgment, in which WHITE, J., joined, post, p. 481 U. S. 719 . JUSTICE O'CONNOR delivered the opinion of the Court. The question presented is whether the original version of the "escheat" provision of the Indian Land Consolidation Act of 1983, Pub.L. 97-459, Tit. II, 96 Stat. 2519, effected a "taking" of appellees' decedents' property without just compensation. I Towards the end of the 19th century, Congress enacted a series of land Acts which divided the communal reservations of Indian tribes into individual allotments for Indians and unallotted lands for non-Indian settlement. This legislation seems to have been in part animated by a desire to force Indians to abandon their nomadic ways in order to "speed the Indians' assimilation into American society," Solem v. Bartlett, 465 U. S. 463 , 465 U. S. 466 (1984), and in part a result of pressure to free new lands for further white settlement. Ibid. Two years after the enactment of the General Allotment Act of 1887, ch. 119, 24 Stat. 388, Congress adopted a specific statute authorizing the division of the Great Reservation of the Sioux Nation into separate reservations and the allotment of specific tracts of reservation land to individual Indians, conditioned Page 481 U. S. 707 on the consent of three-fourths of the adult male Sioux. Act of Mar. 2, 1889, ch. 405, 25 Stat. 888. Under the Act, each male Sioux head of household took 320 acres of land, and most other individuals 160 acres. 25 Stat. 890. In order to protect the allottees from the improvident disposition of their lands to white settlers, the Sioux allotment statute provided that the allotted lands were to be held in trust by the United States. Id. at 891. Until 1910, the lands of deceased allottees passed to their heirs "according to the laws of the State or Territory" where the land was located, ibid., and after 1910, allottees were permitted to dispose of their interests by will in accordance with regulations promulgated by the Secretary of the Interior. 36 Stat. 856, 25 U.S.C. § 373. Those regulations generally served to protect Indian ownership of the allotted lands. The policy of allotment of Indian lands quickly proved disastrous for the Indians. Cash generated by land sales to whites was quickly dissipated, and the Indians, rather than farming the land themselves, evolved into petty landlords, leasing their allotted lands to white ranchers and farmers and living off the meager rentals. Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 82-83 (1984). The failure of the allotment program became even clearer as successive generations came to hold the allotted lands. Thus 40-, 80-, and 160-acre parcels became splintered into multiple undivided interests in land, with some parcels having hundreds, and many parcels having dozens, of owners. Because the land was held in trust, and often could not be alienated or partitioned, the fractionation problem grew and grew over time. A 1928 report commissioned by the Congress found the situation administratively unworkable and economically wasteful. L. Meriam, Institute for Government Research, The Page 481 U. S. 708 Problem of Indian Administration 40-41. Good, potentially productive, land was allowed to lie fallow, amidst great poverty, because of the difficulties of managing property held in this manner. Hearings on H.R. 11113 before the Subcommittee on Indian Affairs of the House Committee on Interior and Insular Affairs, 89th Cong., 2d Sess., 10 (1966) (remarks of Rep. Aspinall). In discussing the Indian Reorganization Act of 1934, Representative Howard said: "It is in the case of the inherited allotments, however, that the administrative costs become incredible. . . . On allotted reservations, numerous cases exist where the shares of each individual heir from lease money may be 1 cent a month. Or one heir may own minute fractional shares in 30 or 40 different allotments. The cost of leasing, bookkeeping, and distributing the proceeds in many cases far exceeds the total income. The Indians and the Indian Service personnel are thus trapped in a meaningless system of minute partition in which all thought of the possible use of land to satisfy human needs is lost in a mathematical haze of bookkeeping." 78 Cong.Rec. 11728 (1934). In 1934, in response to arguments such as these, the Congress acknowledged the failure of its policy and ended further allotment of Indian lands. Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984, 25 U.S.C. § 461 et seq. But the end of future allotment by itself could not prevent the further compounding of the existing problem caused by the passage of time. Ownership continued to fragment as succeeding generations came to hold the property, since, in the order of things, each property owner was apt to have more than one heir. In 1960, both the House and the Senate undertook comprehensive studies of the problem. See House Committee on Interior and Insular Affairs, Indian Heirship Land Study, 86th Cong., 2d Sess. (Comm. Print Page 481 U. S. 709 1961); Senate Committee on Interior and Insular Affairs, Indian Heirship Land Survey, 86th Cong., 2d Sess. (Comm. Print 1960-1961). These studies indicated that one-half of the approximately 12 million acres of allotted trust lands were held in fractionated ownership, with over 3 million acres held by more than six heirs to a parcel. Id. at pt. 2, p. x. Further hearings were held in 1966, Hearings on H.R. 11113, supra, but not until the Indian Land Consolidation Act of 1983 did the Congress take action to ameliorate the problem of fractionated ownership of Indian lands. Section 207 of the Indian Land Consolidation Act -- the escheat provision at issue in this case -- provided: "No undivided fractional interest in any tract of trust or restricted land within a tribe's reservation or otherwise subjected to a tribe's jurisdiction shall descedent [ sic ] by intestacy or devise but shall escheat to that tribe if such interest represents 2 percentum or less of the total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat." 96 Stat. 2519. Congress made no provision for the payment of compensation to the owners of the interests covered by § 207. The statute was signed into law on January 12, 1983, and became effective immediately. The three appellees -- Mary Irving, Patrick Pumpkin Seed, and Eileen Bissonette -- are enrolled members of the Oglala Sioux Tribe. They are, or represent, heirs or devisees of members of the Tribe who died in March, April, and June, 1983. Eileen Bissonette's decedent, Mary Poor Bear-Little Hoop Cross, purported to will all her property, including property subject to § 207, to her five minor children in whose name Bissonette claims the property. Chester Irving, Charles Leroy Pumpkin Seed, and Edgar Pumpkin Seed all died intestate. At the time of their deaths, the four decedents Page 481 U. S. 710 owned 41 fractional interests subject to the provisions of § 207. App. 20, 22-28, 32-33, 37-39. The Irving estate lost two interests whose value together was approximately $100; the Bureau of Indian Affairs placed total values of approximately $2,700 on the 26 escheatable interests in the Cross estate and $1,816 on the 13 escheatable interests in the Pumpkin Seed estates. But for § 207, this property would have passed, in the ordinary course, to appellees or those they represent. Appellees filed suit in the United States District Court for the District of South Dakota, claiming that § 207 resulted in a taking of property without just compensation in violation of the Fifth Amendment. The District Court concluded that the statute was constitutional. It held that appellees had no vested interest in the property of the decedents prior to their deaths, and that Congress had plenary authority to abolish the power of testamentary disposition of Indian property, and to alter the rules of intestate succession. App. to Juris. Statement 21a-26a. The Court of Appeals for the Eighth Circuit reversed. Irving v. Clark, 758 F.2d 1260 (1985). Although it agreed that appellees had no vested rights in the decedents' property, it concluded that their decedents had a right, derived from the original Sioux allotment statute, to control disposition of their property at death. The Court of Appeals held that appellees had standing to invoke that right, and that the taking of that right without compensation to decedents' estates violated the Fifth Amendment. [ Footnote 1 ] Page 481 U. S. 711 II The Court of Appeals concluded that appellees have standing to challenge § 207. 758 F.2d at 1267-1268. The Government does not contest this ruling. As the Court of Appeals recognized, however, the existence of a case or controversy is a jurisdictional prerequisite to a federal court's deliberations. Id. at 1267, n. 12. We are satisfied that the necessary case or controversy exists in this case. Section 207 has deprived appellees of the fractional interests they otherwise would have inherited. This is sufficient injury-in-fact to satisfy Article III of the Constitution. See Singleton v. Wulff, 428 U. S. 106 , 428 U. S. 112 (1976). In addition to the constitutional standing requirements, we have recognized prudential standing limitations. As the court below recognized, one of these prudential principles is that the plaintiff generally must assert his own legal rights and interests. 758 F.2d at 1267-1268. That general principle, however, is subject to exceptions. Appellees here do not assert that their own property rights have been taken unconstitutionally, but rather that their decedents' right to pass the property at death has been taken. Nevertheless, we have no difficulty in finding the concerns of the prudential standing doctrine met here. For obvious reasons, it has long been recognized that the surviving claims of a decedent must be pursued by a third party. At common law, a decedent's surviving claims were prosecuted by the executor or administrator of the estate. For Indians with trust property, statutes require the Secretary of the Interior to assume that general role. 25 U.S.C. §§ 371-380. The Secretary's responsibilities in that capacity, however, include the administration of the statute that the appellees claim is unconstitutional, see 25 U.S.C. §§ 2202, 2209, so that he can hardly be expected to assert appellees' decedents' rights to the extent that they turn on that point. Under these circumstances, appellees can appropriately serve as their decedents' representatives for purposes of asserting Page 481 U. S. 712 the latters' Fifth Amendment rights. They are situated to pursue the claims vigorously, since their interest in receiving the property is indissolubly linked to the decedents' right to dispose of it by will or intestacy. A vindication of decedents' rights would ensure that the fractional interests pass to appellees; pressing these rights unsuccessfully would equally guarantee that appellees take nothing. In short, permitting appellees to raise their decedents' claims is merely an extension of the common law's provision for appointment of a decedent's representative. It is therefore a "settled practice of the courts" not open to objection on the ground that it permits a litigant to raise third parties' rights. Tyler v. Judges of Court of Registration, 179 U. S. 405 , 179 U. S. 406 (1900). III The Congress, acting pursuant to its broad authority to regulate the descent and devise of Indian trust lands, Jefferson v. Fink, 247 U. S. 288 , 247 U. S. 294 (1918), enacted § 207 as a means of ameliorating, over time, the problem of extreme fractionation of certain Indian lands. By forbidding the passing on at death of small, undivided interests in Indian lands, Congress hoped that future generations of Indians would be able to make more productive use of the Indians' ancestral lands. We agree with the Government that encouraging the consolidation of Indian lands is a public purpose of high order. The fractionation problem on Indian reservations is extraordinary, and may call for dramatic action to encourage consolidation. The Sisseton-Wahpeton Sioux Tribe, appearing as amicus curiae in support of the Secretary of the Interior, is a quintessential victim of fractionation. Forty-acre tracts on the Sisseton-Wahpeton Lake Traverse Reservation, leasing for about $1,000 annually, are commonly subdivided into hundreds of undivided interests, many of which generate only pennies a year in rent. The average tract has 196 owners, and the average owner undivided interests in 14 tracts. The administrative headache this represents Page 481 U. S. 713 can be fathomed by examining Tract 1305, dubbed "one of the most fractionated parcels of land in the world." Lawson, Heirship: The Indian Amoeba, reprinted in Hearing on S. 2480 and S. 2663 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 85 (1984). Tract 1305 is 40 acres, and produces $1,080 in income annually. It is valued at $8,000. It has 439 owners, one-third of whom receive less than $.05 in annual rent and two-thirds of whom receive less than $1. The largest interest holder receives $82.85 annually. The common denominator used to compute fractional interests in the property is 3,394,923,840,000. The smallest heir receives $.01 every 177 years. If the tract were sold (assuming the 439 owners could agree) for its estimated $8,000 value, he would be entitled to $.000418. The administrative costs of handling this tract are estimated by the Bureau of Indian Affairs at $17,560 annually. Id. at 86, 87. See also Comment, Too Little Land, Too Many Heirs -- The Indian Heirship Land Problem, 46 Wash.L.Rev. 709, 711-713 (1971). This Court has held that the Government has considerable latitude in regulating property rights in ways that may adversely affect the owners. See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S. 491 -492 (1987); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 125 -127 (1978); Goldblatt v. Hempstead, 369 U. S. 590 , 369 U. S. 592 -593 (1962). The framework for examining the question whether a regulation of property amounts to a taking requiring just compensation is firmly established, and has been regularly and recently reaffirmed. See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, supra, at 480 U. S. 485 ; Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 467 U. S. 1004 -1005 (1984); Hodel v. Virginia Surface Mining and Reclamation Assn., Inc., 452 U. S. 264 , 452 U. S. 295 (1981); Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 -261 (1980); Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 174 -175 (1979); Penn Central Transportation Co. Page 481 U. S. 714 v. New York City, supra, at 438 U. S. 124 . As THE CHIEF JUSTICE has written: "[T]his Court has generally" "been unable to develop any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." "[ Penn Central Transportation Co. v. New York City, 438 U.S.] at 438 U. S. 124 . Rather, it has examined the 'taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors -- such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action -- that have particular significance. Ibid. " Kaiser-Aetna v. United States, supra, at 444 U. S. 175 . There is no question that the relative economic impact of § 207 upon the owners of these property rights can be substantial. Section 207 provides for the escheat of small undivided property interests that are unproductive during the year preceding the owner's death. Even if we accept the Government's assertion that the income generated by such parcels may be properly thought of as de minimis, their value may not be. While the Irving estate lost two interests whose value together was only approximately $100, the Bureau of Indian Affairs placed total values of approximately $2,700 and $1,816 on the escheatable interests in the Cross and Pumpkin Seed estates. See App. 20, 21-28, 29-39. These are not trivial sums. There are suggestions in the legislative history regarding the 1984 amendments to § 207 that the failure to "look back" more than one year at the income generated by the property had caused the escheat of potentially valuable timber and mineral interests. S.Rep. No. 98-632, p. 12 (1984); Hearing on H.J.Res. 158 before the Senate Select Committee on Indian Affairs, 98th Cong., 2d Sess., 20, 26, 32, 75 (1984); Amendments to the Indian Page 481 U. S. 715 Land Consolidation Act: Hearing on H.J.Res. 158 before the Senate Select Committee on Indian Affairs, 98th Cong., 1st Sess., 8, 29 (1983). Of course, the whole of appellees' decedents' property interests were not taken by § 207. Appellees' decedents retained full beneficial use of the property during their lifetimes, as well as the right to convey it inter vivos. There is no question, however, that the right to pass on valuable property to one's heirs is itself a valuable right. Depending on the age of the owner, much or most of the value of the parcel may inhere in this "remainder" interest. See 26 CFR § 20.2031-7(f) (Table A) (1986) (value of remainder interest when life tenant is age 65 is approximately 32% of the whole). The extent to which any of appellees' decedents had "investment-backed expectations" in passing on the property is dubious. Though it is conceivable that some of these interests were purchased with the expectation that the owners might pass on the remainder to their heirs at death, the property has been held in trust for the Indians for 100 years, and is overwhelmingly acquired by gift, descent, or devise. Because of the highly fractionated ownership, the property is generally held for lease, rather than improved and used by the owners. None of the appellees here can point to any specific investment-backed expectations beyond the fact that their ancestors agreed to accept allotment only after ceding to the United States large parts of the original Great Sioux Reservation. Also weighing weakly in favor of the statute is the fact that there is something of an "average reciprocity of advantage," Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 (1922), to the extent that owners of escheatable interests maintain a nexus to the Tribe. Consolidation of Indian lands in the Tribe benefits the members of the Tribe. All members do not own escheatable interests, nor do all owners belong to the Tribe. Nevertheless, there is substantial overlap between the two groups. The owners of escheatable interests Page 481 U. S. 716 often benefit from the escheat of others' fractional interests. Moreover, the whole benefit gained is greater than the sum of the burdens imposed, since consolidated lands are more productive than fractionated lands. If we were to stop our analysis at this point, we might well find § 207 constitutional. But the character of the Government regulation here is extraordinary. In Kaiser Aetna v. United States, 444 U.S. at 444 U. S. 176 , we emphasized that the regulation destroyed "one of the most essential sticks in the bundle of rights that are commonly characterized as property -- the right to exclude others." Similarly, the regulation here amounts to virtually the abrogation of the right to pass on a certain type of property -- the small undivided interest -- to one's heirs. In one form or another, the right to pass on property -- to one's family in particular -- has been part of the Anglo-American legal system since feudal times. See United States v. Perkins, 163 U. S. 625 , 163 U. S. 627 -628 (1896). The fact that it may be possible for the owners of these interests to effectively control disposition upon death through complex inter vivos transactions such as revocable trusts is simply not an adequate substitute for the rights taken, given the nature of the property. Even the United States concedes that total abrogation of the right to pass property is unprecedented, and likely unconstitutional. Tr. of Oral Arg. 12-14. Moreover, this statute effectively abolishes both descent and devise of these property interests even when the passing of the property to the heir might result in consolidation of property -- as for instance when the heir already owns another undivided interest in the property. [ Footnote 2 ] Cf. 25 U.S.C. Page 481 U. S. 717 § 2206(b) (1982 ed., Supp. III). Since the escheatable interests are not, as the United States argues, necessarily de minimis, nor, as it also argues, does the availability of inter vivos transfer obviate the need for descent and devise, a total abrogation of these rights cannot be upheld. But cf. Andrus v. Allard, 444 U. S. 51 (1979) (upholding abrogation of the right to sell endangered eagles' parts as necessary to environmental protection regulatory scheme). In holding that complete abolition of both the descent and devise of a particular class of property may be a taking, we reaffirm the continuing vitality of the long line of cases recognizing the States', and where appropriate, the United States', broad authority to adjust the rules governing the descent and devise of property without implicating the guarantees of the Just Compensation Clause. See, e.g., Irving Trust Co. v. Day, 314 U. S. 556 , 314 U. S. 562 (1942); Jefferson v. Fink, 247 U.S. at 247 U. S. 294 . The difference in this case is the fact that both descent and devise are completely abolished; Page 481 U. S. 718 indeed they are abolished even in circumstances when the governmental purpose sought to be advanced, consolidation of ownership of Indian lands, does not conflict with the further descent of the property. There is little doubt that the extreme fractionation of Indian lands is a serious public problem. It may well be appropriate for the United States to ameliorate fractionation by means of regulating the descent and devise of Indian lands. Surely it is permissible for the United States to prevent the owners of such interests from further subdividing them among future heirs on pain of escheat. See Texaco, Inc. v. Short, 454 U. S. 516 , 454 U. S. 542 (1982) (BRENNAN, J., dissenting). It may be appropriate to minimize further compounding of the problem by abolishing the descent of such interests by rules of intestacy, thereby forcing the owners to formally designate an heir to prevent escheat to the Tribe. What is certainly not appropriate is to take the extraordinary step of abolishing both descent and devise of these property interests even when the passing of the property to the heir might result in consolidation of property. Accordingly, we find that this regulation, in the words of Justice Holmes, "goes too far." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 415 . The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] The Court of Appeals, without explanation, went on to "declare" that not only the original version of § 207, but also the amended version not before it, 25 U.S.C. § 2206 (1982 ed., Supp. III), unconstitutionally took property without compensation. Since none of the property which escheated in this case did so pursuant to the amended version of the statute, this "declaration" is, at best, dicta. We express no opinion on the constitutionality of § 207 as amended. [ Footnote 2 ] JUSTICE STEVENS argues that weighing in the balance the fact that § 207 takes the right to pass property even when descent or devise results in consolidation of Indian lands amounts to an unprecedented importation of overbreadth analysis into our Fifth Amendment jurisprudence. Post at 481 U. S. 724 -726. The basis for this argument is his assertion that none of appellees' decedents actually attempted to pass the property in a way that might have resulted in consolidation. But the fact of the matter remains that, before § 207 was enacted, appellees' decedents had the power to pass on their property at death to those who already owned an interest in the subject property. This right too was abrogated by § 207; each of the appellees' decedents lost this stick in their bundles of property rights upon the enactment of § 207. It is entirely proper to note the extent of the rights taken from appellees' decedents in assessing whether the statute passes constitutional muster under the Penn Central balancing test. This is neither overbreadth analysis nor novel. See, e.g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S. 493 -502 (1987) (discussing, in general terms, the extent of the abrogation of coal extraction rights caused by the Subsidence Act); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 136 -137 (1978) (discussing extent to which air rights abrogated by the designation of Grand Central Station as a landmark, noting that not all new construction prohibited, and noting the availability of transferable development rights). JUSTICE STEVENS' objections are perhaps better directed at the question whether there is third-party standing to challenge this statute under the Fifth Amendment's Just Compensation Clause. But as we have shown, there is certainly no Article III bar to permitting appellees to raise their decedents' claims, supra, at 481 U. S. 711 , and JUSTICE STEVENS himself concedes that prudential considerations do not bar consideration of the Fifth Amendment claim. Post at 481 U. S. 724 . JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring. I find nothing in today's opinion that would limit Andrus v. Allard, 444 U. S. 51 (1979), to its facts. Indeed, largely for reasons discussed by the Court of Appeals, I am of the view that the unique negotiations giving rise to the property rights and expectations at issue here make this case the unusual one. See Irving v. Clark, 758 F.2d 1260, 1266-1269, and n. 10 (CA8 1985). Accordingly, I join the opinion of the Court. Page 481 U. S. 719 JUSTICE SCALIA, with whom THE CHIEF JUSTICE and JUSTICE POWELL join, concurring. I join the opinion of the Court. I write separately to note that, in my view, the present statute, insofar as concerns the balance between rights taken and rights left untouched, is indistinguishable from the statute that was at issue in Andrus v. Allard, 444 U. S. 51 (1979). Because that comparison is determinative of whether there has been a taking, see Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 136 (1978); Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 413 (1922), in finding a taking today, our decision effectively limits Allard to its facts. JUSTICE STEVENS, with whom JUSTICE WHITE joins, concurring in the judgment. The Government has a legitimate interest in eliminating Indians' fractional holdings of real property. Legislating in pursuit of this interest, the Government might constitutionally have consolidated the fractional land interests affected by § 207 of the Indian Land Consolidation Act of 1983, 96 Stat. 2519, 25 U.S.C. § 2206 (1982 ed., Supp. III), in three ways: It might have purchased them; it might have condemned them for a public purpose and paid just compensation to their owners; or it might have left them untouched, while conditioning their descent by intestacy or devise upon their consolidation by voluntary conveyances within a reasonable period of time. Since Congress plainly did not authorize either purchase or condemnation and the payment of just compensation, the statute is valid only if Congress, in § 207, authorized the third alternative. In my opinion, therefore, the principal question in this case is whether § 207 represents a lawful exercise of the sovereign's prerogative to condition the retention of fee simple or other ownership interests upon the performance of a modest statutory duty within a reasonable period of time. Page 481 U. S. 720 I The Court's opinion persuasively demonstrates that the Government has a strong interest in solving the problem of fractionated land holdings among Indians. It also indicates that the specific escheat provision at issue in this case was one of a long series of congressional efforts to address this problem. The Court's examination of the legislative history, however, is incomplete. An examination of the circumstances surrounding Congress' enactment of § 207 discloses the abruptness and lack of explanation with which Congress added the escheat section to the other provisions of the Indian Land Consolidation Act that it enacted in 1983. See ante at 481 U. S. 708 -709. In 1982, the Senate passed a special bill for the purpose of authorizing the Devils Lake Sioux Tribe of North Dakota to adopt a land consolidation program with the approval of the Secretary of the Interior. [ Footnote 2/1 ] That bill provided that the Tribe would compensate individual owners for any fractional interest that might be acquired; the bill did not contain any provision for escheat. [ Footnote 2/2 ] When the Senate bill was considered by the House Committee on Indian Affairs, the Committee expanded the coverage of the legislation to authorize any Indian tribe to adopt a land consolidation program with the approval of the Secretary, and it also added § 207 -- the escheat provision at issue in this case -- to the bill. H.R.Rep. No. 97-908, pp. 5, 9 Page 481 U. S. 721 (1982). [ Footnote 2/3 ] The Report on the House Amendments does not specifically discuss § 207. In its general explanation of how Indian trust or restricted lands pass out of Indian ownership, resulting in a need for statutory authorization to tribes to enact laws to prevent the erosion of Indian land ownership, the Report unqualifiedly stated that, "if an Indian allottee dies intestate, his heirs will inherit his property, whether they are Indian or non-Indian." Id. at 11. The House returned the amended bill to the Senate, which accepted the House addition without hearings and without any floor discussion of § 207. 128 Cong.Rec. 32466-32468 (1982). Section 207 provided: "No undivided fractional interest in any tract of trust or restricted land within a tribe's reservation or otherwise subjected to a tribe's jurisdiction shall [descend [ Footnote 2/4 ]] by intestacy or devise but shall escheat to that tribe if such interest represents 2 percentum or less of the Page 481 U. S. 722 total acreage in such tract and has earned to its owner less than $100 in the preceding year before it is due to escheat." In the text of the Act, Congress took pains to specify that fractional interests acquired by a tribe pursuant to an approved plan must be purchased at a fair price. See §§ 204, 205, and 206. There is no comparable provision in § 207. The text of the Act also does not explain why Congress omitted a grace period for consolidation of the fractional interests that were to escheat to the tribe pursuant to that section. The statute was signed into law on January 12, 1983, and became effective immediately. On March 2, the Bureau of Indian Affairs of the Department of the Interior issued a memorandum to all its area directors to advise them of the enactment of § 207 and to provide them with interim instructions pending the promulgation of formal regulations. The memorandum explained: "Section 207 effects a major change in testate and intestate heirship succession for certain undivided fractional interests in trust and restricted Indian land. Under this section, certain interests in land, as explained below, will no longer be capable of descending by intestate succession or being devised by will. Such property interests will, upon the death of the current owner, escheat to the tribe. . . ." " * * * *" "Because Section 207 of P. L. 97-459 constitutes a major change in Indian heirship succession, Area Offices and Agencies are urged to provide all Indian landowners under their jurisdiction with notice of its effects. [ Footnote 2/5 ]" The memorandum then explained how Indian landowners who wanted their heirs or devisees, rather than the tribe, to Page 481 U. S. 723 acquire their fractional interests could avoid the impact of § 207. It outlined three ways by which the owner of a fractional interest of less than two percent of a tract could enlarge that interest to more than two percent. [ Footnote 2/6 ] The three appellees -- Mary Irving, Patrick Pumpkin Seed, and Eileen Bissonette -- are enrolled members of the Oglala Sioux Tribe. They represent heirs or devisees of members of the Tribe who died in March, April, and June, 1983. [ Footnote 2/7 ] At the time of their deaths, the decedents owned 41 fractional interests subject to the provisions of § 207. App. 20, 22-28, 32-33, 37-39. The size and value of those interests varied widely -- the smallest was a l/3645 interest in a 320-acre tract, having an estimated value of only $12.30, whereas the largest was the equivalent of 3 1/2 acres valued at $284.44. Id. at 22 and 23. If § 207 is valid, all of those interests escheated to the Tribe; if § 207 had not been enacted -- or if it is invalid -- the interests would have passed to appellees. Page 481 U. S. 724 II I agree with the Court's explanation of why these appellees "can appropriately serve as their decedents' representatives for purposes of asserting the latters' Fifth Amendment rights." Ante at 481 U. S. 711 -712. But the reason the Court asserts for finding that § 207 effects a taking is not one that appellees press, or could press, on behalf of their decedents. A substantial gap separates the claims that the Court allows these appellees to advance from the rationale that the Court ultimately finds persuasive. The Court's grant of relief to appellees based on the rights of hypothetical decedents therefore necessarily rests on the implicit adoption of an overbreadth analysis that has heretofore been restricted to the First Amendment area. The Court uses the language of takings jurisprudence to express its conclusion that § 207 violates the Fifth Amendment, but the stated reason is that § 207 "goes too far," see ante at 481 U. S. 718 , because it might interfere with testamentary dispositions, or inheritances, that result in the consolidation of property interests, rather than their increased fractionation. [ Footnote 2/8 ] That reasoning may apply to some decedents, but it does not apply to these litigants' decedents. In one case, the property of Mary Poor Bear-Little Hoop Cross was divided among her five children. In two other cases, the fractional interests passed to the next generation. [ Footnote 2/9 ] I had thought it well-settled Page 481 U. S. 725 by our precedents that "one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional." United States v. Raines, 362 U. S. 17 , 362 U. S. 21 (1960) (citing cases). This rule rests on the wisdom that the "delicate power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference to hypothetical cases thus imagined." Id. at 362 U. S. 22 . [ Footnote 2/10 ] In order to Page 481 U. S. 726 review the judgment of the Court of Appeals granting relief to these litigants, an analysis different from the Court's novel overbreadth approach is required. III The Secretary argues that special features of this legislation make it a reasonable exercise of Congress' power to regulate Indian property interests. The Secretary does not suggest that it is generally permissible to modify the individual's presently recognized right to dispose of his property at death without giving him a reasonable opportunity to make inter vivos dispositions that will avoid the consequences of a newly enacted change in the laws of intestacy and testamentary disposition. The Secretary does not even contend that this power is unlimited as applied to the property of Indians. Rather, the Secretary contends that § 207 falls within the permissible boundaries of legislation that may operate to limit or extinguish property rights. The Secretary places great emphasis on the minimal value of the property interests affected by § 207, the legitimacy of the governmental purpose in consolidating such interests, and the fact that the tribe, rather than the United States, is the beneficiary of the so-called "escheat." These points, considered in turn and as a whole, provide absolutely no basis for reversing the judgment of the Court of Appeals. The value of a property interest does not provide a yardstick for measuring "the scope of the dual constitutional guarantees that there be no taking of property without just compensation, and no deprivation of property without the due process of law." Texaco, Inc. v. Short, 454 U. S. 516 , 454 U. S. 540 -541 (1982) (BRENNAN, J., dissenting). The sovereign has no license to take private property without paying for it and without providing its owner with any opportunity to avoid or mitigate the consequences of the deprivation simply because the property is relatively inexpensive. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 458 U. S. 436 -437, Page 481 U. S. 727 and 458 U. S. 438 , n. 16 (1982). The Fifth Amendment draws no distinction between grand larceny and.petty larceny. The legitimacy of the governmental purposes served by § 207 demonstrates that the statute is not arbitrary, see Delaware Tribal Business Committee v. Weeks, 430 U. S. 73 (1977), and that the alleged "taking" is for a valid "public use" within the meaning of the Fifth Amendment. Those facts, however, do not excuse or mitigate whatever obligation to pay just compensation arises when an otherwise constitutional enactment effects a taking of property. Nor does it lessen the importance of giving a property owner fair notice of a major change in the rules governing the disposition of his property. The fact that § 207 provides for an "escheat" to the tribe, rather than to the United States, does not change the unwarned impact of the statute on an individual Indian who wants to leave his property to his children. The statute takes the disposition of decedent's fractional land interests out of the control of the decedent's will or the laws of intestate succession; whether the United States or the tribe retains the property, the landowner's loss is the same. The designation of the tribe as beneficiary is an essential feature, however, in two respects. Since the tribe is the beneficiary, its own interests conflict with its duty to bring the workings of the statute to the attention of the property owner. In addition, the designation of the tribe as beneficiary highlights the inappropriateness of the majority's takings analysis. The use of the term "escheat" in § 207 differs in a substantial way from the more familiar uses of that term. At common law the property of a person who died intestate and without lawful heirs would escheat to the sovereign; thus the doctrine provided a mechanism for determining ownership of what otherwise would have remained abandoned property. In contrast, under § 207, the statutory escheat supersedes the rights of claimants who would otherwise inherit the property; it allocates property between two contending parties. Page 481 U. S. 728 Section 207 differs from more conventional escheats in another important way. It contains no provisions assuring that the property owner was given a fair opportunity to make suitable arrangements to avoid the operation of the statute. Legislation authorizing the escheat of unclaimed property, such as real estate, bank accounts, and other earmarked funds, typically provides, as a condition precedent to the escheat, an appropriate lapse of time and the provision of adequate notice to make sure that the property may fairly be treated as abandoned. [ Footnote 2/11 ] Similarly, interpleader proceedings in District Court provide procedural safeguards, including an opportunity to appear, for those whose rights will be affected by the judgment. See 28 U.S.C. § 1335; Fed.Rule Civ.Proc. 22. The statute before us, in contrast, contained no such mechanism, apparently relying on the possibility that appellees' decedents would simply learn about the statute's consequences one way or another. While § 207 therefore does not qualify as an escheat of the kind recognized at common law, it might be regarded as a statute imposing a duty on the owner of highly fractionated interests in allotted lands to consolidate his interests with Page 481 U. S. 729 those of other owners of similar interests. The method of enforcing such a duty is to treat its nonperformance during the owner's lifetime as an abandonment of the fractional interests. This release of dominion over the property might justify its escheat to the use of the sovereign. Long ago, our cases made it clear that a State may treat real property as having been abandoned if the owner fails to take certain affirmative steps to protect his ownership interest. We relied on these cases in upholding Indiana's Mineral Lapse Act, a statute that extinguished an interest in coal, oil, or other minerals that had not been used for 20 years: "These decisions clearly establish that the State of Indiana has the power to enact the kind of legislation at issue. In each case, the Court upheld the power of the State to condition the retention of a property right upon the performance of an act within a limited period of time. In each instance, as a result of the failure of the property owner to perform the statutory condition, an interest in fee was deemed as a matter of law to be abandoned, and to lapse." Texaco, Inc. v. Short, 454 U.S. at 454 U. S. 529 . It is clear, however, that a statute providing for the lapse, escheat, or abandonment of private property cannot impose conditions on continued ownership that are unreasonable, either because they cost too much or because the statute does not allow property owners a reasonable opportunity to perform them, and thereby to avoid the loss of their property. In the Texaco case, both conditions were satisfied: The conditions imposed by the Indiana Legislature were easily met, [ Footnote 2/12 ] Page 481 U. S. 730 and the 2-year grace period included in the statute foreclosed any argument that mineral owners did not have an adequate opportunity to familiarize themselves with the terms of the legislation and to comply with its provisions before their mineral interests were extinguished. As the Court recognized in United States v. Locke, 471 U. S. 84 , 471 U. S. 106 , n. 15 (1985), "[l]egislatures can enact substantive rules of law that treat property as forfeited under conditions that the common law would not consider sufficient to indicate abandonment." These rules, however, are only reasonable if they afford sufficient notice to the property owners and a reasonable opportunity to comply. Ibid. The Due Process Clause of the Fifth Amendment thus applies to § 207's determination of which acts and omissions may validly constitute an abandonment, just as the Takings Clause applies to whether the statutory escheat of property must be accompanied by the payment of just compensation. [ Footnote 2/13 ] It follows, I believe, that § 207 deprived decedents of due process of law by failing to provide an adequate "grace period" in which they could arrange for the consolidation of fractional interests in order to avoid abandonment. Because the statutory presumption of abandonment is invalid under the precise facts of this case, I do not reach the ground relied upon by the Court of Appeals -- that the resulting escheat of Page 481 U. S. 731 abandoned property would effect a taking of private property for public use without just compensation. [ Footnote 2/14 ] Critical to our decision in Texaco was the fact that an owner could readily avoid the risk of abandonment in a variety of ways, [ Footnote 2/15 ] and the further fact that the statute afforded the affected property owners a reasonable opportunity to familiarize themselves with its terms and to comply with its provisions. We explained: "The first question raised is simply how a legislature must go about advising its citizens of actions that must be taken to avoid a valid rule of law that a mineral interest that has not been used for 20 years will be deemed to be abandoned. The answer to this question is no different from that posed for any legislative enactment affecting substantial rights. Generally, a legislature need do nothing more than enact and publish the law, and afford the citizenry a reasonable opportunity to familiarize itself with its terms and to comply. In this case, the 2-year grace period included in the Indiana statute forecloses any argument that the statute is invalid because mineral owners may not have had an opportunity to become familiar with its terms. It is well established that persons owning property within a State are charged with knowledge of relevant statutory provisions affecting the Page 481 U. S. 732 control or disposition of such property." 454 U.S. at 454 U. S. 531 -532. [ Footnote 2/16 ] Assuredly, Congress has ample power to require the owners of fractional interests in allotted lands to consolidate their holdings during their lifetimes or to face the risk that their interests will be deemed to have been abandoned. But no such abandonment may occur unless the owners have a fair opportunity to avoid that consequence. In this case, it is palpably clear that they were denied such an opportunity. This statute became effective the day it was signed into law. It took almost two months for the Bureau of Indian Affairs to distribute an interim memorandum advising its area directors of the major change in Indian heirship succession effected by § 207. Although that memorandum identified three ways in which Indian landowners could avoid the consequences of § 207, it is not reasonable to assume that appellees' decedents -- who died on March 18, March 23, April 2, and June 23, 1983 -- had anything approaching a reasonable Page 481 U. S. 733 opportunity to arrange for the consolidation of their respective fractional interests with those of other owners. [ Footnote 2/17 ] With respect to these appellees' decedents, "the time allowed is manifestly so insufficient that the statute becomes a denial of justice." Wilson v. Iseminger, 185 U. S. 55 , 185 U. S. 63 (1902). [ Footnote 2/18 ] While citizens "are presumptively charged with knowledge of the law," Atkins v. Parker, 472 U. S. 115 , 472 U. S. 130 (1985), that presumption may not apply when "the statute does not allow a sufficient 'grace period' to provide the persons affected by a change in the law with an adequate opportunity to become familiar with their obligations under it." Ibid. (citing Texaco, Inc., 454 U.S. at 454 U. S. 532 ). Unlike the food stamp recipients in Parker, who received a grace period of over 90 days and individual notice of the substance of the new law, 472 U.S. at 472 U. S. 130 -131, the Indians affected by § 207 did not receive a reasonable grace period. Nothing in the record suggests that appellees' decedents received an adequate opportunity to put their affairs in order. [ Footnote 2/19 ] Page 481 U. S. 734 The conclusion that Congress has failed to provide appellees' decedents with a reasonable opportunity for compliance implies no rejection of Congress' plenary authority over the affairs and the property of Indians. The Constitution vests Congress with plenary power "to deal with the special problems of Indians." Morton v. Mancari, 417 U. S. 535 , 417 U. S. 551 (1974). As the Secretary acknowledges, however, the Government's plenary power over the property of Indians "is subject to constitutional limitations." Brief for Appellant 24-25. The Due Process Clause of the Fifth Amendment required Congress to afford reasonable notice and opportunity for compliance to Indians that § 207 would prevent fractional interests in land from descending by intestate or testate succession. [ Footnote 2/20 ] In omitting any opportunity at all for owners of fractional interests to order their affairs in light of § 207, Congress has failed to afford the affected Indians the due process of law required by the Fifth Amendment. Accordingly, I concur in the judgment. [ Footnote 2/1 ] S. 503, 97th Cong., 2d Sess. (1982). [ Footnote 2/2 ] The Report of the Senate Select Committee on Indian Affairs described the purpose of the bill as follows: "The purpose of S. 503 is to authorize the purchase, sale, and exchange of lands by the Devils Lake Sioux Tribe of the Devils Lake Sioux Reservation, North Dakota. The bill is designed to allow the Tribe to consolidate land ownership with the reservation in order to maximize utilization of the reservation land base. The bill also would restrict inheritance of trust property to members of the Tribe, provided that the Tribe paid fair market value to the Secretary of the Interior on behalf of the decedent's estate." S.Rep. No. 97-507, p. 3 (1982). [ Footnote 2/3 ] The House additions were themselves an amended version of H.R. 5856, the Indian Land Consolidation Act. H.R.Rep. No. 97-908, p. 9 (1982). The House Committee on Interior and Insular Affairs had held hearings on H.R. 5856, but these hearings were not published. H.R. Legislative Calendar, 97th Cong., 2d Sess., 72 (1982). The purposes of the legislation were summarized by the House Committee on Interior and Insular Affairs as (1) to provide mechanisms for the tribes to consolidate their tribal landholdings; (2) to allow Indian tribes or allottees to buy all of the fractionated interests in the tracts without having to obtain the consent of all the owners; and (3) to keep trust lands in Indian ownership by allowing tribes to restrict inheritance of Indian lands to Indians. H.R.Rep. No. 97-908, supra, at 9-11. [ Footnote 2/4 ] The word "descedent" -- an obvious error -- appears in the original text. The Act of Oct. 30, 1984, 98 Stat. 3171 -- which is not relevant to our consideration of this case -- corrected the error by substituting the word "descend" for "descedent" in § 207. The Senate Report accompanying the Act described how "descedent" made its way into the 1983 statute: "[T]he bill actually voted on by the House and Senate was garbled in the printing. It was this garbled version of Title II that was signed by the President." S.Rep. No. 98-632, p. 2 (1984). [ Footnote 2/5 ] App. to Juris.Statement 38a-39a. [ Footnote 2/6 ] The memorandum stated: "To assure the effectiveness of a will or heirship succession under state law, any Indian owner within the above category (if he or she is concerned that the tribe, rather than his or her heirs or devisees, will take these interests) may purchase additional interests from coowners pursuant to 26 CFR 151.7, and thereby increase his/her ownership interest to more than two percent. Another alternative is for such an owner to convey his/her interest to coowners or relatives pursuant to 26 CFR 162.26 and reserve a life estate, thus retaining the benefits of the interest while assuring its continued individual, rather than tribal, ownership. A third alternative, if feasible, is to partition the tract in such a way as to enlarge the owner's interest in a portion of said tract." "Indians falling within the above category and who are presently occupying, or in any other way using, the tract in question should especially be advised of the aforementioned alternatives." Id. at 39a-40a. [ Footnote 2/7 ] Mary Irving is the daughter of Chester Irving, who died on March 18, 1983, see App. 18; Eileen Bissonette is the guardian for the five minor children of Geraldine Mary Poor Bear-Little Hoop Cross, who died on March 23, 1983, see id. at 21; and Patrick Pumpkin Seed is the son of Charles Leroy Pumpkin Seed, who died on April 2, 1983, see id. at 34, and the nephew of Edgar Pumpkin Seed, who died on June 23, 1983. [ Footnote 2/8 ] The crux of the Court's holding is stated as follows: "What is certainly not appropriate is to take the extraordinary step of abolishing both descent and devise of these property interests even when the passing of the property to the heir might result in consolidation of property. Accordingly, we find that this regulation, in the words of Justice Holmes, 'goes too far.'" Ante at 481 U. S. 718 . [ Footnote 2/9 ] Patrick Pumpkin Seed was a potential heir to four pieces of property in which both his father and his uncle had interests. However, because both his father and his uncle had other potential heirs, the net effect of the distribution of the uncle's and the father's estates would have been to increase the fractionalization of their property interests. Furthermore, even if the statute were considered invalid as applied to Patrick Pumpkin Seed, the Court does not explain why it would also be considered invalid as applied to Mary Irving and Eileen Bissonette. [ Footnote 2/10 ] We have made a limited exception to this rule when a "statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Broadrick v. Oklahoma, 413 U. S. 601 , 413 U. S. 612 (1973). This exception does not apply to § 207. Even if overbreadth analysis were appropriate in a case outside of the First Amendment area, the Court's use of it on these facts departs from precedent. The Court generally does not grant relief unless there has been a showing that the invalid applications of the statute represent a substantial portion of its entire coverage. "[W]e believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Id. at 413 U. S. 615 . See also City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 , 466 U. S. 799 (1984) (requirement of substantiality prevents overbreadth doctrine from abolishing ordinary standing requirements); New York v. Ferber, 458 U. S. 747 , 458 U. S. 767 -771 (1982) (a law should not be invalidated as overbroad unless it is substantially so). As I wrote in New York v. Ferber: "My reasons for avoiding overbreadth analysis in this case are more qualitative than quantitative. When we follow our traditional practice of adjudicating difficult and novel constitutional questions only in concrete factual situations, the adjudications tend to be crafted with greater wisdom. Hypothetical rulings are inherently treacherous, and prone to lead us into unforeseen errors; they are qualitatively less reliable than the products of case-by-case adjudication." Id. at 458 U. S. 780 -781 (opinion concurring in judgment). Section 207 is obviously not "substantially overbroad." The notion that a regulatory statute unrelated to freedom of expression is invalid simply because the conditions prompting its enactment are not present in every situation to which it applies is a startling doctrine for which the Court cites no authority. [ Footnote 2/11 ] For example, the Government both provides a grace period and bears an affirmative responsibility to prevent escheat in the distribution of funds to which enrolled members of the Peoria Tribe are statutorily entitled under 84 Stat. 688, 25 U.S.C. § 1226. See 25 U.S.C. § 1226 ("Any per capita share, whether payable to a living enrollee or to the heirs or legatees of a deceased enrollee, which the Secretary of the Interior is unable to deliver within two years after the date the check is issued . . . shall revert to the Peoria Tribe"). State statutes governing abandoned property typically provide for a grace period and notice. See, e.g., N.Y.Aband.Prop.Law §§ 300-302 (McKinney 1944 and Supp.1987) (property held by banking organizations); Ill.Rev.Stat., ch. 141, �� 102, 112 (1986) (property held by banking or financial organizations). Statutes governing the escheat of property of decedents intestate and without heirs also provide for notice and an opportunity for interested parties to assert their claims. See, e.g., Cal.Civ.Proc.Code Ann. §§ 1420, 1423 (West 1982); Tex.Prop.Code Ann. §§ 71.101-71.106 (1984 and Supp. 1987). [ Footnote 2/12 ] "It is also clear that the State has not exercised this power in an arbitrary manner. The Indiana statute provides that a severed mineral interest shall not terminate if its owner takes any one of three steps to establish his continuing interest in the property. If the owner engages in actual production, or collects rents or royalties from another person who does or proposes to do so, his interest is protected. If the owner pays taxes, no matter how small, the interest is secure. If the owner files a written statement of claim in the county recorder's office, the interest remains viable. Only if none of these actions is taken for a period of 20 years does a mineral interest lapse and revert to the surface owner." 454 U.S. at 454 U. S. 529 . It would appear easier for the owner of a mineral interest to meet these conditions than for appellees' decedents to meet the implicit conditions imposed by § 207. Paying taxes or filing a written statement of claim are simple and unilateral acts, but an Indian owner of a fractional interest cannot consolidate interests or collect $100 per annum from it without the willing participation of other parties. [ Footnote 2/13 ] The Fifth Amendment to the Constitution provides that no person shall "be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." [ Footnote 2/14 ] I am unable to join the Court's largely inapposite Fifth Amendment takings analysis. As I have demonstrated, the statute, analogous to those authorizing the escheat of abandoned property, is rooted in the sovereign's authority to oversee and supervise the transfer of property ownership. Instead of analyzing § 207 in relation to our precedents recognizing and limiting the exercise of such authority, however, the Court ignores this line of cases, implicitly questions their validity, and appears to invite widespread challenges under the Fifth Amendment Takings Clause to a variety of statutes of the kind that we upheld in Texaco v. Short. [ Footnote 2/15 ] See 481 U.S. 704 fn2/12|>n. 12, supra. [ Footnote 2/16 ] Earlier in the opinion, we noted that, in Wilson v. Iseminger, 185 U. S. 55 (1902), the Court had upheld a Pennsylvania statute that provided for the extinguishment of certain interests in realty "since the statute contained a reasonable grace period in which owners could protect their rights." 454 U.S. at 454 U. S. 527 , n. 21. We quoted the following passage from the Wilson case: "It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should attempt to do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions. It is essential that such statutes allow a reasonable time after they take effect for the commencement of suits upon existing causes of action; though what shall be considered a reasonable time must be settled by the judgment of the legislature, and the courts will not inquire into the wisdom of its decision in establishing the period of legal bar, unless the time allowed is manifestly so insufficient that the statute becomes a denial of justice." 185 U.S. at 185 U. S. 62 -63. [ Footnote 2/17 ] The legislative history of the Indian Land Consolidation Act of 1983 is mute with respect to § 207. See 481 U.S. 704 fn2/4|>n. 4, supra. This silence is illuminating; it suggests that Indian landowners cannot reasonably be expected to have received notice about the statute before it took effect, and to have arranged their affairs accordingly. The lack of legislative history concerning § 207 also demonstrates that Congress paid scant or no attention to whether, in light of its longstanding fiduciary obligation to Indians, it was constitutionally required to afford a reasonable postenactment "grace period" for compliance. [ Footnote 2/18 ] A statute which denies the affected party a reasonable opportunity to avoid the consequences of noncompliance may work an injustice similar to that of invalid retroactive legislation. In both instances, the party who "could have anticipated the potential liability attaching to his chosen course of conduct would have avoided the liability by altering his conduct." Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 17 , n. 16 (1976) (citing Welch v. Henry, 305 U. S. 134 , 305 U. S. 147 (1938)). See also United States v. Hemme, 476 U. S. 558 , 476 U. S. 568 -569 (1986) (following Welch v. Henry, supra ). [ Footnote 2/19 ] Nothing in the record contradicts the possibility that appellees themselves only became aware of the statute upon receiving notices that hearings had been scheduled for the week of October 24, 1983, to determine if their Tribe had a right through escheat to any lands that might otherwise have passed to appellees. Irving v. Clark, 758 F.2d 1260, 1262 (CA8 1985). The notices were issued on October 4, 1983, after the death of appellees' decedents, and therefore afforded no opportunity for decedents to comply with § 207 or for appellees to advise their decedents of the possibility of escheat. [ Footnote 2/20 ] I need express no view on the constitutionality of § 207 as amended by the Act of Oct. 30, 1984, 98 Stat. 3171. All of the interests of appellees' decedents at issue in this case are governed by the original version of § 207. The decedents all died between January 12, 1983, and October 30, 1984, the period in which the original version of § 207 was in effect. The parties in this case present no case or controversy with respect to the application of the amended version of § 207.

Here is a summary of the case: **Background:** - Indian lands were allotted to individual Indians and held in trust by the US government, leading to extreme fractionation over generations. - To address this, Congress enacted § 207 of the Indian Land Consolidation Act of 1983, which provided that small undivided fractional interests in such lands would escheat to the tribe instead of passing by intestacy or devise. - Appellees are members or representatives of the Oglala Sioux Tribe, claiming that § 207 resulted in a taking of property without just compensation, violating the Fifth Amendment. **Issue:** - Whether appellees have standing to challenge § 207, and whether § 207 unconstitutionally took property rights from Indian landowners without just compensation. **Holding:** - The Supreme Court held that appellees have standing to challenge § 207 as they were deprived of fractional interests they would have inherited. - On the merits, the Court found that § 207 did unconstitutionally take property rights from Indian landowners without providing a reasonable post-enactment period to avoid the consequences of non-compliance. **Outcome:** - The Supreme Court affirmed the Court of Appeals' decision, finding that § 207, as originally enacted, violated the Fifth Amendment.

Property Rights & Land Use

Penn Central Transportation Co. v. New York City

https://supreme.justia.com/cases/federal/us/438/104/

U.S. Supreme Court Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978) Penn Central Transportation Co. v. New York City No. 77-444 Argued April 17, 1978 Decided June 26, 1978 438 U.S. 104 APPEAL FROM THE COURT OF APPEALS OF NEW YORK Syllabus Under New York City's Landmarks Preservation Law (Landmarks Law), which was enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character, the Landmarks Preservation Commission (Commission) may designate a building to be a "landmark" on a particular "landmark site" or may designate an area to be a "historic district." The Board of Estimate may thereafter modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. The owner of the designated landmark must keep the building's exterior "in good repair," and, before exterior alterations are made, must secure Commission approval. Under two ordinances, owners of landmark sites may transfer development rights from a landmark parcel to proximate lots. Under the Landmarks Law, the Grand Central Terminal (Terminal), which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central) was designated a "landmark" and the block it occupies a "landmark site." Appellant Penn Central, though opposing the designation before the Commission, did not seek judicial review of the final designation decision. Thereafter appellant Penn Central entered into a lease with appellant UGP Properties, whereby UGP was to construct a multistory office building over the Terminal. After the Commission had rejected appellants' plans for the building as destructive of the Terminal's historic and aesthetic features, with no judicial review thereafter being sought, appellants brought suit in state court claiming that the application of the Landmarks Law had "taken" their property without just compensation in violation of the Fifth and Fourteenth Amendments, and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. The trial court's grant of relief was reversed on appeal, the New York Court of Appeals ultimately concluding that there was no "taking," since the Landmarks Law had not transferred control of the property to the city, but only restricted appellants' exploitation of it; and that there was no denial of due process because (1) the same use of the Terminal was permitted as before; (2) the appellants had not shown that they could not earn a reasonable return on their investment Page 438 U. S. 105 in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central's extensive real estate holdings in the area must realistically be imputed to the Terminal; and (4) the development rights above the Terminal, which were made transferable to numerous sites in the vicinity, provided significant compensation for loss of rights above the Terminal itself. Held: The application of the Landmarks Law to the Terminal property does not constitute a "taking" of appellants' property within the meaning of the Fifth Amendment as made applicable to the States by the Fourteenth Amendment. Pp. 438 U. S. 123 -138. (a) In a wide variety of contexts, the government may execute laws or programs that adversely affect recognized economic values without its action constituting a "taking," and, in instances such as zoning laws where a state tribunal has reasonably concluded that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land use regulations that destroyed or adversely affected real property interests. In many instances use restrictions that served a substantial public purpose have been upheld against "taking" challenges, e.g., Goldblatt v. Hempstead, 369 U. S. 590 ; Hadacheck v. Sebastian, 239 U. S. 394 , though a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to constitute a "taking," e.g., Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , and government acquisitions of resources to permit uniquely public functions constitute "takings," e.g., United States v. Causby, 328 U. S. 256 . Pp. 438 U. S. 123 -128. (b) In deciding whether particular governmental action has effected a "taking," the character of the action and nature and extent of the interference with property rights (here the city tax block designated as the "landmark site") are focused upon, rather than discrete segments thereof. Consequently, appellants cannot establish a "taking" simply by showing that they have been denied the ability to exploit the superjacent airspace, irrespective of the remainder of appellants' parcel. Pp. 438 U. S. 130 -131. (c) Though diminution in property value alone, as may result from a zoning law, cannot establish a "taking," as appellants concede, they urge that the regulation of individual landmarks is different, because it applies only to selected properties. But it does not follow that landmark laws, which embody a comprehensive plan to preserve structures of historic or aesthetic interest, are discriminatory, like "reverse spot" zoning. Nor can it be successfully contended that designation of a landmark involves only a matter of taste, and therefore will inevitably Page 438 U. S. 106 lead to arbitrary results, for judicial review is available, and there is no reason to believe it will be less effective than would be so in the case of zoning or any other context. Pp. 438 U. S. 131 -133. (d) That the Landmarks Law affects some landowners more severely than others does not, itself, result in "taking," for that is often the case with general welfare and zoning legislation. Nor, contrary to appellants' contention, ar they solely burdened and unbenefited by the Landmarks Law, which has been extensively applied and was enacted on the basis of the legislative judgment that the preservation of landmarks benefits the citizenry both economically and by improving the overall quality of city life. Pp. 438 U. S. 133 -135. (e) The Landmarks Law no more effects an appropriation of the airspace above the Terminal for governmental uses than would a zoning law appropriate property; it simply prohibits appellants or others from occupying certain features of that space while allowing appellants gainfully to use the remainder of the parcel. United States v. Causby, supra, distinguished. P. 438 U. S. 135 . (f) The Landmarks Law, which does not interfere with the Terminal's present uses or prevent Penn Central from realizing a "reasonable return" on its investment, does not impose the drastic limitation on appellants' ability to use the air rights above the Terminal that appellants claim, for, on this record, there is no showing that a smaller, harmonizing structure would not be authorized. Moreover, the preexisting air rights are made transferable to other parcels in the vicinity of the Terminal, thus mitigating whatever financial burdens appellants have incurred. Pp. 438 U. S. 135 -137. 42 N.Y.2d 324 , 366 N.E.2d 1271, affirmed. BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J, filed a dissenting opinion, in which BURGER, C.J., and STEVENS, J., joined, post, p. 438 U. S. 138 . Page 438 U. S. 107 MR. JUSTICE BRENNAN delivered the opinion of the Court. The question presented is whether a city may, as part of a comprehensive program to preserve historic landmarks and historic districts, place restrictions on the development of individual historic landmarks -- in addition to those imposed by applicable zoning ordinances -- without effecting a "taking" requiring the payment of "just compensation." Specifically, we must decide whether the application of New York City's Landmarks Preservation Law to the parcel of land occupied by Grand Central Terminal has "taken" its owners' property in violation of the Fifth and Fourteenth Amendments. I A Over the past 50 years, all 50 States and over 500 municipalities have enacted laws to encourage or require the preservation of buildings and areas with historic or aesthetic importance. [ Footnote 1 ] These nationwide legislative efforts have been Page 438 U. S. 108 precipitated by two concerns. The first is recognition that, in recent years, large numbers of historic structures, landmarks, and areas have been destroyed [ Footnote 2 ] without adequate consideration of either the values represented therein or the possibility of preserving the destroyed properties for use in economically productive ways. [ Footnote 3 ] The second is a widely shared belief that structures with special historic, cultural, or architectural significance enhance the quality of life for all. Not only do these buildings and their workmanship represent the lessons of the past and embody precious features of our heritage, they serve as examples of quality for today. "[H]istoric conservation is but one aspect of the much larger problem, basically an environmental one, of enhancing -- or perhaps developing for the first time -- the quality of life for people. [ Footnote 4 ]" New York City, responding to similar concerns and acting Page 438 U. S. 109 pursuant to a New York State enabling Act, [ Footnote 5 ] adopted its Landmarks Preservation Law in 1965. See N.Y.C.Admin.Code, ch. 8-A, § 201.0 et seq. (1976). The city acted from the conviction that "the standing of [New York City] as a world-wide tourist center and world capital of business, culture and government" would be threatened if legislation were not enacted to protect historic landmarks and neighborhoods from precipitate decisions to destroy or fundamentally alter their character. § 201.0(a). The city believed that comprehensive measures to safeguard desirable features of the existing urban fabric would benefit its citizens in a variety of ways: e.g., fostering "civic pride in the beauty and noble accomplishments of the past"; protecting and enhancing "the city's attractions to tourists and visitors"; "support[ing] and stimul[ating] business and industry"; "strengthen[ing] the economy of the city"; and promoting "the use of historic districts, landmarks, interior landmarks and scenic landmarks for the education, pleasure and welfare of the people of the city." § 201.0(b). The New York City law is typical of many urban landmark laws in that its primary method of achieving its goals is not by acquisitions of historic properties, [ Footnote 6 ] but rather by involving public entities in land use decisions affecting these properties Page 438 U. S. 110 and providing services, standards, controls, and incentives that will encourage preservation by private owners and users. [ Footnote 7 ] While the law does place special restrictions on landmark properties as a necessary feature to the attainment of its larger objectives, the major theme of the law is to ensure the owners of any such properties both a "reasonable return" on their investments and maximum latitude to use their parcels for purposes not inconsistent with the preservation goals. The operation of the law can be briefly summarized. The primary responsibility for administering the law is vested in the Landmarks Preservation Commission (Commission), a broad-based 11-member agency [ Footnote 8 ] assisted by a technical staff. The Commission first performs the function, critical to any landmark preservation effort, of identifying properties and areas that have "a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation." § 2071.0(n); see § 207-1.0(h). If the Commission determines, after giving all interested parties an opportunity to be heard, that a building or area satisfies the ordinance's criteria, it will designate a building to be a "landmark," § 207-1.0(n), [ Footnote 9 ] situated Page 438 U. S. 111 on a particular "landmark site," § 207-1.0(o), [ Footnote 10 ] or will designate an area to be a "historic district," § 207-1.0(h). [ Footnote 11 ] After the Commission makes a designation, New York City's Board of Estimate, after considering the relationship of the designated property "to the master plan, the zoning resolution, projected public improvements and any plans for the renewal of the area involved," § 207-2.0(g)(1), may modify or disapprove the designation, and the owner may seek judicial review of the final designation decision. Thus far, 31 historic districts and over 400 individual landmarks have been finally designated, [ Footnote 12 ] and the process is a continuing one. Final designation as a landmark results in restrictions upon the property owner's options concerning use of the landmark site. First, the law imposes a duty upon the owner to keep the exterior features of the building "in good repair" to assure that the law's objectives not be defeated by the landmark's Page 438 U. S. 112 falling into a state of irremediable disrepair. See § 20710.0(a). Second, the Commission must approve in advance any proposal to alter the exterior architectural features of the landmark or to construct any exterior improvement on the landmark site, thus ensuring that decisions concerning construction on the landmark site are made with due consideration of both the public interest in the maintenance of the structure and the landowner's interest in use of the property. See §§ 207.0 to 207-9.0. In the event an owner wishes to alter a landmark site, three separate procedures are available through which administrative approval may be obtained. First, the owner may apply to the Commission for a "certificate of no effect on protected architectural features": that is, for an order approving the improvement or alteration on the ground that it will not change or affect any architectural feature of the landmark and will be in harmony therewith. See § 207-5.0. Denial of the certificate is subject to judicial review. Second, the owner may apply to the Commission for a certificate of "appropriateness." See § 207-6.0. Such certificates will be granted if the Commission concludes -- focusing upon aesthetic, historical, and architectural values -- that the proposed construction on the landmark site would not unduly hinder the protection, enhancement, perpetuation, and use of the landmark. Again, denial of the certificate is subject to judicial review. Moreover, the owner who is denied either a certificate of no exterior effect or a certificate of appropriateness may submit an alternative or modified plan for approval. The final procedure -- seeking a certificate of appropriateness on the ground of "insufficient return," see § 207.0 -- provides special mechanisms, which vary depending on whether or not the landmark enjoys a tax exemption, [ Footnote 13 ] to ensure that designation does not cause economic hardship. Page 438 U. S. 113 Although the designation of a landmark and landmark site restricts the owner's control over the parcel, designation also enhances the economic position of the landmark owner in one significant respect. Under New York City's zoning laws, owners of real property who have not developed their property Page 438 U. S. 114 to the full extent permitted by the applicable zoning laws are allowed to transfer development rights to contiguous parcels on the same city block. See New York City, Zoning Resolution Art. I, ch. 2, § 12-10(1978) (definition of "zoning lot"). A 1968 ordinance gave the owners of landmark sites additional opportunities to transfer development rights to other parcels. Subject to a restriction that the floor area of the transferee lot may not be increased by more than 20% above its authorized level, the ordinance permitted transfers from a landmark parcel to property across the street or across a street intersection. In 1969, the law governing the conditions under which transfers from landmark parcels could occur was liberalized, see New York City Zoning Resolutions 74-79 to 74-793, apparently to ensure that the Landmarks Law would not unduly restrict the development options of the owners of Grand Central Terminal. See Marcus, Air Rights Transfers in New York City, 36 Law & Contemp.Prob. 372, 375 (1971). The class of recipient lots was expanded to include lots "across a street and opposite to another lot or lots which except for the intervention of streets or street intersections f[or]m a series extending to the lot occupied by the landmark building[, provided that] all lots [are] in the same ownership." New York City Zoning Resolution 779 (emphasis deleted). [ Footnote 14 ] In addition, the 1969 amendment permits, in highly commercialized Page 438 U. S. 115 areas like midtown Manhattan, the transfer of all unused development rights to a single parcel. Ibid. B This case involves the application of New York City's Landmarks Preservation Law to Grand Central Terminal (Terminal). The Terminal, which is owned by the Penn Central Transportation Co. and its affiliates (Penn Central), is one of New York City's most famous buildings. Opened in 1913, it is regarded not only as providing an ingenious engineering solution to the problems presented by urban railroad stations, but also as a magnificent example of the French beaux-arts style. The Terminal is located in midtown Manhattan. Its south facade faces 42d Street and that street's intersection with Park Avenue. At street level, the Terminal is bounded on the west by Vanderbilt Avenue, on the east by the Commodore Hotel, and on the north by the Pan-American Building. Although a 20-story office tower, to have been located above the Terminal, was part of the original design, the planned tower was never constructed. [ Footnote 15 ] The Terminal itself is an eight-story structure which Penn Central uses as a railroad station and in which it rents space not needed for railroad purposes to a variety of commercial interests. The Terminal is one of a number of properties owned by appellant Penn Central in this area of midtown Manhattan. The others include the Barclay, Biltmore, Commodore, Roosevelt, and Waldorf-Astoria Hotels, the Pan-American Building and other office buildings along Park Avenue, and the Yale Club. At least eight of these are eligible to be recipients of development rights afforded the Terminal by virtue of landmark designation. On August 2, 1967, following a public hearing, the Commission designated the Terminal a "landmark" and designated the Page 438 U. S. 116 "city tax block" it occupies a "landmark site." [ Footnote 16 ] The Board of Estimate confirmed this action on September 21, 1967. Although appellant Penn Central had opposed the designation before the Commission, it did not seek judicial review of the final designation decision. On January 22, 1968, appellant Penn Central, to increase its income, entered into a renewable 50-year lease and sublease agreement with appellant UGP Properties, Inc. (UGP), a wholly owned subsidiary of Union General Properties, Ltd., a United Kingdom corporation. Under the terms of the agreement, UGP was to construct a multistory office building above the Terminal. UGP promised to pay Penn Central $1 million annually during construction and at least $3 million annually thereafter. The rentals would be offset in part by a loss of some $700,000 to $1 million in net rentals presently received from concessionaires displaced by the new building. Appellants UGP and Penn Central then applied to the Commission for permission to construct an office building atop the Terminal. Two separate plans, both designed by architect Marcel Breuer and both apparently satisfying the terms of the applicable zoning ordinance, were submitted to the Commission for approval. The first, Breuer I, provided for the construction of a 55-story office building, to be cantilevered above the existing facade and to rest on the roof of the Terminal. The second, Breuer II Revised, [ Footnote 17 ] called for tearing Page 438 U. S. 117 down a portion of the Terminal that included the 42d Street facade, stripping off some of the remaining features of the Terminal's facade, and constructing a 53-story office building. The Commission denied a certificate of no exterior effect on September 20, 1968. Appellants then applied for a certificate of "appropriateness" as to both proposals. After four days of hearings at which over 80 witnesses testified, the Commission denied this application as to both proposals. The Commission's reasons for rejecting certificates respecting Breuer II Revised are summarized in the following statement: "To protect a Landmark, one does not tear it down. To perpetuate its architectural features, one does not strip them off." Record 2255. Breuer I, which would have preserved the existing vertical facades of the present structure, received more sympathetic consideration. The Commission first focused on the effect that the proposed tower would have on one desirable feature created by the present structure and its surroundings: the dramatic view of the Terminal from Park Avenue South. Although appellants had contended that the Pan-American Building had already destroyed the silhouette of the south facade, and that one additional tower could do no further damage, and might even provide a better background for the facade, the Commission disagreed, stating that it found the majestic approach from the south to be still unique in the city, and that a 55-story tower atop the Terminal would be far more detrimental to its south facade than the Pan-American Building 375 feet away. Moreover, the Commission found that, from closer vantage points, the Pan-American Building and the other towers were largely cut off from view, which would not be the case of the mass on top of the Terminal planned under Breuer I. In conclusion, the Commission stated: "[We have] no fixed rule against making additions to designated buildings -- it all depends on how they are done. . . . But to balance a 55-story office tower above Page 438 U. S. 118 a flamboyant Beaux-Arts facade seems nothing more than an aesthetic joke. Quite simply, the tower would overwhelm the Terminal by its sheer mass. The 'addition' would be four times as high as the existing structure, and would reduce the Landmark itself to the status of a curiosity." "Landmarks cannot be divorced from their settings -- particularly when the setting is a dramatic and integral part of the original concept. The Terminal, in its setting, is a great example of urban design. Such examples are not so plentiful in New York City that we can afford to lose any of the few we have. And we must preserve them in a meaningful way -- with alterations and additions of such character, scale, materials and mass as will protect, enhance and perpetuate the original design, rather than overwhelm it." Id. at 2251. [ Footnote 18 ] Appellants did not seek judicial review of the denial of either certificate. Because the Terminal site enjoyed a tax exemption, [ Footnote 19 ] remained suitable for its present and future uses, and was not the subject of a contract of sale, there were no further administrative remedies available to appellants as to the Breuer I and Breuer II Revised plans. See n 13, supra. Further, appellants did not avail themselves of the opportunity to develop Page 438 U. S. 119 and submit other plans for the Commission's consideration and approval. Instead, appellants filed suit in New York Supreme Court, Trial Term, claiming, inter alia, that the application of the Landmarks Preservation Law had "taken" their property without just compensation in violation of the Fifth and Fourteenth Amendments and arbitrarily deprived them of their property without due process of law in violation of the Fourteenth Amendment. Appellants sought a declaratory judgment, injunctive relief barring the city from using the Landmarks Law to impede the construction of any structure that might otherwise lawfully be constructed on the Terminal site, and damages for the "temporary taking" that occurred between August 2, 1967, the designation date, and the date when the restrictions arising from the Landmarks Law would be lifted. The trial court granted the injunctive and declaratory relief, but severed the question of damages for a "temporary taking." [ Footnote 20 ] Appellees appealed, and the New York Supreme Court, Appellate Division, reversed. 50 App.Div.2d 265, 377 N.Y.S.2d 20(1975). The Appellate Division held that the restrictions on the development of the Terminal site were necessary to promote the legitimate public purpose of protecting landmarks, and therefore that appellants could sustain their constitutional claims only by proof that the regulation deprived them of all reasonable beneficial use of the property. The Appellate Division held that the evidence appellants Page 438 U. S. 120 introduced at trial -- "Statements of Revenues and Costs," purporting to show a net operating loss for the years 1969 and 1971, which were prepared for the instant litigation -- had not satisfied their burden. [ Footnote 21 ] First, the court rejected the claim that these statements showed that the Terminal was operating at a loss, for, in the court's view, appellants had improperly attributed some railroad operating expenses and taxes to their real estate operations, and compounded that error by failing to impute any rental value to the vast space in the Terminal devoted to railroad purposes. Further, the Appellate Division concluded that appellants had failed to establish either that they were unable to increase the Terminal's commercial income by transforming vacant or underutilized space to revenue-producing use or that the unused development rights over the Terminal could not have been profitably transferred to one or more nearby sites. [ Footnote 22 ] The Appellate Division concluded that all appellants had succeeded in showing was that they had been deprived of the property's most profitable use, and that this showing did not establish that appellants had been unconstitutionally deprived of their property. The New York Court of Appeals affirmed. 42 N.Y.2d 324 , 366 N.E.2d 1271 (1977). That court summarily rejected any claim that the Landmarks Law had "taken" Page 438 U. S. 121 property without "just compensation," id. at 329, 366 N.E.2d at 1274, indicating that there could be no "taking," since the law had not transferred control of the property to the city, but only restricted appellants' exploitation of it. In that circumstance, the Court of Appeals held that appellants' attack on the law could prevail only if the law deprived appellants of their property in violation of the Due Process Clause of the Fourteenth Amendment. Whether or not there was a denial of substantive due process turned on whether the restrictions deprived Penn Central of a "reasonable return" on the "privately created and privately managed ingredient" of the Terminal. Id. at 328, 366 N.E.2d at 1273. [ Footnote 23 ] The Court of Appeals concluded that the Landmarks Law had not effected a denial of due process because: (1) the landmark regulation permitted the same use as had been made of the Terminal for more than half a century; (2) the appellants had failed to show that they could not earn a reasonable return on their investment in the Terminal itself; (3) even if the Terminal proper could never operate at a reasonable profit, some of the income from Penn Central's extensive real estate holdings in the area, which include hotels and office buildings, must realistically be imputed to the Terminal; and Page 438 U. S. 122 (4) the development rights above the Terminal, which had been made transferable to numerous sites in the vicinity of the Terminal, one or two of which were suitable for the construction of office buildings, were valuable to appellants and provided "significant, perhaps fair,' compensation for the loss of rights above the terminal itself." Id. at 333-336, 366 N.E.2d at 1276-1278. Observing that its affirmance was "[o]n the preset record," and that its analysis had not been fully developed by counsel at any level of the New York judicial system, the Court of Appeals directed that counsel "should be entitled to present . . . any additional submissions which, in the light of [the court's] opinion, may usefully develop further the factors discussed." Id. at 337, 366 N.E.2d at 1279. Appellants chose not to avail themselves of this opportunity, and filed a notice of appeal in this Court. We noted probable jurisdiction. 434 U.S. 983 (1977). We affirm. II The issues presented by appellants are (1) whether the restrictions imposed by New York City's law upon appellants' exploitation of the Terminal site effect a "taking" of appellants' property for a public use within the meaning of the Fifth Amendment, which, of course, is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 239 (1807), and, (2), if so, whether the transferable development rights afforded appellants constitute "just compensation" within the meaning of the Fifth Amendment. [ Footnote 24 ] We need only address the question whether a "taking" has occurred. [ Footnote 25 ] Page 438 U. S. 123 A Before considering appellants' specific contentions, it will be useful to review the factors that have shaped the jurisprudence of the Fifth Amendment injunction "nor shall private property be taken for public use, without just compensation." The question of what constitutes a "taking" for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty. While this Court has recognized that the "Fifth Amendment's guarantee . . . [is] designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole," Armstrong v. United States , 364 U.S. Page 438 U. S. 124 40, 364 U. S. 49 (1960), this Court, quite simply, has been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons. See Goldblatt v. Hempstead, 369 U. S. 590 , 369 U. S. 594 (1962). Indeed, we have frequently observed that whether a particular restriction will be rendered invalid by the government's failure to pay for any losses proximately caused by it depends largely "upon the particular circumstances [in that] case." United States v. Central Eureka Mining Co., 357 U. S. 155 , 357 U. S. 168 (1958); see United States v. Caltex, Inc., 344 U. S. 149 , 344 U. S. 156 (1952). In engaging in these essentially ad hoc, factual inquiries, the Court's decisions have identified several factors that have particular significance. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with distinct investment-backed expectations are, of course, relevant considerations. See Goldblatt v. Hempstead, supra at 369 U. S. 594 . So, too, is the character of the governmental action. A "taking" may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Causby, 328 U. S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good. "Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law," Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 413 (1922), and this Court has accordingly recognized, in a wide variety of contexts, that government may execute laws or programs that adversely affect recognized economic values. Exercises of the taxing power are one obvious example. A second are the decisions in which this Court has dismissed "taking" challenges on the ground that, while the challenged government action caused Page 438 U. S. 125 economic harm, it did not interfere with interests that were sufficiently bound up with the reasonable expectations of the claimant to constitute "property" for Fifth Amendment purposes. See, e.g., United States v. Willow River Power Co., 324 U. S. 499 (1945) (interest in high-water level of river for runoff for tailwaters to maintain power head is not property); United States v. Chandler-Dunbar Water Power Co., 229 U. S. 53 (1913) (no property interest can exist in navigable waters); see also Demorest v. City Bank Co., 321 U. S. 36 (1944); Muhlker v. Harlem R. Co., 197 U. S. 544 (1905); Sax, Takings and the Police Power, 74 Yale L.J. 36, 62 (1964). More importantly for the present case, in instances in which a state tribunal reasonably concluded that "the health, safety, morals, or general welfare" would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land use regulations that destroyed or adversely affected recognized real property interests. See Nectow v. Cambridge, 277 U. S. 183 , 277 U. S. 188 (1928). Zoning laws are, of course, the classic example, see Euclid v. Ambler Realty Co., 272 U. S. 365 (1026) (prohibition of industrial use); Gorieb v. Fox, 274 U. S. 603 , 274 U. S. 608 (1927) (requirement that portions of parcels be left unbuilt); Welch v. Swasey, 214 U. S. 91 (1909) (height restriction), which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property. See Goldblatt v. Hempstead, supra at 369 U. S. 592 -593, and cases cited; see also Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668 , 426 U. S. 674 n. 8 (1976). Zoning laws generally do not affect existing uses of real property, but "taking" challenges have also been held to be without merit in a wide variety of situations when the challenged governmental actions prohibited a beneficial use to which individual parcels had previously been devoted, and thus caused substantial individualized harm. Miller v. Schoene, 276 U. S. 272 (1928), is illustrative. In that case, a state entomologist, acting pursuant to a state statute, ordered Page 438 U. S. 126 the claimants to cut down a large number of ornamental red cedar trees because they produced cedar rust fatal to apple trees cultivated nearby. Although the statute provided for recovery of any expense incurred in removing the cedars, and permitted claimants to use the felled trees, it did not provide compensation for the value of the standing trees or for the resulting decrease in market value of the properties as a whole. A unanimous Court held that this latter omission did not render the statute invalid. The Court held that the State might properly make "a choice between the preservation of one class of property and that of the other," and, since the apple industry was important in the State involved, concluded that the State had not exceeded "its constitutional powers by deciding upon the destruction of one class of property [without compensation] in order to save another which, in the judgment of the legislature, is of greater value to the public." Id. at 276 U. S. 279 . Again, Hadacheck v. Sebastian, 239 U. S. 394 (1915), upheld a law prohibiting the claimant from continuing his otherwise lawful business of operating a brickyard in a particular physical community on the ground that the legislature had reasonably concluded that the presence of the brickyard was inconsistent with neighboring uses. See also United States v. Central Eureka Mining Co., supra, (Government order closing gold mines so that skilled miners would be available for other mining work held not a taking); Atchison, T. & S. F. R. Co. v. Public Utilities Comm'n, 346 U. S. 346 (1953) (railroad may be required to share cost of constructing railroad grade improvement); Walls v. Midland Carbon Co., 254 U. S. 300 (1920) (law prohibiting manufacture of carbon black upheld); Reinman v. Little Rock, 237 U. S. 171 (1915) (law prohibiting livery stable upheld); Mugler v. Kansas, 123 U. S. 623 (1887) (law prohibiting liquor business upheld). Goldblatt v. Hempstead, supra, is a recent example. There, a 1958 city safety ordinance banned any excavations below Page 438 U. S. 127 the water table and effectively prohibited the claimant from continuing a sand and gravel mining business that had been operated on the particular parcel since 1927. The Court upheld the ordinance against a "taking" challenge, although the ordinance prohibited the present and presumably most beneficial use of the property, and had, like the regulations in Miller and Hadacheck, severely affected a particular owner. The Court assumed that the ordinance did not prevent the owner's reasonable use of the property, since the owner made no showing of an adverse effect on the value of the land. Because the restriction served a substantial public purpose, the Court thus held no taking had occurred. It is, of course, implicit in Goldblatt that a use restriction on real property may constitute a "taking" if not reasonably necessary to the effectuation of a substantial public purpose, see Nectow v. Cambridge, supra; cf. Moore v. East Cleveland, 431 U. S. 494 , 431 U. S. 513 -514 (1977) (STEVENS, J., concurring), or perhaps if it has an unduly harsh impact upon the owner's use of the property. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), is the leading case for the proposition that a state statute that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a "taking." There the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the transactions, forbade any mining of coal that caused the subsidence of any house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. Because the statute made it commercially impracticable to mine the coal, id. at 260 U. S. 414 , and thus had nearly the same effect as the complete destruction of rights claimant had reserved from the owners of the surface land, see id. at 260 U. S. 414 -415, the Court held that the statute was invalid as effecting a "taking" Page 438 U. S. 128 without just compensation. See also Armstrong v. United States, 364 U. S. 40 (1960) (Government's complete destruction of a materialman's lien in certain property held a "taking"); Hudson Water Co. v. McCarter, 209 U. S. 349 , 209 U. S. 355 (1908) (if height restriction makes property wholly useless "the rights of property . . . prevail over the other public interest" and compensation is required). See generally Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1229-1234 (1967). Finally, government actions that may be characterized as acquisitions of resources to permit or facilitate uniquely public functions have often been held to constitute "takings." United States v. Causby, 328 U. S. 256 (1946), is illustrative. In holding that direct overflights above the claimant's land, that destroyed the present use of the land as a chicken farm, constituted a "taking," Causby emphasized that Government had not "merely destroyed property [but was] using a part of it for the flight of its planes." Id. at 328 U. S. 262 -263, n. 7. See also Griggs v. Allegheny County, 369 U. S. 84 (1962) (overflights held a taking); Portsmouth Co. v. United States, 260 U. S. 327 (1922) (United States military installations' repeated firing of guns over claimant's land is a taking); United States v. Cress, 243 U. S. 316 (1917) (repeated floodings of land caused by water project is a taking); but see YMCA v. United States, 395 U. S. 85 (1969) (damage caused to building when federal officers who were seeking to protect building were attacked by rioters held not a taking). See generally Michelman, supra at 1226-1229; Sax, Takings and the Police Power, 74 Yale L.J. 36 (1964). B In contending that the New York City law has "taken" their property in violation of the Fifth and Fourteenth Amendments, appellants make a series of arguments, which, while tailored to the facts of this case, essentially urge that Page 438 U. S. 129 any substantial restriction imposed pursuant to a landmark law must be accompanied by just compensation if it is to be constitutional. Before considering these, we emphasize what is not in dispute. Because this Court has recognized, in a number of settings, that States and cities may enact land use restrictions or controls to enhance the quality of life by preserving the character and desirable aesthetic features of a city, see New Orleans v. Dukes, 427 U. S. 297 (1976); Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976); Village of Belle Terre v. Boraas, 416 U. S. 1 , 416 U. S. 9 -10 (1974); Berman v. Parker, 348 U. S. 26 , 348 U. S. 33 (1954); Welch v. Swasey, 214 U.S. at 214 U. S. 108 , appellants do not contest that New York City's objective of preserving structures and areas with special historic, architectural, or cultural significance is an entirely permissible governmental goal. They also do not dispute that the restrictions imposed on its parcel are appropriate means of securing the purposes of the New York City law. Finally, appellants do not challenge any of the specific factual premises of the decision below. They accept for present purposes both that the parcel of land occupied by Grand Central Terminal must, in its present state, be regarded as capable of earning a reasonable return [ Footnote 26 ] and that the transferable development rights afforded appellants by virtue of the Terminal's designation as a landmark are valuable, even if not as valuable as the rights to construct above the Terminal. In appellants' view, none of these factors derogate from their claim that New York City's law has effected a "taking." Page 438 U. S. 130 They first observe that the airspace above the Terminal is a valuable property interest, citing United States v. Causby, supra. They urge that the Landmarks Law has deprived them of any gainful use of their "air rights" above the Terminal and that, irrespective of the value of the remainder of their parcel, the city has "taken" their right to this superjacent airspace, thus entitling them to "just compensation" measured by the fair market value of these air rights. Apart from our own disagreement with appellants' characterization of the effect of the New York City law, see infra at 438 U. S. 134 -135, the submission that appellants may establish a "taking" simply by showing that they have been denied the ability to exploit a property interest that they heretofore had believed was available for development is quite simply untenable. Were this the rule, this Court would have erred not only in upholding laws restricting the development of air rights, see Welch v. Swasey, supra, but also in approving those prohibiting both the subjacent, see Goldblatt v. Hempstead, 369 U. S. 590 (1962), and the lateral, see Gorieb v. Fox, 274 U. S. 603 (1927), development of particular parcels. [ Footnote 27 ] "Taking" jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action ha effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the Page 438 U. S. 131 parcel as a whole -- here, the city tax block designated as the "landmark site." Secondly, appellants, focusing on the character and impact of the New York City law, argue that it effects a "taking" because its operation has significantly diminished the value of the Terminal site. Appellants concede that the decisions sustaining other land use regulations, which, like the New York City law, are reasonably related to the promotion of the general welfare, uniformly reject the proposition that diminution in property value, standing alone, can establish a "taking," see Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (75% diminution in value caused by zoning law); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (87 1/2% diminution in value); cf. Eastlake v. Forest City Enterprises, Inc., 426 U.S. at 426 U. S. 674 n. 8, and that the "taking" issue in these contexts is resolved by focusing on the uses the regulations permit. See also Goldblatt v. Hempstead, supra. Appellants, moreover, also do not dispute that a showing of diminution in property value would not establish a "taking" if the restriction had been imposed as a result of historic district legislation, see generally Maher v. New Orleans, 516 F.2d 1051 (CA5 1975), but appellants argue that New York City's regulation of individual landmarks is fundamentally different from zoning or from historic district legislation because the controls imposed by New York City's law apply only to individuals who own selected properties. Stated baldly, appellants' position appears to be that the only means of ensuring that selected owners are not singled out to endure financial hardship for no reason is to hold that any restriction imposed on individual landmarks pursuant to the New York City scheme is a "taking" requiring the payment of "just compensation." Agreement with this argument would, of course, invalidate not just New York City's law, but all comparable landmark legislation in the Nation. We find no merit in it. Page 438 U. S. 132 It is true as appellants emphasize, that both historic district legislation and zoning laws regulate all properties within given physical communities whereas landmark laws apply only to selected parcels. But, contrary to appellants' suggestions, landmark laws are not like discriminatory, or "reverse spot," zoning: that is, a land use decision which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones. See 2 A. Rathkopf, The Law of Zoning and Planning 26-4, and n. 6 (4th ed.1978). In contrast to discriminatory zoning, which is the antithesis of land use control as part of some comprehensive plan, the New York City law embodies a comprehensive plan to preserve structures of historic or aesthetic interest wherever they might be found in the city, [ Footnote 28 ] and, as noted, over 400 landmarks and 31 historic districts have been designated pursuant to this plan. Equally without merit is the related argument that the decision to designate a structure as a landmark "is inevitably arbitrary, or at least subjective, because it is basically a matter of taste," Reply Brief for Appellants 22, thus unavoidably singling out individual landowners for disparate and unfair treatment. The argument has a particularly hollow ring in this case. For appellants not only did not seek judicial review of either the designation or of the denials of the certificates of appropriateness and of no exterior effect, but do not even now suggest that the Commission's decisions concerning the Terminal were in any sense arbitrary or unprincipled. But, in Page 438 U. S. 133 any event, a landmark owner has a right to judicial review of any Commission decision, and, quite simply, there is no basis whatsoever for a conclusion that courts will have any greater difficulty identifying arbitrary or discriminatory action in the context of landmark regulation than in the context of classic zoning or indeed in any other context. [ Footnote 29 ] Next, appellants observe that New York City's law differs from zoning laws and historic district ordinances in that the Landmarks Law does not impose identical or similar restrictions on all structures located in particular physical communities. It follows, they argue, that New York City's law is inherently incapable of producing the fair and equitable distribution of benefits and burdens of governmental action which is characteristic of zoning laws and historic district legislation and which, they maintain, is a constitutional requirement if "just compensation" is not to be afforded. It is, of course, true that the Landmarks Law has a more severe impact on some landowners than on others, but that, in itself, does not mean that the law effects a "taking." Legislation designed to promote the general welfare commonly burdens some more than others. The owners of the brickyard in Hadacheck, of the cedar trees in Miller v. Schoene, and of the gravel and sand mine in Goldblatt v. Hempstead, were uniquely burdened by the legislation sustained in those cases. [ Footnote 30 ] Similarly, zoning Page 438 U. S. 134 laws often affect some property owners more severely than others, but have not been held to be invalid on that account. For example, the property owner in Euclid who wished to use its property for industrial purposes was affected far more severely by the ordinance than its neighbors who wished to use their land for residences. In any event, appellants' repeated suggestions that they are solely burdened and unbenefited is factually inaccurate. This contention overlooks the fact that the New York City law applies to vast numbers of structures in the city in addition to the Terminal -- all the structures contained in the 31 historic districts and over 400 individual landmarks, many of which are close to the Terminal. [ Footnote 31 ] Unless we are to reject the judgment of the New York City Council that the preservation of landmarks benefits all New York citizens and all structures, both economically and by improving the quality of life in the city as a whole -- which we are unwilling to do -- we cannot Page 438 U. S. 135 conclude that the owners of the Terminal have in no sense been benefited by the Landmarks Law. Doubtless appellants believe they are more burdened than benefited by the law, but that must have been true, too, of the property owners in Miller, Hadacheck, Euclid, and Goldblatt. [ Footnote 32 ] Appellants' final broad-based attack would have us treat the law as an instance, like that in United States v. Causby, in which government, acting in an enterprise capacity, has appropriated part of their property for some strictly governmental purpose. Apart from the fact that Causby was a case of invasion of airspace that destroyed the use of the farm beneath, and this New York City law has in nowise impaired the present use of the Terminal, the Landmarks Law neither exploits appellants' parcel for city purposes nor facilitates nor arises from any entrepreneurial operations of the city. The situation is not remotely like that in Causby, where the airspace above the property was in the flight pattern for military aircraft. The Landmarks Law's effect is simply to prohibit appellants or anyone else from occupying portions of the airspace above the Terminal, while permitting appellants to use the remainder of the parcel in a gainful fashion. This is no more an appropriation of property by government for its own uses than is a zoning law prohibiting, for "aesthetic" reasons, two or more adult theaters within a specified area, see Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), or a safety regulation prohibiting excavations below a certain level. See Goldblatt v. Hempstead. C Rejection of appellants' broad arguments is not, however, the end of our inquiry, for all we thus far have established is Page 438 U. S. 136 that the New York City law is not rendered invalid by its failure to provide "just compensation" whenever a landmark owner is restricted in the exploitation of property interests, such as air rights, to a greater extent than provided for under applicable zoning laws. We now must consider whether the interference with appellant' property is of such a magnitude that "there must be an exercise of eminent domain and compensation to sustain [it]." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 413 . That inquiry may be narrowed to the question of the severity of the impact of the law on appellants' parcel, and its resolution, in turn, requires a careful assessment of the impact of the regulation on the Terminal site. Unlike the governmental acts in Goldblatt, Miller, Causby, Griggs, and Hadacheck, the New York City law does not interfere in any way with the present uses of the Terminal. Its designation as a landmark not only permits, but contemplates, that appellants may continue to use the property precisely as it has been used for the past 65 years: as a railroad terminal containing office space and concessions. So the law does not interfere with what must be regarded as Penn Central's primary expectation concerning the use of the parcel. More importantly, on this record, we must regard the New York City law as permitting Penn Central not only to profit from the Terminal but also to obtain a "reasonable return" on its investment. Appellants, moreover, exaggerate the effect of the law on their ability to make use of the air rights above the Terminal in two respects. [ Footnote 33 ] First, it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal. While the Commission's actions in denying applications to construct an Page 438 U. S. 137 office building in excess of 50 stories above the Terminal may indicate that it will refuse to issue a certificate of appropriateness for any comparably sized structure, nothing the Commission has said or done suggests an intention to prohibit ay construction above the Terminal. The Commission's report emphasized that whether any construction would be allowed depended upon whether the proposed addition "would harmonize in scale, material, and character with [the Terminal]." Record 2251. Since appellants have not sought approval for the construction of a smaller structure, we do not know that appellants will be denied any use of any portion of the airspace above the Terminal. [ Footnote 34 ] Second, to the extent appellants have been denied the right to build above the Terminal, it is not literally accurate to say that they have been denied all use of even those preexisting air rights. Their ability to use these rights has not been abrogated; they are made transferable to at least eight parcels in the vicinity of the Terminal, one or two of which have been found suitable for the construction of new office buildings. Although appellants and others have argued that New York City's transferable development rights program is far from ideal, [ Footnote 35 ] the New York courts here supportably found that, at least in the case of the Terminal, the rights afforded are valuable. While these rights may well not have constituted "just compensation" if a "taking" had occurred, the rights nevertheless undoubtedly mitigate whatever financial burdens the law has imposed on appellants and, for that reason, are to be taken into account in considering the impact of regulation. Cf. Goldblatt v. Hempstead, 369 U.S. at 369 U. S. 594 n. 3. Page 438 U. S. 138 On this record, we conclude that the application of New York City's Landmarks Law has not effected a "taking" of appellants' property. The restrictions imposed are substantially related to the promotion of the general welfare, and not only permit reasonable beneficial use of the landmark site, but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties. [ Footnote 36 ] Affirmed. [ Footnote 1 ] See National Trust for Historic Preservation, A Guide to State Historic Preservation Programs (1976); National Trust for Historic Preservation, Directory of Landmark and Historic District Commissions (1976). In addition to these state and municipal legislative efforts, Congress has determined that "the historical and cultural foundations of the Nation should be preserved as a living part of our community life and development in order to give a sense of orientation to the American people," National Historic Preservation Act of 1966, 80 Stat. 915, 16 U.S.C. § 470(b) (1976 ed.), and has enacted a series of measures designed to encourage preservation of sites and structures of historic, architectural, or cultural significance. See generally Gray, The Response of Federal Legislation to Historic Preservation, 36 Law & Contemp.Prob. 314 (1971). [ Footnote 2 ] Over one-half of the buildings listed in the Historic American Buildings Survey, begun by the Federal Government in 1933, have been destroyed. See Costonis, The Chicago Plan: Incentive Zoning and the Preservation of Urban Landmarks, 85 Harv.L.Rev. 574, 574 n. 1 (1972), citing Huxtable, Bank's Building Plan Sets Off Debate on "Progress," N.Y. Times, Jan. 17, 1971, section 8, p. 1, col. 2. [ Footnote 3 ] See, e.g., N.Y.C.Admin. Code § 205-10(a) (1976). [ Footnote 4 ] Gilbert, Introduction, Precedents for the Future, 36 Law & Contemp.Prob. 311, 312 (1971), quoting address by Robert Stipe, 1971 Conference on Preservation Law, Washington, D.C. May 1, 1971 (unpublished text, pp. 7). [ Footnote 5 ] See N.Y.Gen.Mun.Law § 9a (McKinney 1977). It declares that it is the public policy of the State of New York to preserve structures and areas with special historical or aesthetic interest or value, and authorizes local governments to impose reasonable restrictions to perpetuate such structures and areas. [ Footnote 6 ] The consensus is that widespread public ownership of historic properties in urban settings is neither feasible nor wise. Public ownership reduces the tax base, burdens the public budget with costs of acquisitions and maintenance, and results in the preservation of public buildings as museums and similar facilities, rather than as economically productive features of the urban scene. See Wilson & Winkler, The Response of State Legislation to Historic Preservation, 36 Law & Contemp.Prob. 329, 330-331, 339-340 (1971). [ Footnote 7 ] See Costonis, supra, n 2, at 580 581; Wilson & Winkler, supra, n 6; Rankin, Operation and Interpretation of the New York City Landmark Preservation Law, 36 Law & Contemp.Prob. 366 (1971). [ Footnote 8 ] The ordinance creating the Commission requires that it include at least three architects, one historian qualified in the field, one city planner or landscape architect, one realtor, and at least one resident of each of the city's five boroughs. N.Y.C.Charter § 534 (1976). In addition to the ordinance's requirements concerning the composition of the Commission, there is, according to a former chairman, a "prudent tradition" that the Commission include one or two lawyers, preferably with experience in municipal government, and several laymen with no specialized qualifications other than concern for the good of the city. Goldstone, Aesthetics in Historic Districts, 36 Law & Contemp.Prob. 379, 384-385 (1971). [ Footnote 9 ] "'Landmark.' Any improvement, any part of which is thirty years old or older, which has a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation and which has been designated as a landmark pursuant to the provisions of this chapter." § 207-1.0(n). [ Footnote 10 ] "'Landmark site.' An improvement parcel or part thereof on which is situated a landmark and any abutting improvement parcel or part thereof used as and constituting part of the premises on which the landmark is situated, and which has been designated as a landmark site pursuant to the provisions of this chapter." § 207-1.0(o). [ Footnote 11 ] "'Historic district.' Any area which: (1) contains improvements which: (a) have a special character or special historical or aesthetic interest or value; and (b) represent one or more periods or styles of architecture typical of one or more eras in the history of the city; and (c) cause such area, by reason of such factors, to constitute a distinct section of the city; and (2) has been designated as a historic district pursuant to the provisions of this chapter." § 207-1.0(h). The Act also provides for the designation of a "scenic landmark," see § 207-1.0(w), and an "interior landmark." See § 207-1.0(m). [ Footnote 12 ] See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977). Although appellants are correct in noting that some of the designated landmarks are publicly owned, the vast majority are, like Grand Central Terminal, privately owned structures. [ Footnote 13 ] If the owner of a non-tax-exempt parcel has been denied certificates of appropriateness for a proposed alteration and shows that he is not earning a reasonable return on the property in its present state, the Commission and other city agencies must assume the burden of developing a plan that will enable the landmark owner to earn a reasonable return on the landmark site. The plan may include, but need not be limited to, partial or complete tax exemption, remission of taxes, and authorizations for alterations, construction, or reconstruction appropriate for and not inconsistent with the purposes of the law. § 207-8.0(c). The owner is free to accept or reject a plan devised by the Commission and approved by the other city agencies. If he accepts the plan, he proceeds to operate the property pursuant to the plan. If he rejects the plan, the Commission may recommend that the city proceed by eminent domain to acquire a protective interest in the landmark, but if the city does not do so within a specified time period, the Commission must issue a notice allowing the property owner to proceed with the alteration or improvement as originally proposed in his application for a certificate of appropriateness. Tax-exempt structures are treated somewhat differently. They become eligible for special treatment only if four preconditions are satisfied: (1) the owner previously entered into an agreement to sell the parcel that was contingent upon the issuance of a certificate of approval; (2) the property, as it exists at the time of the request, is not capable of earning a reasonable return; (3) the structure is no longer suitable to its past or present purposes; and (4) the prospective buyer intends to alter the landmark structure. In the event the owner demonstrates that the property in its present state is not earning a reasonable return, the Commission must either find another buyer for it or allow the sale and construction to proceed. But this is not the only remedy available for owners of tax-exempt landmarks. As the case at bar illustrates, see infra at 438 U. S. 121 , if an owner files suit and establishes that he is incapable of earning a "reasonable return" on the site in its present state, he can be afforded judicial relief. Similarly, where a landmark owner who enjoys a tax exemption has demonstrated that the landmark structure, as restricted, is totally inadequate for the owner's "legitimate needs," the law has been held invalid as applied to that parcel. See Lutheran Church v. City of New York, 35 N.Y.2d 121, 316 N.E.2d 305 (1974). [ Footnote 14 ] To obtain approval for a proposed transfer, the landmark owner must follow the following procedure. First, he must obtain the permission of the Commission, which will examine the plans for the development of the transferee lot to determine whether the planned construction would be compatible with the landmark. Second, he must obtain the approbation of New York City's Planning Commission, which will focus on the effects of the transfer on occupants of the buildings in the vicinity of the transferee lot and whether the landmark owner will preserve the landmark. Finally, the matter goes to the Board of Estimate, which has final authority to grant or deny the application. See also Costonis, supra, n 2, at 585-586. [ Footnote 15 ] The Terminal's present foundation includes columns, which were built into it for the express purpose of supporting the proposed 20-story tower. [ Footnote 16 ] The Commission's report stated: "Grand Central Station, one of the great buildings of America, evokes a spirit that is unique in this City. It combines distinguished architecture with a brilliant engineering solution, wedded to one of the most fabulous railroad terminals of our time. Monumental in scale, this great building functions as well today as it did when built. In style, it represents the best of the French Beaux Arts." Record 2240. [ Footnote 17 ] Appellants also submitted a plan, denominated Breuer II, to the Commission. However, because appellants learned that Breuer II would have violated existing easements, they substituted Breuer II Revised for Breuer II, and the Commission evaluated the appropriateness only of Breuer II Revised. [ Footnote 18 ] In discussing Breuer I, the Commission also referred to a number of instances in which it had approved additions to landmarks: "The office and reception wing added to Gracie Mansion and the school and church house added to the 12th Street side of the First Presbyterian Church are examples that harmonize in scale, material and character with the structures they adjoin. The new Watch Tower Bible and Tract Society building on Brooklyn Heights, though completely modern in idiom, respects the qualities of its surroundings and will enhance the Brooklyn Heights Historic District, as Butterfield House enhances West 12th Street, and Breuer's own Whitney Museum its Madison Avenue locale." Record 2251. [ Footnote 19 ] See N.Y.Real Prop.Tax Law § 489-aa et seq. (McKinney Supp. 1977). [ Footnote 20 ] Although that court suggested that any regulation of private property to protect landmark values was unconstitutional if "just compensation" were not afforded, it also appeared to rely upon its findings: first, that the cost to Penn Central of operating the Terminal building itself, exclusive of purely railroad operations, exceeded the revenues received from concessionaires and tenants in the Terminal; and second, that the special transferable development rights afforded Penn Central as an owner of a landmark site did not "provide compensation to plaintiffs or minimize the harm suffered by plaintiffs due to the designation of the Terminal as a landmark." [ Footnote 21 ] These statements appear to have reflected the costs of maintaining the exterior architectural features of the Terminal in "good repair," as required by the law. As would have been apparent in any case, therefore, the existence of the duty to keep up the property was here -- and will presumably always be -- factored into the inquiry concerning the constitutionality of the landmark restrictions. The Appellate Division also rejected the claim that an agreement of Penn Central with the Metropolitan Transit Authority and the Connecticut Transit Authority provided a basis for invalidating the application of the Landmarks Law. [ Footnote 22 ] The record reflected that Penn Central had given serious consideration to transferring some of those rights to either the Biltmore Hotel or the Roosevelt Hotel. [ Footnote 23 ] The Court of Appeals suggested that, in calculating the value of the property upon which appellants were entitled to earn a reasonable return, the "publicly created" components of the value of the property -- i.e., those elements of its value attributable to the "efforts of organized society" or to the "social complex" in which the Terminal is located -- had to be excluded. However, since the record upon which the Court of Appeals decided the case did not, as that court recognized, contain a basis for segregating the privately created from the publicly created elements of the value of the Terminal site, and since the judgment of the Court of Appeals, in any event, rests upon bases that support our affirmance, see infra this page and 438 U. S. 122 , we have no occasion to address the question whether it is permissible or feasible to separate out the "social increments" of the value of property. See Costonis, The Disparity Issue: A Context for the Grand Central Terminal Decision, 91 Harv.L.Rev. 402, 416-417 (1977). [ Footnote 24 ] Our statement of the issues is a distillation of four questions presented in the jurisdictional statement: "Does the social and cultural desirability of preserving historical landmarks through government regulation derogate from the constitutional requirement that just compensation be paid for private property taken for public use?" "Is Penn Central entitled to no compensation for that large but unmeasurable portion of the value of its rights to construct an office building over the Grand Central Terminal that is said to have been created by the efforts of 'society as an organized entity'?" "Does a finding that Penn Central has failed to establish that there is no possibility, without exercising its development rights, of earning a reasonable return on all of its remaining properties that benefit in any way from the operations of the Grand Central Terminal warrant the conclusion that no compensation need be paid for the taking of those rights?" "Does the possibility accorded to Penn Central, under the landmark preservation regulation, of realizing some value at some time by transferring the Terminal development rights to other buildings, under a procedure that is conceded to be defective, severely limited, procedurally complex and speculative, and that requires ultimate discretionary approval by governmental authorities, meet the constitutional requirements of just compensation as applied to landmarks?" Jurisdictional Statement 3-4. The first and fourth questions assume that there has been a taking, and raise the problem whether, under the circumstances of this case, the transferable development rights constitute "just compensation." The second and third questions, on the other hand, are directed to the issue whether a taking has occurred. [ Footnote 25 ] As is implicit in our opinion, we do not embrace the proposition that a "taking" can never occur unless government has transferred physical control over a portion of a parcel. [ Footnote 26 ] Both the Jurisdictional Statement 7-8, n. 7, and Brief for Appellants 8 n. 7 state that appellants are not seeking review of the New York courts' determination that Penn Central could earn a "reasonable return" on its investment in the Terminal. Although appellants suggest in their reply brief that the factual conclusions of the New York courts cannot be sustained unless we accept the rationale of the New York Court of Appeals, see Reply Brief for Appellants 12 n. 15, it is apparent that the findings concerning Penn Central's ability to profit from the Terminal depend in no way on the Court of Appeals' rationale. [ Footnote 27 ] These cases dispose of any contention that might be based on Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), that full use of air rights is so bound up with the investment-backed expectations of appellants that governmental deprivation of these rights invariably -- i.e., irrespective of the impact of the restriction on the value of the parcel as a whole -- constitutes a "taking." Similarly, Welch, Goldblatt, and Gorieb illustrate the fallacy of appellants' related contention that a "taking" must be found to have occurred whenever the land use restriction may be characterized as imposing a "servitude" on the claimant's parcel. [ Footnote 28 ] Although the New York Court of Appeals contrasted the New York City Landmarks Law with both zoning and historic district legislation, and stated at one point that landmark laws do not "further a general community plan," 42 N.Y.2d 324 , 330, 366 N.E.2d 1271, 1274 (1977), it also emphasized that the implementation of the objectives of the Landmarks Law constitutes an "acceptable reason for singling out one particular parcel for different and less favorable treatment." Ibid., 366 N.E.2d at 1275. Therefore, we do not understand the New York Court of Appeals to disagree with our characterization of the law. [ Footnote 29 ] When a property owner challenges the application of a zoning ordinance to his property, the judicial inquiry focuses upon whether the challenged restriction can reasonably be deemed to promote the objectives of the community land use plan, and will include consideration of the treatment of similar parcels. See generally Nectow v. Cambridge, 277 U. S. 183 (1928). When a property owner challenges a landmark designation or restriction as arbitrary or discriminatory, a similar inquiry presumably will occur. [ Footnote 30 ] Appellants attempt to distinguish these cases on the ground that, in each, government was prohibiting a "noxious" use of land, and that, in the present case, in contrast, appellants' proposed construction above the Terminal would be beneficial. We observe that the uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves. They involved no "blameworthiness, . . . moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual." Sax, Takings and the Police Power, 74 Yale L.J. 36, 50 (1964). These cases are better understood as resting not on any supposed "noxious" quality of the prohibited uses, but rather on the ground that the restrictions were reasonably related to the implementation of a policy -- not unlike historic preservation -- expected to produce a widespread public benefit and applicable to all similarly situated property. Nor, correlatively, can it be asserted that the destruction or fundamental alteration of a historic landmark is not harmful. The suggestion that the beneficial quality of appellants' proposed construction is established by the fact that the construction would have been consistent with applicable zoning laws ignores the development in sensibilities and ideals reflected in landmark legislation like New York City's. Cf. West Bros. Brick Co. v. Alexandria, 169 Va. 271, 282-283, 192 S.E. 881, 885-886, appeal dismissed for want of a substantial federal question, 302 U.S. 658 (1937). [ Footnote 31 ] There are some 53 designated landmarks and 5 historic districts or scenic landmarks in Manhattan between 14th and 59th Streets. See Landmarks Preservation Commission, Landmarks and Historic Districts (1977). [ Footnote 32 ] It is, of course, true that the fact the duties imposed by zoning and historic district legislation apply throughout particular physical communities provides assurances against arbitrariness, but the applicability of the Landmarks Law to a large number of parcels in the city, in our view, provides comparable, if not identical, assurances. [ Footnote 33 ] Appellants, of course, argue at length that the transferable development rights, while valuable, do not constitute "just compensation." Brief for Appellants 36-43. [ Footnote 34 ] Counsel for appellants admitted at oral argument that the Commission has not suggested that it would not, for example, approve a 20-story office tower along the lines of that which was part of the original plan for the Terminal. See Tr. of Oral Arg.19. [ Footnote 35 ] See Costonis, supra, n 2, at 585-589. [ Footnote 36 ] We emphasize that our holding today is on the present record, which, in turn, is based on Penn Central's present ability to use the Terminal for its intended purposes and in a gainful fashion. The city conceded at oral argument that, if appellants can demonstrate at some point in the future that circumstances have so changed that the Terminal ceases to be "economically viable," appellants may obtain relief. See Tr. of Oral Arg. 423. MR JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE STEVENS join, dissenting. Of the over one million buildings and structures in the city of New York, appellees have singled out 400 for designation as official landmarks. [ Footnote 2/1 ] The owner of a building might initially be pleased that his property has been chosen by a distinguished committee of architects, historians, and city Page 438 U. S. 139 planners for such a singular distinction. But he may well discover, as appellant Penn Central Transportation Co. did here, that the landmark designation imposes upon him a substantial cost, with little or no offsetting benefit except for the honor of the designation. The question in this case is whether the cost associated with the city of New York's desire to preserve a limited number of "landmarks" within its borders must be borne by all of its taxpayers, or whether it can, instead, be imposed entirely on the owners of the individual properties. Only in the most superficial sense of the word can this case be said to involve "zoning." [ Footnote 2/2 ] Typical zoning restrictions may, it is true, so limit the prospective uses of a piece of property as to diminish the value of that property in the abstract because it may not be used for the forbidden purposes. But any such abstract decrease in value will more than likely be at least partially offset by an increase in value which flows from similar restrictions as to use on neighboring Page 438 U. S. 140 properties. All property owners in a designated area are placed under the same restrictions, not only for the benefit of the municipality as a whole, but also for the common benefit of one another. In the words of Mr. Justice Holmes, speaking for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 (1922), there is "an average reciprocity of advantage." Where a relatively few individual buildings, all separated from one another, are singled out and treated differently from surrounding buildings, no such reciprocity exists. The cost to the property owner which results from the imposition of restrictions applicable only to his property and not that of his neighbors may be substantial -- in this case, several million dollars -- with no comparable reciprocal benefits. And the cost associated with landmark legislation is likely to be of a completely different order of magnitude than that which results from the imposition of normal zoning restrictions. Unlike the regime affected by the latter, the landowner is not simply prohibited from using his property for certain purposes, while allowed to use it for all other purposes. Under the historic landmark preservation scheme adopted by New York, the property owner is under an affirmative duty to preserve his property as a landmark at his own expense. To suggest that, because traditional zoning results in some limitation of use of the property zoned, the New York City landmark preservation scheme should likewise be upheld, represents the ultimate in treating as alike things which are different. The rubric of "zoning" has not yet sufficed to avoid the well established proposition that the Fifth Amendment bars the "Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40 , 364 U. S. 49 (1960). See discussion infra at 438 U. S. 147 -150. In August, 1967, Grand Central Terminal was designated a landmark over the objections of its owner Penn Central. Immediately upon this designation, Penn Central, like all Page 438 U. S. 141 owners of a landmark site, was placed under an affirmative duty, backed by criminal fines and penalties, to keep "exterior portions" of the landmark "in good repair." Even more burdensome, however, were the strict limitations that were thereupon imposed on Penn Central's use of its property. At the time Grand Central was designated a landmark, Penn Central was in a precarious financial condition. In an effort to increase its sources of revenue, Penn Central had entered into a lease agreement with appellant UGP Properties, Inc., under which UGP would construct and operate a multistory office building cantilevered above the Terminal building. During the period of construction, UGP would pay Penn Central $1 million per year. Upon completion, UGP would rent the building for 50 years, with an option for another 25 years, at a guaranteed minimum rental of $3 million per year. The record is clear that the proposed office building was in full compliance with all New York zoning laws and height limitations. Under the Landmarks Preservation Law, however, appellants could not construct the proposed office building unless appellee Landmarks Preservation Commission issued either a "Certificate of No Exterior Effect" or a "Certificate of Appropriateness." Although appellants' architectural plan would have preserved the facade of the Terminal, the Landmarks Preservation Commission has refused to approve the construction. I The Fifth Amendment provides in part: "nor shall private property be taken for public use, without just compensation." [ Footnote 2/3 ] Page 438 U. S. 142 In a very literal sense, the actions of appellees violated this constitutional prohibition. Before the city of New York declared Grand Central Terminal to be a landmark, Penn Central could have used its "air rights" over the Terminal to build a multistory office building, at an apparent value of several million dollars per year. Today, the Terminal cannot be modified in any form, including the erection of additional stories, without the permission of the Landmark Preservation Commission, a permission which appellants, despite good faith attempts, have so far been unable to obtain. Because the Taking Clause of the Fifth Amendment has not always been read literally, however, the constitutionality of appellees' actions requires a closer scrutiny of this Court's interpretation of the three key words in the Taking Clause -- "property," "taken," and "just compensation." [ Footnote 2/4 ] A Appellees do not dispute that valuable property rights have been destroyed. And the Court has frequently emphasized that the term "property" as used in the Taking Clause includes the entire "group of rights inhering in the citizen's [ownership]." United States v. General Motors Corp., 323 U. S. 373 (1945). The term is not used in the "vulgar and untechnical sense of the physical thing with respect to which the citizen exercises rights recognized by law. [Instead, it] . . . denote[s] the group of rights inhering in the citizen's relation to the physical thing, as Page 438 U. S. 143 the right to possess, use and dispose of it. . . . The constitutional provision is addressed to every sort of interest the citizen may possess." Id. at 323 U. S. 377 -378 (emphasis added). While neighboring landowners are free to use their land and "air rights" in any way consistent with the broad boundaries of New York zoning, Penn Central, absent the permission of appellees, must forever maintain its property in its present state. [ Footnote 2/5 ] The property has been thus subjected to a nonconsensual servitude not borne by any neighboring or similar properties. [ Footnote 2/6 ] B Appellees have thus destroyed -- in a literal sense, "taken" -- substantial property rights of Penn Central. While the term "taken" might have been narrowly interpreted to include only physical seizures of property rights, "the construction of the phrase has not been so narrow. The courts have held that the deprivation of the former owner, rather than the accretion of a right or interest to the sovereign, constitutes the taking." Id. at 323 U. S. 378 . See also United States v. Lynah, 188 U. S. 445 , 188 U. S. 469 Page 438 U. S. 144 (1903); [ Footnote 2/7 ] Dugan v. Rank, 372 U. S. 609 , 372 U. S. 625 (1963). Because "not every destruction or injury to property by governmental action has been held to be a taking' in the constitutional sense," Armstrong v. United States, 364 U.S. at 364 U. S. 48 , however, this does not end our inquiry. But an examination of the two exceptions where the destruction of property does not constitute a taking demonstrates that a compensable taking has occurred here. 1 As early as 1887, the Court recognized that the government can prevent a property owner from using his property to injure others without having to compensate the owner for the value of the forbidden use. "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by anyone, for certain forbidden purposes, is prejudicial to the public interests. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not -- and, consistently with the existence and safety of organized society, cannot be -- burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of Page 438 U. S. 145 their property, to inflict injury upon the community. " Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 668 -669. Thus, there is no "taking" where a city prohibits the operation of a brickyard within a residential area, see Hadacheck v. Sebastian, 239 U. S. 394 (1915), or forbids excavation for sand and gravel below the water line, see Goldblatt v. Hempstead, 369 U. S. 590 (1962). Nor is it relevant, where the government is merely prohibiting a noxious use of property, that the government would seem to be singling out a particular property owner. Hadacheck, supra at 239 U. S. 413 . [ Footnote 2/8 ] The nuisance exception to the taking guarantee is not coterminous with the police power itself. The question is whether the forbidden use is dangerous to the safety, health, or welfare of others. Thus, in Curtin v. Benson, 222 U. S. 78 (1911), the Court held that the Government, in prohibiting the owner of property within he boundaries of Yosemite National Park from grazing cattle on his property, had taken the owner's property. The Court assumed that the Government could constitutionally require the owner to fence his land or take other action to prevent his cattle from straying onto others' land without compensating him. "Such laws might be considered as strictly regulations of the use of property, of so using it that no injury could result to others. They would have the effect of making the owner of land herd his cattle on his own land, and of making him responsible for a neglect of it." Id. at 222 U. S. 86 . The prohibition in question, however, was "not a prevention of a misuse or illegal use, but the prevention of a legal and essential use, an attribute of its ownership." Ibid. Appellees are not prohibiting a nuisance. The record is Page 438 U. S. 146 clear that the proposed addition to the Grand Central Terminal would be in full compliance with zoning, height limitations, and other health and safety requirements. Instead, appellees are seeking to preserve what they believe to be an outstanding example of beaux arts architecture. Penn Central is prevented from further developing its property basically because too good a job was done in designing and building it. The city of New York, because of its unadorned admiration for the design, has decided that the owners of the building must preserve it unchanged for the benefit of sightseeing New Yorkers and tourists. Unlike land use regulations, appellees' actions do not merely prohibit Penn Central from using its property in a narrow set of noxious ways. Instead, appellees have placed an affirmative duty on Penn Central to maintain the Terminal in its present state and in "good repair." Appellants are not free to use their property as they see fit within broad outer boundaries, but must strictly adhere to their past use except where appellees conclude that alternative uses would not detract from the landmark. While Penn Central may continue to use the Terminal as it is presently designed, appellees otherwise "exercise complete dominion and control over the surface of the land," United States v. Causby, 328 U. S. 256 , 328 U. S. 262 (1946), and must compensate the owner for his loss. Ibid. "Property is taken in the constitutional sense when inroads are made upon an owner's use of it to an extent that, as between private parties, a servitude has been acquired." United States v. Dickinson, 331 U. S. 745 , 331 U. S. 748 (1947). See also Dugan v. Rank, supra at 372 U. S. 625 . [ Footnote 2/9 ] Page 438 U. S. 147 2 Even where the government prohibits a noninjurious use, the Court has ruled that a taking does not take place if the prohibition applies over a broad cross-section of land, and thereby "secure[s] an average reciprocity of advantage." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 415 . [ Footnote 2/10 ] It is for this reason that zoning does not constitute a "taking." While zoning at times reduces individual property values, the burden is shared relatively evenly, and it is reasonable to conclude that, on the whole, an individual who is harmed by one aspect of the zoning will be benefited by another. Here, however, a multimillion dollar loss has been imposed on appellants; it is uniquely felt, and is not offset by any benefits flowing from the preservation of some 400 other "landmarks" in New York City. Appellees have imposed a substantial cost on less than one one-tenth of one percent of the buildings in New York City for the general benefit of all its people. It is exactly this imposition of general costs on a few individuals at which the "taking" protection is directed. The Fifth Amendment "prevents the public from loading upon one individual more than his just share of the burdens of government, Page 438 U. S. 148 and says that, when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him." Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 325 (1893). Less than 20 years ago, this Court reiterated that the "Fifth Amendment's guarantee that private property shall not be taken for a public use without just compensation was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. at 364 U. S. 49 . Cf. Nashville, C. & St. L. R. Co. v. Walters, 294 U. S. 405 , 294 U. S. 428 -430 (1935). [ Footnote 2/11 ] As Mr. Justice Holmes pointed out in Pennsylvania Coal Co. v. Mahon, "the question at bottom" in an eminent domain case "is upon whom the loss of the changes desired should fall." 260 U.S. at 260 U. S. 416 . The benefits that appellees believe will flow from preservation of the Grand Central Terminal will accrue to all the citizens of New York City. There is no reason to believe that appellants will enjoy a substantially greater share of these benefits. If the cost of preserving Grand Central Terminal were spread evenly across the entire population of the city of New York, the burden per person would be in cents per year -- a minor cost appellees would Page 438 U. S. 149 surely concede for the benefit accrued. Instead, however, appellees would impose the entire cost of several million dollars per year on Penn Central. But it is precisely this sort of discrimination that the Fifth Amendment prohibits. [ Footnote 2/12 ] Appellees in response would argue that a taking only occurs where a property owner is denied all reasonable value of his property. [ Footnote 2/13 ] The Court has frequently held that, even where a destruction of property rights would not otherwise constitute a taking, the inability of the owner to make a reasonable return on his property requires compensation under the Fifth Amendment. See, e.g., United States v. Lynah, 188 U.S. at 188 U. S. 470 . But the converse is not true. A taking does not become a noncompensable exercise of police power simply because the government, in its grace, allows the owner to make some "reasonable" use of his property. "[I]t is the character of the invasion, not the amount of damage resulting from it, Page 438 U. S. 150 so long as the damage is substantial, that determines the question whether it is a taking." United States v. Cress, 243 U. S. 316 , 243 U. S. 328 (1917); United States v. Causby, 328 U.S. at 328 U. S. 266 . See also Goldblatt v. Hempstead, 369 U.S. at 369 U. S. 594 . C Appellees, apparently recognizing that the constraints imposed on a landmark site constitute a taking for Fifth Amendment purposes, do not leave the property owner empty-handed. As the Court notes, ante at 438 U. S. 113 -114, the property owner may theoretically "transfer" his previous right to develop the landmark property to adjacent properties if they are under his control. Appellees have coined this system "Transfer Development Rights," or TDR's. Of all the terms used in the Taking Clause, "just compensation" has the strictest meaning. The Fifth Amendment does not allow simply an approximate compensation, but requires "a full and perfect equivalent for the property taken." Monongahela Navigation Co. v. United States, 148 U.S. at 148 U. S. 326 . "[I]f the adjective 'just' had been omitted, and the provision was simply that property should not be taken without compensation, the natural import of the language would be that the compensation should be the equivalent of the property. And this is made emphatic by the adjective 'just.' There can, in view of the combination of those two words, be no doubt that the compensation must be a full and perfect equivalent for the property taken." Ibid. See also United States v. Lynah, supra at 188 U. S. 465 ; United States v. Pewee Coal Co., 341 U. S. 114 , 341 U. S. 117 (1951). And the determination of whether a "full and perfect equivalent" has been awarded is a "judicial function." United States v. New River Collieries Co., 262 U. S. 341 , 262 U. S. 343 -344 (1923). The fact Page 438 U. S. 151 that appellees may believe that TDR's provide full compensation is irrelevant. "The legislature may determine what private property is needed for public purposes -- that is a question of a political and legislative character; but when the taking has been ordered, then the question of compensation is judicial. It does not rest with the public, taking the property, through Congress or the legislature, its representative, to say what compensation shall be paid, or even what shall be the rule of compensation. The Constitution has declared that just compensation shall be paid, and the ascertainment of that is a judicial inquiry." Monongahela Navigation Co. v. United States, supra at 148 U. S. 327 . Appellees contend that, even if they have "taken" appellants' property, TDR's constitute "just compensation." Appellants, of course, argue that TDR's are highly imperfect compensation. Because the lower courts held that there was no "taking," they did not have to reach the question of whether or not just compensation has already been awarded. The New York Court of Appeals' discussion of TDR's gives some support to appellants: "The many defects in New York City's program for development rights transfers have been detailed elsewhere. . . . The area to which transfer is permitted is severely limited, [and] complex procedures are required to obtain a transfer permit." 42 N.Y.2d 324 , 334 335, 366 N.E.2d 1271, 1277 (1977). And in other cases, the Court of Appeals has noted that TDR's have an "uncertain and contingent market value," and do "not adequately preserve" the value lost when a building is declared to be a landmark. French Investing Co. v. City of New York, 39 N.Y.2d 587, 591, 350 N.E.2d 381, 383, appeal dismissed, 429 U.S. 990 (1976). On the other hand, there is evidence in the record that Penn Central has been Page 438 U. S. 152 offered substantial amounts for its TDR's. Because the record on appeal is relatively slim, I would remand to the Court of Appeals for a determination of whether TDR's constitute a "full and perfect equivalent for the property taken." [ Footnote 2/14 ] II Over 50 years ago, Mr. Justice Holmes, speaking for the Court, warned that the courts were "in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 416 . The Court's opinion in this case demonstrates that the danger thus foreseen has not abated. The city of New York is in a precarious financial state, and some may believe that the costs of landmark preservation will be more easily borne by corporations such as Penn Central than the overburdened individual taxpayers Page 438 U. S. 153 of New York. But these concerns do not allow us to ignore past precedents construing the Eminent Domain Clause to the end that the desire to improve the public condition is, indeed, achieved by a shorter cut than the constitutional way of paying for the change. [ Footnote 2/1 ] A large percentage of the designated landmarks are public structures (such as the Brooklyn Bridge, City Hall, the Statue of Liberty and the Municipal Asphalt Plant), and thus do not raise Fifth Amendment taking questions. See Landmarks Preservation Commission of the City of New York, Landmarks and Historic Districts (1977 and Jan. 10, 1978, Supplement). Although the Court refers to the New York ordinance as a comprehensive program to preserve historic landmarks, ante at 438 U. S. 107 , the ordinance is not limited to historic buildings, and gives little guidance to the Landmarks Preservation Commission in its selection of landmark sites. Section 207-1.0(n) of the Landmarks Preservation Law, as set forth in N.Y.C.Admin.Code, ch. 8-A (1976), requires only that the selected landmark be at least 30 years old and possess "a special character or special historical or aesthetic interest or value as part of the development, heritage or cultural characteristics of the city, state or nation." [ Footnote 2/2 ] Even the New York Court of Appeals conceded that "[t]his is not a zoning case. . . . Zoning restrictions operate to advance a comprehensive community plan for the common good. Each property owner in the zone is both benefited and restricted from exploitation, presumably without discrimination, except for permitted continuing nonconforming uses. The restrictions may be designed to maintain the general character of the area, or to assure orderly development, objectives inuring to the benefit of all, which property owners acting individually would find difficult or impossible to achieve. . . . " "Nor does this case involve landmark regulation of a historic district. . . . [In historic districting, as in traditional zoning,] owners, although burdened by the restrictions, also benefit, to some extent, from the furtherance of a general community plan." " * * * *" "Restrictions on alteration of individual landmarks are not designed to further a general community plan. Landmark restrictions are designed to prevent alteration or demolition of a single piece of property. To this extent, such restrictions resemble 'discriminatory' zoning restrictions, properly condemned. . . ." 42 N.Y.2d 324 , 329-330, 366 N.E.2d 1271, 1274 (1977). [ Footnote 2/3 ] The guarantee that private property shall not be taken for public use without just compensation is applicable to the States through the Fourteenth Amendment. Although the state "legislature may prescribe a form of procedure to be observed in the taking of private property for public use, . . . it is not due process of law if provision be not made for compensation." Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 236 (1897). [ Footnote 2/4 ] The Court's opinion touches base with, or at least attempts to touch base with, most of the major eminent domain cases decided by this Court. Its use of them, however, is anything but meticulous. In citing to United State v. Caltex, Inc., 344 U. S. 149 , 344 U. S. 156 (1952), for example, ante at 438 U.S. 124 , the only language remotely applicable to eminent domain is stated in terms of "the destruction of respondents' terminals by a trained team of engineers in the face of their impending seizure by the enemy." 344 U.S. at 344 U. S. 156 . [ Footnote 2/5 ] In particular, Penn Central cannot increase the height of the Terminal. This Court has previously held that the "air rights" over an area of land are "property" for purposes of the Fifth Amendment. See United States v. Causby, 328 U. S. 256 (1946) ("air rights" taken by low-flying airplanes); Griggs v. Allegheny County, 369 U. S. 84 (1962) (same); Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922) (firing of projectiles over summer resort can constitute taking). See also Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716 (190) (stringing of telephone wire across property constitutes a taking). [ Footnote 2/6 ] It is, of course, irrelevant that appellees interfered with or destroyed property rights that Penn Central had not yet physically used. The Fifth Amendment must be applied with "reference to the uses for which the property is suitable, having regard to the existing business or wants of the community, or such as may be reasonably expected in the immediate future. " Boom Co. v. Patterson, 98 U. S. 403 , 98 U. S. 408 (1879) (emphasis added). [ Footnote 2/7 ] "Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen, as those rights stood at the common law, instead of the government, and make it an authority for invasion of private right under the pretext of the public good, which had no warrant in the laws or practices of our ancestors." 188 U.S. at 188 U. S. 470 . [ Footnote 2/8 ] Each of the cases cited by the Court for the proposition that legislation which severely affects some landowners but not others does not effect a "taking" involved noxious uses of property. See Hadacheck; Miller v. Schoene, 276 U. S. 272 (1928); Goldblatt. See ante at 438 U. S. 125 -127, 438 U. S. 133 . [ Footnote 2/9 ] In Monongahela Navigation Co. v. United States, 148 U. S. 312 (1893), the Monongahela company had expended large sums of money in improving the Monongahela River by means of locks and dams. When the United States condemned this property for its own use, the Court held that full compensation had to be awarded. "Suppose, in the improvement of a navigable stream, it was deemed essential to construct a canal with locks, in order to pass around rapids or falls. Of the power of Congress to condemn whatever land may be necessary for such canal, there can be no question; and of the equal necessity of paying full compensation for all private property taken there can be as little doubt." Id. at 148 U. S. 337 . Under the Court's rationale, however, where the Government wishes to preserve a preexisting canal system for public use, it need not condemn the property, but need merely order that it be preserved in its present form and be kept "in good repair." [ Footnote 2/10 ] Appellants concede that the preservation of buildings of historical or aesthetic importance is a permissible objective of state action. Brief for Appellants 12. Cf. Berman v. Parker, 348 U. S. 26 (1954); United States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896). For the reasons noted in the text, historic zoning, as has been undertaken by cities such as New Orleans, may well not require compensation under the Fifth Amendment. [ Footnote 2/11 ] "It is true that the police power embraces regulations designed to promote public convenience or the general welfare, and not merely those in the interest of public health, safety and morals. . . . But when particular individuals are singled out to bear the cost of advancing the public convenience, that imposition must bear some reasonable relation to the evils to be eradicated or the advantages to be secured. . . . While moneys raised by general taxation may constitutionally be applied to purposes from which the individual taxed may receive no benefit, and indeed, suffer serious detriment, . . . so-called assessments for public improvements laid upon particular property owners are ordinarily constitutional only if based on benefits received by them." 294 U.S. at 294 U. S. 429 -430. [ Footnote 2/12 ] The fact that the Landmarks Preservation Commission may have allowed additions to a relatively few landmarks is of no comfort to appellants. Ante at 438 U. S. 118 n. 18. Nor is it of any comfort that the Commission refuses to allow appellants to construct any additional stories because of their belief that such construction would not be aesthetic. Ante at 438 U. S. 117 -118. [ Footnote 2/13 ] Difficult conceptual and legal problems are posed by a rule that a taking only occurs where the property owner is denied all reasonable return on his property. Not only must the Court define "reasonable return" for a variety of types of property (farmlands, residential properties, commercial and industrial areas), but the Court must define the particular property unit that should be examined. For example, in this case, if appellees are viewed as having restricted Penn Central's use of its "air rights," all return has been denied. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922). The Court does little to resolve these questions in its opinion. Thus, at one point, the Court implies that the question is whether the restrictions have "an unduly harsh impact upon the owner's use of the property," ante at 438 U. S. 127 ; at another point, the question is phrased as whether Penn Central can obtain "a reasonable return' on its investment," ante at 438 U. S. 136 ; and, at yet another point, the question becomes whether the landmark is "economically viable," ante at 438 U. S. 138 n. 36. [ Footnote 2/14 ] The Court suggests, ante at 438 U. S. 131 , that, if appellees are held to have "taken" property rights of landmark owners, not only the New York City Landmarks Preservation Law, but "all comparable landmark legislation in the Nation," must fall. This assumes, of course, that TDR's are not "just compensation" for the property rights destroyed. It also ignores the fact that many States and cities in the Nation have chosen to preserve landmarks by purchasing or condemning restrictive easements over the facades of the landmarks, and are apparently quite satisfied with the results. See, e.g., Ore.Rev.Stat. §§ 271.710, 271.720 (1977); Md.Ann.Code, Art 41, § 181A (1978); Va.Code §§ 10-145.1 and 10-138(e) (1978); Richmond, Va., City Code § 17-23 et seq. (1975). The British National Trust has effectively used restrictive easements to preserve landmarks since 1937. See National Trust Act, 1937, 1 Edw. 8 and 1 Geo. 6 ch. lvii, §§ 4 and 8. Other States and cities have found that tax incentives are also an effective means of encouraging the private preservation of landmark sites. See, e.g., Conn.Gen.Stat. § 12-127a (1977); Ill.Rev.Stat., ch. 24, § 11-48.2-6 (1976); Va.Code § 10-139 (1978). The New York City Landmarks Preservation Law departs drastically from these traditional, and constitutional, means of preserving landmarks.

In *Penn Central Transportation Co. v. New York City*, the U.S. Supreme Court ruled that New York City's Landmarks Preservation Law did not constitute a "taking" of private property without just compensation, as it only restricted the owner's ability to exploit the property rather than transferring control to the city. The Court also found no denial of due process, as the same use of the property was permitted, and the owner could still earn a reasonable return on their investment. This case set a precedent for the regulation of historic landmarks and neighborhoods.

Property Rights & Land Use

Hawaii Housing Authority v. Midkiff

https://supreme.justia.com/cases/federal/us/467/229/

U.S. Supreme Court Hawaii Housing Auth. v. Midkiff, 467 U.S. 229 (1984) Hawaii Housing Authority v. Midkiff No. 83-141 Argued March 26, 1984 Decided May 30, 1984 467 U.S. 229 ast|>* 467 U.S. 229 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus To reduce the perceived social and economic evils of a land oligopoly traceable to the early high chiefs of the Hawaiian Islands, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), which created a land condemnation scheme whereby title in real property is taken from lessors and transferred to lessees in order to reduce the concentration of land ownership. Under the Act, lessees living on single-family residential lots within tracts at least five acres in size are entitled to ask appellant Hawaii Housing Authority (HHA) to condemn the property on which they live. When appropriate applications by lessees are filed, the Act authorizes HHA to hold a public hearing to determine whether the State's acquisition of the tract will "effectuate the public purposes" of the Act. If HHA determines that these public purposes will be served, it is authorized to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set by a condemnation trial or by negotiation between lessors and lessees, the former fee owners' "right, title, and interest" in the land, and may then sell the land titles to the applicant lessees. After HHA had held a public hearing on the proposed acquisition of appellees' lands and had found that such acquisition would effectuate the Act's public purposes, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. When these negotiations failed, HHA ordered appellees to submit to compulsory arbitration as provided by the Act. Rather than comply with this order, appellees filed suit in Federal District Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The court temporarily restrained the State from proceeding against appellees' estates, but subsequently, while holding the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, refused to issue a preliminary injunction and ultimately granted partial summary judgment to HHA and private appellants who had intervened, holding Page 467 U. S. 230 the remainder of the Act constitutional under the Public Use Clause of the Fifth Amendment, made applicable to the States under the Fourteenth Amendment. After deciding that the District Court had properly not abstained from exercising its jurisdiction, the Court of Appeals reversed, holding that the Act violates the "public use" requirement of the Fifth Amendment. Held: 1. The District Court was not required to abstain from exercising its jurisdiction. Pp. 467 U. S. 236 -239. (a) Abstention under Railroad Comm'n v. Pullman Co., 312 U. S. 496 , is unnecessary. Pullman abstention is limited to uncertain questions of state law, and here there is no uncertain question of state law, since the Act unambiguously provides that the power to condemn is "for a public use and purpose." Thus, the question, uncomplicated by ambiguous language, is whether the Act, on its face, is unconstitutional. Pp. 467 U. S. 236 -237. (b) Nor is abstention required under Younger v. Harris, 401 U. S. 37 . Younger abstention is required only when state court proceedings are initiated before any proceedings of substance on the merits have occurred in federal court. Here, state judicial proceedings had not been initiated at the time proceedings of substance took place in the District Court, the District Court having issued a preliminary injunction before HHA filed its first state eminent domain suit in state court. And the fact that HHA's administrative proceedings occurred before the federal suit was filed did not require abstention, since the Act clearly states that those proceedings are not part of, or are not themselves, a judicial proceeding. Pp. 467 U. S. 237 -239. 2. The Act does not violate the "public use" requirement of the Fifth Amendment. Pp. 467 U. S. 239 -244. (a) That requirement is coterminous with the scope of a sovereign's police powers. This Court will not substitute its judgment for a legislature's judgment as to what constitutes "public use" unless the use is palpably without reasonable foundation. Where the exercise of the eminent domain power is rationally related to a conceivable public purpose, a compensated taking is not prohibited by the Public Use Clause. Here, regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers, and redistribution of fees simple to reduce such evils is a rational exercise of the eminent domain power. Pp. 467 U. S. 239 -243. (b) The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private purpose. Government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under Page 467 U. S. 231 the Public Use Clause. And the fact that a state legislature, and not Congress, made the public use determination does not mean that judicial deference is less appropriate. Pp. 467 U. S. 243 -244. 702 F.2d 788, reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL, J., who took no part in the consideration or decision of the cases. JUSTICE O'CONNOR delivered the opinion of the Court. The Fifth Amendment of the United States Constitution provides, in pertinent part, that "private property [shall not] be taken for public use, without just compensation." These cases present the question whether the Public Use Clause of that Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the State of Hawaii from taking, with just compensation, title in real property from Page 467 U. S. 232 lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State. We conclude that it does not. I A The Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali'i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs, who would administer the land and govern the farmers and other tenants working it. All land was held at the will of the ali'i nui and eventually had to be returned to his trust. There was no private ownership of land. See generally Brief for Office of Hawaiian Affairs as Amicus Curiae 3-5. Beginning in the early 1800's, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960's, after extensive hearings, the Hawaii Legislature discovered that, while the State and Federal Governments owned almost 49% of the State's land, another 47% was in the hands of only 72 private landowners. See Brief for the Hou Hawaiians and Maui Loa, Chief of the Hou Hawaiians, as Amici Curiae 32. The legislature further found that 18 landholders, with tracts of 21,000 acres or more, owned more than 40% of this land and that on Oahu, the most urbanized of the islands, 22 landowners owned 72.5% of the fee simple titles. Id. at 32-33. The legislature concluded that concentrated land ownership was responsible for skewing the State's residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. Page 467 U. S. 233 To redress these problems, the legislature decided to compel the large landowners to break up their estates. The legislature considered requiring large landowners to sell lands which they were leasing to homeowners. However, the landowners strongly resisted this scheme, pointing out the significant federal tax liabilities they would incur. Indeed, the landowners claimed that the federal tax laws were the primary reason they previously had chosen to lease, and not sell, their lands. Therefore, to accommodate the needs of both lessors and lessees, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), Haw.Rev.Stat., ch. 516, which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees. By condemning the land in question, the Hawaii Legislature intended to make the land sales involuntary, thereby making the federal tax consequences less severe while still facilitating the redistribution of fees simple. See Brief for Appellants in Nos. 83-141 and 83-283, pp. 3-4, and nn. 6-8. Under the Act's condemnation scheme, tenants living on single-family residential lots within developmental tracts at least five acres in size are entitled to ask the Hawaii Housing Authority (HHA) to condemn the property on which they live. Haw. Rev.Stat. §§ 516-1(2), (11), 516-22 (1977). When 25 eligible tenants, [ Footnote 1 ] or tenants on half the lots in the tract, whichever is less, file appropriate applications, the Act authorizes HHA to hold a public hearing to determine whether acquisition by the State of all or part of the tract will "effectuate the public purposes" of the Act. § 516-22. If HHA finds that these public purposes will be served, it is authorized Page 467 U. S. 234 to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set either by condemnation trial or by negotiation between lessors and lessees, [ Footnote 2 ] the former fee owners' full "right, title, and interest" in the land. § 516-25. After compensation has been set, HHA may sell the land titles to tenants who have applied for fee simple ownership. HHA is authorized to lend these tenants up to 90% of the purchase price, and it may condition final transfer on a right of first refusal for the first 10 years following sale. §§ 516-30, 516-34, 516-35. If HHA does not sell the lot to the tenant residing there, it may lease the lot or sell it to someone else, provided that public notice has been given. § 516-28. However, HHA may not sell to any one purchaser, or lease to any one tenant, more than one lot, and it may not operate for profit. §§ 516-28, 516-32. In practice, funds to satisfy the condemnation awards have been supplied entirely by lessees. See App. 164. While the Act authorizes HHA to issue bonds and appropriate funds for acquisition, no bonds have issued and HHA has not supplied any funds for condemned lots. See ibid. B In April 1977, HHA held a public hearing concerning the proposed acquisition of some of appellees' lands. HHA made the statutorily required finding that acquisition of appellees' lands would effectuate the public purposes of the Act. Then, in October, 1978, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. Those negotiations failed, and HHA subsequently ordered appellees to submit to compulsory arbitration. Rather than comply with the compulsory arbitration order, appellees filed suit, in February, 1979, in United States District Page 467 U. S. 235 Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The District Court temporarily restrained the State from proceeding against appellees' estates. Three months later, while declaring the compulsory arbitration and compensation formulae provisions of the Act unconstitutional, [ Footnote 3 ] the District Court refused preliminarily to enjoin appellants from conducting the statutory designation and condemnation proceedings. Finally, in December, 1979, it granted partial summary judgment to appellants, holding the remaining portion of the Act constitutional under the Public Use Clause. See 483 F. Supp. 62 (Haw.1979). The District Court found that the Act's goals were within the bounds of the State's police powers and that the means the legislature had chosen to serve those goals were not arbitrary, capricious, or selected in bad faith. The Court of Appeals for the Ninth Circuit reversed. 702 F.2d 788 (1983). First, the Court of Appeals decided that the District Court had permissibly chosen not to abstain from the exercise of its jurisdiction. Then, the Court of Appeals determined that the Act could not pass the requisite judicial scrutiny of the Public Use Clause. It found that the transfers contemplated by the Act were unlike those of takings previously held to constitute "public uses" by this Court. The court further determined that the public purposes offered by the Hawaii Legislature were not deserving of judicial deference. The court concluded that the Act was simply "a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit." Id. at 798. One judge dissented. Page 467 U. S. 236 On applications of HHA and certain private appellants who had intervened below, this Court noted probable jurisdiction. 464 U.S. 932 (1983). We now reverse. II We begin with the question whether the District Court abused its discretion in not abstaining from the exercise of its jurisdiction. The appellants have suggested as one alternative that perhaps abstention was required under the standards announced in Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941), and Younger v. Harris, 401 U. S. 37 (1971). We do not believe that abstention was required. A In Railroad Comm'n v. Pullman Co., supra, this Court held that federal courts should abstain from decision when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided. By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and "needless friction with state policies. . . ." Id. at 312 U. S. 500 . However, federal courts need not abstain on Pullman grounds when a state statute is not "fairly subject to an interpretation which will render unnecessary" adjudication of the federal constitutional question. See Harman v. Forssenius, 380 U. S. 528 , 380 U. S. 535 (1965). Pullman abstention is limited to uncertain questions of state law because "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule." Colorado River Water Conservation Dist. v. United States, 424 U. S. 800 , 424 U. S. 813 (1976). In these cases, there is no uncertain question of state law. The Act unambiguously provides that "[t]he use of the power . . . to condemn . . . is for a public use and purpose." Haw. Rev.Stat. § 516-83(a)(12) (1977); see also §§ 516-83(a)(10), (11), (13). There is no other provision of the Act -- or, for that matter, of Hawaii law -- which would suggest that Page 467 U. S. 237 § 516-83(a)(12) does not mean exactly what it says. Since "the naked question, uncomplicated by [ambiguous language], is whether the Act, on its face, is unconstitutional," Wisconsin v. Constantineau, 400 U. S. 433 , 400 U.S. 439 (1971), abstention from federal jurisdiction is not required. The dissenting judge in the Court of Appeals suggested that, perhaps, the state courts could make resolution of the federal constitutional questions unnecessary by their construction of the Act. See 702 F.2d at 811-812. In the abstract, of course, such possibilities always exist. But the relevant inquiry is not whether there is a bare, though unlikely, possibility that state courts might render adjudication of the federal question unnecessary. Rather, "[w]e have frequently emphasized that abstention is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction." Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 251 , and n. 14 (1967). These statutes are not of an uncertain nature and have no reasonable limiting construction. Therefore, Pullman abstention is unnecessary. [ Footnote 4 ] B The dissenting judge also suggested that abstention was required under the standards articulated in Younger v. Harris, supra. Under Younger abstention doctrine, interests of comity and federalism counsel federal courts to abstain from jurisdiction whenever federal claims have been or could be presented in ongoing state judicial proceedings that concern Page 467 U. S. 238 important state interests. See Middlesex Ethics Committee v. Garden State Bar Assn., 457 U. S. 423 , 457 U. S. 432 -437 (1982). Younger abstention is required, however, only when state court proceedings are initiated "before any proceedings of substance on the merits have taken place in the federal court." Hicks v. Miranda, 422 U. S. 332 , 422 U. S. 349 (1975). In other cases, federal courts must normally fulfill their duty to adjudicate federal questions properly brought before them. In these cases, state judicial proceedings had not been initiated at the time proceedings of substance took place in federal court. Appellees filed their federal court complaint in February, 1979, asking for temporary and permanent relief. The District Court temporarily restrained HHA from proceeding against appellees' estates. At that time, no state judicial proceedings were in process. Indeed, in June, 1979, when the District Court granted, in part, appellees' motion for a preliminary injunction, state court proceedings still had not been initiated. Rather, HHA filed its first eminent domain lawsuit after the parties had begun filing motions for summary judgment in the District Court -- in September, 1979. Whether issuance of the February temporary restraining order was a substantial federal court action or not, issuance of the June preliminary injunction certainly was. See Doran v. Salem Inn, Inc., 422 U. S. 922 , 422 U. S. 929 -931 (1975). A federal court action in which a preliminary injunction is granted has proceeded well beyond the "embryonic stage," id. at 422 U. S. 929 , and considerations of economy, equity, and federalism counsel against Younger abstention at that point. The only extant proceedings at the state level prior to the September, 1979, eminent domain lawsuit in state court were HHA's administrative hearings. But the Act clearly states that these administrative proceedings are not part of, and are not themselves, a judicial proceeding, for "mandatory arbitration shall be in advance of and shall not constitute any part of any action in condemnation or eminent domain." Haw. Rev.Stat. § 516-51(b) (1976). Since Younger is not a Page 467 U. S. 239 bar to federal court action when state judicial proceedings have not themselves commenced, see Middlesex County Ethics Committee v. Garden State Bar Assn., supra, at 457 U. S. 433 ; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100 , 454 U. S. 112 -113 (1981), abstention for HHA's administrative proceedings was not required. III The majority of the Court of Appeals next determined that the Act violates the "public use" requirement of the Fifth and Fourteenth Amendments. On this argument, however, we find ourselves in agreement with the dissenting judge in the Court of Appeals. A The starting point for our analysis of the Act's constitutionality is the Court's decision in Berman v. Parker, 348 U. S. 26 (1954). In Berman, the Court held constitutional the District of Columbia Redevelopment Act of 1945. That Act provided both for the comprehensive use of the eminent domain power to redevelop slum areas and for the possible sale or lease of the condemned lands to private interests. In discussing whether the takings authorized by that Act were for a "public use," id. at 348 U. S. 31 , the Court stated: "We deal, in other words, with what traditionally has been known as the police power. An attempt to define its reach or trace its outer limits is fruitless, for each case must turn on its own facts. The definition is essentially the product of legislative determinations addressed to the purposes of government, purposes neither abstractly nor historically capable of complete definition. Subject to specific constitutional limitations, when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases, the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation, whether it Page 467 U. S. 240 be Congress legislating concerning the District of Columbia . . . or the States legislating concerning local affairs. . . . This principle admits of no exception merely because the power of eminent domain is involved. . . ." Id. at 348 U. S. 32 (citations omitted). The Court explicitly recognized the breadth of the principle it was announcing, noting: "Once the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear. For the power of eminent domain is merely the means to the end. . . . Once the object is within the authority of Congress, the means by which it will be attained is also for Congress to determine. Here one of the means chosen is the use of private enterprise for redevelopment of the area. Appellants argue that this makes the project a taking from one businessman for the benefit of another businessman. But the means of executing the project are for Congress and Congress alone to determine, once the public purpose has been established." Id. at 348 U. S. 33 . The "public use" requirement is thus coterminous with the scope of a sovereign's police powers. There is, of course, a role for courts to play in reviewing a legislature's judgment of what constitutes a public use, even when the eminent domain power is equated with the police power. But the Court in Berman made clear that it is "an extremely narrow" one. Id. at 348 U. S. 32 . The Court in Berman cited with approval the Court's decision in Old Dominion Co. v. United States, 269 U. S. 55 , 269 U. S. 66 (1925), which held that deference to the legislature's "public use" determination is required "until it is shown to involve an impossibility." The Berman Court also cited to United States ex rel. TVA v. Welch, 327 U. S. 546 , 327 U. S. 552 (1946), which emphasized that "[a]ny departure from this judicial restraint would result in courts deciding on what is and is not a governmental function and in their invalidating legislation on the basis of their view Page 467 U. S. 241 on that question at the moment of decision, a practice which has proved impracticable in other fields." In short, the Court has made clear that it will not substitute its judgment for a legislature's judgment as to what constitutes a public use "unless the use be palpably without reasonable foundation." United States v. Gettysburg Electric R. Co., 160 U. S. 668 , 160 U. S. 680 (1896). To be sure, the Court's cases have repeatedly stated that "one person's property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid." Thompson v. Consolidated Gas Corp., 300 U. S. 55 , 300 U. S. 80 (1937). See, e.g., Cincinnati v. Vester, 281 U. S. 439 , 281 U. S. 447 (1930); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U. S. 239 , 196 U. S. 251 -252 (1905); Fallbrook Irrigation District v. Bradley, 164 U. S. 112 , 164 U. S. 159 (1896). Thus, in Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896), where the "order in question was not, and was not claimed to be, . . . a taking of private property for a public use under the right of eminent domain," id. at 164 U. S. 416 (emphasis added), the Court invalidated a compensated taking of property for lack of a justifying public purpose. But where the exercise of the eminent domain power is rationally related to a conceivable public purpose, the Court has never held a compensated taking to be proscribed by the Public Use Clause. See Berman v. Parker, supra; Rindge Co. v. Los Angeles, 262 U. S. 700 (1923); Block v. Hirsh, 256 U. S. 135 (1921); cf. Thompson v. Consolidated Gas Corp., supra, (invalidating an uncompensated taking). On this basis, we have no trouble concluding that the Hawaii Act is constitutional. The people of Hawaii have attempted, much as the settlers of the original 13 Colonies did, [ Footnote 5 ] to reduce the perceived social and economic evils of a Page 467 U. S. 242 land oligopoly traceable to their monarchs. The land oligopoly has, according to the Hawaii Legislature, created artificial deterrents to the normal functioning of the State's residential land market and forced thousands of individual homeowners to lease, rather than buy, the land underneath their homes. Regulating oligopoly and the evils associated with it is a classic exercise of a State's police powers. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978); Block v. Hirsh, supra; see also People of Puerto Rico v. Eastern Sugar Associates, 156 F.2d 316 (CA1), cert. denied, 329 U.S. 772 (1946). We cannot disapprove of Hawaii's exercise of this power. Nor can we condemn as irrational the Act's approach to correcting the land oligopoly problem. The Act presumes that, when a sufficiently large number of persons declare that they are willing but unable to buy lots at fair prices, the land market is malfunctioning. When such a malfunction is signaled, the Act authorizes HHA to condemn lots in the relevant tract. The Act limits the number of lots any one tenant can purchase, and authorizes HHA to use public funds to ensure that the market dilution goals will be achieved. This is a comprehensive and rational approach to identifying and correcting market failure. Of course, this Act, like any other, may not be successful in achieving its intended goals. But "whether in fact the provision will accomplish its objectives is not the question: the [constitutional requirement] is satisfied if . . . the . . . [state] Legislature rationally could have believed that the [Act] would promote its objective." Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451 U. S. 648 , 451 U. S. 671 -672 (1981); see also Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 449 U. S. 466 (1981); Vance v. Bradley, 440 U. S. 93 , 440 U. S. 112 (1979). When the legislature's purpose is legitimate and its Page 467 U. S. 243 means are not irrational, our cases make clear that empirical debates over the wisdom of takings -- no less than debates over the wisdom of other kinds of socioeconomic legislation -- are not to be carried out in the federal courts. Redistribution of fees simple to correct deficiencies in the market determined by the state legislature to be attributable to land oligopoly is a rational exercise of the eminent domain power. Therefore, the Hawaii statute must pass the scrutiny of the Public Use Clause. [ Footnote 6 ] B The Court of Appeals read our cases to stand for a much narrower proposition. First, it read our "public use" cases, especially Berman , as requiring that government possess and use property at some point during a taking. Since Hawaiian lessees retain possession of the property for private use throughout the condemnation process, the court found that the Act exacted takings for private use. 702 F.2d at 796-797. Second, it determined that these cases involved only "the review of . . . congressional determination[s] that there was a public use, not the review of . . . state legislative determination[s]." Id. at 798 (emphasis in original). Because state legislative determinations are involved in the instant cases, the Court of Appeals decided that more rigorous judicial scrutiny of the public use determinations was appropriate. The court concluded that the Hawaii Legislature's professed purposes were mere "statutory rationalizations." Ibid. We disagree with the Court of Appeals' analysis. The mere fact that property taken outright by eminent domain is transferred in the first instance to private beneficiaries does not condemn that taking as having only a private Page 467 U. S. 244 purpose. The Court long ago rejected any literal requirement that condemned property be put into use for the general public. "It is not essential that the entire community, nor even any considerable portion, . . . directly enjoy or participate in any improvement in order [for it] to constitute a public use." Rindge Co. v. Los Angeles, 262 U.S. at 262 U. S. 707 . "[W]hat in its immediate aspect [is] only a private transaction may . . . be raised by its class or character to a public affair." Block v. Hirsh, 256 U.S. at 256 U. S. 155 . As the unique way titles were held in Hawaii skewed the land market, exercise of the power of eminent domain was justified. The Act advances its purposes without the State's taking actual possession of the land. In such cases, government does not itself have to use property to legitimate the taking; it is only the taking's purpose, and not its mechanics, that must pass scrutiny under the Public Use Clause. Similarly, the fact that a state legislature, and not the Congress, made the public use determination does not mean that judicial deference is less appropriate. [ Footnote 7 ] Judicial deference is required because, in our system of government, legislatures are better able to assess what public purposes should be advanced by an exercise of the taking power. State legislatures are as capable as Congress of making such determinations within their respective spheres of authority. See Berman v. Parker, 348 U.S. at 348 U. S. 32 . Thus, if a legislature, state or federal, determines there are substantial reasons for an exercise of the taking power, courts must defer to its determination that the taking will serve a public use. Page 467 U. S. 245 IV The State of Hawaii has never denied that the Constitution forbids even a compensated taking of property when executed for no reason other than to confer a private benefit on a particular private party. A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government, and would thus be void. But no purely private taking is involved in these cases. The Hawaii Legislature enacted its Land Reform Act not to benefit a particular class of identifiable individuals, but to attack certain perceived evils of concentrated property ownership in Hawaii -- a legitimate public purpose. Use of the condemnation power to achieve this purpose is not irrational. Since we assume for purposes of these appeals that the weighty demand of just compensation has been met, the requirements of the Fifth and Fourteenth Amendments have been satisfied. Accordingly, we reverse the judgment of the Court of Appeals, and remand these cases for further proceedings in conformity with this opinion. It is so ordered. JUSTICE MARSHALL took no part in the consideration or decision of these cases. * Together with No. 83-236, Portlock Community Association (Maunalua Beach) et al. v. Midkiff et al.; and No. 83-283, Kahala Community Association, Inc., et al. v. Midkiff et al., also on appeal from the same court. [ Footnote 1 ] An eligible tenant is one who, among other things, owns a house on the lot, has a bona fide intent to live on the lot or be a resident of the State, shows proof of ability to pay for a fee interest in it, and does not own residential land elsewhere nearby. Haw. Rev.Stat. §§ 516-33(3), (4), (7) (1977) [ Footnote 2 ] See § 516-56 (Supp.1983). In either case, compensation must equal the fair market value of the owner's leased fee interest. § 516-1(14). The adequacy of compensation is not before us. [ Footnote 3 ] As originally enacted, lessor and lessee had to commence compulsory arbitration if they could not agree on a price for the fee simple title. Statutory formulae were provided for the determination of compensation. The District Court declared both the compulsory arbitration provision and the compensation formulae unconstitutional. No appeal was taken from these rulings, and the Hawaii Legislature subsequently amended the statute to provide only for mandatory negotiation and for advisory compensation formulae. These issues are not before us. [ Footnote 4 ] The dissenting judge's suggestion that Pullman abstention was required because interpretation of the State Constitution may have obviated resolution of the federal constitutional question is equally faulty. Hawaii's Constitution has only a parallel requirement that a taking be for a public use. See Haw. Const., Art. I, § 20. The Court has previously determined that abstention is not required for interpretation of parallel state constitutional provisions. See Examining Board v. Flores de Otero, 426 U. S. 572 , 426 U. S. 598 (1976); see also Wisconsin v. Constantineau, 400 U. S. 433 (1971). [ Footnote 5 ] After the American Revolution, the colonists in several States took steps to eradicate the feudal incidents with which large proprietors had encumbered land in the Colonies. See, e.g., Act of May 1779, 10 Henning's Statutes At Large 64, ch. 13, § 6 (1822) (Virginia statute); Divesting Act of 1779, 1775-1781 Pa. Acts 258, ch. 139 (1782) (Pennsylvania statute). Courts have never doubted that such statutes served a public purpose. See, e.g., Wilson v. Iseminger, 185 U. S. 55 , 185 U. S. 60 -61 (1902); Stewart v. Gorter, 70 Md. 242, 244-245, 16 A. 644, 645 (1889). [ Footnote 6 ] We similarly find no merit in appellees' Due Process and Contract Clause arguments. The argument that due process prohibits allowing lessees to initiate the taking process was essentially rejected by this Court in New Motor Vehicle Board v. Fox Co., 439 U. S. 96 , 439 U. S. 108 -109 (1978). Similarly, the Contract Clause has never been thought to protect against the exercise of the power of eminent domain. See United States Trust Co. v. New Jersey, 431 U. S. 1 , 431 U. S. 19 , and n. 16 (1977). [ Footnote 7 ] It is worth noting that the Fourteenth Amendment does not itself contain an independent "public use" requirement. Rather, that requirement is made binding on the States only by incorporation of the Fifth Amendment's Eminent Domain Clause through the Fourteenth Amendment's Due Process Clause. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). It would be ironic to find that state legislation is subject to greater scrutiny under the incorporated "public use" requirement than is congressional legislation under the express mandate of the Fifth Amendment.

Here is a summary of the key points from the provided text: - The Hawaii Housing Authority (HHA) sought to reduce land ownership concentration and the social and economic issues caused by a land oligopoly, a problem traceable to the early high chiefs of the Hawaiian Islands. - The Land Reform Act of 1967 authorized HHA to condemn property and transfer titles from lessors to lessees through a public hearing process. - The case Hawaii Housing Auth. v. Midkiff involved a dispute between HHA and landowners (appellees) who refused to comply with the Act and sought to declare it unconstitutional. - The District Court ruled against the landowners, but the Court of Appeals reversed, holding that the Act violated the "public use" requirement of the Fifth Amendment. - The Supreme Court rejected the need for abstention, finding that the case did not meet the requirements for Pullman abstention and that the state constitutional issue was not relevant to the federal constitutional question. - The Supreme Court also rejected the landowners' due process and contract clause arguments, and noted that the "public use" requirement of the Fifth Amendment applied to the states through the Fourteenth Amendment.

Property Rights & Land Use

Keystone Bituminous Coal Ass'n v. DeBenedictis

https://supreme.justia.com/cases/federal/us/480/470/

U.S. Supreme Court Keystone Bituminous v. DeBenedictis, 480 U.S. 470 (1987) Keystone Bituminous v. DeBenedictis No. 85-1092 Argued November 10, 1986 Decided March 9, 1987 480 U.S. 470 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus Section 4 of Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act (Act) prohibits coal mining that causes subsidence damage to preexisting public buildings, dwellings, and cemeteries. Implementing regulations issued by Pennsylvania's Department of Environmental Resources (DER) require 50% of the coal beneath § 4-protected structures to be kept in place to provide surface support, and extend § 4's protection to watercourses. Section 6 of the Act authorizes the DER to revoke a mining permit if the removal of coal causes damage to a § 4-protected structure or area and the operator has not within six months repaired the damage, satisfied any claim arising therefrom, or deposited the sum that repairs will reasonably cost as security. Petitioners, who own or control substantial coal reserves under Act-protected property, filed suit in Federal District Court seeking to enjoin the DER from enforcing the Act and regulations. The complaint alleged, inter alia, that Pennsylvania recognizes a separate "support estate" in addition to the surface and mineral estates in land; that approximately 90% of the coal petitioners will mine was severed from surface estates between 1890 and 1920; that petitioners typically acquired waivers of any damages claims that might result from coal removal; that § 4, as implemented by the 50% rule, and § 6 violate the Fifth Amendment's Takings Clause; and that § 6 violates Article I's Contracts Clause. Because petitioners had not yet alleged or proved any specific injury caused by the enforcement of §§ 4 and 6 or the regulations, the only question before the District Court was whether the mere enactment of §§ 4 and 6 and the regulations constituted a taking. The District Court granted DER's motion for summary judgment on this facial challenge. The Court of Appeals affirmed, holding that Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , does not control; that the Act does not effect a taking; and that the impairment of private contracts effectuated by the Act was justified by the public interests protected by the Act. Page 480 U. S. 471 Held: 1. Petitioners have not satisfied their burden of showing that §§ 4 and 6 and the regulations' 50% rule constitute a taking of private property without compensation in violation of the Fifth and Fourteenth Amendments. Pennsylvania Coal does not control this case, because the two factors there considered relevant -- the Commonwealth's interest in enacting the law and the extent of the alleged taking -- here support the Act's constitutionality. Pp. 480 U. S. 481 -502. (a) Unlike the statute considered in Pennsylvania Coal, the Act is intended to serve genuine, substantial, and legitimate public interests in health, the environment, and the fiscal integrity of the area by minimizing damage to surface areas. None of the indicia of a statute enacted solely for the benefit of private parties identified in Pennsylvania Coal are present here. Petitioners' argument that § 6's remedies are unnecessary to satisfy the Act's public purposes because of the Commonwealth's insurance program that reimburses repair costs is not persuasive, since the public purpose is served by deterring mine operators from causing damage in the first place by making them assume financial responsibility. Thus, the Commonwealth has merely exercised its police power to prevent activities that are tantamount to public nuisances. The character of this governmental action leans heavily against finding a taking. Pp. 480 U. S. 485 -493. (b) The record in this case does not support a finding similar to the one in Pennsylvania Coal that the Act makes it impossible for petitioners to profitably engage in their business, or that there has been undue interference with their investment-backed expectations. Because this case involves only a facial constitutional challenge, such a finding is necessary to establish a taking. However, petitioners have never claimed that their mining operations, or even specific mines, have been unprofitable since the Act was passed, nor is there evidence that mining in any specific location affected by the 50% rule has been unprofitable. In fact, the only relevant evidence is testimony indicating that § 4 requires petitioners to leave 27 million tons (less than 2%) of their coal in place. Petitioners' argument that the Commonwealth has effectively appropriated this coal, since it has no other useful purpose if not mined, fails, because the 27 million tons do not constitute a separate segment of property for taking law purposes. The record indicates that only 75% of petitioners' underground coal can be profitably mined in any event, and there is no showing that their reasonable "investment-backed expectations" have been materially affected by the § 4-imposed duty. Petitioners' argument that the Act constitutes a taking because it entirely destroys the value of their unique support estate also fails. As a practical matter, the support estate has value only insofar as it is used to exploit another Page 480 U. S. 472 estate. Thus, the support estate is not a separate segment of property for takings law purposes, since it constitutes just one part of the mine operators' bundle of property rights. Because petitioners retain the right to mine virtually all the coal in their mineral estates, the burden the Act places on the support estate does not constitute a taking. Moreover, since there is no evidence as to what percentage of petitioners' support estates, either in the aggregate or with respect to any individual estate, has been affected by the Act, their Takings Clause facial challenge fails. Pp. 480 U. S. 493 -502. 2. Section 6 does not impair petitioners' contractual agreements in violation of Article I, § 10, of the Constitution by denying petitioners their right to hold surface owners to their contractual waivers of liability for surface damage. The Contracts Clause has not been read literally to obliterate valid exercises of the States' police power to protect the public health and welfare. Here, the Commonwealth has a significant and legitimate public interest in preventing subsidence damage to the § 4-protected buildings, cemeteries, and watercourses, and has determined that the imposition of liability on coal companies is necessary to protect that interest. This determination is entitled to deference, because the Commonwealth is not a party to the contracts in question. Thus, the impairment of petitioners' right to enforce the generations-old damages waivers is amply justified by the public purposes served by the Act. Pp. 480 U. S. 502 -506. 771 F.2d 707, affirmed. STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. REHNQUIST, C.J., filed a dissenting opinion, in which POWELL, O'CONNOR, and SCALIA, JJ., joined, post, p. 480 U. S. 506 . Page 480 U. S. 473 JUSTICE STEVENS, delivered the opinion of the Court. In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court reviewed the constitutionality of a Pennsylvania statute that admittedly destroyed "previously existing rights of property and contract." Id. at 260 U. S. 413 . Writing for the Court, Justice Holmes explained: "Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain, and compensation to sustain the act. Page 480 U. S. 474 So the question depends upon the particular facts." Ibid. In that case, the "particular facts" led the Court to hold that the Pennsylvania Legislature had gone beyond its constitutional powers when it enacted a statute prohibiting the mining of anthracite coal in a manner that would cause the subsidence of land on which certain structures were located. Now, 65 years later, we address a different set of "particular facts," involving the Pennsylvania Legislature's 1966 conclusion that the Commonwealth's existing mine subsidence legislation had failed to protect the public interest in safety, land conservation, preservation of affected municipalities' tax bases, and land development in the Commonwealth. Based on detailed findings, the legislature enacted the Bituminous Mine Subsidence and Land Conservation Act (Subsidence Act or Act), Pa.Stat.Ann., Tit. 52, § 1406.1 et seq. (Purdon Supp. 1986). Petitioners contend, relying heavily on our decision in Pennsylvania Coal, that §§ 4 and 6 of the Subsidence Act and certain implementing regulations violate the Takings Clause, and that § 6 of the Act violates the Contracts Clause of the Federal Constitution. The District Court and the Court of Appeals concluded that Pennsylvania Coal does not control for several reasons, and that our subsequent cases make it clear that neither § 4 nor § 6 is unconstitutional on its face. We agree. I Coal mine subsidence is the lowering of strata overlying a coal mine, including the land surface, caused by the extraction of underground coal. This lowering of the strata can have devastating effects. [ Footnote 1 ] It often causes substantial damage Page 480 U. S. 475 to foundations, walls, other structural members, and the integrity of houses and buildings. Subsidence frequently causes sinkholes or troughs in land which make the land difficult or impossible to develop. Its effect on farming has been well documented -- many subsided areas cannot be plowed or properly prepared. Subsidence can also cause the loss of groundwater and surface ponds. [ Footnote 2 ] In short, it presents the type of environmental concern that has been the focus of so much federal, state, and local regulation in recent decades. [ Footnote 3 ] Despite what their name may suggest, neither of the "full extraction" mining methods currently used in western Pennsylvania [ Footnote 4 ] enables miners to extract all subsurface coal; considerable amounts need to be left in the ground to provide access, support, and ventilation to the mines. Additionally, mining companies have long been required by various Pennsylvania laws and regulations, the legitimacy of which is not challenged here, to leave coal in certain areas for public safety reasons. [ Footnote 5 ] Since 1966, Pennsylvania has placed an additional set of restrictions on the amount of coal that may be Page 480 U. S. 476 extracted; these restrictions are designed to diminish subsidence and subsidence damage in the vicinity of certain structures and areas. Pennsylvania's Subsidence Act authorizes the Pennsylvania Department of Environmental Resources (DER) to implement and enforce a comprehensive program to prevent or minimize subsidence and to regulate its consequences. Section 4 of the Subsidence Act, Pa.Stat.Ann., Tit. 52, § 1406.4 (Purdon Supp. 1986), prohibits mining that causes subsidence damage to three categories of structures that were in place on April 17, 1966: public buildings and noncommercial buildings generally used by the public; dwellings used for human habitation; and cemeteries. [ Footnote 6 ] Since 1966, the DER has applied Page 480 U. S. 477 a formula that generally requires 50% of the coal beneath structures protected by § 4 to be kept in place as a means of providing surface support. [ Footnote 7 ] Section 6 of the Subsidence Act, Pa.Stat.Ann., Tit. 52, § 1406.6 (Purdon Supp. 1986), authorizes the DER to revoke a mining permit if the removal of coal causes damage to a structure or area protected by § 4 and the operator has not within six months either repaired the damage, satisfied any claim arising therefrom, or deposited a sum equal to the reasonable cost of repair with the DER as security. [ Footnote 8 ] Page 480 U. S. 478 II In 1982, petitioners filed a civil rights action in the United States District Court for the Western District of Pennsylvania, seeking to enjoin officials of the DER from enforcing the Subsidence Act and its implementing regulations. Petitioners are an association of coal mine operators and four corporations that are engaged, either directly or through affiliates, in underground mining of bituminous coal in western Pennsylvania. The members of the association and the corporate petitioners own, lease, or otherwise control substantial coal reserves beneath the surface of property affected by the Subsidence Act. The defendants in the action, respondents here, are the Secretary of the DER, the Chief of the DER's Division of Mine Subsidence, and the Chief of the DER's Section on Mine Subsidence Regulation. The complaint alleges that Pennsylvania recognizes three separate estates in land: The mineral estate; the surface estate; and the "support estate." Beginning well over 100 years ago, landowners began severing title to underground coal and the right of surface support while retaining or conveying away ownership of the surface estate. It is stipulated that approximately 90% of the coal that is or will be mined by petitioners in western Pennsylvania was severed from the surface in the period between 1890 and 1920. When acquiring or retaining the mineral estate, petitioners or their predecessors typically acquired or retained certain additional rights that would enable them to extract and remove the coal. Thus, they acquired the right to deposit wastes, to provide for drainage and ventilation, and to erect facilities such as tipples, roads, or railroads on the surface. Additionally, they typically acquired a waiver of any claims for damages that might result from the removal of the coal. In the portions of the complaint that are relevant to us, petitioners alleged that both § 4 of the Subsidence Act, as implemented Page 480 U. S. 479 by the 50% rule and § 6 of the Subsidence Act, constitute a taking of their private property without compensation in violation of the Fifth and Fourteenth Amendments. They also alleged that § 6 impairs their contractual agreements in violation of Article I, § 10, of the Constitution. [ Footnote 9 ] The parties entered into a stipulation of facts pertaining to petitioners' facial challenge, and filed cross-motions for summary judgment on the facial challenge. The District Court granted respondents' motion. In rejecting petitioners' Takings Clause claim, the District Court first distinguished Pennsylvania Coal, primarily on the ground that the Subsidence Act served valid public purposes that the Court had found lacking in the earlier case. 581 F. Supp. 511 , 516 (1984). The District Court found that the restriction on the use of petitioners' property was an exercise of the Commonwealth's police power, justified by Pennsylvania's interest in the health, safety, and general welfare of the public. In answer to petitioners' argument that the Subsidence Act effectuated a taking because a separate, recognized interest in realty -- the support estate -- had been entirely destroyed, the District Court concluded that, under Pennsylvania law, the support estate consists of a bundle of rights, including some that were not affected by the Act. That the right to cause damage to the surface may constitute the most valuable "strand" in the bundle of rights possessed by the owner of a support estate was not considered controlling under our decision in Andrus v. Allard, 444 U. S. 51 (1979). In rejecting petitioners' Contracts Clause claim, the District Court noted that there was no contention that the Subsidence Page 480 U. S. 480 Act or the DER regulations had impaired any contract to which the Commonwealth was a party. Since only private contractual obligations had been impaired, the court considered it appropriate to defer to the legislature's determinations concerning the public purposes served by the legislation. The court found that the adjustment of the rights of the contracting parties was tailored to those "significant and legitimate" public purposes. 581 F. Supp. at 514. At the parties' request, the District Court certified the facial challenge for appeal. The Court of Appeals affirmed, agreeing that Pennsylvania Coal does not control, because the Subsidence Act is a legitimate means of "protect[ing] the environment of the Commonwealth, its economic future, and its wellbeing." 771 F.2d 707, 715 (1985). The Court of Appeals' analysis of the Subsidence Act's effect on petitioners' property differed somewhat from the District Court's, however. In rejecting the argument that the support estate had been entirely destroyed, the Court of Appeals did not rely on the fact that the support estate itself constitutes a bundle of many rights, but rather considered the support estate as just one segment of a larger bundle of rights that invariably includes either the surface estate or the mineral estate. As Judge Adams explained: "To focus upon the support estate separately when assessing the diminution of the value of plaintiffs' property caused by the Subsidence Act therefore would serve little purpose. The support estate is more properly viewed as only one "strand" in the plaintiff's "bundle" of property rights, which also includes the mineral estate. As the Court stated in Andrus, "[t]he destruction of one strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." 444 U.S. at 444 U. S. 65 . . . . The use to which the mine operators wish to put the support estate is forbidden. However, because the plaintiffs still possess valuable mineral rights that enable Page 480 U. S. 481 them profitably to mine coal, subject only to the Subsidence Act's requirement that they prevent subsidence, their entire "bundle" of property rights has not been destroyed." Id. at 444 U. S. 716 . With respect to the Contracts Clause claim, the Court of Appeals agreed with the District Court that a higher degree of deference should be afforded to legislative determinations respecting economic and social legislation affecting wholly private contracts than when the State impairs its own agreements. The court held that the impairment of private agreements effectuated by the Subsidence Act was justified by the legislative finding "that subsidence damage devastated many surface structures, and thus endangered the health, safety, and economic welfare of the Commonwealth and its people." Id. at 444 U. S. 718 . We granted certiorari, 475 U.S. 1080 (1986), and now affirm. III Petitioners assert that disposition of their takings claim [ Footnote 10 ] calls for no more than a straightforward application of the Court's decision in Pennsylvania Coal Co. v. Mahon. Although there are some obvious similarities between the cases, we agree with the Court of Appeals and the District Court that the similarities are far less significant than the differences, and that Pennsylvania Coal does not control this case. In Pennsylvania Coal, the Pennsylvania Coal Company had served notice on Mr. and Mrs. Mahon that the company's mining operations beneath their premises would soon reach a point that would cause subsidence to the surface. The Mahons filed a bill in equity seeking to enjoin the coal company from removing any coal that would cause "the caving in, collapse Page 480 U. S. 482 or subsidence" of their dwelling. The bill acknowledged that the Mahons owned only "the surface or right of soil" in the lot, and that the coal company had reserved the right to remove the coal without any liability to the owner of the surface estate. Nonetheless, the Mahons asserted that Pennsylvania's then recently enacted Kohler Act of 1921, P. L. 1198, Pa.Stat.Ann., Tit. 52, § 661 et seq. (Purdon 1966), which prohibited mining that caused subsidence under certain structures, entitled them to an injunction. After initially having entered a preliminary injunction pending a hearing on the merits, the Chancellor soon dissolved it, observing: "[T]he plaintiffs' bill contains no averment on which to base, by implication or otherwise, any finding of fact that any interest, public or private, is involved in the defendant's proposal to mine the coal, except the private interest of the plaintiffs in the prevention of private injury." Tr. of Record in Pennsylvania Coal v. Mahon, O.T. 1922, No. 549, p. 23. The Pennsylvania Supreme Court reversed, concluding that the Kohler Act was a proper exercise of the police power. 274 Pa. 489, 118 A. 491 (1922). One Justice dissented. He concluded that the Kohler Act was not actually intended to protect lives and safety, but rather was special legislation enacted for the sole benefit of the surface owners who had released their right to support. Id. at 512-518, 118 A., at 499-501. The company promptly appealed to this Court, asserting that the impact of the statute was so severe that "a serious shortage of domestic fuel is threatened." Motion to Advance for Argument in Pennsylvania Coal v. Mahon, O.T. 1922, No. 549, p. 3. The company explained that, until the Court ruled, "no anthracite coal which is likely to cause surface subsidence can be mined," and that strikes were threatened Page 480 U. S. 483 throughout the anthracite coal fields. [ Footnote 11 ] In its argument in this Court, the company contended that the Kohler Act was not a bona fide exercise of the police power, but in reality was nothing more than " robbery under the forms of law,'" because its purpose was "not to protect the lives or safety of the public generally, but merely to augment the property rights of a favored few." See 260 U.S. at 396-398, quoting Loan Assn. v. Topeka , 20 Wall. 655, 87 U. S. 664 (1875). Over Justice Brandeis' dissent, this Court accepted the company's argument. In his opinion for the Court, Justice Holmes first characteristically decided the specific case at hand in a single, terse paragraph: "This is the case of a single private house. No doubt there is a public interest even in this, as there is in every purchase and sale and in all that happens within the commonwealth. Some existing rights may be modified even in such a case. Rideout v. Knox, 148 Mass. 368. But usually, in ordinary private affairs, the public interest does not warrant much of this kind of interference. A source of damage to such a house is not a public nuisance, even if similar damage is inflicted on others in different places. The damage is not common or public. Wesson v. Washburn Iron Co., 13 Allen, 95, 103. The extent of the public interest is shown by the statute to be limited, since the statute ordinarily does not apply to land when the surface is owned by the owner of the coal. Furthermore, it is not justified as a protection of personal safety. That could be provided for by notice. Indeed, the very foundation of this bill is that the defendant gave timely notice of its intent to mine under the house. On the other hand, the extent of the taking is great. It purports to abolish what is recognized in Pennsylvania as an estate Page 480 U. S. 484 in land -- a very valuable estate -- and what is declared by the Court below to be a contract hitherto binding the plaintiffs. If we were called upon to deal with the plaintiffs' position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant's constitutionally protected rights." 260 U.S. at 260 U. S. 413 -414. Then -- uncharacteristically -- Justice Holmes provided the parties with an advisory opinion discussing "the general validity of the Act." [ Footnote 12 ] In the advisory portion of the Court's opinion, Justice Holmes rested on two propositions, both critical to the Court's decision. First, because it served only private interests, not health or safety, the Kohler Act could not be "sustained as an exercise of the police power." Id. at 260 U. S. 414 . Second, the statute made it "commercially impracticable" to mine "certain coal" in the areas affected by the Kohler Act. [ Footnote 13 ] The holdings and assumptions of the Court in Pennsylvania Coal provide obvious and necessary reasons for distinguishing Pennsylvania Coal from the case before us today. Page 480 U. S. 485 The two factors that the Court considered relevant, have become integral parts of our takings analysis. We have held that land use regulation can effect a taking if it "does not substantially advance legitimate state interests, . . . or denies an owner economically viable use of his land." Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980) (citations omitted); see also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 (1978). Application of these tests to petitioners' challenge demonstrates that they have not satisfied their burden of showing that the Subsidence Act constitutes a taking. First, unlike the Kohler Act, the character of the governmental action involved here leans heavily against finding a taking: the Commonwealth of Pennsylvania has acted to arrest what it perceives to be a significant threat to the common welfare. Second, there is no record in this case to support a finding, similar to the one the Court made in Pennsylvania Coal, that the Subsidence Act makes it impossible for petitioners to profitably engage in their business, or that there has been undue interference with their investment-backed expectations. The Public Purpose Unlike the Kohler Act, which was passed upon in Pennsylvania Coal, the Subsidence Act does not merely involve a balancing of the private economic interests of coal companies against the private interests of the surface owners. The Pennsylvania Legislature specifically found that important public interests are served by enforcing a policy that is designed to minimize subsidence in certain areas. Section 2 of the Subsidence Act provides: "This act shall be deemed to be an exercise of the police powers of the Commonwealth for the protection of the health, safety and general welfare of the people of the Commonwealth, by providing for the conservation of surface land areas which may be affected in the mining of bituminous coal by methods other than 'open pit' or Page 480 U. S. 486 'strip' mining, to aid in the protection of the safety of the public, to enhance the value of such lands for taxation, to aid in the preservation of surface water drainage and public water supplies and generally to improve the use and enjoyment of such lands and to maintain primary jurisdiction over surface coal mining in Pennsylvania." Pa.Stat.Ann., Tit. 52, § 1406.2 (Purdon Supp. 1986). The District Court and the Court of Appeals were both convinced that the legislative purposes [ Footnote 14 ] set forth in the statute were genuine, substantial, and legitimate, and we have no reason to conclude otherwise. [ Footnote 15 ] None of the indicia of a statute enacted solely for the benefit of private parties identified in Justice Holmes' opinion are present here. First, Justice Holmes explained that the Kohler Act was a "private benefit" statute, since it "ordinarily does not apply to land when the surface is owned by the owner of the coal." 260 U.S. at 260 U. S. 414 . The Subsidence Act, by contrast, has no such exception. The current surface owner may only waive the protection of the Act if the DER consents. See 25 Pa. Code § 89.145(b) (1983). Moreover, the Court was forced to reject the Commonwealth's safety justification for the Kohler Act because it found that the Commonwealth's interest in safety could as easily have been accomplished through a notice requirement to landowners. The Subsidence Act, by contrast, is designed to accomplish a number of widely varying interests, with reference to which petitioners have not suggested alternative methods through which the Commonwealth could proceed. Petitioners argue that at least § 6, which requires coal companies to repair subsidence damage or pay damages to those Page 480 U. S. 487 who suffer subsidence damage, is unnecessary because the Commonwealth administers an insurance program that adequately reimburses surface owners for the cost of repairing their property. But this argument rests on the mistaken premise that the statute was motivated by a desire to protect private parties. In fact, however, the public purpose that motivated the enactment of the legislation is served by preventing the damage from occurring in the first place -- in the words of the statute -- "by providing for the conservation of surface land areas." Pa.Stat.Ann., Tit. 52, § 1406.2 (Purdon Supp. 1986). The requirement that the mine operator assume the financial responsibility for the repair of damaged structures deters the operator from causing the damage at all -- the Commonwealth's main goal -- whereas an insurance program would merely reimburse the surface owner after the damage occurs. [ Footnote 16 ] Thus, the Subsidence Act differs from the Kohler Act in critical and dispositive respects. With regard to the Kohler Act, the Court believed that the Commonwealth had acted only to ensure against damage to some private landowners' homes. Justice Holmes stated that, if the private individuals needed support for their structures, they should not have Page 480 U. S. 488 "take[n] the risk of acquiring only surface rights." 260 U.S. at 260 U. S. 416 . Here, by contrast, the Commonwealth is acting to protect the public interest in health, the environment, and the fiscal integrity of the area. That private individuals erred in taking a risk cannot estop the Commonwealth from exercising its police power to abate activity akin to a public nuisance. The Subsidence Act is a prime example that "circumstances may so change in time . . . as to clothe with such a [public] interest what at other times . . . would be a matter of purely private concern." Block v. Hirsh, 256 U. S. 135 , 256 U. S. 155 (1921). In Pennsylvania Coal, the Court recognized that the nature of the State's interest in the regulation is a critical factor in determining whether a taking has occurred, and thus whether compensation is required. [ Footnote 17 ] The Court distinguished the case before it from a case it had decided eight years earlier, Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914). There, "it was held competent for the legislature to require a pillar of coal to be left along the line of adjoining property." Pennsylvania Coal, 260 U.S. at 260 U. S. 415 . Justice Holmes explained that, unlike the Kohler Act, the statute challenged in Plymouth Coal dealt with "a requirement for the safety of employees invited into the mine, and secured an average reciprocity of advantage that has been recognized as a justification of various laws." 260 U.S. at 260 U. S. 415 . Many cases before and since Pennsylvania Coal have recognized that the nature of the State's action is critical in takings analysis. [ Footnote 18 ] In Mugler v. Kansas, 123 U. S. 623 Page 480 U. S. 489 (1887), for example, a Kansas distiller who had built a brewery while it was legal to do so challenged a Kansas constitutional amendment which prohibited the manufacture and sale of intoxicating liquors. Although the Court recognized that the "buildings and machinery constituting these breweries are of little value" because of the Amendment, id. at 123 U. S. 657 , Justice Harlan explained that a "prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or appropriation of property. . . . The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not -- and, consistently with the existence and safety of organized society cannot be -- burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community." Id. at 123 U. S. 668 -669. Page 480 U. S. 490 See also Plymouth Coal Co., supra; Hadacheck v. Sebastian, 239 U. S. 394 (1915); Reinman v. Little Rock, 237 U. S. 171 (1915); Powell v. Pennsylvania, 127 U. S. 678 (1888). We reject petitioners' implicit assertion that Pennsylvania Coal overruled these cases which focused so heavily on the nature of the State's interest in the regulation. Just five years after the Pennsylvania Coal decision, Justice Holmes joined the Court's unanimous decision in Miller v. Schoene, 276 U. S. 272 (1928), holding that the Takings Clause did not require the State of Virginia to compensate the owners of cedar trees for the value of the trees that the State had ordered destroyed. The trees needed to be destroyed to prevent a disease from spreading to nearby apple orchards, which represented a far more valuable resource. In upholding the state action, the Court did not consider it necessary to "weigh with nicety the question whether the infected cedars constitute a nuisance according to common law; or whether they may be so declared by statute." Id. at 276 U. S. 280 . Rather, it was clear that the State's exercise of its police power to prevent the impending danger was justified, and did not require compensation. See also Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Omnia Commercial Co. v. United States, 261 U. S. 502 , 261 U. S. 509 (1923). Other subsequent cases reaffirm the important role that the nature of the state action plays in our takings analysis. See Goldblatt v. Hempstead, 369 U. S. 590 (1962); Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515 , 370 P.2d 342, appeal dism'd, 371 U. S. 36 (1962). As the Court explained in Goldblatt: "Although a comparison of values before and after" a regulatory action "is relevant, . . . it is by no means conclusive. . . ." 369 U.S. at 369 U. S. 594 . [ Footnote 19 ] Page 480 U. S. 491 The Court's hesitance to find a taking when the State merely restrains uses of property that are tantamount to public nuisances is consistent with the notion of "reciprocity of advantage" that Justice Holmes referred to in Pennsylvania Coal. [ Footnote 20 ] Under our system of government, one of the State's primary ways of preserving the public weal is restricting the uses individuals can make of their property. While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others. [ Footnote 21 ] See Penn Central Transportation Co. v. New York City, 438 U.S. at 438 U. S. 144 -150 (REHNQUIST, J., dissenting); cf. California Reduction Co. v. Sanitary Reduction Works, 199 U. S. 306 , 199 U. S. 322 (1905). These restrictions are "properly treated as part of the burden of common citizenship." Kimball Laundry Co. v. United States, 338 U. S. 1 , 338 U. S. 5 (1949). Long ago it was recognized that "all property in Page 480 U. S. 492 this country is held under the implied obligation that the owner's use of it shall not be injurious to the community," Mugler v. Kansas, 123 U.S. at 123 U. S. 665 ; see also Beer Co. v. Massachusetts, 97 U. S. 25 , 97 U. S. 32 (1878), and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to enforce it. [ Footnote 22 ] See Mugler, 123 U.S. at 123 U. S. 664 . In Agins v. Tiburon, we explained that the "determination that governmental action constitutes a taking is, in essence, a determination that the public at large, rather than a single owner, must bear the burden of an exercise of state power in the public interest," and we recognized that this question "necessarily requires a weighing of private and public interests." 447 U.S. at 447 U. S. 260 -261. As the cases discussed above demonstrate, the public interest in preventing activities similar to public nuisances is a substantial one, which in many instances has not required compensation. The Subsidence Act, unlike the Kohler Act, plainly seeks to further such an interest. Nonetheless, we need not rest our decision on this factor alone, because petitioners have also failed to make a Page 480 U. S. 493 showing of diminution of value sufficient to satisfy the test set forth in Pennsylvania Coal and our other regulatory takings cases. Diminution of Value and Investment-Backed Expectations The second factor that distinguishes this case from Pennsylvania Coal is the finding in that case that the Kohler Act made mining of "certain coal" commercially impracticable. In this case, by contrast, petitioners have not shown any deprivation significant enough to satisfy the heavy burden placed upon one alleging a regulatory taking. For this reason, their takings claim must fail. In addressing petitioners' claim, we must not disregard the posture in which this case comes before us. The District Court granted summary judgment to respondents only on the facial challenge to the Subsidence Act. The court explained that "[b]ecause plaintiffs have not alleged any injury due to the enforcement of the statute, there is as yet no concrete controversy regarding the application of the specific provisions and regulations. Thus, the only question before this court is whether the mere enactment of the statutes and regulations constitutes a taking. " 581 F. Supp. at 513 (emphasis added). The next phase of the case was to be petitioners' presentation of evidence about the actual effects the Subsidence Act had and would have on them. Instead of proceeding in this manner, however, the parties filed a joint motion asking the court to certify the facial challenge for appeal. The parties explained that an assessment of the actual impact that the Act has on petitioners' operations "will involve complex and voluminous proofs," which neither party was currently in a position to present, App. 15-17, and stressed that, if an appellate court were to reverse the District Court on the facial challenge, then all of their expenditures in adjudicating the as-applied challenge would be wasted. Based Page 480 U. S. 494 on these considerations, the District Court certified three questions relating to the facial challenge. [ Footnote 23 ] The posture of the case is critical, because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation. This point is illustrated by our decision in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), in which we rejected a preenforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977. We concluded that the District Court had been mistaken in its reliance on Pennsylvania Coal as support for a holding that two statutory provisions were unconstitutional because they deprived coal mine operators of the use of their land. The Court explained: "[T]he court below ignored this Court's oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary. See Socialist Labor Party v. Gilligan, 406 U. S. 583 , 406 U. S. 588 (1972); Rescue Army v. Municipal Court, 331 U. S. 549 , 331 U. S. 568 -575, 331 U. S. 584 (1947); Alabama State Federation of Labor v. McAdory, 325 U. S. 450 , 325 U. S. 461 (1945). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed: " Page 480 U. S. 495 ""[T]his Court has generally been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Rather, it has examined the `taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factors -- such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action -- that have particular significance." Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 175 (1979) (citations omitted)." "These ' ad hoc factual inquiries' must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances." "Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the 'mere enactment' of the Surface Mining Act constitutes a taking. See Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980). The test to be applied in considering this facial challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it 'denies an owner economically viable use of his land. . . .' Agins v. Tiburon, supra, at 447 U. S. 260 ; see also Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978)." 452 U.S. at 452 U. S. 295 -296. Petitioners thus face an uphill battle in making a facial attack on the Act as a taking. The hill is made especially steep because petitioners have not claimed, at this stage, that the Act makes it commercially Page 480 U. S. 496 impracticable for them to continue mining their bituminous coal interests in western Pennsylvania. Indeed, petitioners have not even pointed to a single mine that can no longer be mined for profit. The only evidence available on the effect that the Subsidence Act has had on petitioners' mining operations comes from petitioners' answers to respondents' interrogatories. Petitioners described the effect that the Subsidence Act had from 1966-1982 on 13 mines that the various companies operate, and claimed that they have been required to leave a bit less than 27 million tons of coal in place to support § 4 areas. The total coal in those 13 mines amounts to over 1.46 billion tons. See App. 284. Thus, § 4 requires them to leave less than 2% of their coal in place. [ Footnote 24 ] But, as we have indicated, nowhere near all of the underground coal is extractable, even aside from the Subsidence Act. The categories of coal that must be left for § 4 purposes and other purposes are not necessarily distinct sets, and there is no information in the record as to how much coal is actually left in the ground solely because of § 4. We do know, however, that petitioners have never claimed that their mining operations, or even any specific mines, have been unprofitable since the Subsidence Act was passed. Nor is there evidence that mining in any specific location affected by the 50% rule has been unprofitable. Instead, petitioners have sought to narrowly define certain segments of their property, and assert that, when so defined, the Subsidence Act denies them economically viable use. They advance two alternative ways of carving their property in order to reach this conclusion. First, they focus on the specific tons of coal that they must leave in the ground under Page 480 U. S. 497 the Subsidence Act, and argue that the Commonwealth has effectively appropriated this coal, since it has no other useful purpose if not mined. Second, they contend that the Commonwealth has taken their separate legal interest in property -- the "support estate." Because our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property "whose value is to furnish the denominator of the fraction." Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1192 (1967). [ Footnote 25 ] In Penn Central, the Court explained: "'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature of the interference with rights in the parcel as a whole -- here the city tax block designated as the 'landmark site.'" 438 U.S. at 438 U. S. 130 -131. Similarly, in Andrus v. Allard, 444 U. S. 51 (1979), we held that, "where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." Id. at 444 U. S. 65 -66. Although these verbal formulizations do not solve all of the definitional issues that may arise in defining the relevant mass of property, they do provide sufficient guidance to compel us to reject petitioners' arguments. Page 480 U. S. 498 The Coal in Place The parties have stipulated that enforcement of the DER's 50% rule will require petitioners to leave approximately 27 million tons of coal in place. Because they own that coal, but cannot mine it, they contend that Pennsylvania has appropriated it for the public purposes described in the Subsidence Act. This argument fails for the reason explained in Penn Central and Andrus. The 27 million tons of coal do not constitute a separate segment of property for takings law purposes. Many zoning ordinances place limits on the property owner's right to make profitable use of some segments of his property. A requirement that a building occupy no more than a specified percentage of the lot on which it is located could be characterized as a taking of the vacant area as readily as the requirement that coal pillars be left in place. Similarly, under petitioners' theory, one could always argue that a setback ordinance requiring that no structure be built within a certain distance from the property line constitutes a taking, because the footage represents a distinct segment of property for takings law purposes. Cf. Gorieb v. Fox, 274 U. S. 603 (1927) (upholding validity of setback ordinance) (Sutherland, J.). There is no basis for treating the less than 2% of petitioners' coal as a separate parcel of property. We do not consider Justice Holmes' statement that the Kohler Act made mining of "certain coal" commercially impracticable as requiring us to focus on the individual pillars of coal that must be left in place. That statement is best understood as referring to the Pennsylvania Coal Company's assertion that it could not undertake profitable anthracite coal mining in light of the Kohler Act. There were strong assertions in the record to support that conclusion. For example, the coal company claimed that one company was "unable to operate six large collieries in the city of Scranton, employing more than five thousand men." Motion to Advance for Argument Page 480 U. S. 499 in Pennsylvania Coal Co. v. Mahon, O.T. 1922, No. 549, p. 2. [ Footnote 26 ] As Judge Adams explained: "At first blush, this language seems to suggest that the Court would have found a taking no matter how little of the defendants' coal was rendered unmineable -- that, because 'certain' coal was no longer accessible, there had been a taking of that coal. However, when one reads the sentence in context, it becomes clear that the Court's concern was with whether the defendants' 'right to mine coal . . . [could] be exercised with profit. ' 260 U.S. at 260 U. S. 414 (emphasis added). . . . Thus, the Court's holding in Mahon must be assumed to have been based on its understanding that the Kohler Act rendered the business of mining coal unprofitable." 771 F.2d at 716, n. 6. When the coal that must remain beneath the ground is viewed in the context of any reasonable unit of petitioners' coal mining operations and financial-backed expectations, it is plain that petitioners have not come close to satisfying their burden of proving that they have been denied the economically viable use of that property. The record indicates that only about 75% of petitioners' underground coal can be profitably mined in any event, and there is no showing that petitioners' reasonable "investment-backed expectations" have been materially affected by the additional duty to retain the small percentage that must be used to support the structures protected by § 4. [ Footnote 27 ] Page 480 U. S. 500 The Support Estate Pennsylvania property law is apparently unique in regarding the support estate as a separate interest in land that can be conveyed apart from either the mineral estate or the surface estate. [ Footnote 28 ] Petitioners therefore argue that, even if comparable legislation in another State would not constitute a taking, the Subsidence Act has that consequence because it entirely destroys the value of their unique support estate. It is clear, however, that our takings jurisprudence forecloses reliance on such legalistic distinctions within a bundle of property rights. For example, in Penn Central, the Court rejected the argument that the "air rights" above the terminal constituted a separate segment of property for Takings Clause purposes. 438 U.S. at 438 U. S. 130 . Likewise, in Andrus v. Allard, we viewed the right to sell property as just one element of the owner's property interest. 444 U.S. at 444 U. S. 65 -66. In neither case did the result turn on whether state law allowed the separate sale of the segment of property. The Court of Appeals, which is more familiar with Pennsylvania law than we are, concluded that, as a practical matter, the support estate is always owned by either the owner of the surface or the owner of the minerals. It stated: "The support estate consists of the right to remove the strata of coal and earth that undergird the surface or to leave those layers intact to support the surface and prevent subsidence. These two uses cannot coexist, and, depending upon the purposes of the owner of the support Page 480 U. S. 501 estate, one use or the other must be chosen. If the owner is a mine operator, the support estate is used to exploit the mineral estate. When the right of support is held by the surface owner, its use is to support that surface and prevent subsidence. Thus, although Pennsylvania law does recognize the support estate as a "separate" property interest, id. it cannot be used profitably by one who does not also possess either the mineral estate or the surface estate. See Montgomery, The Development of the Right of Subjacent Support and the Third Estate in Pennsylvania,' 25 Temple L. Q. 1, 21 (1951)." 771 F.2d at 715-716. Thus, in practical terms, the support estate has value only insofar as it protects or enhances the value of the estate with which it is associated. Its value is merely a part of the entire bundle of rights possessed by the owner of either the coal or the surface. Because petitioners retain the right to mine virtually all of the coal in their mineral estates, the burden the Act places on the support estate does not constitute a taking. Petitioners may continue to mine coal profitably, even if they may not destroy or damage surface structures at will in the process. But even if we were to accept petitioners' invitation to view the support estate as a distinct segment of property for "takings" purposes, they have not satisfied their heavy burden of sustaining a facial challenge to the Act. Petitioners have acquired or retained the support estate for a great deal of land, only part of which is protected under the Subsidence Act, which, of course, deals with subsidence in the immediate vicinity of certain structures, bodies of water, and cemeteries. See n 6, supra. The record is devoid of any evidence on what percentage of the purchased support estates, either in the aggregate or with respect to any individual estate, has been affected by the Act. Under these circumstances, petitioners' Page 480 U. S. 502 facial attack under the Takings Clause must surely fail. [ Footnote 29 ] IV In addition to their challenge under the Takings Clause, petitioners assert that § 6 of the Subsidence Act violates the Contracts Clause by not allowing them to hold the surface owners to their contractual waiver of liability for surface damage. Here too, we agree with the Court of Appeals and the District Court that the Commonwealth's strong public interests in the legislation are more than adequate to justify the impact of the statute on petitioners' contractual agreements. Prior to the ratification of the Fourteenth Amendment, it was Article I, § 10, that provided the primary constitutional check on state legislative power. The first sentence of that section provides: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold or silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility." U.S. Const., Art. I, § 10. Unlike other provisions in the section, it is well settled that the prohibition against impairing the obligation of contracts is not to be read literally. W.B. Worthen Co. v. Thomas, 292 U. S. 426 , 292 U. S. 433 (1934). The context in which the Contracts Clause is found, the historical setting in which it was Page 480 U. S. 503 adopted, [ Footnote 30 ] and our cases construing the Clause, indicate that its primary focus was upon legislation that was designed to repudiate or adjust preexisting debtor-creditor relationships that obligors were unable to satisfy. See e.g., ibid.; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934). Even in such cases, the Court has refused to give the Clause a literal reading. Thus, in the landmark case of Home Building & Loan Assn. v. Blaisdell, the Court upheld Minnesota's statutory moratorium against home foreclosures, in part, because the legislation was addressed to the "legitimate end" of protecting "a basic interest of society," and not just for the advantage of some favored group. Id. at 290 U. S. 445 . As Justice Stewart explained: "[I]t is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States." "It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals." " Manigault v. Springs, 199 U. S. 473 , 199 U. S. 480 . As Mr. Justice Page 480 U. S. 504 Holmes succinctly put the matter in his opinion for the Court in Hudson Water Co. v. McCarter, 209 U. S. 349 , 209 U. S. 357 :" "One whose rights, such as they are, are subject to state restriction, cannot remove them from the power of the State by making a contract about them. The contract will carry with it the infirmity of the subject matter." Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 , 438 U. S. 241 -242 (1978). In assessing the validity of petitioners' Contracts Clause claim in this case, we begin by identifying the precise contractual right that has been impaired and the nature of the statutory impairment. Petitioners claim that they obtained damages waivers for a large percentage of the land surface protected by the Subsidence Act, but that the Act removes the surface owners' contractual obligations to waive damages. We agree that the statute operates as "a substantial impairment of a contractual relationship," id. at 438 U. S. 244 , and therefore proceed to the asserted justifications for the impairment. [ Footnote 31 ] The record indicates that, since 1966, petitioners have conducted mining operations under approximately 14,000 structures protected by the Subsidence Act. It is not clear whether that number includes the cemeteries and watercourses under which mining has been conducted. In any event, it is petitioners' position that, because they contracted Page 480 U. S. 505 with some previous owners of property generations ago, [ Footnote 32 ] they have a constitutionally protected legal right to conduct their mining operations in a way that would make a shambles of all those buildings and cemeteries. As we have discussed, the Commonwealth has a strong public interest in preventing this type of harm, the environmental effect of which transcends any private agreement between contracting parties. Of course, the finding of a significant and legitimate public purpose is not, by itself, enough to justify the impairment of contractual obligations. A court must also satisfy itself that the legislature's "adjustment of 'the rights and responsibilities of contracting parties [is based] upon reasonable conditions and [is] of a character appropriate to the public purpose justifying [the legislation's] adoption.'" Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 , 459 U. S. 412 (1983) (quoting United States Trust Co. v. New Jersey, 431 U. S. 1 , 431 U. S. 22 (1977)). But we have repeatedly held that, unless the State is itself a contracting party, courts should " properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.'" Energy Reserves Group, Inc., 459 U.S. at 459 U. S. 413 (quoting United States Trust Co., 431 U.S. at 431 U. S. 23 ). Page 480 U. S. 506 As we explained more fully above, the Subsidence Act plainly survives scrutiny under our standards for evaluating impairments of private contracts. [ Footnote 33 ] The Commonwealth has determined that, in order to deter mining practices that could have severe effects on the surface, it is not enough to set out guidelines and impose restrictions, but that imposition of liability is necessary. By requiring the coal companies either to repair the damage or to give the surface owner funds to repair the damage, the Commonwealth accomplishes both deterrence and restoration of the environment to its previous condition. We refuse to second-guess the Commonwealth's determinations that these are the most appropriate ways of dealing with the problem. We conclude, therefore, that the impairment of petitioners' right to enforce the damages waivers is amply justified by the public purposes served by the Subsidence Act. The judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] See generally Department of the Interior, Lee & Abel, Subsidence from Underground Mining: Environmental Analysis and Planning Considerations, Geological Survey Circular 2-12, p. 876 (1983); P. Mavrolas & M. Schechtman, Coal Mine Subsidence 6-8 (1981); Blazey & Strain, Deep Mine Subsidence -- State Law and the Federal Response, 1 Eastern Mineral Law Foundation § 1.01, pp. 1-5 (1980); Department of the Interior, Bureau of Mines, Moebs, Subsidence Over Four Room-and-Pillar Sections in Southwestern Pennsylvania, R18645 (1982); H.R.Rep. No. 95-218, p. 126 (1977). [ Footnote 2 ] "Wherever [subsidence effects] extend, damage can occur to buildings, roads, pipelines, cables, streams, water impoundments, wells, and aquifers. Buildings can be cracked or tilted; roads can be lowered or cracked; streams, water impoundments, and aquifers can all be drained into the underground excavations. Oil and gas wells can be severed, causing their contents to migrate into underground mines, into aquifers, and even into residential basements. Sewage lines, gas lines, and water lines can all be severed, as can telephone and electric cables." Blazey & Strain, supra, § 1.01 [2]. [ Footnote 3 ] Indeed, in 1977, Congress passed the Federal Surface Mining Control and Reclamation Act, 91 Stat. 445, 30 U.S.C. § 1201 et seq., which includes regulation of subsidence caused by underground coal mining. See 30 U.S.C. § 1266. [ Footnote 4 ] The two "full extraction" coal mining methods in use in western Pennsylvania are the room and pillar method, and the longwall method. App. 90-91. [ Footnote 5 ] For example, Pennsylvania law requires that coal beneath and adjacent to certain large surface bodies of water be left in place. Pa.Stat.Ann., Tit. 52, § 3101 et seq. (Purdon 1966). [ Footnote 6 ] Section 4 provides: "Protection of surface structures against damage from cave-in, collapse, or subsidence" "In order to guard the health, safety and general welfare of the public, no owner, operator, lessor, lessee, or general manager, superintendent or other person in charge of or having supervision over any bituminous coal mine shall mine bituminous coal so as to cause damage as a result of the caving-in, collapse or subsidence of the following surface structures in place on April 27, 1966, overlying or in the proximity of the mine:" "(1) Any public building or any noncommercial structure customarily used by the public, including but not being limited to churches, schools, hospitals, and municipal utilities or municipal public service operations." "(2) Any dwelling used for human habitation; and" "(3) Any cemetery or public burial ground, unless the current owner of the structure consents and the resulting damage is fully repaired or compensated." In response to the enactment in 1977 of the Federal Surface Mining Control and Reclamation Act, 91 Stat. 445, 30 U.S.C. § 1201 et seq., and regulations promulgated by the Secretary of the Interior in 1979, 44 Fed.Reg. 14902, the Pennsylvania DER adopted new regulations extending the statutory protection to additional classes of buildings and surface features. Particularly: "(a)(1) public buildings and non-commercial buildings customarily used by the public [after April 27, 1966], including churches, schools, hospitals, courthouses, and government offices;" "(4) perennial streams and impoundments of water with the storage volume of 20 acre feet;" "(5) aquifers which serve as a significant source of water supply to any public water system; and" "(6) coal refuse disposa[l]" areas. 26 Pa. Code §§ 89.145(a) and 89.146(b) (1983). [ Footnote 7 ] The regulations define the zone for which the 50% rule applies: "(2) The support area shall be rectangular in shape and determined by projecting a 15 degree angle of draw from the surface to the coal seam, beginning 15 feet from each side of the structure. For a structure on a surface slope of 5.0% or greater, the support area on the downslope side of the structure shall be extended an additional distance, determined by multiplying the depth of the overburden by the percentage of the surface slope." § 89.146(b)(2). However, this 50% requirement is neither an absolute floor nor ceiling. It may be waived by the Department upon a showing that alternative measures will prevent subsidence damage. § 89.146(b)(5). Alternatively, more stringent measures may be imposed, or mining may be prohibited, if it appears that leaving 50% of the coal in place will not provide adequate support. § 89.146(b)(4). [ Footnote 8 ] Although some subsidence eventually occurs over every underground mine, the extent and timing of the subsidence depends upon a number of factors, including the depth of the mining, the geology of the overlying strata, the topography of the surface, and the method of coal removal. The DER believes that the support provided by its 50% rule will last in almost all cases for the life of the structure being protected. Since 1966, petitioners have mined under approximately 14,000 structures or areas protected by § 4; there have been subsidence damage claims with respect to only 300. Stipulations of Counsel 41 and 42, App. 90. [ Footnote 9 ] Petitioners also challenged various other portions of the Subsidence Act below, see 771 F.2d 707, 718-719 (1985); 581 F. Supp. 511 , 513, 519-520 (1984), but have not pursued these claims in this Court. [ Footnote 10 ] "[N]or shall private property be taken for public use, without just compensation." U.S. Const., Amdt. 5. This restriction is applied to the States through the Fourteenth Amendment. See Chicago B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). [ Footnote 11 ] The urgency with which the case was treated is evidenced by the fact that the Court issued its decision less than a month after oral argument, a little over a year after the test case had been commenced. [ Footnote 12 ] "But the case has been treated as one in which the general validity of the act should be discussed. The Attorney General of the State, the City of Scranton, and the representatives of other extensive interests were allowed to take part in the argument below, and have submitted their contentions here. It seems, therefore, to be our duty to go farther in the statement of our opinion, in order that it may be known at once, and that further suits should not be brought in vain." 260 U.S. at 260 U. S. 414 . [ Footnote 13 ] "What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it. This we think that we are warranted in assuming that the statute does." Id. at 260 U. S. 414 -415. This assumption was not unreasonable in view of the fact that the Kohler Act may be read to prohibit mining that causes any subsidence -- not just subsidence that results in damage to surface structures. The record in this case indicates that subsidence will almost always occur eventually. See n 8, supra. [ Footnote 14 ] The legislature also set forth rather detailed findings about the dangers of subsidence and the need for legislation. See Pa.Stat.Ann., Tit. 52, §1406.3 (Purdon Supp. 1986). [ Footnote 15 ] "We are not disposed to displace the considered judgment of the Court of Appeals on an issue whose resolution is so contingent upon an analysis of state law." Runyon v. McCrary, 427 U. S. 160 , 427 U. S. 181 (1976). [ Footnote 16 ] We do not suggest that courts have "a license to judge the effectiveness of legislation," post at 511 480 U. S. , n. 3, or that courts are to undertake "least restrictive alternative" analysis in deciding whether a state regulatory scheme is designed to remedy a public harm, or is instead intended to provide private benefits. That a land use regulation may be somewhat overinclusive or under-inclusive is, of course, no justification for rejecting it. See Euclid v. Ambler Realty Co., 272 U. S. 365 , 272 U. S. 388 -389 (1926). But, on the other hand, Pennsylvania Coal instructs courts to examine the operative provisions of a statute, not just its stated purpose, in assessing its true nature. In Pennsylvania Coal, that inquiry led the Court to reject the Pennsylvania Legislature's stated purpose for the statute, because the "extent of the public interest is shown by the statute to be limited." 260 U.S. at 260 U. S. 413 -414. In this case, we, the Court of Appeals, and the District Court, have conducted the same type of inquiry the Court in Pennsylvania Coal conducted, and have determined that the details of the statute do not call the stated public purposes into question. [ Footnote 17 ] In his dissent, Justice Brandeis argued that the State has an absolute right to prohibit land use that amounts to a public nuisance. Id. at 260 U. S. 417 . Justice Holmes' opinion for the Court did not contest that proposition, but instead took issue with Justice Brandeis' conclusion that the Kohler Act represented such a prohibition. Id. at 260 U. S. 413 -414. [ Footnote 18 ] Of course, the type of taking alleged is also an often critical factor. It is well settled that a "'taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, see, e.g., United States v. Causby, 328 U. S. 256 (1946), than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 (1978). While the Court has almost invariably found that the permanent physical occupation of property constitutes a taking, see Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 458 U. S. 435 -438 (1982), the Court has repeatedly upheld regulations that destroy or adversely affect real property interests. See, e.g., Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211 (1986); Penn Central Transportation Co. v. New York City, 438 U.S. at 438 U. S. 125 ; Eastlake v. Forest City Enterprises, Inc., 426 U. S. 668 , 426 U. S. 674 , n. 8 (1976); Goldblatt v. Hempstead, 369 U. S. 590 , 369 U. S. 592 -593 (1962); Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Gorieb v. Fox, 274 U. S. 603 , 274 U. S. 608 (1927); Welch v. Swasey, 214 U. S. 91 (1909). This case, of course, involves land use regulation, not a physical appropriation of petitioners' property. [ Footnote 19 ] See also Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 261 (1980) (the question whether a taking has occurred "necessarily requires a weighing of private and public interests"); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 449 U. S. 163 (1980) ("No police power justification is offered for the deprivation"). [ Footnote 20 ] The special status of this type of state action can also be understood on the simple theory that, since no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not "taken" anything when it asserts its power to enjoin the nuisance-like activity. Cf. Sax, Takings, Private Property and Public Rights, 81 Yale L.J. 149, 156-161 (1971); Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1166, 1236-1237 (1967). However, as the current CHIEF JUSTICE has explained: "The nuisance exception to the taking guarantee is not coterminous with the police power itself." Penn Central Transportation Co., 438 U.S. at 438 U. S. 146 (REHNQUIST, J., dissenting). This is certainly the case in light of our recent decisions holding that the "scope of the public use' requirement of the Takings Clause is `coterminous with the scope of a sovereign's police powers.'" See Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 467 U. S. 1014 (1984) (quoting Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S. 240 (1984)). See generally R. Epstein, Takings 108-112 (1986). [ Footnote 21 ] The Takings Clause has never been read to require the States or the courts to calculate whether a specific individual has suffered burdens under this generic rule in excess of the benefits received. Not every individual gets a full dollar return in benefits for the taxes he or she pays, yet no one suggests that an individual has a right to compensation for the difference between taxes paid and the dollar value of benefits received. [ Footnote 22 ] Courts have consistently held that a State need not provide compensation when it diminishes or destroys the value of property by stopping illegal activity or abating a public nuisance. See Nassr v. Commonwealth, 394 Mass. 767, 477 N.E.2d 987 (1985) (hazardous waste operation); Kuban v. McGimsey, 96 Nev. 105, 605 P.2d 623 (1980) (brothel); MacLeod v. Takoma Park, 257 Md. 477, 263 A.2d 581 (1970) (unsafe building); Eno v. Burlington, 125 Vt. 8, 209 A.2d 499 (1965) (fire and health hazard); Pompano Horse Club, Inc. v. State ex rel. Bryan, 93 Fla. 415, 111 So. 801 (1927) (gambling facility); People ex rel. Thrasher v. Smith, 275 Ill. 256, 114 N.E. 31 (1916) ("bawdyhouse"). It is hard to imagine a different rule that would be consistent with the maxim " sic utere tuo ut alienum non laedas " (use your own property in such manner as not to injure that of another). See generally Empire State Insurance Co. v. Chafetz, 278 F.2d 41 (CA5 1960). As Professor Epstein has recently commented: "The issue of compensation cannot arise until the question of justification has been disposed of. In the typical nuisance prevention case, this question is resolved against the claimant." Epstein, supra, at 199. [ Footnote 23 ] The certified questions asked whether §§ 4, 5, or 6 of the Subsidence Act, and various regulations: "1. Violate the Rule of the Mahon Decision[,]" "2. Constitute Per Se Takings," "3. Violate Article I, § 10 of the Constitution of the United States." App. 12. The Court of Appeals recognized the limited nature of its inquiry, pointing out that it was passing only on the facial challenge, and that the "as-applied challenge remains for disposition in the district court." 771 F.2d at 710, n. 3. [ Footnote 24 ] The percentage of the total that must be left in place under § 4 is not the same for every mine, because of the wide variation in the extent of surface development in different areas. For 7 of the 13 mines identified in the record, 1% or less of the coal must remain in place; for 3 others, less than 3% must be left in place; for the other 3, the percentages are 4%, 7.8%, and 9.4%. See App. 284. [ Footnote 25 ] See also Sax, Takings and the Police Power, 74 Yale L.J. 36, 60 (1964); Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S.Cal.L.Rev. 561, 566-567 (1984). [ Footnote 26 ] Of course, the company also argued that the Subsidence Act made it commercially impracticable to mine the very coal that had to be left in place. Although they could have constructed pillars for support in place of the coal, the cost of the artificial pillars would have far exceeded the value of the coal. See Brief for Plaintiff in Error in Pennsylvania Coal v. Mahon, O.T. 1922, No. 549, pp. 7-9. [ Footnote 27 ] We do not suggest that the State may physically appropriate relatively small amounts of private property for its own use without paying just compensation. The question here is whether there has been any taking at all when no coal has been physically appropriated, and the regulatory program places a burden on the use of only a small fraction of the property that is subjected to regulation. See generally n 18, supra. [ Footnote 28 ] See Charnetski v. Miners Mills Coal Mining Co., 270 Pa. 459, 113 A. 683 (1921); Penman v. Jones, 256 Pa. 416 (1917); Captline v. County of Allegheny, 74 Pa.Commw. 86, 459 A.2d 1298 (1983), cert. denied, 466 U.S. 904 (1984); see generally Montgomery, The Development of the Right of Subjacent Support and the "Third Estate" in Pennsylvania, 25 Temple L.Q. 1 (1951). [ Footnote 29 ] Another unanswered question about the level of diminution involves the District Court's observation that the support estate carries with it far more than the right to cause subsidence damage without liability. See 681 F. Supp. at 619. There is no record as to what value these other rights have, and it is thus impossible to say whether the regulation of subsidence damage under certain structures, and the imposition of liability for damage to certain structures, denies petitioners the economically viable use of the support estate, even if viewed as a distinct segment of property. [ Footnote 30 ] "It was made part of the Constitution to remedy a particular social evil -- the state legislative practice of enacting laws to relieve individuals of their obligations under certain contracts -- and thus was intended to prohibit States from adopting 'as [their] policy the repudiation of debts or the destruction of contracts or the denial of means to enforce them,' Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 , 290 U. S. 439 (1934)." Allied Structural Steel Co. v. Spannaus, 438 U. S. 234 , 438 U. S. 256 (1978) (BRENNAN, J, dissenting). [ Footnote 31 ] As we have mentioned above, we do not know what percentage of petitioners' acquired support estate is, in fact, restricted under the Subsidence Act. See supra at 480 U. S. 501 -502. Moreover, we have no basis on which to conclude just how substantial a part of the support estate the waiver of liability is. See id. at n 29. These inquiries are both essential to determine the "severity of the impairment," which in turn affects "the level of scrutiny to which the legislation will be affected." Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 , 459 U. S. 411 (1983). While these dearths in the record might be critical in some cases, they are not essential to our discussion here, because the Subsidence Act withstands scrutiny even if it is assumed that it constitutes a total impairment. [ Footnote 32 ] Most of these waivers were obtained over 70 years ago, as part of the support estate which was itself obtained or retained as an incident to the acquisition or retention of the right to mine large quantities of underground coal. No question of enforcement of such a waiver against the original covenantor is presented; rather, petitioners claim a right to enforce the waivers against subsequent owners of the surface. This claim is apparently supported by Pennsylvania precedent holding that these waivers run with the land. See Kormuth v. United States Steel Co., 379 Pa. 366, 108 A.2d 907 (1954); Scranton v. Phillips, 94 Pa. 16, 22 (1880). That the Pennsylvania courts might have had, or may in the future have, a valid basis for refusing to enforce these perpetual covenants against subsequent owners of the surface rights is not necessarily a sufficient reason for concluding that the legislative impairment of the contracts is permissible. See Tidal Oil Co. v. Flanagan, 263 U. S. 444 (1924); Central Land Co. v. Laidley, 169 U. S. 103 (1895) (distinguishing legislative and judicial action). [ Footnote 33 ] Because petitioners did not raise the issue before the District Court, the Court of Appeals rejected their attempt to argue on appeal that the Subsidence Act also affects contracts to which the Commonwealth is a party. See 771 F.2d at 718, n. 8. CHIEF JUSTICE REHNQUIST, with whom JUSTICE POWELL, JUSTICE O'CONNOR, and JUSTICE SCALIA join, dissenting. More than 50 years ago, this Court determined the constitutionality of Pennsylvania's Kohler Act as it affected the property interests of coal mine operators. Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922). The Bituminous Mine Subsidence and Land Conservation Act approved today effects an interference with such interests in a strikingly similar manner. The Court finds at least two reasons why this case is different. First, we are told, "the character of the governmental action involved here leans heavily against finding a taking." Ante at 480 U. S. 485 . Second, the Court concludes that the Subsidence Act neither "makes it impossible for petitioners Page 480 U. S. 507 to profitably engage in their business," nor involves "undue interference with [petitioners'] investment-backed expectations." Ibid. Neither of these conclusions persuades me that this case is different, and I believe that the Subsidence Act works a taking of petitioners' property interests. I therefore dissent. I In apparent recognition of the obstacles presented by Pennsylvania Coal to the decision it reaches, the Court attempts to undermine the authority of Justice Holmes' opinion as to the validity of the Kohler Act, labeling it "uncharacteristically . . . advisory." Ante at 480 U. S. 484 . I would not so readily dismiss the precedential value of this opinion. There is, to be sure, some language in the case suggesting that it could have been decided simply by addressing the particular application of the Kohler Act at issue in the case. See, e.g., Pennsylvania Coal, supra, at 260 U. S. 414 ("If we were called upon to deal with the plaintiffs' position alone, we should think it clear that the statute does not disclose a public interest sufficient to warrant so extensive a destruction of the defendant's constitutionally protected rights"). The Court, however, found that the validity of the Act itself was properly drawn into question: "[T]he case has been treated as one in which the general validity of the [Kohler] act should be discussed." Ibid. [ Footnote 2/1 ] The coal company clearly had an interest in obtaining a determination that the Kohler Act was unenforceable if it worked a taking without providing for compensation. For Page 480 U. S. 508 these reasons, I would not find the opinion of the Court in Pennsylvania Coal advisory in any respect. The Court's implication to the contrary is particularly disturbing in this context, because the holding in Pennsylvania Coal today discounted by the Court has for 65 years been the foundation of our "regulatory takings" jurisprudence. See Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 127 (1978); D. Hagman & J. Juergensmeyer, Urban Planning and Land Development Control Law 319 (2d ed. 1986) (" Pennsylvania Coal was a monumental decision which remains a vital element in contemporary taking law"). We have, for example, frequently relied on the admonition that, "if regulation goes too far, it will be recognized as a taking." Pennsylvania Coal, supra, at 260 U. S. 415 . See, e.g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 477 U. S. 348 (1986); Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 467 U. S. 1003 (1984); PruneYard Shopping Center v. Robins, 447 U. S. 74 , 447 U. S. 83 (1980); Goldblatt v. Hempstead, 369 U. S. 590 , 369 U. S. 594 (1962); United States v. Central Eureka Mining Co., 357 U. S. 155 , 357 U. S. 168 (1958). Thus, even were I willing to assume that the opinion in Pennsylvania Coal, standing alone, is reasonably subject to an interpretation that renders more than half the discussion "advisory," I would have no doubt that our repeated reliance on that opinion establishes it as a cornerstone of the jurisprudence of the Fifth Amendment's Just Compensation Clause. I accordingly approach this case with greater deference to the language, as well as the holding, of Pennsylvania Coal than does the Court. Admittedly, questions arising under the Just Compensation Clause rest on ad hoc factual inquiries, and must be decided on the facts and circumstances in each case. See Penn Central Transportation Co. v. New York City, supra, at 438 U. S. 124 ; United States v. Central Eureka Mining Co., supra, at 357 U. S. 168 . Examination of the relevant factors presented here convinces me that the differences between Page 480 U. S. 509 them and those in Pennsylvania Coal verge on the trivial. II The Court first determines that this case is different from Pennsylvania Coal because "the Commonwealth of Pennsylvania has acted to arrest what it perceives to be a significant threat to the common welfare." Ante at 480 U. S. 485 . In my view, reliance on this factor represents both a misreading of Pennsylvania Coal and a misunderstanding of our precedents. A The Court opines that the decision in Pennsylvania Coal rested on the fact that the Kohler Act was "enacted solely for the benefit of private parties," ante at 480 U. S. 486 , and "served only private interests." Ante at 480 U. S. 484 . A review of the Kohler Act shows that these statements are incorrect. The Pennsylvania Legislature passed the statute "as remedial legislation, designed to cure existing evils and abuses. " Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 495, 118 A. 491, 492 (1922) (quoting the Act). These were public "evils and abuses," identified in the preamble as "wrecked and dangerous streets and highways, collapsed public buildings, churches, schools, factories, streets, and private dwellings, broken gas, water and sewer systems, the loss of human life. . . ." Id. at 496, 118 A. at 493. [ Footnote 2/2 ] The Pennsylvania Supreme Court recognized that these concerns were "such as to create an emergency, properly warranting the exercise of the police power. . . ." Id. at 497, 118 A. at 493. There can be Page 480 U. S. 510 no doubt that the Kohler Act was intended to serve public interests. Though several aspects of the Kohler Act limited its protection of these interests, see Pennsylvania Coal, 260 U.S. at 260 U. S. 414 , this Court did not ignore the public interests served by the Act. When considering the protection of the "single private house" owned by the Mahons, the Court noted that "[n]o doubt there is a public interest even in this." Id. at 260 U. S. 413 (emphasis added). It recognized that the Act "affects the mining of coal under streets or cities in places where the right to mine such coal has been reserved." Id. at 260 U. S. 414 . See also id. at 260 U. S. 416 ("We assume . . . that the statute was passed upon the conviction that an exigency existed that would warrant it, and we assume that an exigency exists that would warrant the exercise of eminent domain"). The strong public interest in the stability of streets and cities, however, was insufficient "to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Ibid. Thus, the Court made clear that the mere existence of a public purpose was insufficient to release the government from the compensation requirement: "The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation." Id. at 260 U. S. 415 . The Subsidence Act rests on similar public purposes. These purposes were clearly stated by the legislature: "[T]o aid in the protection of the safety of the public, to enhance the value of [surface area] lands for taxation, to aid in the preservation of surface water drainage and public water supplies and generally to improve the use and enjoyment of such lands. . . ." Pa.Stat.Ann., Title 52, § 1406.2 (Purdon Supp. 1986). The Act's declaration of policy states that mine subsidence "has seriously impeded land development . . . has caused a very clear and present danger to the health, safety and welfare of the people of Pennsylvania [and] erodes the Page 480 U. S. 511 tax base of the affected municipalities." §§ 1406.3(2), (3), (4). The legislature determined that the prevention of subsidence would protect surface structures, advance the economic future and wellbeing of Pennsylvania, and ensure the safety and welfare of the Commonwealth's residents. Ibid. Thus, it is clear that the Court has severely understated the similarity of purpose between the Subsidence Act and the Kohler Act. The public purposes in this case are not sufficient to distinguish it from Pennsylvania Coal. [ Footnote 2/3 ] B The similarity of the public purpose of the present Act to that in Pennsylvania Coal does not resolve the question whether a taking has occurred; the existence of such a public purpose is merely a necessary prerequisite to the government's exercise of its taking power. See Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S. 239 -243, 467 U. S. 245 (1984); Berman v. Parker, 348 U. S. 26 , 348 U. S. 32 -33 (1954). The nature of these purposes may be relevant, for we have recognized that a taking does not occur where the government exercises its unquestioned authority to prevent a property owner from using his property to injure others without having to compensate the value of the forbidden use. See Goldblatt v. Hempstead , Page 480 U. S. 512 369 U. S. 590 (1962); Hadacheck v. Sebastian, 239 U. S. 394 (1915); Mugler v. Kansas, 123 U. S. 623 (1887). See generally Penn Central Transportation Co. v. New York City, 438 U.S. at 438 U. S. 144 -146 (REHNQUIST, J., dissenting). The Court today indicates that this "nuisance exception" alone might support its conclusion that no taking has occurred. Despite the Court's implication to the contrary, see ante at 480 U. S. 485 -486, and n. 15, the legitimacy of this purpose is a question of federal, rather than state, law, subject to independent scrutiny by this Court. This statute is not the type of regulation that our precedents have held to be within the "nuisance exception" to takings analysis. The ease with which the Court moves from the recognition of public interests to the assertion that the activity here regulated is "akin to a public nuisance" suggests an exception far wider than recognized in our previous cases. "The nuisance exception to the taking guarantee," however, "is not coterminous with the police power itself," Penn Central Transportation, supra, at 438 U. S. 145 (REHNQUIST, J., dissenting), but is a narrow exception allowing the government to prevent "a misuse or illegal use." Curtin v. Benson, 222 U. S. 78 , 222 U. S. 86 (1911). It is not intended to allow "the prevention of a legal and essential use, an attribute of its ownership." Ibid. The narrow nature of this exception is compelled by the concerns underlying the Fifth Amendment. Though, as the Court recognizes, ante at 480 U. S. 491 -492, the Fifth Amendment does not prevent actions that secure a "reciprocity of advantage," Pennsylvania Coal, supra, at 260 U. S. 415 , it is designed to prevent "the public from loading upon one individual more than his just share of the burdens of government, and says that, when he surrenders to the public something more and different from that which is exacted.from other members of the public, a full and just equivalent shall be returned to him." Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 325 (1893). See also Penn Central Transportation Co. v. New York City, supra, at 438 U. S. 123 -125; Armstrong v. Page 480 U. S. 513 United States, 364 U. S. 40 , 364 U. S. 49 (1960). A broad exception to the operation of the Just Compensation Clause based on the exercise of multifaceted health, welfare, and safety regulations would surely allow government much greater authority than we have recognized to impose societal burdens on individual landowners, for nearly every action the government takes is intended to secure for the public an extra measure of "health, safety, and welfare." Thus, our cases applying the "nuisance" rationale have involved at least two narrowing principles. First, nuisance regulations exempted from the Fifth Amendment have rested on discrete and narrow purposes. See Goldblatt v. Hempstead, supra; Hadacheck v. Sebastian, supra; Mugler v. Kansas, supra. The Subsidence Act, however, is much more than a nuisance statute. The central purposes of the Act, though including public safety, reflect a concern for preservation of buildings, economic development, and maintenance of property values to sustain the Commonwealth's tax base. We should hesitate to allow a regulation based on essentially economic concerns to be insulated from the dictates of the Fifth Amendment by labeling it nuisance regulation. Second, and more significantly, our cases have never applied the nuisance exception to allow complete extinction of the value of a parcel of property. Though nuisance regulations have been sustained despite a substantial reduction in value, we have not accepted the proposition that the State may completely extinguish a property interest or prohibit all use without providing compensation. Thus, in Mugler v. Kansas, supra, the prohibition on manufacture and sale of intoxicating liquors made the distiller's brewery "of little value," but did not completely extinguish the value of the building. Similarly, in Miller v. Schoene, 276 U. S. 272 (1928), the individual forced to cut down his cedar trees nevertheless was able "to use the felled trees." Penn Central Transportation Co. v. New York City, supra, at 438 U. S. 126 . The Page 480 U. S. 514 restriction on surface mining upheld in Goldblatt v. Hempstead, supra, may have prohibited "a beneficial use" of the property, but did not reduce the value of the lot in question. 369 U.S. at 593, 369 U. S. 594 . In none of these cases did the regulation "destroy essential uses of private property." Curtin v. Benson, supra, at 222 U. S. 86 . Here, petitioners' interests in particular coal deposits have been completely destroyed. By requiring that defined seams of coal remain in the ground, see ante at 480 U. S. 476 -477, and n. 7, § 4 of the Subsidence Act has extinguished any interest one might want to acquire in this property, for "'the right to coal consists in the right to mine it.'" Pennsylvania Coal, 260 U.S. at 260 U. S. 414 , quoting Commonwealth ex rel. Keator v. Clearview Coal Co., 256 Pa. 328, 331, 100 A. 820 (1917). Application of the nuisance exception in these circumstances would allow the State not merely to forbid one "particular use" of property with many uses, but to extinguish all beneficial use of petitioners' property. [ Footnote 2/4 ] Though suggesting that the purposes alone are sufficient to uphold the Act, the Court avoids reliance on the nuisance exception by finding that the Subsidence Act does not impair petitioners' investment-backed expectations or ability to profitably operate their businesses. This conclusion follows mainly from the Court's broad definition of the "relevant mass of property," ante at 480 U. S. 497 , which allows it to ascribe to the Subsidence Act a less pernicious effect on the interests of the property owner. The need to consider the effect of regulation on some identifiable segment of property makes all-important the admittedly difficult task of defining the relevant Page 480 U. S. 515 parcel. See Penn Central Transportation Co. v. New York City, 438 U.S. at 438 U. S. 149 , n. 13 (REHNQUIST, J., dissenting). For the reasons explained below, I do not believe that the Court's opinion adequately performs this task. III The Pennsylvania Coal Court found it sufficient that the Kohler Act rendered it "commercially impracticable to mine certain coal." 260 U.S. at 260 U. S. 414 . The Court, ante at 480 U. S. 498 , observes that this language is best understood as a conclusion that certain coal mines could not be operated at a profit. Petitioners have not at this stage of the litigation rested their claim on similar proof; they have not "claimed that their mining operations, or even any specific mines, have been unprofitable since the Subsidence Act was passed." Ante at 480 U. S. 496 . The parties have, however, stipulated for purposes of this facial challenge that the Subsidence Act requires petitioners to leave in the ground 27 million tons of coal, without compensation therefor. Petitioners also claim that the Act extinguishes their purchased interests in support estates which allow them to mine the coal without liability for subsidence. We are thus asked to consider whether these restrictions are such as to constitute a taking. A The Court's conclusion that the restriction on particular coal does not work a taking is primarily the result of its view that the 27 million tons of coal in the ground "do not constitute a separate segment of property for takings law purposes." Ante at 480 U. S. 498 . This conclusion cannot be based on the view that the interests are too insignificant to warrant protection by the Fifth Amendment, far it is beyond cavil that government appropriation of "relatively small amounts of private property for its own use" requires just compensation. Ante at 480 U. S. 499 , n. 27. Instead, the Court's refusal to recognize the coal in the ground as a separate segment of property for takings purposes is based on the fact that the Page 480 U. S. 516 alleged taking is "regulatory," rather than a physical, intrusion. See ante at 480 U. S. 488 -489, n. 18. On the facts of this case, I cannot see how the label placed on the government's action is relevant to consideration of its impact on property rights. Our decisions establish that governmental action short of physical invasion may constitute a taking because such regulatory action might result in "as complete [a loss] as if the [government] had entered upon the surface of the land and taken exclusive possession of it." United States v. Causby, 328 U. S. 256 , 328 U. S. 261 (1946). Though the government's direct benefit may vary depending upon the nature of its action, the question is evaluated from the perspective of the property holder's loss, rather than the government's gain. See ibid.; United States v. General Motors Corp., 323 U. S. 373 , 323 U. S. 378 (1945); Boston Chamber of Commerce v. Boston, 217 U. S. 189 , 217 U. S. 195 (1910). Our observation that "[a] taking' may more readily be found when the interference with property can be characterized as a physical invasion by government," Penn Central Transportation Co. v. New York City, supra, at 438 U. S. 124 , was not intended to alter this perspective merely because the claimed taking is by regulation. Instead, we have recognized that regulations -- unlike physical invasions -- do not typically extinguish the "full bundle" of rights in a particular piece of property. In Andrus v. Allard, 444 U. S. 51 , 444 U. S. 66 (1979), for example, we found it crucial that a prohibition on the sale of avian artifacts destroyed only "one `strand' of the bundle" of property rights, "because the aggregate must be viewed in its entirety." This characteristic of regulations frequently makes unclear the breadth of their impact on identifiable segments of property, and has required that we evaluate the effects in light of the "several factors" enumerated in Penn Central Transportation Co.: "The economic impact of the regulation on the claimant, . . . the extent to which the regulation has interfered with investment-backed expectations, [and] the character of the governmental action." 438 U.S. at 438 U. S. 124 . Page 480 U. S. 517 No one, however, would find any need to employ these analytical tools where the government has physically taken an identifiable segment of property. Physical appropriation by the government leaves no doubt that it has in fact deprived the owner of all uses of the land. Similarly, there is no need for further analysis where the government, by regulation, extinguishes the whole bundle of rights in an identifiable segment of property, for the effect of this action on the holder of the property is indistinguishable from the effect of a physical taking. [ Footnote 2/5 ] Thus, it is clear our decision in Andrus v. Allard, supra, would have been different if the Government had confiscated the avian artifacts. In my view, a different result would also follow if the Government simply prohibited every use of that property, for the owner would still have been "deprive[d] of all or most of his interest in the subject matter." United States v. General Motors Corp., supra, at 323 U. S. 378 . In this case, enforcement of the Subsidence Act and its regulations will require petitioners to leave approximately 27 million tons of coal in place. There is no question that this coal is an identifiable and separable property interest. Unlike many property interests, the "bundle" of rights in this coal is sparse. " For practical purposes, the right to coal consists in the right to mine it.'" Pennsylvania Coal, 260 Page 480 U. S. 518 U.S. at 260 U. S. 414 , quoting Commonwealth ex rel. Keater v. Clearview Coal Co., 256 Pa. at 331, 100 A. at 820. From the relevant perspective -- that of the property owners -- this interest has been destroyed every bit as much as if the government had proceeded to mine the coal for its own use. The regulation, then, does not merely inhibit one strand in the bundle, cf. Andrus v. Allard, supra, but instead destroys completely any interest in a segment of property. In these circumstances, I think it unnecessary to consider whether petitioners may operate individual mines or their overall mining operations profitably, for they have been denied all use of 27 million tons of coal. I would hold that § 4 of the Subsidence Act works a taking of these property interests. B Petitioners also claim that the Subsidence Act effects a taking of their support estate. Under Pennsylvania law, the support estate, the surface estate, and the mineral estate are "three distinct estates in land which can be held in fee simple separate and distinct from each other. . . . " Captline v. County of Allegheny, 74 Pa. Commw. 85, 91, 459 A.2d 1298, 1301 (1983), cert. denied, 466 U.S. 904 (1984). In refusing to consider the effect of the Subsidence Act on this property interest alone, the Court dismisses this feature of Pennsylvania property law as simply a "legalistic distinctio[n] within a bundle of property rights." Ante at 480 U. S. 500 . "Its value," the Court informs us, "is merely a part of the entire bundle of rights possessed by the owner of either the coal or the surface." Ante at 480 U. S. 501 . See also 771 F.2d 707, 716 (1985) ("To focus upon the support estate separately . . . would serve little purpose"). This view of the support estate allows the Court to conclude that its destruction is merely the destruction of one "strand" in petitioners' bundle of property rights, not significant enough in the overall bundle to work a taking. Contrary to the Court's approach today, we have evaluated takings claims by reference to the units of property defined Page 480 U. S. 519 by state law. In Ruckleshaus v. Monsanto Co., for example, we determined that certain "health, safety, and environmental data" was "cognizable as a trade secret property right under Missouri law," 467 U.S. at 467 U. S. 1003 , and proceeded to evaluate the effects of governmental action on this state-defined property right. [ Footnote 2/6 ] Reliance on state law is necessitated by the fact that "'[p]roperty interests . . . are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 449 U. S. 161 (1980), quoting Board of Regents v. Roth, 408 U. S. 564 , 408 U. S. 577 (1972). In reality, the Court's decision today cannot reject this necessary reliance on state law. Rather, it simply rejects the support estate as the relevant segment of property and evaluates the impact of the Subsidence Act by reference to some broader, yet undefined segment of property presumably recognized by state law. I see no reason for refusing to evaluate the impact of the Subsidence Act on the support estate alone, for Pennsylvania has clearly defined it as a separate estate in property. The Court suggests that the practical significance of this estate is limited, because its value "is merely part of the bundle of rights possessed by the owner of either the coal or the surface." Ante at 480 U. S. 501 . Though this may accurately describe the usual state of affairs, I do not understand the Court to mean that one holding the support estate alone would find it worthless, for surely the owners of the mineral or surface estates Page 480 U. S. 520 would be willing buyers of this interest. [ Footnote 2/7 ] Nor does the Court suggest that the owner of both the mineral and support estates finds his separate interest in support to be without value. In these circumstances, where the estate defined by state law is both severable and of value in its own right, it is appropriate to consider the effect of regulation on that particular property interest. When held by owners of the mineral estate, the support estate "consists of the right to remove the strata of coal and earth that undergird the surface. . . ." 771 F.2d at 715. Purchase of this right, therefore, shifts the risk of subsidence to the surface owner. Section 6 of the Subsidence Act, by making the coal mine operator strictly liable for any damage to surface structures caused by subsidence, purports to place this risk on the holder of the mineral estate regardless of whether the holder also owns the support estate. Operation of this provision extinguishes petitioners' interests in their support estates, making worthless what they purchased as a separate right under Pennsylvania law. Like the restriction on mining particular coal, this complete interference with a property right extinguishes its value, and must be accompanied by just compensation. [ Footnote 2/8 ] IV In sum, I would hold that Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act effects a taking of petitioners' property without providing just compensation. Specifically, the Act works to extinguish petitioners' interest Page 480 U. S. 521 in at least 27 million tons of coal by requiring that coal to be left in the ground, and destroys their purchased support estates by returning to them financial liability for subsidence. I respectfully dissent from the Court's decision to the contrary. [ Footnote 2/9 ] [ Footnote 2/1 ] The Pennsylvania Supreme Court, in the decision under review, had also determined that the case called for "consideration . . . of the constitutionality of the act itself." Mahon v. Pennsylvania Coal Co., 274 Pa. 489, 494, 118 A. 491, 492 (1922). Before this Court, the coal company persisted in its claim that the Pennsylvania statute took its property without just compensation. See Brief for Plaintiff in Error in Pennsylvania Coal Co. v. Mahon, O.T. 1922, No. 549, pp. 7-8, 16, 19-21, 28-33; Brief for Defendants in Error in Pennsylvania Coal Co. v. Mahon, O.T. 1922, No. 549, p. 73. [ Footnote 2/2 ] That these were public "evils and abuses" is further illustrated by the coverage of the Kohler Act, which regulated mining under "any public building or any structure customarily used by the public," including churches, schools, hospitals, theaters, hotels, and railroad stations. Mahon v. Pennsylvania Coal, supra, at 495, 118 A. at 492. Protected areas also included streets, roads, bridges, or "any other public passageway, dedicated to public use or habitually used by the public," as well as public utility structures, private homes, workplaces, and cemeteries. Ibid. [ Footnote 2/3 ] The Court notes that the particulars of the Subsidence Act better serve these public purposes than did the Kohler Act. Ante at 480 U. S. 486 . This may well be true, but our inquiry into legislative purpose is not intended as a license to judge the effectiveness of legislation. When considering the Fifth Amendment issues presented by Hawaii's Land Reform Act, we noted that the Act, "like any other, may not be successful in achieving its intended goals. But" "whether in fact the provisions will accomplish the objectives is not the question: the [constitutional requirement] is satisfied if . . . the . . . [State] Legislature rationally could have believed that the [Act] would promote its objective." Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S. 242 (1984), quoting Western & Southern Life Insurance Co. v. State Bd. of Equalization, 451 U. S. 648 , 451 U. S. 671 -672 (1981). Conversely, our cases have never found it sufficient that legislation efficiently achieves its desired objectives to hold that the compensation required by the Fifth Amendment is unavailable. [ Footnote 2/4 ] Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914), did not go this far. Though the Court in that case upheld a statute requiring mine operators to leave certain amounts of coal in their mines, examination of the opinion in Plymouth Coal reveals that the statute was not challenged as a taking for which compensation was due. Instead, the coal company complained that the statutory provisions for defining the width of required pillars of coal were constitutionally deficient as a matter of procedural due process. [ Footnote 2/5 ] There is admittedly some language in Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 130 -131 (1978), that suggests a contrary analysis: "'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses, rather, both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole." The Court gave no guidance on how one is to distinguish a "discrete segment" from a "single parcel." It was not clear, moreover, that the air rights at issue in Penn Central were entirely eliminated by the operation of New York City's Landmark Preservation Law, for, as the Court noted, "it simply cannot be maintained, on this record, that appellants have been prohibited from occupying any portion of the airspace above the Terminal." Id. at 438 U. S. 136 . [ Footnote 2/6 ] Indeed, we rejected the claim that the Supremacy Clause allowed Congress to dictate that the effect of its regulation "not vary depending on the property law of the State in which the submitter [of trade secret information] is located. . . . If Congress can 'preempt' state property law in the manner advocated, . . . then the Taking Clause has lost all vitality." Ruckleshaus v. Monsanto Co., 467 U.S. at 467 U. S. 1012 . [ Footnote 2/7 ] It is clear that, under Pennsylvania law, "one person may own the coal, another the surface, and the third the right of support." Smith v. Glen Alden Coal Co., 347 Pa. 290, 304, 32 A.2d 227, 234-235 (1943). [ Footnote 2/8 ] It is therefore irrelevant that petitioners have not presented evidence of "what percentage of the purchased support estates, either in the aggregate or with respect to any individual estate, has been affected by the Act." Ante at 480 U. S. 501 . There is no doubt that the Act extinguishes support estates. Because it fails to provide compensation for this taking, the Act violates the dictates of the Fifth Amendment. [ Footnote 2/9 ] Because I would find § 6 of the Subsidence Act unconstitutional under the Fifth Amendment, I would not reach the Contracts Clause issue addressed by the Court, ante at 480 U. S. 502 -506.

The Supreme Court upheld Pennsylvania's Bituminous Mine Subsidence and Land Conservation Act, which prohibits coal mining that causes subsidence damage to existing structures and watercourses, finding that the Act serves substantial public interests and does not constitute a taking of private property without compensation. The Court distinguished this case from Pennsylvania Coal Co. v. Mahon, where a similar law was struck down, by emphasizing the greater public interest served by the Act and the lesser extent of the alleged taking. The Court also noted that the Act does not entirely eliminate the right to mine coal, and that any interference with property rights is limited in nature.

Property Rights & Land Use

Loretto v. Teleprompter Manhattan CATV Corp.

https://supreme.justia.com/cases/federal/us/458/419/

U.S. Supreme Court Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) Loretto v. Teleprompter Manhattan CATV Corp. No. 81-244 Argued March 30, 1982 Decided June 30, 1982 458 U.S. 419 APPEAL FROM THE COURT OF APPEALS OF NEW YORK Syllabus A New York statute provides that a landlord must permit a cable television (CATV) company to install its CATV facilities upon his property and may not demand payment from the company in excess of the amount determined by a State Commission to be reasonable. Pursuant to the statute, the Commission ruled that a one-time $1 payment was a reasonable fee. After purchasing a five-story apartment building in New York City, appellant landlord discovered that appellee CATV companies had installed cables on the building, both "crossovers" for serving other buildings and "noncrossovers" for serving appellant's tenants. Appellant then brought a class action for damages and injunctive relief in a New York state court, alleging, inter alia, that installation of the cables insofar as appellee companies relied on the New York statute constituted a taking without just compensation. Appellee New York City, which had granted the companies an exclusive franchise to provide CATV within certain areas of the city, intervened. Upholding the New York statute, the trial court granted summary judgment to appellees. The Appellate Division of the New York Supreme Court affirmed, and, on further appeal, the New York Court of Appeals also upheld the statute, holding that it serves the legitimate police power purpose of eliminating landlord fees and conditions that inhibit the development of CATV, which has important educational and community benefits. Rejecting appellant's argument that a physical occupation authorized by government is necessarily a taking, the court further held that the statute did not have an excessive economic impact upon appellant when measured against her aggregate property rights, did not interfere with any reasonable investment-backed expectations, and accordingly did not work a taking of appellant's property. Held: The New York statute works a taking of a portion of appellant's property for which she is entitled to just compensation under the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment. Pp. 458 U. S. 425 -441. (a) When the "character of the governmental action," Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 , is a permanent physical occupation of real property, there is a taking to the extent Page 458 U. S. 420 of the occupation without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner. Pp. 458 U.S. 426 -435. (b) To the extent that the government permanently occupies physical property, it effectively destroys the owner's rights to possess, use, and dispose of the property. Moreover, the owner suffers a special kind of injury when a stranger invades and occupies the owner's property. Such an invasion is qualitatively more severe than a regulation of the use of property, since the owner may have no control over the timing, extent, or nature of the invasion. And constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied. Pp. 458 U. S. 435 -438. (c) Here, the cable installation on appellant's building constituted a taking under the traditional physical occupation test, since it involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building's exterior wall. There is no constitutional difference between a crossover and noncrossover installation, since portions of the installation necessary for both types of installation permanently appropriated appellant's property. The fact that the New York statute applies only to buildings used as rental property does not make it simply a regulation of the use of real property. Physical occupation of one type of property but not another is no less a physical occupation. The New York statute does not purport to give the tenant any enforceable property rights with respect to CATV installation, and thus cannot be construed as merely granting a tenant a property right as an appurtenance to his leasehold. Application of the physical occupation rule in this case will not have dire consequences for the government's power to adjust landlord-tenant relationships, since it in no way alters the usual analysis governing a State's power to require landlords to comply with building codes. Pp. 458 U. S. 438 -440. 53 N.Y.2d 124, 423 N.E.2d 320, reversed and remanded. MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and WHITE, JJ., joined, post, p. 458 U. S. 442 . Page 458 U. S. 421 JUSTICE MARSHALL delivered the opinion of the Court. This case presents the question whether a minor but permanent physical occupation of an owner's property authorized by government constitutes a "taking" of property for which just compensation is due under the Fifth and Fourteenth Amendments of the Constitution. New York law provides that a landlord must permit a cable television company to install its cable facilities upon his property. N.Y.Exec.Law § 828(1) (McKinney Supp.1981-1982). In this case, the cable installation occupied portions of appellant's roof and the side of her building. The New York Court of Appeals ruled that this appropriation does not amount to a taking. 53 N.Y.2d 124, 423 N.E.2d 320 (1981). Because we conclude that such a physical occupation of property is a taking, we reverse. I Appellant Jean Loretto purchased a five-story apartment building located at 303 West 105th Street, New York City, in 1971. The previous owner had granted appellees Teleprompter Corp. and Teleprompter Manhattan CATV (collectively Teleprompter) [ Footnote 1 ] permission to install a cable on the building and the exclusive privilege of furnishing cable Page 458 U. S. 422 television (CATV) services to the tenants. The New York Court of Appeals described the installation as follows: "On June 1, 1970 TelePrompter installed a cable slightly less than one-half inch in diameter and of approximately 30 feet in length along the length of the building about 18 inches above the roof top, and directional taps, approximately 4 inches by 4 inches by 4 inches, on the front and rear of the roof. By June 8, 1970 the cable had been extended another 4 to 6 feet and cable had been run from the directional taps to the adjoining building at 305 West 105th Street." Id. at 135, 423 N.E.2d at 324. Teleprompter also installed two large silver boxes along the roof cables. The cables are attached by screws or nails penetrating the masonry at approximately two-foot intervals, and other equipment is installed by bolts. Initially, Teleprompter's roof cables did not service appellant's building. They were part of what could be described as a cable "highway" circumnavigating the city block, with service cables periodically dropped over the front or back of a building in which a tenant desired service. Crucial to such a network is the use of so-called "crossovers" -- cable lines extending from one building to another in order to reach a new group of tenants. [ Footnote 2 ] Two years after appellant purchased the building, Teleprompter connected a "noncrossover" line -- i.e., one that provided CATV service to appellant's own tenants -- by dropping a line to the first floor down the front of appellant's building. Page 458 U. S. 423 Prior to 1973, Teleprompter routinely obtained authorization for its installations from property owners along the cable's route, compensating the owners at the standard rate of 5% of the gross revenues that Teleprompter realized from the particular property. To facilitate tenant access to CATV, the State of New York enacted § 828 of the Executive Law, effective January 1, 1973. Section 828 provides that a landlord may not "interfere with the installation of cable television facilities upon his property or premises," and may not demand payment from any tenant for permitting CATV, or demand payment from any CATV company "in excess of any amount which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable." [ Footnote 3 ] The landlord may, however, require the CATV company or the tenant to bear the cost of installation and to indemnify for any damage caused by the installation. Pursuant to § 828(1)(b), the State Commission has ruled that a one-time $1 payment Page 458 U. S. 424 is the normal fee to which a landlord is entitled. In the Matter of Implementation of Section 828 of the Executive Law, No. 90004, Statement of General Policy (New York State Commission on Cable Television, Jan. 15, 1976) (Statement of General Policy), App. 51-52; Clarification of General Policy (Aug. 27, 1976), App. 68-69. The Commission ruled that this nominal fee, which the Commission concluded was equivalent to what the landlord would receive if the property were condemned pursuant to New York's Transportation Corporations Law, satisfied constitutional requirements "in the absence of a special showing of greater damages attributable to the taking." Statement of General Policy, App. 52. Appellant did not discover the existence of the cable until after she had purchased the building. She brought a class action against Teleprompter in 1976 on behalf of all owners of real property in the State on which Teleprompter has placed CATV components, alleging that Teleprompter's installation was a trespass and, insofar as it relied on § 828, a taking without just compensation. She requested damages and injunctive relief. [ Footnote 4 ] Appellee City of New York, which has granted Teleprompter an exclusive franchise to provide CATV within certain areas of Manhattan, intervened. The Supreme Court, Special Term, granted summary judgment to Teleprompter and the city, upholding the constitutionality of § 828 in both crossover and noncrossover situations. 98 Misc.2d 944, 415 N.Y.S.2d 180 (1979). The Appellate Division affirmed without opinion. 73 App.Div.2d 849, 422 N.Y.S.2d 550 (1979). On appeal, the Court of Appeals, over dissent, upheld the statute. 53 N.Y.2d 124, 423 N.E.2d 320 (1981). The court concluded that the law requires the landlord to allow both crossover and noncrossover installations, but permits him to Page 458 U. S. 425 request payment from the CATV company under § 828(1)(b), at a level determined by the State Cable Commission, only for noncrossovers. The court then ruled that the law serves a legitimate police power purpose -- eliminating landlord fees and conditions that inhibit the development of CATV, which has important educational and community benefits. Rejecting the argument that a physical occupation authorized by government is necessarily a taking, the court stated that the regulation does not have an excessive economic impact upon appellant when measured against her aggregate property rights, and that it does not interfere with any reasonable investment-backed expectations. Accordingly, the court held that § 828 does not work a taking of appellant's property. Chief Judge Cooke dissented, reasoning that the physical appropriation of a portion of appellant's property is a taking without regard to the balancing analysis courts ordinarily employ in evaluating whether a regulation is a taking. In light of its holding, the Court of Appeals had no occasion to determine whether the $1 fee ordinarily awarded for a noncrossover installation was adequate compensation for the taking. Judge Gabrielli, concurring, agreed with the dissent that the law works a taking, but concluded that the $1 presumptive award, together with the procedures permitting a landlord to demonstrate a greater entitlement, affords just compensation. We noted probable jurisdiction. 454 U.S. 938 (1981). II The Court of Appeals determined that § 828 serves the legitimate public purpose of "rapid development of and maximum penetration by a means of communication which has important educational and community aspects," 53 N.Y.2d at 143-144, 423 N.E.2d at 329, and thus is within the State's police power. We have no reason to question that determination. It is a separate question, however, whether an otherwise valid regulation so frustrates property rights that compensation must be paid. See Penn Central Transportation Page 458 U. S. 426 Co. v. New York City, 438 U. S. 104 , 438 U. S. 127 -128 (1978); Delaware, L. & W. R. Co. v. Morristown, 276 U. S. 182 , 276 U. S. 193 (1928). We conclude that a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve. Our constitutional history confirms the rule, recent cases do not question it, and the purposes of the Takings Clause compel its retention. A In Penn Central Transportation Co. v. New York City, supra, the Court surveyed some of the general principles governing the Takings Clause. The Court noted that no "set formula" existed to determine, in all cases, whether compensation is constitutionally due for a government restriction of property. Ordinarily, the Court must engage in "essentially ad hoc, factual inquiries." Id. at 438 U. S. 124 . But the inquiry is not standardless. The economic impact of the regulation, especially the degree of interference with investment-backed expectations, is of particular significance. "So, too, is the character of the governmental action. A 'taking' may more readily be found when the interference with property can be characterized as a physical invasion by government, than when interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Ibid. (citation omitted). As Penn Central affirms, the Court has often upheld substantial regulation of an owner's use of his own property where deemed necessary to promote the public interest. At the same time, we have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause. Our cases further establish that, when the physical intrusion reaches the extreme form of a permanent physical occupation, a taking has occurred. In such a case, "the character of the government action" not only is an important factor in resolving whether the action works a taking, but also is determinative. Page 458 U. S. 427 When faced with a constitutional challenge to a permanent physical occupation of real property, this Court has invariably found a taking. [ Footnote 5 ] As early as 1872, in Pumpelly v. Green Bay Co. , 13 Wall. 166, this Court held that the defendant's construction, pursuant to state authority, of a dam which permanently flooded plaintiff's property constituted a taking. A unanimous Court stated, without qualification, that "where real estate is actually invaded by superinduced additions of water, earth, sand, or other material, or by having any artificial structure placed on it, so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution." Id. at 80 U. S. 181 . Seven years later, the Court reemphasized the importance of a physical occupation by distinguishing a regulation that merely restricted the use of private property. In Northern Transportation Co. v. Chicago, 99 U. S. 635 (1879), the Court held that the city's construction Page 458 U. S. 428 of a temporary dam in a river to permit construction of a tunnel was not a taking, even though the plaintiffs were thereby denied access to their premises, because the obstruction only impaired the use of plaintiffs' property. The Court distinguished earlier cases in which permanent flooding of private property was regarded as a taking, e.g., Pumpelly, supra, as involving "a physical invasion of the real estate of the private owner, and a practical ouster of his possession." In this case, by contrast, "[n]o entry was made upon the plaintiffs' lot." 99 U.S. at 99 U. S. 642 . Since these early cases, this Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion, or government action outside the owner's property that causes consequential damages within, on the other. A taking has always been found only in the former situation. See United States v. Lynah, 188 U. S. 445 , 188 U. S. 468 -470 (1903); Bedford v. United States, 192 U. S. 217 , 192 U. S. 225 (1904); United States v. Cress, 243 U. S. 316 , 243 U. S. 327 -328 (1917); Sanguinetti v. United States, 264 U. S. 146 , 264 U. S. 149 (1924) (to be a taking, flooding must "constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property"); United States v. Kansas City Life Ins. Co., 339 U. S. 799 , 339 U. S. 809 -810 (1950). In St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), the Court applied the principles enunciated in Pumpelly to a situation closely analogous to the one presented today. In that case, the Court held that the city of St. Louis could exact reasonable compensation for a telegraph company's placement of telegraph poles on the city's public streets. The Court reasoned: "The use which the [company] makes of the streets is an exclusive and permanent one, and not one temporary, shifting and in common with the general public. The ordinary traveler, whether on foot or in a vehicle, passes to and fro along the streets, and his use and occupation Page 458 U. S. 429 thereof are temporary and shifting. The space he occupies one moment he abandons the next to be occupied by any other traveller. . . . But the use made by the telegraph company is, in respect to so much of the space as it occupies with its poles, permanent and exclusive. It as effectually and permanently dispossesses the general public as if it had destroyed that amount of ground. Whatever benefit the public may receive in the way of transportation of messages, that space is, so far as respects its actual use for purposes of highway and personal travel, wholly lost to the public. . . ." `* * * * ". . . It matters not for what that exclusive appropriation is taken, whether for steam railroads or street railroads, telegraphs or telephones, the state may, if it chooses, exact from the party or corporation given such exclusive use pecuniary compensation to the general public for being deprived of the common use of the portion thus appropriated." Id. at 148 U. S. 98 -99, 148 U. S. 101 -102 (emphasis added). [ Footnote 6 ] Similarly, in Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540 (1904), a telegraph company constructed and operated telegraph lines over a railroad's right of way. In holding that federal law did not grant the company the right of eminent domain or the right to operate the lines absent the railroad's consent, the Court assumed that Page 458 U. S. 430 the invasion of the telephone lines would be a compensable taking. Id. at 195 U. S. 570 (the right-of-way "cannot be appropriated in whole or in part except upon the payment of compensation"). Later cases, relying on the character of a physical occupation, clearly establish that permanent occupations of land by such installations as telegraph and telephone lines, rails, and underground pipes or wires are takings even if they occupy only relatively insubstantial amounts of space and do not seriously interfere with the landowner's use of the rest of his land. See, e.g., Lovett v. West Va. Central Gas Co., 65 W.Va. 739, 65 S.E. 196 (1909); Southwestern Bell Telephone Co. v. Webb, 393 S.W.2d 117 , 121 (Mo.App.1965). Cf. Portsmouth Harbor Land & Hotel Co. v. United States, 260 U. S. 327 (1922). See generally 2 J. Sackman, Nichols' Law of Eminent Domain § 6.21 (rev. 3d ed.1980). [ Footnote 7 ] More recent cases confirm the distinction between a permanent physical occupation, a physical invasion short of an occupation, and a regulation that merely restricts the use of property. In United States v. Causby, 328 U. S. 256 (1946), the Court ruled that frequent flights immediately above a landowner's property constituted a taking, comparing such overflights to the quintessential form of a taking: "If, by reason of the frequency and altitude of the flights, respondents could not use this land for any purpose, their loss would be complete. It would be as complete as if the United States had entered upon the surface of the land and taken exclusive possession of it." Id. at 328 U. S. 261 (footnote omitted). Page 458 U. S. 431 As the Court further explained, "We would not doubt that, if the United States erected an elevated railway over respondents' land at the precise altitude where its planes now fly, there would be a partial taking, even though none of the supports of the structure rested on the land. The reason is that there would be an intrusion so immediate and direct as to subtract from the owner's full enjoyment of the property and to limit his exploitation of it." Id. at 328 U. S. 264 -265. The Court concluded that the damages to the respondents "were not merely consequential. They were the product of a direct invasion of respondents' domain." Id. at 328 U. S. 265 -266. See also Griggs v. Allegheny County, 369 U. S. 84 (1962). Two wartime takings cases are also instructive. In United States v. Pewee Coal Co., 341 U. S. 114 (1951), the Court unanimously held that the Government's seizure and direction of operation of a coal mine to prevent a national strike of coal miners constituted a taking, though members of the Court differed over which losses suffered during the period of Government control were compensable. The plurality had little difficulty concluding that, because there had been an "actual taking of possession and control," the taking was as clear as if the Government held full title and ownership. Id. at 341 U. S. 116 (plurality opinion of Black, J., with whom Frankfurter, Douglas, and Jackson, JJ., joined; no other Justice challenged this portion of the opinion). In United States v. Central Eureka Mining Co., 357 U. S. 155 (1958), by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations for the purpose of conserving equipment and manpower for use in mines more essential to the war effort. Over dissenting Justice Harlan's complaint that, "as a practical matter, the Order led to consequences no different from those that would have followed the temporary acquisition of physical possession of these mines by the United States," id. at 357 U. S. 181 , the Court reasoned that "the Government did not occupy, Page 458 U. S. 432 use, or in any manner take physical possession of the gold mines or of the equipment connected with them." Id. at 357 U. S. 165 -166. The Court concluded that the temporary though severe restriction on use of the mines was justified by the exigency of war. [ Footnote 8 ] Cf. YMCA v. United States, 395 U. S. 85 , 395 U. S. 92 (1969) ("Ordinarily, of course, government occupation of private property deprives the private owner of his use of the property, and it is this deprivation for which the Constitution requires compensation"). Although this Court's most recent cases have not addressed the precise issue before us, they have emphasized that physical invasion cases are special, and have not repudiated the rule that any permanent physical occupation is a taking. The cases state or imply that a physical invasion is subject to a balancing process, but they do not suggest that a permanent physical occupation would ever be exempt from the Takings Clause. Penn Central Transportation Co. v. New York City, as noted above, contains one of the most complete discussions of the Takings Clause. The Court explained that resolving whether public action works a taking is ordinarily an ad hoc inquiry in which several factors are particularly significant -- the economic impact of the regulation, the extent to which it interferes with investment-backed expectations, and the character of the governmental action. 438 U.S. at 438 U. S. 124 . The opinion does not repudiate the rule that a permanent physical occupation is a government action of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine. [ Footnote 9 ] Page 458 U. S. 433 In Kaiser Aetna v. United States, 444 U. S. 164 (1979), the Court held that the Government's imposition of a navigational servitude requiring public access to a pond was a taking where the landowner had reasonably relied on Government consent in connecting the pond to navigable water. The Court emphasized that the servitude took the landowner's right to exclude, "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Id. at 444 U. S. 176 . The Court explained: "This is not a case in which the Government is exercising its regulatory power in a manner that will cause an insubstantial devaluation of petitioner's private property; rather, the imposition of the navigational servitude in this context will result in an actual physical invasion of the privately owned marina. . . . And even if the Government physically invades only an easement in property, it must nonetheless pay compensation. See United States v. Causby, 328 U. S. 256 , 328 U. S. 265 (1946); Portsmouth Co. v. United States, 260 U. S. 327 (1922)." Id. at 444 U. S. 180 (emphasis added). Although the easement of passage, not being a permanent occupation of land, was not considered a taking per se, Kaiser Aetna reemphasizes that a physical invasion is a government intrusion of an unusually serious character. [ Footnote 10 ] Page 458 U. S. 434 Another recent case underscores the constitutional distinction between a permanent occupation and a temporary physical invasion. In PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), the Court upheld a state constitutional requirement that shopping center owners permit individuals to exercise free speech and petition rights on their property, to which they had already invited the general public. The Court emphasized that the State Constitution does not prevent the owner from restricting expressive activities by imposing reasonable time, place, and manner restrictions to minimize interference with the owner's commercial functions. Since the invasion was temporary and limited in nature, and since the owner had not exhibited an interest in excluding all persons from his property, "the fact that [the solicitors] may have physically invaded' [the owners'] property cannot be viewed as determinative." Id. at 447 U. S. 84 . [ Footnote 11 ] In short, when the "character of the governmental action," Penn Central, 438 U.S. at 438 U. S. 124 , is a permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to Page 458 U. S. 435 whether the action achieves an important public benefit or has only minimal economic impact on the owner. B The historical rule that a permanent physical occupation of another's property is a taking has more than tradition to commend it. Such an appropriation is perhaps the most serious form of invasion of an owner's property interests. To borrow a metaphor, cf. Andrus v. Allard, 444 U. S. 51 , 444 U. S. 65 66 (1979), the government does not simply take a single "strand" from the "bundle" of property rights: it chops through the bundle, taking a slice of every strand. Property rights in a physical thing have been described as the rights "to possess, use and dispose of it." United States v. General Motors Corp., 323 U. S. 373 , 323 U. S. 378 (1945). To the extent that the government permanently occupies physical property, it effectively destroys each of these rights. First, the owner has no right to possess the occupied space himself, and also has no power to exclude the occupier from possession and use of the space. The power to exclude has traditionally been considered one of the most treasured strands in an owner's bundle of property rights. [ Footnote 12 ] See Kaiser Aetna, Page 458 U. S. 436 444 U.S. at 444 U. S. 179 -180; see also Restatement of Property § 7 (1936). Second, the permanent physical occupation of property forever denies the owner any power to control the use of the property; he not only cannot exclude others, but can make no nonpossessory use of the property. Although deprivation of the right to use and obtain a profit from property is not, in every case, independently sufficient to establish a taking, see Andrus v. Allard, supra, at 444 U. S. 66 , it is clearly relevant. Finally, even though the owner may retain the bare legal right to dispose of the occupied space by transfer or sale, the permanent occupation of that space by a stranger will ordinarily empty the right of any value, since the purchaser will also be unable to make any use of the property. Moreover, an owner suffers a special kind of injury when a stranger directly invades and occupies the owner's property. As 458 U. S. supra, indicates, property law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1228, and n. 110 (1967). Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion. See n 19, infra. The traditional rule also avoids otherwise difficult linedrawing problems. Few would disagree that, if the State required landlords to permit third parties to install swimming pools on the landlords' rooftops for the convenience of the tenants, the requirement would be a taking. If the cable installation here occupied as much space, again, few would disagree that the occupation would be a taking. But constitutional protection for the rights of private property cannot be made to depend on the size of the area permanently occupied. [ Footnote 13 ] Page 458 U. S. 437 Indeed, it is possible that, in the future, additional cable installations that more significantly restrict a landlord's use of the roof of his building will be made. Section 828 requires a landlord to permit such multiple installations. [ Footnote 14 ] Finally, whether a permanent physical occupation has occurred presents relatively few problems of proof. The placement of a fixed structure on land or real property is an obvious fact that will rarely be subject to dispute. Once the fact of occupation is shown, of course, a court should consider the extent of the occupation as one relevant factor in determining the compensation due. [ Footnote 15 ] For that reason, moreover, there is Page 458 U. S. 438 less need to consider the extent of the occupation in determining whether there is a taking in the first instance. C Teleprompter's cable installation on appellant's building constitutes a taking under the traditional test. The installation involved a direct physical attachment of plates, boxes, wires, bolts, and screws to the building, completely occupying space immediately above and upon the roof and along the building's exterior wall. [ Footnote 16 ] In light of our analysis, we find no constitutional difference between a crossover and a noncrossover installation. The portions of the installation necessary for both crossovers and noncrossovers permanently appropriate appellant's property. Accordingly, each type of installation is a taking. Appellees raise a series of objections to application of the traditional rule here. Teleprompter notes that the law applies only to buildings used as rental property, and draws the Page 458 U. S. 439 conclusion that the law is simply a permissible regulation of the use of real property. We fail to see, however, why a physical occupation of one type of property but not another type is any less a physical occupation. Insofar as Teleprompter means to suggest that this is not a permanent physical invasion, we must differ. So long as the property remains residential and a CATV company wishes to retain the installation, the landlord must permit it. [ Footnote 17 ] Teleprompter also asserts the related argument that the State has effectively granted a tenant the property right to have a CATV installation placed on the roof of his building, as an appurtenance to the tenant's leasehold. The short answer is that § 828(1)(a) does not purport to give the tenant any enforceable property rights with respect to CATV installation, and the lower courts did not rest their decisions on this ground. [ Footnote 18 ] Of course, Teleprompter, not appellant's tenants, actually owns the installation. Moreover, the government does not have unlimited power to redefine property rights. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 449 U. S. 164 (1980) ("a State, by ipse dixit, may not transform private property into public property without compensation"). Page 458 U. S. 440 Finally, we do not agree with appellees that application of the physical occupation rule will have dire consequences for the government's power to adjust landlord-tenant relationships. This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails. See, e.g., Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241 (1964) (discrimination in places of public accommodation); Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) (fire regulation); Bowles v. Willingham, 321 U. S. 503 (1944) (rent control); Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398 (1934) (mortgage moratorium); Edgar A. Levy Leasing Co. v. Siegel, 258 U. S. 242 (1922) (emergency housing law); Block v. Hirsh, 256 U. S. 135 (1921) (rent control). In none of these cases, however, did the government authorize the permanent occupation of the landlord's property by a third party. Consequently, our holding today in no way alters the analysis governing the State's power to require landlords to comply with building codes and provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building. So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity. See Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). [ Footnote 19 ] Page 458 U. S. 441 III Our holding today is very narrow. We affirm the traditional rule that a permanent physical occupation of property is a taking. In such a case, the property owner entertains a historically rooted expectation of compensation, and the character of the invasion is qualitatively more intrusive than perhaps any other category of property regulation. We do not, however, question the equally substantial authority upholding a State's broad power to impose appropriate restrictions upon an owner's use of his property. Furthermore, our conclusion that § 828 works a taking of a portion of appellant's property does not presuppose that the fee which many landlords had obtained from Teleprompter prior to the law's enactment is a proper measure of the value of the property taken. The issue of the amount of compensation that is due, on which we express no opinion, is a matter for the state courts to consider on remand. [ Footnote 20 ] Page 458 U. S. 442 The judgment of the New York Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Teleprompter Manhattan CATV was formerly a subsidiary, and is now a division, of Teleprompter Corp. [ Footnote 2 ] The Court of Appeals defined a "crossover" more comprehensively as occurring: "[W]hen (1) the line servicing the tenants in a particular building is extended to adjacent or adjoining buildings, (2) an amplifier which is placed on a building is used to amplify signals to tenants in that building and in a neighboring building or buildings, and (3) a line is placed on a building none of the tenants of which are provided CATV service, for the purpose of providing service to an adjoining or adjacent building." 53 N.Y.2d at 133, n. 6, 423 N.E.2d at 323, n. 6. [ Footnote 3 ] New York Exec. Law § 828 (McKinney Supp.1981-1982) provides in part: "1. No landlord shall" "a. interfere with the installation of cable television facilities upon his property or premises, except that a landlord may require:" "i. that the installation of cable television facilities conform to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and wellbeing of other tenants;" "ii. that the cable television company or the tenant or a combination thereof bear the entire cost of the installation, operation or removal of such facilities; and" "iii. that the cable television company agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities." "b. demand or accept payment from any tenant, in any form, in exchange for permitting cable television service on or within his property or premises, or from any cable television company in exchange therefor in excess of any amount which the commission shall, by regulation, determine to be reasonable; or" "c. discriminate in rental charges, or otherwise, between tenants who receive cable television service and those who do not." [ Footnote 4 ] Class action status was granted in accordance with appellant's request, except that owners of single-family dwellings on which a CATV component had been placed were excluded. Notice to the class has been postponed, however, by stipulation. [ Footnote 5 ] Professor Michelman has accurately summarized the case law concerning the role of the concept of physical invasions in the development of takings jurisprudence: "At one time, it was commonly held that, in the absence of explicit expropriation, a compensable 'taking' could occur only through physical encroachment and occupation. The modern significance of physical occupation is that courts, while they sometimes do hold nontrespassory injuries compensable, never deny compensation for a physical takeover. The one incontestable case for compensation (short of formal expropriation) seems to occur when the government deliberately brings it about that its agents, or the public at large, 'regularly' use, or 'permanently' occupy, space or a thing which theretofore was understood to be under private ownership." Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1184 (1967) (emphasis in original; footnotes omitted). See also 2 J. Sackman, Nichols' Law of Eminent Domain 6-50, 6-51 (rev. 3d ed.1980); L. Tribe, American Constitutional Law 460 (1978). For historical discussions, see 53 N.Y.2d at 157-158, 423 N.E.2d at 337-338 (Cooke, C.J., dissenting); F. Bosselman, D. Callies, & J. Banta, The Taking Issue 51 (1973); Stoebuck, A General Theory of Eminent Domain, 47 Wash.L.Rev. 553, 600-601 (1972); Dunham, Griggs v. Allegheny County in Perspective: Thirty Years of Supreme Court Expropriation Law, 1962 S.Ct.Rev. 63, 82; Cormack, Legal Concepts in Cases of Eminent Domain, 41 Yale L.J. 221, 225 (1931). [ Footnote 6 ] The City of New York objects that this case only involved a city's right to charge for use of its streets, and not the power of eminent domain; the city could have excluded the company from any use of its streets. But the physical occupation principle upon which the right to compensation was based has often been cited as authority in eminent domain cases. See, e.g., Western Union Telegraph Co. v. Pennsylvania R. Co., 195 U. S. 540 , 195 U. S. 566 -567 (1904); California v. United States, 395 F.2d 261, 263, n. 4 (CA9 1968). Also, the Court squarely held that, insofar as the company relied on a federal statute authorizing its use of post roads, an appropriation of state property would require compensation. St. Louis v. Western Union Telegraph Co., 148 U.S. at 148 U. S. 101 . [ Footnote 7 ] Early commentators viewed a physical occupation of real property as the quintessential deprivation of property. See, e.g., 1 W. Blackstone, Commentaries *139; J. Lewis, Law of Eminent Domain in the United States 197 (1888) ("Any invasion of property, except in case of necessity . . . either upon, above or below the surface, and whether temporary or permanent, is a taking: as by constructing a ditch through it, passing under it by a tunnel, laying gas, water or sewer pipes in the soil, or extending structures over it, as a bridge or telephone wire" (footnote omitted; emphasis in original)); 1 P. Nichols, Law of Eminent Domain 282 (2d ed.1917). [ Footnote 8 ] Indeed, although dissenting Justice Harlan would have treated the restriction as if it were a physical occupation, it is significant that he relied on physical appropriation as the paradigm of a taking. See United States v. Central Eureka Mining Co., 357 U.S. at 357 U. S. 181 , 357 U. S. 183 -184. [ Footnote 9 ] The City of New York and the opinion of the Court of Appeals place great emphasis on Penn Central's reference to a physical invasion "by government," 438 U.S. at 438 U. S. 124 , and argue that a similar invasion by a private party should be treated differently. We disagree. A permanent physical occupation authorized by state law is a taking without regard to whether the State, or instead a party authorized by the State, is the occupant. See, e.g., 80 U. S. Green Bay Co., 13 Wall. 166 (1872). Penn Central simply holds that, in cases of physical invasion short of permanent appropriation, the fact that the government itself commits an invasion from which it directly benefits is one relevant factor in determining whether a taking has occurred. 438 U.S. at 438 U. S. 124 , 438 U. S. 128 . [ Footnote 10 ] See also Andrus v. Allard, 444 U. S. 51 (1979). That case held that the prohibition of the sale of eagle feathers was not a taking as applied to traders of bird artifacts. "The regulations challenged here do not compel the surrender of the artifacts, and there is no physical invasion or restraint upon them. . . . In this case, it is crucial that appellees retain the rights to possess and transport their property, and to donate or devise the protected birds. . . . [L]oss of future profits -- unaccompanied by any physical property restriction -- provides a slender reed upon which to rest a takings claim." Id. at 444 U. S. 65 -66. [ Footnote 11 ] Teleprompter's reliance on labor cases requiring companies to permit access to union organizers, see, e.g., Hudgens v. NLRB, 424 U. S. 507 (1976); Central Hardware Co. v. NLRB, 407 U. S. 539 (1972); NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1956), is similarly misplaced. As we recently explained: "[T]he allowed intrusion on property rights is limited to that necessary to facilitate the exercise of employees' § 7 rights [to organize under the National Labor Relations Act]. After the requisite need for access to the employer's property has been shown, the access is limited to (i) union organizers; (ii) prescribed non-working areas of the employer's premises; and (iii) the duration of the organization activity. In short, the principle of accommodation announced in Babcock is limited to labor organization campaigns, and the 'yielding' of property rights it may require is both temporary and limited." Central Hardware Co., supra, at 407 U. S. 545 . [ Footnote 12 ] The permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude. Not every physical invasion is a taking. As PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), Kaiser Aetna v. United States, 444 U. S. 164 (1979), and the intermittent flooding cases reveal, such temporary limitations are subject to a more complex balancing process to determine whether they are a taking. The rationale is evident: they do not absolutely dispossess the owner of his rights to use, and exclude others from, his property. The dissent objects that the distinction between a permanent physical occupation and a temporary invasion will not always be clear. Post at 458 U. S. 448 . This objection is overstated, and in any event is irrelevant to the critical point that a permanent physical occupation is unquestionably a taking. In the antitrust area, similarly, this Court has not declined to apply a per se rule simply because a court must, at the boundary of the rule, apply the rule of reason and engage in a more complex balancing analysis. [ Footnote 13 ] In United States v. Causby, 328 U. S. 256 (1946), the Court approvingly cited Butler v. Frontier Telephone Co., 186 N.Y. 486, 79 N.E. 716 (1906), holding that ejectment would lie where a telephone wire was strung across the plaintiff's property without touching the soil. The Court quoted the following language: "'[A]n owner is entitled to the absolute and undisturbed possession of every part of his premises, including the space above, as much as a mine beneath. If the wire had been a huge cable, several inches thick and but a foot above the ground, there would have been a difference in degree, but not in principle. Expand the wire into a beam supported by posts standing upon abutting lots without touching the surface of plaintiff's land, and the difference would still be one of degree only. Enlarge the beam into a bridge, and yet space only would be occupied. Erect a house upon the bridge, and the air above the surface of the land would alone be disturbed.'" 328 U.S. at 328 U. S. 265 , n. 10, quoting Butler v. Frontier Telephone Co., supra, at 491-492, 79 N.E. 718. [ Footnote 14 ] Although the City of New York has granted an exclusive franchise to Teleprompter, it is not required to do so under state law, see N.Y.Exec.Law § 811 et seq. (McKinney Supp.1981-1982), and future changes in technology may cause the city to reconsider its decision. Indeed, at present, some communities apparently grant nonexclusive franchises. Brief for National Satellite Cable Association et al. as Amici Curiae 21. [ Footnote 15 ] In this case, the Court of Appeals noted testimony preceding the enactment of § 828 that the landlord's interest in excluding cable installation "consists entirely of insisting that some negligible unoccupied space remain unoccupied." 53 N.Y.2d at 141, 423 N.E.2d at 328 (emphasis omitted). The State Cable Commission referred to the same testimony in establishing a $1 presumptive award. Statement of General Policy, App. 48. A number of the dissent's arguments -- that § 828 "likely increases both the building's resale value and its attractiveness on the rental market," post at 458 U. S. 452 , and that appellant might have no alternative use for the cable-occupied space, post at 458 U. S. 453 -454 -- may also be relevant to the amount of compensation due. It should be noted, however, that the first argument is speculative and is contradicted by appellant's testimony that she and "the whole block" would be able to sell their buildings for a higher price absent the installation. App. 100. [ Footnote 16 ] It is constitutionally irrelevant whether appellant (or her predecessor in title) had previously occupied this space, since a "landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." United States v. Causby, supra, at 328 U. S. 264 . The dissent asserts that a taking of about one-eighth of a cubic foot of space is not of constitutional significance. Post at 458 U. S. 443 . The assertion appears to be factually incorrect, since it ignores the two large silver boxes that appellant identified as part of the installation. App. 90; Loretto Affidavit in Support of Motion for Summary Judgment (Apr. 21, 1978), Appellants' Appendix in No. 8300/76 (N.Y.App.), p. 77. Although the record does not reveal their size, appellant states that they are approximately 18" x 12" x 6", Brief for Appellant 6 n.*, and appellees do not dispute this statement. The displaced volume, then, is in excess of 1 1/2 cubic feet. In any event, these facts are not critical: whether the installation is a taking does not depend on whether the volume of space it occupies is bigger than a breadbox. [ Footnote 17 ] It is true that the landlord could avoid the requirements of § 828 by ceasing to rent the building to tenants. But a landlord's ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation. Teleprompter's broad "use-dependency" argument proves too much. For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices. The right of a property owner to exclude a stranger's physical occupation of his land cannot be so easily manipulated. [ Footnote 18 ] We also decline to hazard an opinion as to the respective rights of the landlord and tenant under state law prior to enactment of § 828 to use the space occupied by the cable installation, an issue over which the parties sharply disagree. [ Footnote 19 ] If § 828 required landlords to provide cable installation if a tenant so desires, the statute might present a different question from the question before us, since the landlord would own the installation. Ownership would give the landlord rights to the placement, manner, use, and possibly the disposition of the installation. The fact of ownership is, contrary to the dissent, not simply "incidental," post at 458 U. S. 450 ; it would give a landlord (rather than a CATV company) full authority over the installation except only as government specifically limited that authority. The landlord would decide how to comply with applicable government regulations concerning CATV, and therefore could minimize the physical, esthetic, and other effects of the installation. Moreover, if the landlord wished to repair, demolish, or construct in the area of the building where the installation is located, he need not incur the burden of obtaining the CATV company's cooperation in moving the cable. In this case, by contrast, appellant suffered injury that might have been obviated if she had owned the cable and could exercise control over its installation. The drilling and stapling that accompanied installation apparently caused physical damage to appellant's building. App. 83, 95-96, 104. Appellant, who resides in her building, further testified that the cable installation is "ugly." Id. at 99. Although § 828 provides that a landlord may require "reasonable" conditions that are "necessary" to protect the appearance of the premises and may seek indemnity for damage, these provisions are somewhat limited. Even if the provisions are effective, the inconvenience to the landlord of initiating the repairs remains a cognizable burden. [ Footnote 20 ] In light of our disposition of appellant's takings claim, we do not address her contention that § 828 deprives her of property without due process of law. JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE WHITE join, dissenting. If the Court's decisions construing the Takings Clause state anything clearly, it is that "[t]here is no set formula to determine where regulation ends and taking begins." Goldblatt v. Town of Hempstead, 369 U. S. 590 , 369 U. S. 594 (1962). [ Footnote 2/1 ] In a curiously anachronistic decision, the Court today acknowledges its historical disavowal of set formulae in almost the same breath as it constructs a rigid per se takings rule: "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." Ante at 458 U.S. 426 . To sustain its rule against our recent precedents, the Court erects a strained and untenable distinction between "temporary physical invasions," whose constitutionality concededly "is subject to a balancing process," and "permanent physical occupations," which are "taking[s] without regard to other factors that a court might ordinarily examine." Ante at 458 U. S. 432 . In my view, the Court's approach "reduces the constitutional issue to a formalistic quibble" over whether property has been "permanently occupied" or "temporarily invaded." Sax, Takings and the Police Power, 74 Yale L.J. 36, 37 Page 458 U. S. 443 (1964). The Court's application of its formula to the facts of this case vividly illustrates that its approach is potentially dangerous, as well as misguided. Despite its concession that "States have broad power to regulate . . . the landlord-tenant relationship . . . without paying compensation for all economic injuries that such regulation entails," ante at 458 U. S. 440 , the Court uses its rule to undercut a carefully considered legislative judgment concerning landlord-tenant relationships. I therefore respectfully dissent. I Before examining the Court's new takings rule, it is worth reviewing what was "taken" in this case. At issue are about 36 feet of cable one-half inch in diameter and two 4" x 4" x 4" metal boxes. Jointly, the cable and boxes occupy only about one-eighth of a cubic foot of space on the roof of appellant's Manhattan apartment building. When appellant purchased that building in 1971, the "physical invasion" she now challenges had already occurred. [ Footnote 2/2 ] Appellant did not bring this action until about five years later, demanding 5% of appellee Teleprompter's gross revenues from her building, and claiming that the operation of N.Y.Exec.Law § 828 (McKinney Page 458 U. S. 444 Supp.1981-1982) "took" her property. The New York Supreme Court, the Appellate Division, and the New York Court of Appeals all rejected that claim, upholding § 828 as a valid exercise of the State's police power. The Court of Appeals held that "the State may proscribe a trespass action by landlords generally against a cable TV company which places a cable and other fixtures on the roof of any landlord's building, in order to protect the right of the tenants of rental property, who will ultimately have to pay any charge a landlord is permitted to collect from the cable TV company, to obtain TV service in their respective apartments." 53 N.Y.2d 124, 153, 423 N.E.2d 320, 335 (1981). In so ruling, the court applied the multifactor balancing test prescribed by this Court's recent Takings Clause decisions. Those decisions teach that takings questions should be resolved through "essentially ad hoc, factual inquiries," Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 175 (1979), into "such factors as the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations." PruneYard Shopping Center v. Robins, 447 U. S. 74 , 447 U. S. 83 (1980). See 53 N.Y.2d at 144-151, 423 N.E.2d at 330-334. The Court of Appeals found, first, that § 828 represented a reasoned legislative effort to arbitrate between the interests of tenants and landlords and to encourage development of an important educational and communications medium. [ Footnote 2/3 ] Id. at Page 458 U. S. 445 143-145, 423 N.E.2d at 329-330. Moreover, under PruneYard Shopping Center v. Robins, 447 U.S. at 447 U. S. 83 -84, the fact that § 828 authorized Teleprompter to make a minor physical intrusion upon appellant's property was in no way determinative of the takings question. 53 N.Y.2d at 146-147, 423 N.E.2d at 331. [ Footnote 2/4 ] Second, the court concluded that the statute's economic impact on appellant was de minimis, because § 828 did not affect the fair return on her property. 53 N.Y.2d at 148-150, 423 N.E.2d at 332-333. Third, the statute did not interfere with appellant's reasonable investment-backed expectations. Id. at 150-151, 423 N.E.2d at 333-334. When appellant purchased the building, she was unaware of the existence of the cable. See 458 U.S. 419 fn2/2|>n. 2, supra. Thus, she could not have invested in the building with any reasonable expectation that the one-eighth cubic foot of space occupied by the cable television installment would become income-productive. 53 N.Y.2d at 155, 423 N.E.2d at 336. Page 458 U. S. 446 II Given that the New York Court of Appeals' straightforward application of this Court's balancing test yielded a finding of no taking, it becomes clear why the Court now constructs a per se rule to reverse. The Court can escape the result dictated by our recent takings cases only by resorting to bygone precedents and arguing that "permanent physical occupations" somehow differ qualitatively from all other forms of government regulation. The Court argues that a per se rule based on "permanent physical occupation" is both historically rooted, see ante at 458 U.S. 426 -435, and jurisprudentially sound, see ante at 458 U. S. 435 -438. I disagree in both respects. The 19th-century precedents relied on by the Court lack any vitality outside the agrarian context in which they were decided. [ Footnote 2/5 ] But if, by chance, they Page 458 U. S. 447 have any lingering vitality, then, in my view, those cases stand for a constitutional rule that is uniquely unsuited to the modern urban age. Furthermore, I find logically untenable the Court's assertion that § 828 must be analyzed under a per se rule because it "effectively destroys" three of "the most treasured strands in an owner's bundle of property rights," ante at 458 U. S. 435 . A The Court's recent Takings Clause decisions teach that nonphysical government intrusions on private property, such as zoning ordinances and other land use restrictions, have become the rule, rather than the exception. Modern government regulation exudes intangible "externalities" that may diminish the value of private property far more than minor physical touchings. Nevertheless, as the Court recognizes, it has "often upheld substantial regulation of an owner's use of his own property where deemed necessary to promote the public interest." Ante at 458 U.S. 426 . See, e.g., Agins v. City of Tiburon, 447 U. S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 -125 (1978); Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). Precisely because the extent to which the government may injure private interests now depends so little on whether or not it has authorized a "physical contact," the Court has avoided per se takings rules resting on outmoded distinctions between physical and nonphysical intrusions. As one commentator has observed, a takings rule based on such a distinction is inherently suspect, because "its capacity to distinguish, even crudely, between significant and insignificant losses is too puny to be taken seriously." Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv.L.Rev. 1165, 1227 (1967). Surprisingly, the Court draws an even finer distinction today -- between "temporary physical invasions" and "permanent Page 458 U. S. 448 physical occupations." When the government authorizes the latter type of intrusion, the Court would find "a taking without regard to the public interests" the regulation may serve. Ante at 458 U.S. 426 . Yet an examination of each of the three words in the Court's "permanent physical occupation" formula illustrates that the newly created distinction is even less substantial than the distinction between physical and nonphysical intrusions that the Court already has rejected. First, what does the Court mean by "permanent"? Since all "temporary limitations on the right to exclude" remain "subject to a more complex balancing process to determine whether they are a taking," ante at 458 U. S. 435 , n. 12, the Court presumably describes a government intrusion that lasts forever. But as the Court itself concedes, § 828 does not require appellant to permit the cable installation forever, but only "[s]o long as the property remains residential and a CATV company wishes to retain the installation." Ante at 458 U. S. 439 . This is far from "permanent." The Court reaffirms that "States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails." Ante at 458 U. S. 440 . Thus, § 828 merely defines one of the many statutory responsibilities that a New Yorker accepts when she enters the rental business. If appellant occupies her own building, or converts it into a commercial property, she becomes perfectly free to exclude Teleprompter from her one-eighth cubic foot of roof space. But once appellant chooses to use her property for rental purposes, she must comply with all reasonable government statutes regulating the landlord-tenant relationship. [ Footnote 2/6 ] If § 828 authorizes a "permanent" occupation, Page 458 U. S. 449 and thus works a taking "without regard to the public interests that it may serve," then all other New York statutes that require a landlord to make physical attachments to his rental property also must constitute takings, even if they serve indisputably valid public interests in tenant protection and safety. [ Footnote 2/7 ] The Court denies that its theory invalidates these statutes, because they "do not require the landlord to suffer the physical occupation of a portion of his building by a third party." Ante at 458 U. S. 440 . But surely this factor cannot be determinative, since the Court simultaneously recognizes that temporary Page 458 U. S. 450 invasions by third parties are not subject to a per se rule. Nor can the qualitative difference arise from the incidental fact that, under § 828, Teleprompter, rather than appellant or her tenants, owns the cable installation. Cf. ante at 458 U. S. 440 , and n.19. If anything, § 828 leaves appellant better off than do other housing statutes, since it ensures that her property will not be damaged aesthetically or physically, see 458 U.S. 419 fn2/4|>n. 4, supra, without burdening her with the cost of buying or maintaining the cable. In any event, under the Court's test, the "third party" problem would remain even if appellant herself owned the cable. So long as Teleprompter continuously passed its electronic signal through the cable, a litigant could argue that the second element of the Court's formula -- a "physical touching" by a stranger -- was satisfied, and that § 828 therefore worked a taking. [ Footnote 2/8 ] Literally read, the Court's test opens the door to endless metaphysical struggles over whether or not an individual's property has been "physically" touched. It was precisely to avoid "permit[ting] technicalities of form to dictate consequences of substance," United States v. Central Eureka Mining Co., 357 U. S. 155 , 357 U. S. 181 (1958) (Harlan, J., dissenting), that the Court abandoned a "physical contacts" test in the first place. Third, the Court's talismanic distinction between a continuous "occupation" and a transient "invasion" finds no basis in either economic logic or Takings Clause precedent. In the landlord-tenant context, the Court has upheld against takings challenges rent control statutes permitting "temporary" Page 458 U. S. 451 physical invasions of considerable economic magnitude. See, e.g., Block v. Hirsh, 256 U. S. 135 (1921) (statute permitting tenants to remain in physical possession of their apartments for two years after the termination of their leases). Moreover, precedents record numerous other "temporary" officially authorized invasions by third parties that have intruded into an owner's enjoyment of property far more deeply than did Teleprompter's long-unnoticed cable. See, e.g., PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980) (leafletting and demonstrating in busy shopping center); Kaiser Aetna v. United States, 444 U. S. 164 (1979) (public easement of passage to private pond); United States v. Causby, 328 U. S. 256 (1946) (noisy airplane flights over private land). While, under the Court's balancing test, some of these "temporary invasions" have been found to be takings, the Court has subjected none of them to the inflexible per se rule now adapted to analyze the far less obtrusive "occupation" at issue in the present case. Cf. ante at 458 U. S. 430 -431, 458 U. S. 432 -435. In sum, history teaches that takings claims are properly evaluated under a multifactor balancing test. By directing that all "permanent physical occupations" automatically are compensable, "without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner," ante at 458 U. S. 434 -435, the Court does not further equity so much as it encourages litigants to manipulate their factual allegations to gain the benefit of its per se rule. Cf. 458 U.S. 419 fn2/8|>n. 8, supra. I do not relish the prospect of distinguishing the inevitable flow of certiorari petitions attempting to shoehorn insubstantial takings claims into today's "set formula." B Setting aside history, the Court also states that the permanent physical occupation authorized by § 828 is a per se taking because it uniquely impairs appellant's powers to dispose of, use, and exclude others from, her property. See ante at Page 458 U. S. 452 458 U. S. 435 -438. In fact, the Court's discussion nowhere demonstrates how § 828 impairs these private rights in a manner qualitatively different from other garden-variety landlord-tenant legislation. The Court first contends that the statute impairs appellant's legal right to dispose of cable-occupied space by transfer and sale. But that claim dissolves after a moment's reflection. If someone buys appellant's apartment building, but does not use it for rental purposes, that person can have the cable removed, and use the space as he wishes. In such a case, appellant's right to dispose of the space is worth just as much as if § 828 did not exist. Even if another landlord buys appellant's building for rental purposes, § 828 does not render the cable-occupied space valueless. As a practical matter, the regulation ensures that tenants living in the building will have access to cable television for as long as that building is used for rental purposes, and thereby likely increases both the building's resale value and its attractiveness on the rental market. [ Footnote 2/9 ] In any event, § 828 differs little from the numerous other New York statutory provisions that require landlords to install physical facilities "permanently occupying" common spaces in or on their buildings. As the Court acknowledges, the States traditionally -- and constitutionally -- have exercised their police power "to require landlords to . . . provide utility connections, mailboxes, smoke detectors, fire extinguishers, and the like in the common area of a building." Ante at 458 U. S. 440 . Like § 828, these provisions merely ensure tenants access to services the legislature deems important, such as water, electricity, natural light, telephones, intercommunication systems, and mail service. See 458 U.S. 419 fn2/7|>n. 7, supra. A landlord's dispositional rights are affected no more adversely Page 458 U. S. 453 when he sells a building to another landlord subject to § 828, than when he sells that building subject only to these other New York statutory provisions. The Court also suggests that § 828 unconstitutionally alters appellant's right to control the use of her one-eighth cubic foot of roof space. But other New York multiple dwelling statutes not only oblige landlords to surrender significantly larger portions of common space for their tenants' use, but also compel the landlord -- rather than the tenants or the private installers -- to pay for and to maintain the equipment. For example, New York landlords are required by law to provide and pay for mailboxes that occupy more than five times the volume that Teleprompter's cable occupies on appellant's building. See Tr. of Oral Arg. 443, citing N.Y.Mult.Dwell.Law § 57 (McKinney 1974). If the State constitutionally can insist that appellant make this sacrifice so that her tenants may receive mail, it is hard to understand why the State may not require her to surrender less space, filled at another's expense, so that those same tenants can receive television signals. For constitutional purposes, the relevant question cannot be solely whether the State has interfered in some minimal way with an owner's use of space on her building. Any intelligible takings inquiry must also ask whether the extent of the State's interference is so severe as to constitute a compensable taking in light of the owner's alternative uses for the property. [ Footnote 2/10 ] Appellant freely admitted that she would have Page 458 U. S. 454 had no other use for the cable-occupied space were Teleprompter's equipment not on her building. See App. 97 (Deposition of Jean A. Loretto). The Court's third and final argument is that § 828 has deprived appellant of her "power to exclude the occupier from possession and use of the space" occupied by the cable. Ante at 458 U. S. 435 . This argument has two flaws. First, it unjustifiably assumes that appellant's tenants have no countervailing property interest in permitting Teleprompter to use that space. [ Footnote 2/11 ] Second, it suggests that the New York Legislature may not exercise its police power to affect appellant's common law right to exclude Teleprompter even from one-eighth cubic foot of roof space. But this Court long ago recognized that new social circumstances can justify legislative modification of a property owner's common law rights, without compensation, if the legislative action serves sufficiently important public interests. See Munn v. Illinois, 94 U. S. 113 , 94 U. S. 134 (1877) ("A person has no property, no vested interest, in any rule of the common law. . . . Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstance"); United States v. Causby, 328 U.S. at 328 U. S. 260 -261 (In the modern world, "[c]ommon sense revolts at the idea" that legislatures cannot alter common law ownership rights). Page 458 U. S. 455 As the Court of Appeals recognized, § 828 merely deprives appellant of a common law trespass action against Teleprompter, but only for as long as she uses her building for rental purposes, and as long as Teleprompter maintains its equipment in compliance with the statute. JUSTICE MARSHALL recently and most aptly observed: "[Appellant's] claim in this case amounts to no less than a suggestion that the common law of trespass is not subject to revision by the State. . . . If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U. S. 45 (1905), when common law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result." PruneYard Shopping Center v. Robins, 447 U.S. at 447 U. S. 93 (concurring opinion). III In the end, what troubles me most about today's decision is that it represents an archaic judicial response to a modern social problem. Cable television is a new and growing, but somewhat controversial, communications medium. See Brief for New York State Cable Television Association as Amicus Curiae 7 (about 25% of American homes with televisions -- approximately 20 million families currently subscribe to cable television, with the penetration rate expected to double by 1990). The New York Legislature not only recognized, but also responded to, this technological advance by enacting a statute that sought carefully to balance the interests of all private parties. See nn. 458 U.S. 419 fn2/3|>3 and 458 U.S. 419 fn2/4|>4, supra. New York's courts in this litigation, with only one jurist in dissent, unanimously upheld the constitutionality of that considered legislative judgment. Page 458 U. S. 456 This Court now reaches back in time for a per se rule that disrupts that legislative determination. [ Footnote 2/12 ] Like Justice Black, I believe that "the solution of the problems precipitated by . . . technological advances and new ways of living cannot come about through the application of rigid constitutional restraints formulated and enforced by the courts." United States v. Causby, 328 U.S. at 328 U. S. 274 (dissenting opinion). I would affirm the judgment and uphold the reasoning of the New York Court of Appeals. [ Footnote 2/1 ] See Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 175 (1979); Andrus v. Allard, 444 U. S. 51 , 444 U. S. 65 (1979) ("There is no abstract or fixed point at which judicial intervention under the Takings Clause becomes appropriate"); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 124 (1978); United States v. Caltex, Inc., 344 U. S. 149 , 344 U. S. 156 (1952) ("No rigid rules can be laid down to distinguish compensable losses from noncompensable losses"); Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 416 (1922) (a takings question "is a question of degree -- and therefore cannot be disposed of by general propositions"). [ Footnote 2/2 ] In January, 1968, appellee Teleprompter signed a 5-year installation agreement with the building's previous owner in exchange for a flat fee of $50. Appellee installed both the 30-foot main cable and its 4- to 6-foot "crossover" extension in June, 1970. For two years after taking possession of the building and the appurtenant equipment, appellant did not object to the cable's presence. Indeed, despite numerous inspections, appellant had never even noticed the equipment until Teleprompter first began to provide cable television service to one of her tenants. 53 N.Y.2d 124, 134-135, 423 N.E.2d 320, 324 (1981). Nor did appellant thereafter ever specifically ask Teleprompter to remove the components from her building. App. 107, 108, 110. Although the Court alludes to the presence of "two large silver boxes" on appellant's roof, ante at 458 U. S. 438 , n. 16, the New York Court of Appeals' opinion nowhere mentions them, nor are their dimensions stated anywhere in the record. [ Footnote 2/3 ] The court found that the state legislature had enacted § 828 to "prohibit gouging and arbitrary action" by "landlords [who] in many instances have imposed extremely onerous fees and conditions on cable access to their buildings." 53 N.Y.2d at 141, 423 N.E.2d at 328, citing testimony of Joseph C. Swidler, Chairman of the Public Service Commission, before the Joint Legislative Committee considering the CATV bill. Given the growing importance of cable television, the legislature decided that urban tenants' need for access to that medium justified a minor intrusion upon the landlord's interest, which "consists entirely of insisting that some negligible unoccupied space remain unoccupied. The tenant's interest clearly is more substantial, consisting of a right to receive (and perhaps send) communications from and to the outside world. In the electronic age, the landlord should not be able to preclude a tenant from obtaining CATV service (or to exact a surcharge for allowing the service) any more than he could preclude a tenant from receiving mail or telegrams directed to him." Id., citing Regulation of Cable Television by the State of New York, Report to the New York Public Service Commission by Commissioner William K. Jones 207 (1970). [ Footnote 2/4 ] Section 828 carefully regulates the cable television company's physical intrusion onto the landlord's property. If the landlord requests, the company must conform its installations "to such reasonable conditions as are necessary to protect the safety, functioning and appearance of the premises, and the convenience and wellbeing of other tenants." N.Y.Exec.Law § 828(1)(a)(i) (McKinney Supp.1981-1982). Furthermore, the company must "agree to indemnify the landlord for any damage caused by the installation, operation or removal of such facilities." § 828(1)(a)(iii). Finally, the statute authorizes the landlord to require either "the cable television company or the tenant or a combination thereof [to] bear the entire cost of the installation, operation or removal" of any equipment. § 828(1)(a)(ii). [ Footnote 2/5 ] The Court properly acknowledges that none of our recent takings decisions have adopted a per se test for either temporary physical invasions or permanent physical occupations. See ante at 458 U. S. 432 -435, and 435435, n. 12. While the Court relies on historical dicta to support its per se rule, the only holdings it cites fall into two categories: a number of cases involving flooding, ante at 458 U. S. 427 -428, and St. Louis v. Western Union Telegraph Co., 148 U. S. 92 (1893), cited ante at 458 U. S. 428 . In 1950, the Court noted that the first line of cases stands for "the principle that the destruction of privately owned land by flooding is a taking' to the extent of the destruction caused," and that those rulings had already "been limited by later decisions in some respects." United States v. Kansas City Life Ins. Co., 339 U. S. 799 , 339 U. S. 809 -810. Even at the time of its decision, St. Louis v. Western Union Telegraph Co. addressed only the question "[w]hether the city has power to collect rental for the use of streets and public places" when a private company seeks exclusive use of land whose "use is common to all members of the public, and . . . [is] open equally to citizens of other States with those of the State in which the street is situate." 148 U.S. at 148 U. S. 98 -99. On its face, that issue is distinct from the question here: whether appellant may extract from Teleprompter a fee for the continuing use of her roof space above and beyond the fee set by statute, namely, "any amount which the commission shall, by regulation, determine to be reasonable." N.Y.Exec.Law § 828(1)(b) (McKinney Supp.1982). [ Footnote 2/6 ] In my view, the fact that § 828 incidentally protects so-called "crossover" wires that do not currently serve tenants, see ante at 458 U. S. 422 , n. 2, does not affect § 828's fundamental character as a piece of landlord-tenant legislation. As the Court recognizes, ante at 458 U. S. 422 , crossovers are crucial links in the cable "highway," and represent the simplest and most economical way to provide service to tenants in a group of buildings in close proximity. Like the Court, I find "no constitutional difference between a crossover and a noncrossover installation," ante at 458 U. S. 438 . Even assuming arguendo that the crossover extension in this case works a taking, I would be prepared to hold that the incremental governmental intrusion caused by that 4- to 6-foot wire, which occupies the cubic volume of a child's building block, is a de minimis deprivation entitled to no compensation. [ Footnote 2/7 ] See, e.g., N.Y.Mult.Dwell.Law § 35 (McKinney 1974) (requiring entrance doors and lights); § 36 (windows and skylights for public halls and stairs); § 50-a (Supp.1982) (locks and intercommunication systems); § 50-c (lobby attendants); § 51-a (peepholes); § 51-b (elevator mirrors); § 53 (fire escapes); § 57 (bells and mail receptacles); § 67(3) (fire sprinklers). See also Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946) (upholding constitutionality of New York fire sprinkler provision). These statutes specify in far greater detail than § 828 what types of physical facilities a New York landlord must provide his tenants and where he must provide them. See, e.g., N.Y.Mult.Dwell.Law § 75 (McKinney 1974) (owners of multiple dwellings must provide "proper appliances to receive and distribute an adequate supply of water," including "a proper sink with running water and with a two-inch waste and trap"); § 35 (owners of multiple dwellings with frontage exceeding 22 feet must provide "at least two lights, one at each side of the entrance way, with an aggregate illumination of one hundred fifty watts or equivalent illumination"); § 50-a(2) (Supp.1981-1982) (owners of Class A multiple dwellings must provide intercommunication system "located at an automatic self-locking door giving public access to the main entrance hall or lobby"). Apartment building rooftops are not exempted. See § 62 (landlords must place parapet walls and guardrails on their roofs "three feet six inches or more in height above the level of such area"). [ Footnote 2/8 ] Indeed, appellant's counsel made precisely this claim at oral argument. Urging the rule which the Court now adopts, appellant's counsel suggested that a taking would result even if appellant owned the cable. "[T]he precise location of the easement [taken by Teleprompter changes] from the surface of the roof to inside the wire. . . . [T]he wire itself is owned by the landlord, but the cable company has the right to pass its signal through the wire without compensation to the landlord, for its commercial benefit." Tr. of Oral Arg. 15. [ Footnote 2/9 ] In her pretrial deposition, appellant conceded not only that owners of other apartment buildings thought that the cable's presence had enhanced the market value of their buildings, App. 102-103, but also that her own tenants would have been upset if the cable connection had been removed. Id. at 107, 108, 110. [ Footnote 2/10 ] For this reason, the Court provides no support for its per se rule by asserting that the State could not require landlords, without compensation, "to permit third parties to install swimming pools," ante at 458 U. S. 436 , or vending and washing machines, ante at 458 U. S. 439 , n. 17, for the convenience of tenants. Presumably, these more intrusive government regulations would create difficult takings problems even under our traditional balancing approach. Depending on the character of the governmental action, its economic impact, and the degree to which it interfered with an owner's reasonable investment-backed expectations, among other things, the Court's hypothetical examples might or might not constitute takings. These examples hardly prove, however, that a permanent physical occupation that works a de minimis interference with a private property interest is a taking per se. [ Footnote 2/11 ] It is far from clear that, under New York law, appellant's tenants would lack all property interests in the few square inches on the exterior of the building to which Teleprompter's cable and hardware attach. Under modern landlord-tenant law, a residential tenancy is not merely a possessory interest in specified space, but also a contract for the provision of a package of services and facilities necessary and appurtenant to that space. See R. Schoshinski, American Law of Landlord and Tenant § 3:14 (1980). A modern urban tenant's leasehold often includes not only contractual, but also statutory, rights, including the rights to an implied warranty of habitability, rent control, and such services as the landlord is obliged by statute to provide. Cf. n 7, supra. [ Footnote 2/12 ] Happily, the Court leaves open the question whether § 828 provides landlords like appellant sufficient compensation for their actual losses. See ante at 458 U. S. 441 . Since the State Cable Television Commission's regulations permit higher than nominal awards if a landlord makes "a special showing of greater damages," App. 52, the concurring opinion in the New York Court of Appeals found that the statute awards just compensation. See 53 N.Y.2d at 155, 423 N.E.2d at 336 ("[I]t is obvious that a landlord who actually incurs damage to his property or is restricted in the use to which he might put that property will receive compensation commensurate with the greater injury"). If, after the remand following today's decision, this minor physical invasion is declared to be a taking deserving little or no compensation, the net result will have been a large expenditure of judicial resources on a constitutional claim of little moment.

The New York statute, which allows cable companies to install their facilities on private property without compensating landlords beyond a one-time $1 payment, constitutes a "taking" of the landlord's property under the Fifth Amendment, as applied by the Fourteenth Amendment. This is because the government's permanent physical occupation of real property, regardless of its public benefit or economic impact, constitutes a taking. The Court rejected the argument that the statute's minimal economic impact and lack of interference with investment-backed expectations meant it wasn't a taking. Justice Marshall, in his dissent, argued that the Court's decision was based on an overly broad interpretation of the Takings Clause and that the statute's minimal impact on the landlord's property rights did not warrant a taking. He also noted that the Court's hypothetical examples of intrusive government regulations were not comparable to the minor physical invasion in this case.

Property Rights & Land Use

Pennell v. City of San Jose

https://supreme.justia.com/cases/federal/us/485/1/

U.S. Supreme Court Pennell v. City of San Jose, 485 U.S. 1 (1988) Pennell v. City of San Jose No. 86-753 Argued November 10, 1987 Decided February 24, 1988 485 U.S. 1 APPEAL FROM THE SUPREME COURT OF CALIFORNIA Syllabus Under a San Jose, Cal., rent control ordinance (Ordinance), a landlord may automatically raise the annual rent of a tenant in possession by as much as eight percent, but if a tenant objects to a higher increase, a hearing is required to determine whether the landlord's proposed increase is "reasonable under the circumstances," and the hearing officer is directed to consider specified factors, including "the hardship to a tenant." Appellants, an individual landlord and Tri-County Apartment House Owners Association (Association), which represents owners and lessors of real property located in San Jose, filed a state court action seeking a declaration that the Ordinance, particularly the "tenant hardship" provision, is facially invalid under the Federal Constitution. The court entered judgment on the pleadings in appellants' favor, and the California Court of Appeal affirmed. However, the California Supreme Court reversed, rejecting appellants' arguments under the Takings Clause of the Fifth Amendment and the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Held: 1. Appellants have standing to challenge the Ordinance's constitutionality, even though they did not allege that either the individual appellant or appellant Association's members have "hardship tenants" who might trigger the Ordinance's hearing process, or that they have been or will be aggrieved by a hearing officer's determination that a certain proposed rent increase is unreasonable on the ground of tenant hardship. When standing is challenged on the basis of the pleadings, all material allegations of the complaint must be taken as true, and the complaint must be Page 485 U. S. 2 construed in favor of the complaining party. Appellants alleged that their properties are subject to the Ordinance, and stated at oral argument that the Association represents "most of the residential unit owners in the city and [has] many hardship tenants." Thus, the likelihood of enforcement of the Ordinance, with the concomitant probability that a rent will be reduced below what the landlord would otherwise be able to obtain, is a sufficient threat of actual injury to satisfy Art. III's requirement that a plaintiff who challenges a law must demonstrate a realistic danger of sustaining a direct injury as a result of the law's operation or enforcement. Pp. 485 U. S. 6 -8. 2. Appellants' contention that application of the Ordinance's tenant hardship provision violates the Takings Clause -- since reducing, because of tenant hardship, what would otherwise be a "reasonable" rent under the other, objective factors specified in the Ordinance relating to the landlord's costs or the rental market's condition, accomplishes a taking and transfer of the landlord's property to individual hardship tenants -- is premature. There is no evidence that the tenant hardship provision has in fact ever been relied upon by a hearing officer to reduce a rent below the figure it would have been set at on the basis of the other specified factors. In addition, the Ordinance does not require that a hearing officer in fact reduce a proposed rent increase on grounds of tenant hardship, but only makes it mandatory that tenant hardship be considered. In takings cases, the constitutionality of laws should not be decided except in an actual factual setting that makes such a decision necessary. Pp. 485 U. S. 8 -11. 3. The mere provision in the Ordinance that a hearing officer may consider the tenant's hardship in finally fixing a reasonable rent does not render the Ordinance facially invalid under the Due Process Clause. The Ordinance's purpose of preventing unreasonable rent increases caused by the city's housing shortage is a legitimate exercise of appellees' police powers. Moreover, there is no merit to appellants' argument that it is arbitrary, discriminatory, or demonstrably irrelevant for appellees to attempt to accomplish the additional goal of reducing the burden of housing costs on low-income tenants by requiring that "hardship to a tenant" be considered in determining the amount of excess rent increase that is "reasonable under the circumstances." The protection of consumer welfare is a legitimate and rational goal of price or rate regulation. The Ordinance's scheme represents a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment. Pp. 485 U. S. 11 -14. 4. The Ordinance, on its face, does not violate the Equal Protection Clause. Its classification scheme is rationally related to the legitimate Page 485 U. S. 3 purpose of protecting tenants. It is not irrational for the Ordinance to treat landlords differently on the basis of whether or not they have hardship tenants. Pp. 485 U. S. 14 -15. 42 Cal. 3d 365 , 721 P.2d 1111 , affirmed. REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which O'CONNOR, J., joined, post, p. 485 U. S. 15 . KENNEDY, J., took no part in the consideration or decision of the case. Page 485 U. S. 4 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. This case involves a challenge to a rent control ordinance enacted by the city of San Jose, California, that allows a hearing officer to consider, among other factors, the "hardship to a tenant" when determining whether to approve a rent increase proposed by a landlord. Appellants Richard Pennell and the Tri-County Apartment House Owners Association sued in the Superior Court of Santa Clara County seeking a declaration that the ordinance, in particular the "tenant hardship" provisions, are "facially unconstitutional and therefore . . . illegal and void." The Superior Court entered judgment on the pleadings in favor of appellants, sustaining their claim that the tenant hardship provisions violated the Takings Clause of the Fifth Amendment, as made applicable to the States by the Fourteenth Amendment. The California Court of Appeal affirmed this judgment, 154 Cal. App. 3d 1019, 201 Cal. Rptr. 728 (1984), but the Supreme Court of California reversed, 42 Cal. 3d 365 , 721 P.2d 1111 (1986), each by a divided vote. The majority of the Supreme Court rejected appellants' arguments under the Takings Clause and the Equal Protection and Due Process Clauses of the Fourteenth Amendment; the dissenters in that court thought that the tenant hardship provisions were a "forced subsidy imposed on the landlord" in violation of the Takings Clause. Id. at 377, 721 P.2d at 1119. On appellants' appeal to this Court, we postponed consideration of the question of jurisdiction, 480 U.S. 905 (1987), and now, having heard oral argument, we affirm the judgment of the Supreme Court of California. The city of San Jose enacted its rent control ordinance (Ordinance) in 1979 with the stated purpose of "alleviat[ing] some of the more immediate needs created by San Jose's housing situation. These needs include but are not limited to the prevention of excessive and unreasonable rent increases, the alleviation of undue hardships Page 485 U. S. 5 upon individual tenants, and the assurance to landlords of a fair and reasonable return on the value of their property." San Jose Municipal Ordinance 19696, § 5701.2. [ Footnote 1 ] At the heart of the Ordinance is a mechanism for determining the amount by which landlords subject to its provisions may increase the annual rent which they charge their tenants. A landlord is automatically entitled to raise the rent of a tenant in possession [ Footnote 2 ] by as much as eight percent; if a tenant objects to an increase greater than eight percent, a hearing is required before a "Mediation Hearing Officer" to determine whether the landlord's proposed increase is "reasonable under the circumstances." The Ordinance sets forth a number of factors to be considered by the hearing officer in making this determination, including "the hardship to a tenant." § 5703.28(c)(7). Because appellants concentrate their attack on the consideration of this factor, we set forth the relevant provision of the Ordinance in full: "5703.29. Hardship to Tenants. In the case of a rent increase or any portion thereof which exceeds the standard set in Section 5703.28(a) or (b), then with respect to such excess and whether or not to allow same to be part of the increase allowed under this Chapter, the Hearing Officer shall consider the economic and financial hardship imposed on the present tenant or tenants of the unit or units to which such increases apply. If, on balance, the Hearing Officer determines that the proposed increase Page 485 U. S. 6 constitutes an unreasonably severe financial or economic hardship on a particular tenant, he may order that the excess of the increase which is subject to consideration under subparagraph (c) of Section 5703.28, or any portion thereof, be disallowed. Any tenant whose household income and monthly housing expense meets [certain income requirements] shall be deemed to be suffering under financial and economic hardship which must be weighed in the Hearing Officer's determination. The burden of proof in establishing any other economic hardship shall be on the tenant." If either a tenant or a landlord is dissatisfied with the decision of the hearing officer, the Ordinance provides for binding arbitration. A landlord who attempts to charge or who receives rent in excess of the maximum rent established as provided in the Ordinance is subject to criminal and civil penalties. Before we turn to the merits of appellants' contentions, we consider the claim of appellees that appellants lack standing to challenge the constitutionality of the Ordinance. The original complaint in this action states that appellant Richard Pennell "is an owner and lessor of 109 rental units in the City of San Jose." Appellant Tri-County Apartment House Owners Association (Association) is said to be "an unincorporated association organized for the purpose of representing the interests of the owners and lessors of real property located in the City of San Jose." App. 2-3. The complaint also states that the real property owned by appellants is "subject to the terms of" the Ordinance. But, appellees point out, at no time did appellants allege that either Pennell or any member of the Association has "hardship tenants" who might trigger the Ordinance's hearing process, nor did they specifically allege that they have been or will be aggrieved by the determination of a hearing officer that a certain proposed rent increase is unreasonable on the ground of tenant hardship. As appellees put it, "[a]t this point in time, it is speculative" Page 485 U. S. 7 whether any of the Association's members will be injured in fact by the Ordinance's tenant hardship provisions. Thus, appellees contend, appellants lack standing under either the test for individual standing, see, e.g., Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U. S. 464 , 454 U. S. 472 (1982) (individual standing requires an "'actual injury redressable by the court"'), or the test for associational standing, see Hunt v. Washington Apple Advertising Comm'n, 432 U. S. 333 , 432 U. S. 343 (1977) (an association has standing on behalf of its members only when "its members would otherwise have standing to sue in their own right"). [ Footnote 3 ] We must keep in mind, however, that "application of the constitutional standing requirement [is not] a mechanical exercise," Allen v. Wright, 468 U. S. 737 , 468 U. S. 751 (1984), and that, when standing is challenged on the basis of the pleadings, we "accept as true all material allegations of the complaint, and . . . construe the complaint in favor of the complaining party," Warth v. Seldin, 422 U. S. 490 , 422 U. S. 501 (1975); see also Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 , 441 U. S. 109 (1979). Here, appellants specifically alleged in their complaint that appellants' properties are "subject to the terms of" the Ordinance, and they stated at oral argument that the Association represents "most of the residential unit owners in the city and [has] many hardship tenants," Tr. of Oral Arg. 42; see also id. at 7; Reply Brief for Appellants 2. Page 485 U. S. 8 Accepting the truth of these statements, which appellees do not contest, it is not "unadorned speculation," Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26 , 426 U. S. 44 (1976), to conclude that the Ordinance will be enforced against members of the Association. The likelihood of enforcement, with the concomitant probability that a landlord's rent will be reduced below what he or she would otherwise be able to obtain in the absence of the Ordinance, is a sufficient threat of actual injury to satisfy Art. III's requirement that "[a] plaintiff who challenges a statute must demonstrate a realistic danger of sustaining a direct injury as a result of the statute's operation or enforcement." Babbitt v. Farm Workers, 442 U. S. 289 , 442 U. S. 298 (1979). [ Footnote 4 ] This said, we recognize that the record in this case leaves much to be desired in terms of specificity for purposes of determining the standing of appellants to challenge this Ordinance. Undoubtedly this is at least in part a reflection of the fact that the case originated in a state court where Art. III's proscription against advisory opinions may not apply. We strongly suggest that, in future cases, parties litigating in this Court under circumstances similar to those here take pains to supplement the record in any manner necessary to enable us to address with as much precision as possible any question of standing that may be raised. Turning now to the merits, we first address appellants' contention that application of the Ordinance's tenant hardship provisions violates the Fifth and Fourteenth Amendments' Page 485 U. S. 9 prohibition against taking of private property for public use without just compensation. In essence, appellants' claim is as follows: § 5703.28 of the Ordinance establishes the seven factors that a hearing officer is to take into account in determining the reasonable rent increase. The first six of these factors are all objective, and are related either to the landlord's costs of providing an adequate rental unit or to the condition of the rental market. Application of these six standards results in a rent that is "reasonable" by reference to what appellants contend is the only legitimate purpose of rent control: the elimination of "excessive" rents caused by San Jose's housing shortage. When the hearing officer then takes into account "hardship to a tenant" pursuant to § 5703.28(c)(7) and reduces the rent below the objectively "reasonable" amount established by the first six factors, this additional reduction in the rent increase constitutes a "taking." This taking is impermissible, because it does not serve the purpose of eliminating excessive rents -- that objective has already been accomplished by considering the first six factors -- instead, it serves only the purpose of providing assistance to "hardship tenants." In short, appellants contend, the additional reduction of rent on grounds of hardship accomplishes a transfer of the landlord's property to individual hardship tenants; the Ordinance forces private individuals to shoulder the "public" burden of subsidizing their poor tenants' housing. As appellants point out, "[i]t is axiomatic that the Fifth Amendment's just compensation provision is 'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , 482 U. S. 318 -319 (1987) (quoting Armstrong v. United States, 364 U. S. 40 , 364 U. S. 49 (1960)). We think it would be premature to consider this contention on the present record. As things stand, there simply is no evidence that the "tenant hardship clause" has in fact ever Page 485 U. S. 10 been relied upon by a hearing officer to reduce a rent below the figure it would have been set at on the basis of the other factors set forth in the Ordinance. In addition, there is nothing in the Ordinance requiring that a hearing officer in fact reduce a proposed rent increase on grounds of tenant hardship. Section 5703.29 does make it mandatory that hardship be considered -- it states that "the Hearing Officer shall consider the economic hardship imposed on the present tenant" -- but it then goes on to state that if "the proposed increase constitutes an unreasonably severe financial or economic hardship . . . he may order that the excess of the increase" be disallowed. § 5703.29 (emphasis added). Given the "essentially ad hoc, factual inquir[y]" involved in the takings analysis, Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 175 (1979), we have found it particularly important in takings cases to adhere to our admonition that "the constitutionality of statutes ought not be decided except in an actual factual setting that makes such a decision necessary." Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 , 452 U. S. 294 -295 (1981). In Virginia Surface Mining, for example, we found that a challenge to the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 447, 30 U.S.C. § 1201 et seq., was "premature," 452 U.S. at 452 U. S. 296 , n. 37, and "not ripe for judicial resolution," id. at 452 U. S. 297 , because the property owners in that case had not identified any property that had allegedly been taken by the Act, nor had they sought administrative relief from the Act's restrictions on surface mining. Similarly, in this case we find that the mere fact that a hearing officer is enjoined to consider hardship to the tenant in fixing a landlord's rent, without any showing in a particular case as to the consequences of that injunction in the ultimate determination of the rent, does not present a sufficiently concrete factual setting for the adjudication of the takings claim appellants raise here. Cf. CIO v. McAdory, 325 U. S. 472 , 325 U. S. 475 -476 (1945) (declining to consider the validity of a state statute when the record did not Page 485 U. S. 11 show that the statute would ever be applied to any of the petitioner's members). [ Footnote 5 ] Appellants also urge that the mere provision in the Ordinance that a hearing officer may consider the hardship of the tenant in finally fixing a reasonable rent renders the Ordinance "facially invalid" under the Due Process and Equal Protection Clauses, even though no landlord ever has its rent diminished by as much as one dollar because of the application of this provision. The standard for determining whether a state price-control regulation is constitutional under the Due Process Clause is well established: "Price control is 'unconstitutional . . . if arbitrary, discriminatory, or demonstrably irrelevant to the policy the legislature is free to adopt.' . . ." Permian Basin Area Rate Cases, 390 U. S. 747 , 390 U. S. 769 -770 (1968) (quoting Nebbia v. New York, 291 U. S. 502 , 291 U. S. 539 (1934)). In other contexts we have recognized that the government may intervene in the marketplace to regulate rates or prices that are artificially inflated as a result of the existence of a monopoly or near monopoly, see, e.g., FCC v. Florida Power Corp., 480 U. S. 245 , 480 U. S. 250 -254 (1987) (approving limits on rates charged to cable companies for access to telephone poles); FPC v. Texaco Inc., 417 U. S. 380 , 417 U. S. 397 -398 (1974) (recognizing that federal regulation of the natural Page 485 U. S. 12 gas market was in response to the threat of monopoly pricing), or a discrepancy between supply and demand in the market for a certain product, see, e.g., Nebbia v. New York, supra, at 291 U. S. 530 , 291 U. S. 538 (allowing a minimum price for milk to offset a "flood of surplus milk"). Accordingly, appellants do not dispute that the Ordinance's asserted purpose of "prevent[ing] excessive and unreasonable rent increases" caused by the "growing shortage of and increasing demand for housing in the City of San Jose," § 5701.2, is a legitimate exercise of appellees' police powers. [ Footnote 6 ] Cf. Block v. Hirsh, 256 U. S. 135 , 256 U. S. 156 (1921) (approving rent control in Washington, D.C. on the basis of Congress' finding that housing in the city was "monopolized"). They do argue, however, that it is "arbitrary, discriminatory, or demonstrably irrelevant," Permian Basin Area Rate Cases, supra, at 390 U. S. 769 -770, for appellees to attempt to accomplish the additional goal of reducing the burden of housing costs on low-income tenants by requiring that "hardship to a tenant" be considered in determining the amount of excess rent increase that is "reasonable under the circumstances" pursuant to § 5703.28. [ Footnote 7 ] As appellants put it, "[t]he objective of alleviating individual tenant hardship is . . . not a policy the legislature is free to adopt' in a rent control ordinance." Reply Brief for Appellants 16. Page 485 U. S. 13 We reject this contention, however, because we have long recognized that a legitimate and rational goal of price or rate regulation is the protection of consumer welfare. See, e.g., Permian Basin Area Rate Cases, supra, at 390 U. S. 770 ; FPC v. Hope Natural Gas Co., 320 U. S. 591 , 320 U. S. 610 -612 (1944) ("The primary aim of [the Natural Gas Act] was to protect consumers against exploitation at the hands of natural gas companies"). Indeed, a primary purpose of rent control is the protection of tenants. See, e.g., Bowles v. Willingham, 321 U. S. 503 , 321 U. S. 513 , n. 9 (1944) (one purpose of rent control is "to protect persons with relatively fixed and limited incomes, consumers, wage earners . . . from undue impairment of their standard of living"). Here, the Ordinance establishes a scheme in which a hearing officer considers a number of factors in determining the reasonableness of a proposed rent increase which exceeds eight percent and which exceeds the amount deemed reasonable under either § 5703.28(a) or § 5703.28(b). The first six factors of § 5703.28(c) focus on the individual landlord -- the hearing officer examines the history of the premises, the landlord's costs, and the market for comparable housing. Section 5703.28(c)(5) also allows the landlord to bring forth any other financial evidence -- including presumably evidence regarding his own financial status -- to be taken into account by the hearing officer. It is in only this context that the Ordinance allows tenant hardship to be considered and, under § 5703.29, "balance[d]" with the other factors set out in § 5703.28(c). Within this scheme, § 5703.28(c) represents a rational attempt to accommodate the conflicting interests of protecting tenants from burdensome rent increases while at the same time ensuring that landlords are guaranteed a fair return on their investment. Cf. Bowles v. Willingham, supra, at 517 (considering, but rejecting, the contention that rent control must be established "landlord by landlord, as in the fashion of utility rates"). We accordingly find that the Ordinance, which so carefully considers both the individual circumstances of the landlord and Page 485 U. S. 14 the tenant before determining whether to allow an additional increase in rent over and above certain amounts that are deemed reasonable, does not on its face violate the Fourteenth Amendment's Due Process Clause. [ Footnote 8 ] We also find that the Ordinance does not violate the Amendment's Equal Protection Clause. Here again, the standard is deferential; appellees need only show that the classification scheme embodied in the Ordinance is "rationally related to a legitimate state interest." New Orleans v. Dukes, 427 U. S. 297 , 427 U. S. 303 (1976). As we stated in Vance v. Bradley, 440 U. S. 93 (1979), "we will not overturn [a statute that does not burden a suspect class or a fundamental interest] unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Id. at 440 U. S. 97 . In light of our conclusion above that the Ordinance's tenant hardship provisions are designed to serve the legitimate purpose of protecting tenants, we can hardly conclude that it is irrational for the Ordinance to treat certain landlords differently on the basis of whether or not they have hardship tenants. The Ordinance distinguishes between landlords because doing so furthers the purpose of ensuring that individual tenants do not suffer "unreasonable" hardship; it would be inconsistent to state that hardship is a legitimate factor to be considered, but then hold that appellees could not tailor the Ordinance so that only legitimate hardship cases are redressed. Cf. Woods v. Cloyd W. Miller Co., 333 U. S. 138 , 333 U. S. 145 (1948) Page 485 U. S. 15 (Congress "need not control all rents or none. It can select those areas or those classes of property where the need seems the greatest"). We recognize, as appellants point out, that in general it is difficult to say that the landlord "causes" the tenant's hardship. But this is beside the point -- if a landlord does have a hardship tenant, regardless of the reason why, it is rational for appellees to take that fact into consideration under § 5703.28 of the Ordinance when establishing a rent that is "reasonable under the circumstances." For the foregoing reasons, we hold that it is premature to consider appellants' claim under the Takings Clause and we reject their facial challenge to the Ordinance under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The judgment of the Supreme Court of California is accordingly Affirmed. JUSTICE KENNEDY took no part in the consideration or decision of this case. [ Footnote 1 ] In order to be consistent with the decisions below, we refer throughout this opinion to the sections of the Ordinance as originally designated. We note, however, that the San Jose Municipal Code has recently been recodified, and the Ordinance now appears at Chapter 17.23 of the new Code. [ Footnote 2 ] Under § 5703.3, the Ordinance does not apply to rent or rent increases for new rental units first rented after the Ordinance takes effect, § 5703.3 (a), to the rental of a unit that has been voluntarily vacated, § 5703.3(b)(1), or to the rental of a unit that is vacant as a result of eviction for certain specified acts, § 5703.3(b)(2). [ Footnote 3 ] Our cases also impose two additional requirements for associational or representational standing: the interests the organization seeks to protect must be "germane to the organization's purpose," Hunt, 432 U.S. at 432 U. S. 343 , and "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit," ibid. See also Automobile Workers v. Brock, 477 U. S. 274 , 477 U. S. 281 -282 (1986). Both of these requirements are satisfied here. The Association was "organized for the purpose of representing the interests of the owners and lessors of real property" in San Jose in this lawsuit, App. 3, and the facial challenge that the Association makes to the Ordinance does not require the participation of individual landlords. [ Footnote 4 ] Appellees also argue that Pennell lacks standing individually because, in early 1987, he sold the properties he owned at the time the complaint in this action was filed. See Brief for Appellees 8. In a declaration submitted to the Court, Pennell admits that he sold these properties, but states that he recently repurchased and now owns one of the apartment buildings in San Jose that he formerly owned. Declaration of Richard Pennell 117. That property was and still is "subject to the Ordinance." Id., � 8. Because we conclude that the Association has standing and that therefore we have jurisdiction over this appeal, we find it unnecessary to decide whether Pennell's sale and repurchase of the property affects his standing here. [ Footnote 5 ] For this reason we also decline to address appellants' contention that application of § 5703.28(c)(7) to reduce an otherwise reasonable rent increase on the basis of tenant hardship violates the Fourteenth Amendment's due process and equal protection requirements. See Hodel v. Indiana, 452 U. S. 314 , 452 U. S. 335 -336 (1981) (dismissing as "premature" a due process challenge to the civil penalty provision of the Surface Mining Act because "appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused them any injury"). Appellants and several amici also argue that the Ordinance's combination of lower rents for hardship tenants and restrictions on a landlord's power to evict a tenant amounts to a physical taking of the landlord's property. We decline to address this contention not only because it was raised for the first time in this Court, but also because it, too, is premised on a hearing officer's actually granting a lower rent to a hardship tenant. [ Footnote 6 ] Appellants do not claim, as do some amici, that rent control is per se a taking. We stated in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), that we have "consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular without paying compensation for all economic injuries that such regulation entails." Id. at 458 U. S. 440 (citing, inter alia, Bowles v. Willingham, 321 U. S. 503 , 321 U. S. 517 -518 (1944)). And in FCC v. Florida Power Corp., 480 U. S. 245 (1987), we stated that "statutes regulating the economic relations of landlords and tenants are not per se takings." Id. at 480 U. S. 252 . Despite amici 's urgings, we see no need to reconsider the constitutionality of rent control per se. [ Footnote 7 ] As we noted above, see n 5, supra, to the extent that appellants' due process argument is based on the claim that the Ordinance forces landlords to subsidize individual tenants, that claim is premature and not presented by the facts before us. [ Footnote 8 ] The consideration of tenant hardship also serves the additional purpose, not stated on the face of the Ordinance, of reducing the costs of dislocation that might otherwise result if landlords were to charge rents to tenants that they could not afford. Particularly during a housing shortage, the social costs of the dislocation of low-income tenants can be severe. By allowing tenant hardship to be considered under § 5703.28(c), the Ordinance enables appellees to "fine tune" their rent control to take into account the risk that a particular tenant will be forced to relocate as a result of a proposed rent increase. JUSTICE SCALIA, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. I agree that the tenant hardship provision of the Ordinance does not, on its face, violate either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment. I disagree, however, with the Court's conclusion that appellants' takings claim is premature. I would decide that claim on the merits, and would hold that the tenant hardship provision of the Ordinance effects a taking of private property without just compensation in violation of the Fifth and Fourteenth Amendments. I Appellants contend that any application of the tenant hardship provision of the San Jose Ordinance would effect an uncompensated taking of private property because that provision does not substantially advance legitimate state interests and because it improperly imposes a public burden on individual Page 485 U. S. 16 landlords. I can understand how such a claim -- that a law applicable to the plaintiffs is, root and branch, invalid -- can be readily rejected on the merits by merely noting that at least some of its applications may be lawful. But I do not understand how such a claim can possibly be avoided by considering it "premature." Suppose, for example, that the feature of the rental ordinance under attack was a provision allowing a hearing officer to consider the race of the apartment owner in deciding whether to allow a rent increase. It is inconceivable that we would say judicial challenge must await demonstration that this provision has actually been applied to the detriment of one of the plaintiffs. There is no difference, it seems to me, when the facial, root-and-branch challenge rests upon the Takings Clause, rather than the Equal Protection Clause. The Court confuses the issue by relying on cases, and portions of cases, in which the Takings Clause challenge was not (as here) that the law in all its applications took property without just compensation, but was rather that the law's application in regulating the use of particular property so severely reduced the value of that property as to constitute a taking. It is in that context, and not (as the Court suggests) generally, that takings analysis involves an "essentially ad hoc, factual inquir[y]," Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 175 (1979). We said as much less than a year ago, and it is surprising that we have so soon forgotten: "In addressing petitioners' claim, we must not disregard the posture in which this case comes before us. The District Court granted summary judgment to respondents only on the facial challenge to the Subsidence Act. The court explained that ' . . . the only question before this court is whether the mere enactment of the statutes and regulations constitutes a taking. ' . . ." "The posture of the case is critical, because we have recognized an important distinction between a claim that the mere enactment of a statute constitutes a taking and Page 485 U. S. 17 a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation. This point is illustrated by our decision in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 (1981), in which we rejected a preenforcement challenge to the constitutionality of the Surface Mining Control and Reclamation Act of 1977. . . . The Court [there] explained:" " * * * *" "Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the 'mere enactment' of the Surface Mining Act constitutes a taking. . . . The test to be applied in considering this facial challenge is straightforward. A statute regulating the uses that can be made of property effects a taking if it 'denies an owner economically viable use of his land.'. . ." "Petitioners thus face an uphill battle in making a facial attack on the Act as a taking." Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S. 493 -495 (1987). While the battle was "uphill" in Keystone, we allowed it to be fought, and did not declare it "premature." The same was true of the facial takings challenge in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., supra. It is remarkable that the Court should point to that case in support of its position, describing the holding as follows: "In Virginia Surface Mining, for example, we found that a challenge to the Surface Mining Control and Reclamation Act . . . was 'premature,' . . . and 'not ripe for judicial Page 485 U. S. 18 resolution,' . . . because the property owners in that case had not identified any property that had allegedly been taken by the Act, nor had they sought administrative relief from the Act's restrictions on surface mining." Ante at 485 U. S. 10 . But this holding in Virginia Surface Mining applied only to "the taking issue decided by the District Court," 452 U.S. at 452 U. S. 297 , which was the issue of the statute's validity as applied. Having rejected that challenge as premature, the Court then continued (in the language we quoted in Keystone ): "Thus, the only issue properly before the District Court and, in turn, this Court, is whether the 'mere enactment' of the Surface Mining Act constitutes a taking." 452 U.S. at 452 U. S. 295 . That issue was not rejected as premature, but was decided on its merits, id. at 452 U. S. 295 -297, just as it was in Keystone, and as it was before that in Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 -263 (1980). In sum, it is entirely clear from our cases that a facial takings challenge is not premature even if it rests upon the ground that the ordinance deprives property owners of all economically viable use of their land -- a ground that is, as we have said, easier to establish in an "as-applied" attack. It is, if possible, even more clear that the present facial challenge is not premature, because it does not rest upon a ground that would even profit from consideration in the context of particular application. As we said in Agins, a zoning law "effects a taking if the ordinance does not substantially advance legitimate state interests, . . . or denies an owner economically viable use of his land." Id. at 447 U. S. 260 . The present challenge is of the former sort. Appellants contend that providing financial assistance to impecunious renters is not a state interest that can legitimately be furthered by regulating the use of property. Knowing the nature and character of the Page 485 U. S. 19 particular property in question, or the degree of its economic impairment, will in no way assist this inquiry. Such factors are as irrelevant to the present claim as we have said they are to the claim that a law effects a taking by authorizing a permanent physical invasion of property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). So even if we were explicitly to overrule cases such as Agins, Virginia Surface Mining, and Keystone, and to hold that a facial challenge will not lie where the issue can be more forcefully presented in an "as-applied" attack, there would still be no reason why the present challenge should not proceed. Today's holding has no more basis in equity than it does in precedent. Since the San Jose Ordinance does not require any specification of how much reduction in rent is attributable to each of the various factors that the hearing officer is allowed to take into account, it is quite possible that none of the many landlords affected by the Ordinance will ever be able to meet the Court's requirement of a "showing in a particular case as to the consequences of [the hardship factor] in the ultimate determination of the rent." Ante at 10. There is no reason thus to shield alleged constitutional injustice from judicial scrutiny. I would therefore consider appellants' takings claim on the merits. II The Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 166 U. S. 239 (1897), provides that "private property [shall not] be taken for public use, without just compensation." We have repeatedly observed that the purpose of this provision is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40 , 364 U. S. 49 (1960); See also First English Evangelical Lutheran Church of Glendale v. Los Angeles County , 482 U.S. Page 485 U. S. 20 304, 482 U. S. 318 -319 (1987); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 449 U. S. 163 (1980); Agins v. Tiburon, supra, at 447 U. S. 260 ; Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 123 (1978); Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 325 (1893). Traditional land-use regulation (short of that which totally destroys the economic value of property) does not violate this principle because there is a cause-and-effect relationship between the property use restricted by the regulation and the social evil that the regulation seeks to remedy. Since the owner's use of the property is (or, but for the regulation, would be) the source of the social problem, it cannot be said that he has been singled out unfairly. Thus, the common zoning regulations requiring subdividers to observe lot-size and set-back restrictions, and to dedicate certain areas to public streets, are in accord with our constitutional traditions because the proposed property use would otherwise be the cause of excessive congestion. The same cause-and-effect relationship is popularly thought to justify emergency price regulation: when commodities have been priced at a level that produces exorbitant returns, the owners of those commodities can be viewed as responsible for the economic hardship that occurs. Whether or not that is an accurate perception of the way a free market economy operates, it is at least true that the owners reap unique benefits from the situation that produces the economic hardship, and in that respect singling them out to relieve it may not be regarded as "unfair." That justification might apply to the rent regulation in the present case, apart from the single feature under attack here. Appellants do not contest the validity of rent regulation in general. They acknowledge that the city may constitutionally set a "reasonable rent" according to the statutory minimum and the six other factors that must be considered by the hearing officer (cost of debt servicing, rental history of the unit, physical condition of the unit, changes in housing services, Page 485 U. S. 21 other financial information provided by the landlord, and market value rents for similar units). San Jose Municipal Ordinance 19696, § 5703.28(c) (1979). Appellants' only claim is that a reduction of a rent increase below what would otherwise be a "reasonable rent" under this scheme may not, consistently with the Constitution, be based on consideration of the seventh factor -- the hardship to the tenant as defined in § 5703.29. I think they are right. Once the other six factors of the Ordinance have been applied to a landlord's property, so that he is receiving only a reasonable return, he can no longer be regarded as a "cause" of exorbitantly priced housing; nor is he any longer reaping distinctively high profits from the housing shortage. The seventh factor, the "hardship" provision, is invoked to meet a quite different social problem: the existence of some renters who are too poor to afford even reasonably priced housing. But that problem is no more caused or exploited by landlords than it is by the grocers who sell needy renters their food, or the department stores that sell them their clothes, or the employers who pay them their wages, or the citizens of San Jose holding the higher paying jobs from which they are excluded. And even if the neediness of renters could be regarded as a problem distinctively attributable to landlords in general, it is not remotely attributable to the particular landlords that the Ordinance singles out -- namely, those who happen to have a "hardship" tenant at the present time, or who may happen to rent to a "hardship" tenant in the future, or whose current or future affluent tenants may happen to decline into the "hardship" category. The traditional manner in which American government has met the problem of those who cannot pay reasonable prices for privately sold necessities -- a problem caused by the society at large -- has been the distribution to such persons of funds raised from the public at large through taxes, either in cash (welfare payments) or in goods (public housing, publicly subsidized housing, and food stamps). Unless we are to Page 485 U. S. 22 abandon the guiding principle of the Takings Clause that "public burdens . . . should be borne by the public as a whole," Armstrong, 364 U.S. at 364 U. S. 49 , this is the only manner that our Constitution permits. The fact that government acts through the landlord-tenant relationship does not magically transform general public welfare, which must be supported by all the public, into mere "economic regulation," which can disproportionately burden particular individuals. Here the city is not "regulating" rents in the relevant sense of preventing rents that are excessive; rather, it is using the occasion of rent regulation (accomplished by the rest of the Ordinance) to establish a welfare program privately funded by those landlords who happen to have "hardship" tenants. Of course all economic regulation effects wealth transfer. When excessive rents are forbidden, for example, landlords as a class become poorer and tenants as a class (or at least incumbent tenants as a class) become richer. Singling out landlords to be the transferors may be within our traditional constitutional notions of fairness, because they can plausibly be regarded as the source or the beneficiary of the high-rent problem. Once such a connection is no longer required, however, there is no end to the social transformations that can be accomplished by so-called "regulation," at great expense to the democratic process. The politically attractive feature of regulation is not that it permits wealth transfers to be achieved that could not be achieved otherwise; but rather that it permits them to be achieved "off budget," with relative invisibility, and thus relative immunity from normal democratic processes. San Jose might, for example, have accomplished something like the result here by simply raising the real estate tax upon rental properties and using the additional revenues thus acquired to pay part of the rents of "hardship" tenants. It seems to me doubtful, however, whether the citizens of San Jose would allow funds in the municipal treasury, from wherever derived, to be distributed to a family of four with income as Page 485 U. S. 23 high as $32,400 a year -- the generous maximum necessary to qualify automatically as a "hardship" tenant under the rental Ordinance. * The voters might well see other, more pressing, social priorities. And of course what $32,400-a-year renters can acquire through spurious "regulation," other groups can acquire as well. Once the door is opened, it is not unreasonable to expect price regulations requiring private businesses to give special discounts to senior citizens (no matter how affluent), or to students, the handicapped, or war veterans. Subsidies for these groups may well be a good idea, but because of the operation of the Takings Clause our governmental system has required them to be applied, in general, through the process of taxing and spending, where both economic effects and competing priorities are more evident. That fostering of an intelligent democratic process is one of the happy effects of the constitutional prescription -- perhaps accidental, perhaps not. Its essence, however, is simply the unfairness of making one citizen pay, in some fashion other than taxes, to remedy a social problem that is none of his creation. As the Supreme Court of New Jersey said in finding unconstitutional a scheme displaying, among other defects, the same vice I find dispositive here: "A legislative category of economically needy senior citizens is sound, proper and sustainable as a rational classification. But compelled subsidization by landlords Page 485 U. S. 24 or by tenants who happen to live in an apartment building with senior citizens is an improper and unconstitutional method of solving the problem." Property Owners Assn. v. North Bergen, 74 N.J. 327, 339, 378 A.2d 25 , 31 (1977). I would hold that the seventh factor in § 5703.28(c) of the San Jose Ordinance effects a taking of property without just compensation. * Under the San Jose Ordinance, "hardship" tenants include (though are not limited to) those whose "household income and monthly housing expense meets [ sic ] the criteria" for assistance under the existing housing provisions of § 8 of the Housing and Community Development Act of 1974, 42 U.S.C. § 1437f (1982 ed. and Supp. III). The United States Department of Housing and Urban Development currently limits assistance under these provisions for families of four in the San Jose area to those who earn $32,400 or less per year. Memorandum from U.S. Dept. of Housing and Urban Development, Assistant Secretary for Housing-Federal Housing Comm'r, Income Limits for Lower Income and Very Low-Income Families Under the Housing Act of 1937 (Jan. 15, 1988).

The U.S. Supreme Court case Pennell v. City of San Jose (1988) dealt with a challenge to the city's rent control ordinance, which allowed landlords to raise rents by up to 8% annually but required a hearing to determine "reasonable" increases considering "tenant hardship" and other factors. The Court ruled that the landlords had standing to challenge the ordinance, even without specific instances of reduced rents due to tenant hardship. On the merits, the Court found no violation of the Takings Clause, holding that the ordinance did not deprive landlords of their property rights without just compensation. The Court emphasized the distinction between "regulation" and "taking," suggesting that the ordinance's effects could be addressed through democratic processes and taxation policies.

Property Rights & Land Use

U.S. v. Locke

https://supreme.justia.com/cases/federal/us/471/84/

U.S. Supreme Court United States v. Locke, 471 U.S. 84 (1985) United States v. Locke No. 83-1394 Argued November 6, 1984 Decided April 1, 1985 471 U.S. 84 APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEVADA Syllabus Section 314 of the Federal Land Policy and Management Act of 1976 (FLPMA) establishes a federal recording system that is designed to rid federal lands of stale mining claims and to provide federal land managers with up-to-date information that allows them to make informed land management decisions. Section 314(b) requires that mining claims located prior to FLPMA's enactment be initially recorded with the Bureau of Land Management (BLM) within three years of the enactment, and § 314(a) requires that the claimant, in the year of initial recording and "prior to December 31" of every year after that, file with state officials and the BLM a notice of intention to hold a claim, an affidavit of assessment work performed on the claim, or a detailed reporting form. Section 314(c) provides that failure to comply with either of these requirements "shall be deemed conclusively to constitute an abandonment" of the claim. Appellees, who had purchased mining claims before 1976, complied with the initial recording requirement but failed to meet on time their first annual filing requirement, not filing with the BLM until December 31. Subsequently, the BLM notified appellees that their claims had been declared abandoned and void due to their tardy filing. After an unsuccessful administrative appeal, appellees filed an action in Federal District Court, alleging that § 314(c) effected an unconstitutional taking of their property without just compensation and denied them due process. The District Court issued summary judgment in appellees' favor, holding that § 314(c) created an impermissible irrebuttable presumption that claimants who fail to make a timely filing intended to abandon their claims. Alternatively, the court held that the 1-day late filing "substantially complied" with § 314(a) and the implementing regulations. Held: 1. Section 314(a)'s plain language -- "prior to December 31" -- read in conjunction with BLM regulations makes clear that the annual filings must be made on or before December 30. Thus, the BLM did not act ultra vires in concluding that appellees' filing was untimely. Pp. 471 U. S. 93 -96. 2. Congress intended in § 314(c) to extinguish those claims for which timely filings were not made. Specific evidence of intent to abandon is made irrelevant by § 314(c); the failure to file on time, in and of itself, causes a claim to be lost. Pp. 471 U. S. 97 -100. Page 471 U. S. 85 3. The annual filing deadline cannot be complied with, substantially or otherwise, by filing late -- even by one day. Pp. 471 U. S. 100 -102. 4. Section 314(c) is not unconstitutional. Pp. 471 U. S. 103 -110. (a) Congress was well within its affirmative powers in enacting the filing requirement, in imposing the penalty of extinguishment in § 314(c), and in applying the requirement and sanction to claims located before FLPMA was enacted. Pp. 471 U. S. 104 -107. (b) Appellees' property loss was one they could have avoided with minimal burden; it was their failure to file on time, not Congress' action, that caused their property rights to be extinguished. Regulation of property rights does not "take" private property when an individual's reasonable, investment-backed expectations can continue to be realized as long as he complies with reasonable regulations. Pp. 107-108. (c) FLPMA provides appellees with all the process that is their constitutional due. The Act's recording provisions clearly afford those within the Act's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements. As the Act constitutes purely economic regulation, Congress was entitled to conclude that it was preferable to place a substantial portion of the burden on claimants to make the national recording system work. Pp. 108-110. 573 F. Supp. 472 , reversed and remanded. MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, REHNQUIST, and O'CONNOR, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 110. POWELL, J., filed a dissenting opinion, post, p. 112. STEVENS, J., filed a dissenting opinion in which BRENNAN, J., joined, post, p. 117. Page 471 U. S. 86 JUSTICE MARSHALL delivered the opinion of the Court. The primary question presented by this appeal is whether the Constitution prevents Congress from providing that holders of unpatented mining claims who fail to comply with the annual filing requirements of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744, shall forfeit their claims. I From the enactment of the general mining laws in the 19th century until 1976, those who sought to make their living by locating and developing minerals on federal lands were virtually unconstrained by the fetters of federal control. The general mining laws, 30 U.S.C. § 22 et seq., still in effect today, allow United States citizens to go onto unappropriated, unreserved public land to prospect for and develop certain minerals. "Discovery" of a mineral deposit, followed by the minimal procedures required to formally "locate" the deposit, gives an individual the right of exclusive possession of the land for mining purposes, 30 U.S.C. § 26; as long as $100 of assessment work is performed annually, the individual may continue to extract and sell minerals from the claim without paying any royalty to the United States, 30 U.S.C. § 28. For a nominal sum, and after certain statutory conditions are fulfilled, an individual may patent the claim, thereby purchasing from the Federal Government the land and minerals and obtaining ultimate title to them. Patenting, however, is not required, and an unpatented mining claim remains a fully recognized possessory interest. Best v. Humboldt Placer Mining Co., 371 U. S. 334 , 371 U. S. 335 (1963). By the 1960's, it had become clear that this 19th-century laissez-faire regime had created virtual chaos with respect to the public lands. In 1975, it was estimated that more than Page 471 U. S. 87 6 million unpatented mining claims existed on public lands other than the national forests; in addition, more than half the land in the National Forest System was thought to be covered by such claims. S.Rep. No. 94-583, p. 65 (1975). Many of these claims had been dormant for decades, and many were invalid for other reasons, but in the absence of a federal recording system, no simple way existed for determining which public lands were subject to mining locations, and whether those locations were valid or invalid. Ibid. As a result, federal land managers had to proceed slowly and cautiously in taking any action affecting federal land lest the federal property rights of claimants be unlawfully disturbed. Each time the Bureau of Land Management (BLM) proposed a sale or other conveyance of federal land, a title search in the county recorder's office was necessary; if an outstanding mining claim was found, no matter how stale or apparently abandoned, formal administrative adjudication was required to determine the validity of the claim. [ Footnote 1 ] After more than a decade of studying this problem in the context of a broader inquiry into the proper management of the public lands in the modern era, Congress in 1976 enacted FLPMA, Pub.L. 94-579, 90 Stat. 2743 (codified at 43 U.S.C. § 1701 et seq. ). Section 314 of the Act establishes a federal recording system that is designed both to rid federal lands of stale mining claims and to provide federal land managers with up-to-date information that allows them to make informed land management decisions. [ Footnote 2 ] For claims located before FLPMA's enactment, [ Footnote 3 ] the federal recording system imposes two general requirements. Page 471 U. S. 88 First, the claims must initially be registered with the BLM by filing, within three years of FLPMA's enactment, a copy of the official record of the notice or certificate Page 471 U. S. 89 of location. 90 Stat. 2743, § 314(b), 43 U.S.C. § 1744(b). Second, in the year of the initial recording, and "prior to December 31" of every year after that, the claimant must file with state officials and with BLM a notice of intention to hold the claim, an affidavit of assessment work performed on the claim, or a detailed reporting form. 90 Stat. 2743, § 314(a), 43 U.S.C. § 1744(a). Section 314(c) of the Act provides that failure to comply with either of these requirements "shall be deemed conclusively to constitute an abandonment of the mining claim . . . by the owner." 43 U.S.C. § 1744(c). The second of these requirements -- the annual filing obligation -- has created the dispute underlying this appeal. Appellees, four individuals engaged "in the business of operating mining properties in Nevada," [ Footnote 4 ] purchased in 1960 and 1966 10 unpatented mining claims on public lands near Ely, Nevada. These claims were major sources of gravel and building material: the claims are valued at several million dollars, [ Footnote 5 ] and, in the 1979-1980 assessment year alone, appellees' gross income totaled more than $1 million. [ Footnote 6 ] Throughout the period during which they owned the claims, appellees complied with annual state law filing and assessment work requirements. In addition, appellees satisfied FLPMA's initial recording requirement by properly filing with BLM a notice of location, thereby putting their claims on record for purposes of FLPMA. At the end of 1980, however, appellees failed to meet on time their first annual obligation to file with the Federal Government. After allegedly receiving misleading information from a BLM employee, [ Footnote 7 ] appellees waited until December 31 Page 471 U. S. 90 to submit to BLM the annual notice of intent to hold or proof of assessment work performed required under § 314(a) of FLPMA, 43 U.S.C. § 1744(a). As noted above, that section requires these documents to be filed annually "prior to December 31." Had appellees checked, they further would have discovered that BLM regulations made quite clear that claimants were required to make the annual filings in the proper BLM office "on or before December 30 of each calendar year." 43 CFR § 3833.2-1(a) (1980) (current version at 43 CFR § 3833.2-1(b)(1) (1984)). Thus, appellees' filing was one day too late. This fact was brought painfully home to appellees when they received a letter from the BLM Nevada State Office informing them that their claims had been declared abandoned and void due to their tardy filing. In many cases, loss of a claim in this way would have minimal practical effect; the Page 471 U. S. 91 claimant could simply locate the same claim again and then rerecord it with BLM. In this case, however, relocation of appellees' claims, which were initially located by appellees' predecessors in 1952 and 1954, was prohibited by the Common Varieties Act of 1955, 30 U.S.C. § 611; that Act prospectively barred location of the sort of minerals yielded by appellees' claims. Appellees' mineral deposits thus escheated to the Government. After losing an administrative appeal, appellees filed the present action in the United States District Court for the District of Nevada. Their complaint alleged, inter alia, that § 314(c) effected an unconstitutional taking of their property without just compensation and denied them due process. On summary judgment, the District Court held that § 314(c) did indeed deprive appellees of the process to which they were constitutionally due. 573 F. Supp. 472 (1983). The District Court reasoned that § 314(c) created an impermissible irrebuttable presumption that claimants who failed to make a timely filing intended to abandon their claims. Rather than relying on this presumption, the Government was obliged, in the District Court's view, to provide individualized notice to claimants that their claims were in danger of being lost, followed by a post-filing-deadline hearing at which the claimants could demonstrate that they had not, in fact, abandoned a claim. Alternatively, the District Court held that the 1-day late filing "substantially complied" with the Act and regulations. Because a District Court had held an Act of Congress unconstitutional in a civil suit to which the United States was a party, we noted probable jurisdiction under 28 U.S.C. § 1252. 467 U.S. 1225 (1984). [ Footnote 8 ] We now reverse. Page 471 U. S. 92 II Appeal under 28 U.S.C. § 1252 brings before this Court not merely the constitutional question decided below, but the entire case. McLucas v. DeChamplain, 421 U. S. 21 , 421 U. S. 31 (1975); United States v. Raines, 362 U. S. 17 , 362 U. S. 27 , n. 7 (1960). The entire case includes nonconstitutional questions actually decided by the lower court as well as nonconstitutional grounds presented to, but not passed on, by the lower court. United States v. Clark, 445 U. S. 23 , 445 U. S. 27 -28 (1980). [ Footnote 9 ] These principles are important aids in the prudential exercise of our appellate jurisdiction, for when a case arrives here by appeal under 28 U.S.C. § 1252, this Court will not pass on the constitutionality of an Act of Congress if a construction of the Act is fairly possible, or some other nonconstitutional ground fairly available, by which the constitutional question can be avoided. See Heckler v. Mathews, 465 U. S. 728 , 465 U. S. 741 -744 (1984); Johnson v. Robinson, 415 U. S. 361 , 415 U. S. 366 -367 (1974); cf. United States v. Congress of Industrial Organizations, 335 U. S. 106 , 335 U. S. 110 (1948) (appeals under former Criminal Appeals Act); see generally Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). Thus, we turn first to the nonconstitutional questions pressed below. Page 471 U. S. 93 III A Before the District Court, appellees asserted that the § 314(a) requirement of a filing "prior to December 31 of each year" should be construed to require a filing "on or before December 31." Thus, appellees argued, their December 31 filing had in fact complied with the statute, and the BLM had acted ultra vires in voiding their claims. Although the District Court did not address this argument, the argument raises a question sufficiently legal in nature that we choose to address it even in the absence of lower court analysis. See, e.g., United States v. Clark, supra. It is clear to us that the plain language of the statute simply cannot sustain the gloss appellees would put on it. As even counsel for appellees conceded at oral argument, § 314(a) "is a statement that Congress wanted it filed by December 30th. I think that is a clear statement. . . ." Tr. of Oral Arg. 27; see also id. at 37 ("A literal reading of the statute would require a December 30th filing . . ."). While we will not allow a literal reading of a statute to produce a result "demonstrably at odds with the intentions of its drafters," Griffin v. Oceanic Contractors, Inc., 458 U. S. 564 , 458 U. S. 571 (1982), with respect to filing deadlines a literal reading of Congress' words is generally the only proper reading of those words. To attempt to decide whether some date other than the one set out in the statute is the date actually "intended" by Congress is to set sail on an aimless journey, for the purpose of a filing deadline would be just as well served by nearly any date a court might choose as by the date Congress has in fact set out in the statute. "Actual purpose is sometimes unknown," United States Railroad Retirement Board v. Fritz, 449 U. S. 166 , 449 U. S. 180 (1980) (STEVENS, J., concurring), and such is the case with filing deadlines; as might be expected, nothing in the legislative history suggests why Congress chose December 30 over December 31, Page 471 U. S. 94 or over September 1 (the end of the assessment year for mining claims, 30 U.S.C. § 28), as the last day on which the required filings could be made. But "[d]eadlines are inherently arbitrary," while fixed dates "are often essential to accomplish necessary results." United States v. Boyle, 469 U. S. 241 , 469 U. S. 249 (1984). Faced with the inherent arbitrariness of filing deadlines, we must, at least in a civil case, apply by its terms the date fixed by the statute. Cf. United States Railroad Retirement Board v. Fritz, supra, at 449 U. S. 179 . [ Footnote 10 ] Moreover, BLM regulations have made absolutely clear since the enactment of FLPMA that "prior to December 31" means what it says. As the current version of the filing regulations states: "The owner of an unpatented mining claim located on Federal lands . . . shall have filed or caused to have been filed on or before December 30 of each calendar year . . . evidence of annual assessment work performed during the previous assessment year or a notice of intention to hold the mining claim." 43 CFR § 3833.2-1(b)(1) (1984) (emphasis added). See also 43 CFR § 3833.2-1(a) (1982) (same); 43 CFR § 3833.21(a) (1981) (same); 43 CFR § 3833.2-1(a) (1980) (same); 43 CFR § 3833.2-1(a) (1979) (same); 43 CFR § 3833.2-1(a)(1) (1978) ("prior to" Dec. 31); 43 CFR § 3833.2-1(a)(1) (1977) ("prior to" Dec. 31). Leading mining treatises similarly Page 471 U. S. 95 inform claimants that "[i]t is important to note that the filing of a notice of intention or evidence of assessment work must be done prior to December 31 of each year, i.e., on or before December 30." 2 American Law of Mining § 7.23D, P. 150.2 (SUPP.1983) (emphasis in original); see also 23 Rocky Mountain Mineral Law Institute 25 (1977) (same). If appellees, who were businessmen involved in the running of a major mining operation for more than 20 years, had any questions about whether a December 31 filing complied with the statute, it was incumbent upon them, as it is upon other businessmen, see United States v. Boyle, supra, to have checked the regulations or to have consulted an attorney for legal advice. Pursuit of either of these courses, rather than the submission of a last-minute filing, would surely have led appellees to the conclusion that December 30 was the last day on which they could file safely. In so saying, we are not insensitive to the problems posed by congressional reliance on the words "prior to December 31." See post p. 471 U. S. 117 (STEVENS, J., dissenting). But the fact that Congress might have acted with greater clarity or foresight does not give courts a carte blanche to redraft statutes in an effort to achieve that which Congress is perceived to have failed to do. "There is a basic difference between filling a gap left by Congress' silence and rewriting rules that Congress has affirmatively and specifically enacted." Mobil Oil Corp. v. Higginbotham, 436 U. S. 618 , 436 U. S. 625 (1978). Nor is the Judiciary licensed to attempt to soften the clear import of Congress' chosen words whenever a court believes those words lead to a harsh result. See Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77 , 451 U. S. 98 (1981). On the contrary, deference to the supremacy of the Legislature, as well as recognition that Congressmen typically vote on the language of a bill, generally requires us to assume that "the legislative purpose is expressed by the ordinary meaning of the words used." Richards v. United States, 369 U. S. 1 , 369 U. S. 9 (1962). "Going behind the plain language of a statute in search of a possibly contrary congressional intent is 'a step to Page 471 U. S. 96 be taken cautiously' even under the best of circumstances." American Tobacco Co. v. Patterson, 456 U. S. 63 , 456 U. S. 75 (1982) (quoting Piper v. Chris-Craft Industries, Inc., 430 U. S. 1 , 430 U. S. 26 (1977)). When even after taking this step nothing in the legislative history remotely suggests a congressional intent contrary to Congress' chosen words, and neither appellees nor the dissenters have pointed to anything that so suggests, any further steps take the courts out of the realm of interpretation and place them in the domain of legislation. The phrase "prior to" may be clumsy, but its meaning is clear. [ Footnote 11 ] Under these circumstances, we are obligated to apply the "prior to December 31" language by its terms. See, e.g., American Tobacco Co. v. Patterson, supra, at 456 U. S. 68 ; Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102 , 447 U. S. 108 (1980). The agency's regulations clarify and confirm the import of the statutory language by making clear that the annual filings must be made on or before December 30. These regulations provide a conclusive answer to appellees' claim, for where the language of a filing deadline is plain and the agency's construction completely consistent with that language, the agency's construction simply cannot be found "sufficiently unreasonable" as to be unacceptable. FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27 , 454 U. S. 39 (1981). We cannot press statutory construction "to the point of disingenuous evasion" even to avoid a constitutional question. Moore Ice Cream Co. v. Rose, 289 U. S. 373 , 289 U. S. 379 (1933) (Cardozo, J.). [ Footnote 12 ] We therefore hold that BLM did not act ultra vires in concluding that appellees' filing was untimely. Page 471 U. S. 97 B Section 314(c) states that failure to comply with the filing requirements of §§ 314(a) and 314(b) "shall be deemed conclusively to constitute an abandonment of the mining claim." We must next consider whether this provision expresses a congressional intent to extinguish all claims for which filings have not been made, or only those claims for which filings have not been made and for which the claimants have a specific intent to abandon the claim. The District Court adopted the latter interpretation, and on that basis concluded that § 314(c) created a constitutionally impermissible irrebuttable presumption of abandonment. The District Court reasoned that, once Congress had chosen to make loss of a claim turn on the specific intent of the claimant, a prior hearing and findings on the claimant's intent were constitutionally required before the claim of a nonfiling claimant could be extinguished. In concluding that Congress was concerned with the specific intent of the claimant even when the claimant had failed Page 471 U. S. 98 to make the required filings, the District Court began from the fact that neither § 314(c) nor the Act itself defines the term "abandonment" as that term appears in § 314(c). The District Court then noted correctly that the common law of mining traditionally has drawn a distinction between "abandonment" of a claim, which occurs only upon a showing of the claimant's intent to relinquish the claim, and "forfeiture" of a claim, for which only noncompliance with the requirements of law must be shown. See, e.g., 2 American Law of Mining § 8.2, pp.195-196 (1983) (relied upon by the District Court). Given that Congress had not expressly stated in the statute any intent to depart from the term-of-art meaning of "abandonment" at common law, the District Court concluded that § 314(c) was intended to incorporate the traditional common law distinction between abandonment and forfeiture. Thus, reasoned the District Court, Congress did not intend to cause a forfeiture of claims for which the required filings had not been made, but rather to focus on the claimant's actual intent. As a corollary, the District Court understood the failure to file to have been intended to be merely one piece of evidence in a factual inquiry into whether a claimant had a specific intent to abandon his property. This construction of the statutory scheme cannot withstand analysis. While reference to common law conceptions is often a helpful guide to interpreting open-ended or undefined statutory terms, see, e.g., NLRB v. Amax Coal Co., 453 U. S. 322 , 453 U. S. 329 (1981); Standard Oil Co. v. United States, 221 U. S. 1 , 221 U. S. 59 (1911), this principle is a guide to legislative intent, not a talisman of it, and the principle is not to be applied in defiance of a statute's overriding purposes and logic. Although § 314(c) is couched in terms of a conclusive presumption of "abandonment," there can be little doubt that Congress intended § 314(c) to cause a forfeiture of all claims for which the filing requirements of §§ 314(a) and 314(b) had not been met. To begin with, the Senate version of § 314(c) provided that any claim not properly recorded "shall be conclusively presumed Page 471 U. S. 99 to be abandoned and shall be void." S. 507, 94th Cong., 1st Sess., § 311 (1975). [ Footnote 13 ] The Committee Report accompanying S. 507 repeatedly indicated that failure to comply with the filing requirements would make a claim "void." See S.Rep. No. 94-583, pp. 65, 66 (1975). The House legislation and Reports merely repeat the statutory language without offering any explanation of it, but it is clear from the Conference Committee Report that the undisputed intent of the Senate to make "void" those claims for which proper filings were not timely made was the intent of both Chambers. The Report stated: "Both the Senate bill and House amendments provided for recordation of mining claims and for extinguishment of abandoned claims." H.R.Rep. No. 94-1724, p. 62 (1976) (emphasis added). In addition, the District Court's construction fails to give effect to the "deemed conclusively" language of § 314(c). If the failure to file merely shifts the burden to the claimant to prove that he intends to keep the claim, nothing "conclusive" is achieved by § 314(c). The District Court sought to avoid this conclusion by holding that § 314(c) does extinguish automatically those claims for which initial recordings, as opposed to annual filings, have not been made; the District Court attempted to justify its distinction between initial recordings and annual filings on the ground that the dominant purpose of § 314(c) was to avoid forcing BLM to the "awesome task of searching every local title record" to establish initially a federal recording system. 573 F. Supp. at 477. Once this purpose had been satisfied by an initial recording, the primary purposes of the "deemed conclusively" language, in the District Court's view, had been met. But the clear language of § 314(c) admits of no distinction between Page 471 U. S. 100 initial recordings and annual filings: failure to do either "shall be deemed conclusively to constitute an abandonment." And the District Court's analysis of the purposes of § 314(c) is also misguided, for the annual filing requirements serve a purpose similar to that of the initial recording requirement; millions of claims undoubtedly have now been recorded, and the presence of an annual filing obligation allows BLM to keep the system established in § 314 up to date on a yearly basis. To put the burden on BLM to keep this system current through its own inquiry into the status of recorded claims would lead to a situation similar to that which led Congress initially to make the federal recording system self-executing. The purposes of a self-executing recording system are implicated similarly, if somewhat less substantially, by both the annual filing obligation and the initial recording requirement, and the District Court was not empowered to thwart these purposes or the clear language of § 314(c) by concluding that § 314(c) was actually concerned with only initial recordings. For these reasons, we find that Congress intended in § 314(c) to extinguish those claims for which timely filings were not made. Specific evidence of intent to abandon is simply made irrelevant by § 314(c); the failure to file on time, in and of itself, causes a claim to be lost. See Western Mining Council v. Watt, 643 F.2d 618, 628 (CA9 1981). C A final statutory question must be resolved before we turn to the constitutional holding of the District Court. Relying primarily on Hickel v. Oil Shale Corp., 400 U. S. 48 (1970), the District Court held that, even if the statute required a filing on or before December 30, appellees had "substantially complied" by filing on December 31. We cannot accept this view of the statute. The notion that a filing deadline can be complied with by filing sometime after the deadline falls due is, to say the Page 471 U. S. 101 least, a surprising notion, and it is a notion without limiting principle. If 1-day late filings are acceptable, 10-day late filings might be equally acceptable, and so on in a cascade of exceptions that would engulf the rule erected by the filing deadline; yet regardless of where the cutoff line is set, some individuals will always fall just on the other side of it. Filing deadlines, like statutes of limitations, necessarily operate harshly and arbitrarily with respect to individuals who fall just on the other side of them, but if the concept of a filing deadline is to have any content, the deadline must be enforced. "Any less rigid standard would risk encouraging a lax attitude toward filing dates," United States v. Boyle, 469 U.S. at 469 U. S. 249 . A filing deadline cannot be complied with, substantially or otherwise, by filing late even by one day. Hickel v. Oil Shale Corp., supra, does not support a contrary conclusion. Hickel suggested, although it did not hold, that failure to meet the annual assessment work requirements of the general mining laws, 30 U.S.C. § 28, which require that "not less than $100 worth of labor shall be performed or improvements made during each year," would not render a claim automatically void. Instead, if an individual complied substantially but not fully with the requirement, he might, under some circumstances, be able to retain possession of his claim. These suggestions in Hickel do not afford a safe haven to mine owners who fail to meet their filing obligations under any federal mining law. Failure to comply fully with the physical requirement that a certain amount of work be performed each year is significantly different from the complete failure to file on time documents that federal law commands be filed. In addition, the general mining laws at issue in Hickel do not clearly provide that a claim will be lost for failure to meet the assessment work requirements. Thus, it was open to the Court to conclude in Hickel that Congress had intended to make the assessment work requirement merely an indicium of a claimant's specific intent to retain a Page 471 U. S. 102 claim. Full compliance with the assessment work requirements would establish conclusively an intent to keep the claim, but less than full compliance would not by force of law operate to deprive the claimant of his claim. Instead, less than full compliance would subject the mine owner to a case-by-case determination of whether he nonetheless intended to keep his claim. See Hickel, supra, at 400 U. S. 56 -57. In this case, the statute explicitly provides that failure to comply with the applicable filing requirements leads automatically to loss of the claim. See 471 U. S. supra. Thus, Congress has made it unnecessary to ascertain whether the individual in fact intends to abandon the claim, and there is no room to inquire whether substantial compliance is indicative of the claimant's intent -- intent is simply irrelevant if the required filings are not made. Hickel's discussion of substantial compliance is therefore inapposite to the statutory scheme at issue here. As a result, Hickel gives miners no greater latitude with filing deadlines than other individuals have. [ Footnote 14 ] Page 471 U. S. 103 IV Much of the District Court's constitutional discussion necessarily falls with our conclusion that § 314(c) automatically deems forfeited those claims for which the required filings are not timely made. The District Court's invalidation of the statute rested heavily on the view that § 314(c) creates an "irrebuttable presumption that mining claims are abandoned if the miner fails to timely file" the required documents -- that the statute presumes a failure to file to signify a specific intent to abandon the claim. But, as we have just held, § 314(c) presumes nothing about a claimant's actual intent; the statute simply and conclusively deems such claims to be forfeited. As a forfeiture provision, § 314(c) is not subject to the individualized hearing requirement of such irrebuttable presumption cases as Vlandis v. Kline, 412 U. S. 441 (1973), or Cleveland Bd. of Education v. LaFleur, 414 U. S. 632 (1974), for there is nothing to suggest that, in enacting § 314(c), Congress was in any way concerned with whether a particular claimant's tardy filing or failure to file indicated an actual intent to abandon the claim. There are suggestions in the District Court's opinion that, even understood as a forfeiture provision, § 314(c) might be unconstitutional. We therefore go on to consider whether automatic forfeiture of a claim for failure to make annual filings is constitutionally permissible. The framework for analysis of this question, in both its substantive and procedural dimensions, is set forth by our recent decision in Texaco, Inc. v. Shot, 454 U. S. 516 (1982). There we upheld a state statute pursuant to which a severed mineral interest that had not been used for a period of 20 years automatically lapsed and reverted to the current surface owner of the property, unless the mineral owner filed a statement of Page 471 U. S. 104 claim in the county recorder's office within 2 years of the statute's passage. A Under Texaco, we must first address the question of affirmative legislative power: whether Congress is authorized to "provide that property rights of this character shall be extinguished if their owners do not take the affirmative action required by the" statute. Id. at 454 U. S. 525 . Even with respect to vested property rights, a legislature generally has the power to impose new regulatory constraints on the way in which those rights are used, or to condition their continued retention on performance of certain affirmative duties. As long as the constraint or duty imposed is a reasonable restriction designed to further legitimate legislative objectives, the legislature acts within its powers in imposing such new constraints or duties. See, e.g., Village of Euclid v. Ambler Realty, Co., 272 U. S. 365 (1926); Turner v. New York, 168 U. S. 90 , 168 U. S. 94 (1897); Vance v. Vance, 108 U. S. 514 , 108 U. S. 517 (1883); Terry v. Anderson, 95 U. S. 628 (1877). "[L]egislation readjusting rights and burdens is not unlawful solely because it upsets otherwise settled expectations." Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 16 (1976) (citations omitted). This power to qualify existing property rights is particularly broad with respect to the "character" of the property rights at issue here. Although owners of unpatented mining claims hold fully recognized possessory interests in their claims, see Best v. Humboldt Placer Mining Co., 371 U. S. 334 , 371 U. S. 335 (1963), we have recognized that these interests are a "unique form of property." Ibid. The United States, as owner of the underlying fee title to the public domain, maintains broad powers over the terms and conditions upon which the public lands can be used, leased, and acquired. See, e.g., Kleppe v. New Mexico, 426 U. S. 529 , 426 U. S. 539 (1976). "A mining location which has not gone to patent is of no higher quality and no more immune from attack and investigation Page 471 U. S. 105 than are unpatented claims under the homestead and kindred laws. If valid, it gives to the claimant certain exclusive possessory rights, and so do homestead and desert claims. But no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated; otherwise, they work an unlawful private appropriation in derogation of the rights of the public." Cameron v. United States, 252 U. S. 450 , 252 U. S. 460 (1920). Claimants thus must take their mineral interests with the knowledge that the Government retains substantial regulatory power over those interests. Cf. Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400 , 459 U. S. 413 (1983). In addition, the property right here is the right to a flow of income from production of the claim. Similar vested economic rights are held subject to the Government's substantial power to regulate for the public good the conditions under which business is carried out and to redistribute the benefits and burdens of economic life. See, e.g., National Railroad Passenger Corporation v. Atchison, T. & S. F. R. Co., 470 U. S. 451 , 470 U. S. 468 -469 (1985); Usery v. Turner Elkhorn Mining Co., supra; see generally Walls v. Midland Carbon Co., 254 U. S. 300 , 254 U. S. 315 (1920) ("[I]n the interest of the community, [government may] limit one [right] that others may be enjoyed"). Against this background, there can be no doubt that Congress could condition initial receipt of an unpatented mining claim upon an agreement to perform annual assessment work and make annual filings. That this requirement was applied to claims already located by the time FLPMA was enacted, and thus applies to vested claims, does not alter the analysis, for any "retroactive application of [FLPMA] is supported by a legitimate legislative purpose furthered by rational means." Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717 , 467 U. S. 729 (1984). The purposes of applying FLPMA's filing provisions to claims located before the Act was passed -- to rid federal lands of stale mining claims and to Page 471 U. S. 106 provide for centralized collection by federal land managers of comprehensive and up-to-date information on the status of recorded but unpatented mining claims -- are clearly legitimate. In addition, § 314(c) is a reasonable, if severe, means of furthering these goals; sanctioning with loss of their claims those claimants who fail to file provides a powerful motivation to comply with the filing requirement, while automatic invalidation for noncompliance enables federal land managers to know with certainty and ease whether a claim is currently valid. Finally, the restriction attached to the continued retention of a mining claim imposes the most minimal of burdens on claimants; they must simply file a paper once a year indicating that the required assessment work has been performed or that they intend to hold the claim. [ Footnote 15 ] Indeed, Page 471 U. S. 107 appellees could have fully protected their interests against the effect of the statute by taking the minimal additional step of patenting the claims. As a result, Congress was well within its affirmative powers in enacting the filing requirement, in imposing the penalty of extinguishment set forth in § 314(c), and in applying the requirement and sanction to claims located before FLPMA was passed. B We look next to the substantive effect of § 314(c) to determine whether Congress is nonetheless barred from enacting it because it works an impermissible intrusion on constitutionally protected rights. With respect to the regulation of private property, any such protection must come from the Fifth Amendment's proscription against the taking of private property without just compensation. On this point, however, Texaco is controlling: "this Court has never required [Congress] to compensate the owner for the consequences of his own neglect." 454 U.S. at 454 U. S. 530 . Appellees failed to inform themselves of the proper filing deadline and failed to file in timely fashion the documents required by federal law. Their property loss was one appellees could have avoided with minimal burden; it was their failure to file on time -- not the action of Congress -- that caused the property right to be extinguished. Regulation of property rights does not "take" private property when an individual's reasonable, investment-backed expectations can continue to be realized as long as he complies with reasonable regulatory restrictions the legislature has imposed. See, e.g., Miller v. Schoene, 276 U. S. 272 , 276 U. S. 279 -280 (1928); Terry v. Anderson, 95 U.S. at 95 U. S. 632 -633; cf. 30 U. S. Barney's Lessee, 5 Pet. 457, 30 U. S. 465 Page 471 U. S. 108 (1831) ("What right has any one to complain, when a reasonable time has been given him, if he has not been vigilant in asserting his rights?"). C Finally, the Act provides appellees with all the process that is their constitutional due. In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements. Texaco, 454 U.S. at 454 U. S. 532 ; see also Anderson National Bank v. Luckett, 321 U. S. 233 , 321 U. S. 243 (1944); North Laramie Land Co. v. Hoffman, 268 U. S. 276 , 268 U. S. 283 (1925). Here there can be no doubt that the Act's recording provisions meet these minimal requirements. Although FLPMA was enacted in 1976, owners of existing claims, such as appellees, were not required to make an initial recording until October, 1979. This 3-year period, during which individuals could become familiar with the requirements of the new law, surpasses the 2-year grace period we upheld in the context of a similar regulation of mineral interests in Texaco. Moreover, the specific annual filing obligation at issue in this case is not triggered until the year after which the claim is recorded initially; thus, every claimant in appellees' position already has filed once before the annual filing obligations come due. That these claimants already have made one filing under the Act indicates that they know, or must be presumed to know, of the existence of the Act and of their need to inquire into its demands. [ Footnote 16 ] The Page 471 U. S. 109 requirement of an annual filing thus was not so unlikely to come to the attention of those in the position of appellees as to render unconstitutional the notice provided by the 3-year grace period. [ Footnote 17 ] Despite the fact that FLPMA meets the three standards laid down in Texaco for the imposition of new regulatory restraints on existing property rights, the District Court seemed to believe that individualized notice of the filing deadlines was nonetheless constitutionally required. The District Court felt that such a requirement would not be "overly burdensome" to the Government, and would be of great benefit to mining claimants. The District Court may well be right that such an individualized notice scheme would be a sound means of administering the Act. [ Footnote 18 ] But in the regulation of private property rights, the Constitution offers the courts no warrant to inquire into whether some other scheme might be more rational or desirable than the one chosen by Congress; as long as the legislative scheme is a rational way of reaching Congress' objectives, the efficacy of alternative routes is for Congress alone to consider. "It is enough to say that the Act approaches the problem of [developing a national recording system] rationally; whether a [different notice scheme] would have been wiser or more practical under the circumstances is not a question of constitutional dimension." Usery v. Turner Elkhorn Mining, 428 U.S. at 428 U. S. 19 . Because we deal here with purely economic legislation, Congress was entitled to conclude that it was preferable Page 471 U. S. 110 to place a substantial portion of the burden on claimants to make the national recording system work. See ibid.; Weinberger v. Salfi, 422 U. S. 749 (1975); Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973). The District Court therefore erred in invoking the Constitution to supplant the valid administrative scheme established by Congress. The judgment below is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. [ Footnote 1 ] See generally Strauss, Mining Claims on Public Lands: A Study of Interior Department Procedures, 1974 Utah L.Rev. 185, 193, 215-219. [ Footnote 2 ] The text of 43 U.S.C. § 1744 provides, in relevant part, as follows: "Recordation of Mining Claims" "(a) Filing requirements" "The owner of an unpatented lode or placer mining claim located prior to October 21, 1976, shall, within the three-year period following October 21, 1976, and prior to December 31 of each year thereafter, file the instruments required by paragraphs (1) and (2) of this subsection. . . ." "(1) File for record in the office where the location notice or certificate is recorded either a notice of intention to hold the mining claim (including but not limited to such notices as are provided by law to be filed when there has been a suspension or deferment of annual assessment work), an affidavit of assessment work performed thereon, on a detailed report provided by section 28-1 of title 30, relating thereto." "(2) File in the office of the Bureau designated by the Secretary a copy of the official record of the instrument filed or recorded pursuant to paragraph (1) of this subsection, including a description of the location of the mining claim sufficient to locate the claimed lands on the ground." "(b) Additional filing requirements" "The owner of an unpatented lode or placer mining claim or mill or tunnel site located prior to October 21, 1976, shall, within the three-year period following October 21, 1976, file in the office of the Bureau designated by the Secretary a copy of the official record of the notice of location or certificate of location, including a description of the location of the mining claim or mill or tunnel site sufficient to locate the claimed lands on the ground. The owner of an unpatented lode or placer mining claim or mill or tunnel site located after October 21, 1976, shall, within ninety days after the date of location of such claim, file in the office of the Bureau designated by the Secretary a copy of the official record of the notice of location or certificate of location, including a description of the location of the mining claim or mill or tunnel site sufficient to locate the claimed lands on the ground." "(c) Failure to file as constituting abandonment; defective or untimely filing" "The failure to file such instruments as required by subsections (a) and (b) of this subsection shall be deemed conclusively to constitute an abandonment of the mining claim or mill or tunnel site by the owner; but it shall not be considered a failure to file if the instrument is defective or not timely filed for record under other Federal laws permitting filing or recording thereof, or if the instrument is filed for record by or on behalf of some but not all of the owners of the mining claim or mill or tunnel site." [ Footnote 3 ] A somewhat different scheme applies to claims located after October 21, 1976, the date the Act took effect. [ Footnote 4 ] Complaint 112. [ Footnote 5 ] Id. 1115. [ Footnote 6 ] 573 F. Supp. 472 , 474 (1983). From 1960 to 1980, total gross income from the claims exceeded $4 million. Ibid. [ Footnote 7 ] An affidavit submitted to the District Court by one of appellees' employees stated that BLM officials in Ely had told the employee that the filing could be made at the BLM Reno office "on or before December 31, 1980." Affidavit of Laura C. Locke 113. The 1978 version of a BLM question and answer pamphlet erroneously stated that the annual filings had to be made "on or before December 31" of each year. Staking a Mining Claim on Federal Lands 9-10 (1978). Later versions have corrected this error to bring the pamphlet into accord with the BLM regulations that require the filings to be made "on or before December 30." JUSTICE STEVENS and JUSTICE POWELL seek to make much of this pamphlet and of the uncontroverted evidence that appellees were told a December 31 filing would comply with the statute. See post at 471 U. S. 117 , 471 U. S. 122 , 471 U. S. 128 . However, at the time appellees filed in 1980, BLM regulations and the then-current pamphlets made clear that the filing was required "on or before December 30." Thus, the dissenters' reliance on this pamphlet would seem better directed to the claim that the United States was equitably estopped from forfeiting appellees' claims, given the advice of the BLM agent and the objective basis the 1978 pamphlet provides for crediting the claim that such advice was given. The District Court did not consider this estoppel claim. Without expressing any view as to whether, as a matter of law, appellees could prevail on such a theory, see Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51 (1984), we leave any further treatment of this issue, including fuller development of the record, to the District Court on remand. [ Footnote 8 ] That the District Court decided the case on both constitutional and statutory grounds does not affect this Court's obligation under 28 U.S.C. § 1252 to take jurisdiction over the case; as long as the unconstitutionality of an Act of Congress is one of the grounds of decision below in a civil suit to which the United States is a party, appeal lies directly to this Court. United States v. Rock Royal Co-operative, Inc., 307 U. S. 533 , 307 U. S. 541 (1939). Another District Court in the West similarly has declared § 314(c) unconstitutional with respect to invalidation of claims based on failure to meet the initial recordation requirements of § 314(a) in timelier fashion. Rogers v. United States, 575 F. Supp. 4 (Mont.1982). [ Footnote 9 ] When the nonconstitutional questions have not been passed on by the lower court, we may vacate the decision below and remand with instructions that those questions be decided, see Youakim v. Miller, 425 U. S. 231 (1976), or we may choose to decide those questions ourselves without benefit of lower court analysis, see United States v. Clark. The choice between these options depends on the extent to which lower court factfinding and analysis of the nonconstitutional questions will be necessary or useful to our disposition of those questions. [ Footnote 10 ] Statutory filing deadlines are generally subject to the defenses of waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U. S. 385 , 455 U. S. 392 -398 (1982). Whether this general principle applies to deadlines that run in favor of the Government is a question on which we express no opinion today. In addition, no showing has been made that appellees were in any way "unable to exercise the usual care and diligence" that would have allowed them to meet the filing deadline or to learn of its existence. See United States v. Boyle, 469 U. S. 241 , 469 U. S. 253 (1985) (BRENNAN, J., concurring). Of course, at issue in Boyle was an explicit provision in the Internal Revenue Code that provided a reasonable-cause exception to the Code's filing deadlines, while FLPMA contains no analogous provision. [ Footnote 11 ] Legislative drafting books are filled with suggestions that the phrase "prior to" be replaced with the word "before," see, e.g., R. Dickerson, Materials on Legal Drafting 293 (1981), but we have seen no suggestion that "prior to" be replaced with "on or before" -- a phrase with obviously different substantive content. [ Footnote 12 ] We note that the United States Code is sprinkled with provisions that require action "prior to" some date, including at least 14 provisions that contemplate action "prior to December 31." See 7 U.S.C. § 609(b)(5); 12 U.S.C. § 1709(o)(1)(E); 12 U.S.C. § 1823(g); 12 U.S.C. § 1841(a)(5)(A); 22 U.S.C. § 3784(c); 26 U.S.C. § 503(d)(1); 33 U.S.C. § 1319(a)(5)(B); 42 U.S.C. § 415(a)(7)(E)(ii) (1982 ed., Supp. III); 42 U.S.C. § 1962(d)7(b); 42 U.S.C. § 5614(b)(5); 42 U.S.C. § 7502(a)(2); 42 U.S.C. § 7521(b)(2); 43 U.S.C. § 1744(a); 50 U.S.C.App. § 1741(b)(1). Dozens of state statutes and local ordinances undoubtedly incorporate similar "prior to December 31" deadlines. In addition, legislatures know how to make explicit an intent to allow action on December 31 when they employ a December 31 date in a statute. See, e.g., 7 U.S.C. § 609(b)(2); 22 U.S.C. §§ 3303 (b)(3)(B) and (c); 43 U.S.C. § 256a. It is unclear whether the arguments advanced by the dissenters are meant to apply to all of these provisions or only to some of them; if the latter, we are given little guidance as to how a court is to go about the rather eclectic task of choosing which "prior to December 31" deadlines it can interpret "flexibly." Understandably enough, the dissenters seek to disavow any intent to call all these "prior to December 31" deadlines into question, and assure us that this is a "unique case," post at 471 U. S. n. 4 (POWELL, J., dissenting), involving a "unique factual matrix," post at 471 U. S. 128 (STEVENS, J., dissenting). The only thing we can find unique about this particular December 31 deadline is that the dissenters are willing to go through such tortured reasoning to evade it. [ Footnote 13 ] The Senate bill required only initial recordings, not annual filings, but this factor is not significant in light of the actions of the Conference Committee; the clear structure of the Senate bill was to impose the sanction of claim extinguishment on those who failed to make whatever filings federal law required. [ Footnote 14 ] Since 1982, BLM regulations have provided that filings due on or before December 30 will be considered timely if postmarked on or before December 30 and received by BLM by the close of business on the following January 19. 43 CFR § 3833.0-5(m) (1983). Appellees and the dissenters attempt to transform this regulation into a blank check generally authorizing "substantial compliance" with the filing requirements. We disagree for two reasons. First, the regulation was not in effect when appellees filed in 1980; it therefore cannot now be relied on to validate a purported "substantial compliance" in 1980. Second, that an agency has decided to take account of holiday mail delays by treating as timely filed a document postmarked on the statutory filing date does not require the agency to accept all documents hand-delivered any time before January 19. The agency rationally could decide that either of the options in this sort of situation -- requiring mailings to be received by the same date that hand-deliveries must be made or requiring mailings to be postmarked by that date -- is a sound way of administering the statute. JUSTICE SEVENS further suggests that BLM would have been well within its authority to promulgate regulations construing the statute to allow for December 31 filings. Assuming the correctness of this suggestion, the fact that two interpretations of a statute are equally reasonable suggests to us that the agency's interpretation is sufficiently reasonable as to be acceptable. See FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27 , 454 U. S. 39 (1981). [ Footnote 15 ] Appellees suggest that Texaco, Inc. v. Short, 454 U. S. 516 (1982), further requires that the restriction imposed be substantively reasonable in the sense that it adequately relate to some common law conception of the nature of the property right involved. Thus, appellees point to the fact that, in Texaco, failure to file could produce a forfeiture only if, in addition, the mineral interest had lain dormant for 20 years; according to appellees, conjunction of a 20-year dormancy period with failure to file a statement of claim sufficiently indicated abandonment, as that term is understood at common law, to justify the statute. Common law principles do not, however, entitle an individual to retain his property until the common law would recognize it as abandoned. Legislatures can enact substantive rules of law that treat property as forfeited under conditions that the common law would not consider sufficient to indicate abandonment. See Hawkins v. Barney's Lessee , 5 Pet. 457, 30 U. S. 467 (1831) ("What is the evidence of an individual having abandoned his rights or property? It is clear that the subject is one over which every community is at liberty to make a rule for itself"). As long as proper notice of these rules exists, and the burdens they impose are not so wholly disproportionate to the burdens other individuals face in a highly regulated society that some people are being forced "alone to bear public burdens which, in all fairness and justice, must be borne by the public as a whole," Armstrong v. United States, 364 U. S. 40 , 364 U. S. 49 (1960), the burden imposed is a reasonable restriction on the property right. Here Congress has chosen to redefine the way in which an unpatented mining claim can be lost through imposition of a filing requirement that serves valid public objectives, imposes the most minimal of burdens on property holders, and takes effect only after appellees have had sufficient notice of their need to comply and a reasonable opportunity to do so. That the filing requirement meets these standards is sufficient, under Texaco, to make it a reasonable restriction on the continued retention of the property right. [ Footnote 16 ] As a result, this is not a case in which individual notice of a statutory change must be given because a statute is "sufficiently unusual in character, and triggered in circumstances so commonplace, that an average citizen would have no reason to regard the triggering event as calling for a heightened awareness of one's legal obligations." Texaco, 454 U.S. at 454 U. S. 547 (BRENNAN, J., dissenting). [ Footnote 17 ] BLM does provide for notice and a hearing on the adjudicative fact of whether the required filings were actually made, and appellees availed themselves of this process by appealing, to the Department of Interior Board of Land Appeals, the BLM order that extinguished their claims for failure to make a timely filing. [ Footnote 18 ] In the exercise of its administrative discretion, BLM for the last several years has chosen to mail annual reminder notices to claimants several months before the end of the year; according to the Government, these notices state: "[Y]ou must file on or before 12/30 [of the relevant year]. Failure to file timely with the proper BLM office will render your claim abandoned." Brief for Appellants 31-32, n. 22. JUSTICE O'CONNOR, concurring. I agree that the District Court erred in holding that § 314(c) of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. § 1744(c), violates due process by creating an "irrebuttable presumption" of abandonment. Whatever the force of Vlandis v. Kline, 412 U. S. 441 (1973), beyond the facts underlying that case, I believe that § 314(c) comports with due process under the analysis of our later decision in Weinberger v. Salfi, 422 U. S. 749 (1975). Because I also believe that the statute does not otherwise violate the Fifth Amendment, and that the District Court erred in its alternative holding that substantial compliance satisfies the filing requirements of § 314 and corresponding regulations, I agree that the judgment below must be reversed. Nonetheless, I share many of the concerns expressed in the dissenting opinions of JUSTICE POWELL and JUSTICE STEVENS. If the facts are as alleged by appellees, allowing the Bureau of Land Management (BLM) to extinguish active mining claims that appellees have owned and worked for more than 20 years would seem both unfair and inconsistent with the purposes underlying FLPMA. The Government has not disputed that appellees sought in good faith to comply with the statutory deadline. Appellees contend that, in order to meet the requirements of § 314, they contacted the BLM and were informed by agency personnel Page 471 U. S. 111 that they could file the required materials on December 31, 1980. Appellees apparently relied on this advice and hand-delivered the appropriate documents to the local BLM office on that date. The BLM accepted the documents for filing, but some three months later sent appellees a notice stating that their mining claims were "abandoned and void" because the filing was made on, rather than prior to, December 31, 1980. Although BLM regulations clarify the filing deadlines contained in § 314, the existence of those regulations does not imply that appellees were unjustified in their confusion concerning the deadlines or in their reliance on the advice provided by BLM's local office. The BLM itself in 1978 issued an explanatory pamphlet stating that the annual filings were to be made "on or before December 31" of each year. Ante at 471 U. S. 89 -90, n. 7. Moreover, the BLM evidently has come to understand the need to clarify the nature of the annual filing requirement, because it now sends reminder notices every year to holders of recorded mining claims warning them that the deadline is approaching and that filings must be made on or before December 30. The unusual facts alleged by appellees suggest that the BLM's actions might estop the Government from relying on § 314(c) to obliterate a property interest that has provided a family's livelihood for decades. The Court properly notes that the estoppel issue was not addressed by the District Court, and will be open on remand. Ante at 471 U. S. 89 -90, n. 7. In this regard, I merely note that, in my view, our previous decisions do not preclude application of estoppel in this context. In Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51 (1984), we expressly declined to adopt "a flat rule that estoppel may not in any circumstances run against the Government." Id. at 467 U. S. 60 . Such a rule was unnecessary to the decision in that case, and we noted our reluctance to hold that "there are no cases in which the public interest in ensuring that the Government can enforce the law free from estoppel might be outweighed by the countervailing Page 471 U. S. 112 interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government." Id. at 471 U. S. 60 -61 (footnote omitted). Although "it is well settled that the Government may not be estopped on the same terms as any other litigant," id. at 471 U. S. 60 (footnote omitted), we have never held that the Government can extinguish a vested property interest that has been legally held and actively maintained for more than 20 years merely because the private owners relied on advice from agency personnel concerning a poorly worded statutory deadline and consequently missed a filing deadline by one day. Thus, if the District Court ultimately determines that appellees reasonably relied on communications from the BLM in making their annual filing on December 31, 1980, our previous decisions would not necessarily bar application of the doctrine of equitable estoppel. Accordingly, the fact that the Court reverses the decision of the District Court does not establish that appellees must ultimately forfeit their mining claims. JUSTICE POWELL, dissenting. I agree with much of JUSTICE STEVENS' dissent. I write separately only because, under the special circumstances of this case, I do not believe it necessary to decide what Congress actually intended. Even if the Court is correct in believing that Congress intended to require filings on or before the next-to-the-last day of the year, rather than, more reasonably, by the end of the calendar year itself, the statutory deadline is too uncertain to satisfy constitutional requirements. It simply fails to give property holders clear and definite notice of what they must do to protect their existing property interests. As the Court acknowledges, ante at 471 U. S. 86 , the Government since the 19th century has encouraged its citizens to discover and develop certain minerals on the public lands. Under the general mining laws, 30 U.S.C. § 22 et seq., an individual who locates a mining claim has the right of exclusive possession Page 471 U. S. 113 of the land for mining purposes, and may extract and sell minerals he finds there without paying a royalty to the Federal Government. § 26. After making a valuable mineral discovery, the claimant may hold the claim so long as he performs $100 worth of assessment work each year. § 28. If he performs certain additional conditions, the claimant may patent the claim for a nominal sum and thereby obtain further rights over the land and minerals. See § 29. Until recently, there were no federal recordation requirements. Faced with the uncertainty stale mining claims had created as to property rights on public lands, Congress enacted § 314 of the Federal Land Policy and Management Act of 1976, 90 Stat. 2769, 43 U.S.C. § 1744. [ Footnote 2/1 ] This provision required existing claimholders to record their claims in order to retain them. More specifically, it required that "within the three-year period following October 21, 1976, and prior to December 31 of each year thereafter," § 1744(a), claimholders file with Page 471 U. S. 114 the Bureau of Land Management (BLM) a copy of a notice of intention to retain their claims, an affidavit of assessment work, or a special form, §§ 1744(a)(1) and (2). Failure to make either the initial or a subsequent yearly filing was to "be deemed conclusively to constitute an abandonment of the mining claim. . . ." § 1744(c). Appellees (the Lockes) are owners of 10 unpatented mining claims on federal land in Nevada. Appellees' predecessors located these claims in 1952 and 1954, and appellees have, since they purchased the claims in 1960, earned their livelihood by producing gravel and other building materials from them. From 1960 to the present, they have produced approximately $4 million worth of materials. During the 1979-1980 assessment year alone, they produced gravel and other materials worth more than $1 million. In no sense were their claims stale. The Lockes fully complied with § 314's initial recordation requirement by properly filing a notice of location on October 19, 1979. In order to ascertain how to comply with the subsequent yearly recordation requirements, the Lockes sent their daughter, who worked in their business office, to the Ely, Nevada, office of the BLM. There she inquired into how and when they should file the assessment notice and was told, among other things, that the documents should be filed at the Reno office "on or before December 31, 1980." 573 F. Supp. 472 , 474 (Nev.1983). Following this advice, the Lockes hand-delivered their documents at the Reno office on that date. On April 4, 1981, they received notice from the BLM that their mining claims were "abandoned and void," App. to Juris. Statement 22a, because they had filed on, rather than prior to, December 31. [ Footnote 2/2 ] It is this 1-day difference Page 471 U. S. 115 in good faith interpretation of the statutory deadline that gives rise to the present controversy. JUSTICE STEVENS correctly points to a number of circumstances that cast doubt both on the care with which Congress drafted § 314 and on its meaning. Specifically, he notes that (i) the section does not clearly describe what must be filed, let alone when it must be filed; (ii) BLM's rewording of the deadline in its implementing regulations, 43 CFR § 3833.2-1(a)(1) (1984), indicates that the BLM itself considered the statutory deadline confusing; (iii) lest there be any doubt that the BLM recognized this possible confusion, even it had described the section in a pamphlet distributed to miners in 1978 as requiring filing "on or before December 31 "; (iv) BLM, charged with enforcing the section, has interpreted it quite flexibly; and (v) irrationally requiring property holders to file by one day before the end of the year, rather than by the end of the year itself, creates "a trap for the unwary," post at 471 U. S. 123 . As JUSTICE STEVENS also states, these facts, particularly the last, suggest not only that Congress drafted § 314 inartfully but also that Congress may actually have intended to require filing "on or before," not "prior to," December 31. This is certainly the more reasonable interpretation of congressional intent, and is consistent with all the policies of the Act. I do not believe, however, that given the special circumstances of this case, we need determine what Congress actually intended. As the Court today recognizes, the Takings Clause imposes some limitations on the Government's power to impose forfeitures. Ante at 471 U. S. 103 -108. In Texaco, Inc. v. Short, 454 U. S. 516 (1982), we identified one of the most important of these limitations when we stated that "the State has the power to condition the permanent retention of [a] Page 471 U. S. 116 property right on the performance of reasonable conditions. . . . " Id. at 454 U. S. 526 (emphasis added); accord, 28 U. S. Lamphire, 3 Pet. 280, 28 U. S. 290 (1830) ("Cases may occur where the [forfeiture] provisio[n] . . . may be so unreasonable as to amount to a denial of a right, and call for the interposition of the court . . ."). Furthermore, conditions, like those here, imposed after a property interest is created, must also meet due process standards. Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 , 428 U. S. 16 -17 (1976). These standards require, among other things, that there be no question as to what actions an individual must take to protect his interests. Texaco, Inc. v. Short, supra, at 454 U. S. 532 -533. Together, the Takings and Due Process Clauses prevent the Government from depriving an individual of property rights arbitrarily. In the present case, there is no claim that a yearly filing requirement is itself unreasonable. Rather, the claim arises from the fact that the language "prior to December 31" creates uncertainty as to when an otherwise reasonable filing period ends. [ Footnote 2/3 ] Given the natural tendency to interpret this phrase as "by the end of the calendar year," rather than "on or before the next-to-the-last day of the calendar year," I believe this uncertainty violated the standard of certainty Page 471 U. S. 117 and definiteness that the Constitution requires. The statement in at least one of the Government's own publications that filing was required "on or before December 31," Department of the Interior, Staking a Mining Claim on Federal Lands 10 (1978), supports this conclusion. Terminating a property interest because a property holder reasonably believed that, under the statute, he had an additional day to satisfy any filing requirements is no less arbitrary than terminating it for failure to satisfy these same conditions in an unreasonable amount of time. Cf. Wilson v. Iseminger, 185 U. S. 55 , 185 U. S. 62 (1902); Terry v. Anderson, 95 U. S. 628 , 95 U. S. 632 -633 (1877). Although the latter may rest on impossibility, the former rests on good faith performance a day late of what easily could have been performed the day before. Neither serves a purpose other than forcing an arbitrary forfeiture of property rights to the State. I believe the Constitution requires that the law inform the property holder with more certainty and definiteness than did § 314 when he must fulfill any recording requirements imposed after a property interest is created. Given the statutory uncertainty here, I would find a forfeiture imposed for filing on December 31 to be invalid. [ Footnote 2/4 ] I accordingly dissent. [ Footnote 2/1 ] Section 314(a), 43 U.S.C. § 1744(a), states in its entirety: "Recordation of Mining Claims" "(a) Filing requirements" "The owner of an unpatented lode or placer mining claim located prior to October 21, 1976, shall, within the three-year period following October 21, 1976, and prior to December 31 of each year thereafter, file the instruments required by paragraphs (1) and (2) of this subsection. The owner of an unpatented lode or placer mining claim located after October 21, 1976, shall, prior to December 31 of each year following the calendar year in which the said claim was located, file the instruments required by paragraphs (1) and (2) of this subsection:" "(1) File for record in the office where the location notice or certificate is recorded either a notice of intention to hold the mining claim (including but not limited to such notices as are provided by law to be filed when there has been a suspension or deferment of annual assessment work), an affidavit of assessment work performed thereon, on [ sic ] a detailed report provided by section 28-1 of title 30, relating thereto." "(2) File in the office of the Bureau designated by the Secretary a copy of the official record of the instrument filed or recorded pursuant to paragraph (1) of this subsection, including a description of the location of the mining claim sufficient to locate the claimed lands on the ground." [ Footnote 2/2 ] The notice from the BLM also stated that, "[s]ubject to valid intervening rights of third parties or the United States void or abandoned claims or sites may be relocated and, based on the new location date, the appropriate instruments may be refiled within the time periods prescribed by the regulations." App. to Juris. Statement 22a. Unlike most claimants, however, the Lockes were unable to relocate their claims because the Common Varieties Act of 1955, 30 U.S.C. § 611 et seq., had withdrawn deposits of common building materials from coverage of the general mining laws. To them, forfeiture meant not relocation and refiling, but rather irrevocable loss of their claims -- the source of their livelihood. [ Footnote 2/3 ] The Court believes it is "obligated to apply the prior to December 31' language by its terms" because "its meaning is clear." Ante at 471 U. S. 96 . Such clarity, however, is not to be found in the words themselves. Courts, for example, have used these same words in similar contexts clearly to mean "by the end of the year," e.g., AMF Inc. v. Jewett, 711 F.2d 1096, 1108, 1115 (CA1 1983); Bay State Gas Co. v. Commissioner, 689 F.2d 1, 2 (CA1 1982), or have contrasted them with other phrases such as "[f]rom January 1," NYSA-ILA Vacation & Holiday Fund v. Waterfront Comm'n of New York Harbor, 732 F.2d 292, 295, and n. 6 (CA2), cert. denied, 469 U.S. 852 (1984), or "after December 31," Peabody Coal Co. v. Lowis, 708 F.2d 266, 267, n. 3 (CA7 1983), in ways that strongly suggest this meaning. Various administrative agencies have also followed this same usage in promulgating their regulations. E.g., 24 CFR § 570.423(b) (1984); 31 CFR § 515.560(i) (1984); 40 CFR § 52.1174 (1984). [ Footnote 2/4 ] Parties, of course, ordinarily are bound to the consequences of their failing strictly to meet statutory deadlines. This is true, for example, as to statutes of limitations and other filing deadlines clearly specified. Because of the special circumstances JUSTICE STEVENS identifies and the constitutional concerns identified above, this case is unique. JUSTICE STEVENS, with whom JUSTICE BRENNAN joins, dissenting. The Court's opinion is contrary to the intent of Congress, engages in unnecessary constitutional adjudication, and unjustly creates a trap for unwary property owners. First, the choice of the language "prior to December 31," when read in Page 471 U. S. 118 context in 43 U.S.C. § 1744(a) [ Footnote 3/1 ] is, at least, ambiguous, and, at best, "the consequence of a legislative accident, perhaps caused by nothing more than the unfortunate fact that Congress Page 471 U. S. 119 is too busy to do all of its work as carefully as it should. [ Footnote 3/2 ]" In my view, Congress actually intended to authorize an annual filing at any time prior to the close of business on December 31st, that is, prior to the end of the calendar year to which the filing pertains. [ Footnote 3/3 ] Second, even if Congress irrationally intended that the applicable deadline for a calendar year should end one day before the end of the calendar year that has been recognized since the amendment of the Julian Calendar in 8 B.C., it is clear that appellees have substantially complied with the requirements of the statute, in large part because the Bureau of Land Management has issued interpreting regulations that recognize substantial Page 471 U. S. 120 compliance. Further, the Court today violates not only the long-followed principle that a court should "not pass on the constitutionality of an Act of Congress if a construction of the statute is fairly possible by which the question may be avoided, [ Footnote 3/4 ]" but also the principle that a court should "not decide a constitutional question if there is some other ground upon which to dispose of the case." [ Footnote 3/5 ] I Congress enacted § 314 of the Federal Land Policy and Management Act to establish for federal land planners and managers a federal recording system designed to cope with the problem of stale claims, and to provide "an easy way of discovering which Federal lands are subject to either valid or invalid mining claim locations." [ Footnote 3/6 ] I submit that the appellees' actions in this case did not diminish the importance of these congressional purposes; to the contrary, their actions were entirely consistent with the statutory purposes, despite the confusion created by the "inartful draftsmanship" of the statutory language. [ Footnote 3/7 ] A careful reading of § 314 discloses at least three respects in which its text cannot possibly reflect the actual intent of Congress. First, the description of what must be filed in the initial filing and subsequent annual filings is quite obviously garbled. Read literally, § 314(a)(2) seems to require that a Page 471 U. S. 121 notice of intent to hold the claim and an affidavit of assessment work performed on the claim must be filed "on a detailed report provided by § 28-1 of Title 30." One must substitute the word "or" for the word "on" to make any sense at all out of this provision. This error should cause us to pause before concluding that Congress commanded blind allegiance to the remainder of the literal text of § 314. Second, the express language of the statute is unambiguous in describing the place where the second annual filing shall be made. If the statute is read inflexibly, the owner must "file in the office of the Bureau" the required documents. [ Footnote 3/8 ] Yet the regulations that the Bureau itself has drafted, quite reasonably, construe the statute to allow filing in a mailbox, provided that the document is actually received by the Bureau prior to the close of business on January 19th of the year following the year in which the statute requires the filing to be made. [ Footnote 3/9 ] A notice mailed on December 30, 1982, and received by the Bureau on January 19, 1983, was filed "in the office of the Bureau" during 1982 within the meaning of the statute, but one that is hand-delivered to the office on December 31, 1982, cannot be accepted as a 1982 "filing." The Court finds comfort in the fact that the implementing regulations have eliminated the risk of injustice. Ante at 471 U. S. 94 . But if one must rely on those regulations, it should be apparent that the meaning of the statute itself is not all that obvious. Page 471 U. S. 122 To begin with, the regulations do not use the language "prior to December 31"; instead, they use "on or before December 30 of each year." [ Footnote 3/10 ] The Bureau's drafting of the regulations using this latter phrase indicates that the meaning of the statute itself is not quite as "plain," ante at 471 U. S. 93 , as the Court assumes; if the language were plain, it is doubtful that the Bureau would have found it necessary to change the language at all. Moreover, the Bureau, under the aegis of the Department of the Interior, once issued a pamphlet entitled "Staking a Mining Claim on Federal Lands" that contained the following information: "Owners of claims or sites located on or before Oct. 21, 1976, have until Oct. 22, 1979, to file evidence of assessment work performed the preceding year or to file a notice of intent to hold the claim or site. Once the claim or site is recorded with BLM, these documents must be filed on or before December 31 of each subsequent year. " Id. at 9-10 (1978) (emphasis added). "Plain language," ante at 471 U. S. 93 , indeed. There is a more important reason why the implementing regulations cannot be supportive of the result the Court reaches today: the Bureau's own deviation from the statutory language in its mail-filing regulation. See 471 U.S. 84 fn3/9|>n. 9, supra. If the Bureau had issued regulations expressly stating that a Page 471 U. S. 123 December 31 filing would be considered timely -- just as it has stated that a mail filing received on January 19 is timely -- it is inconceivable that anyone would question the validity of its regulation. It appears, however, that the Bureau has more power to interpret an awkwardly drafted statute in an enlightened manner consistent with Congress' intent than does this Court. [ Footnote 3/11 ] In light of the foregoing, I cannot believe that Congress intended the words "prior to December 31 of each year" to be given the literal reading the Court adopts today. The statutory scheme requires periodic filings on a calendar-year basis. The end of the calendar year is, of course, correctly described either as "prior to the close of business on December 31," or "on or before December 31," but it is surely understandable that the author of § 314 might inadvertently use the words "prior to December 31" when he meant to refer to the end of the calendar year. As the facts of this case demonstrate, the scrivener's error is one that can be made in good faith. The risk of such an error is, of course, the greatest when the reference is to the end of the calendar year. That it was in fact an error seems rather clear to me, because no one has suggested any rational basis for omitting just one day from the period in which an annual filing may be made, and I would not presume that Congress deliberately created a trap for the unwary by such an omission. Page 471 U. S. 124 It would be fully consistent with the intent of Congress to treat any filing received during the 1980 calendar year as a timely filing for that year. Such an interpretation certainly does not interfere with Congress' intent to establish a federal recording system designed to cope with the problem of stale mining claims on federal lands. The system is established, and apparently, functioning. [ Footnote 3/12 ] Moreover, the claims here were active; the Bureau was well aware that the appellees intended to hold and to operate their claims. Additionally, a sensible construction of the statute does not interfere with Congress' intention to provide "an easy way of discovering which Federal lands are subject to either valid or Page 471 U. S. 125 invalid mining claim locations." [ Footnote 3/13 ] The Bureau in this case was well aware of the existence and production of appellees' mining claims; only by blinking reality could the Bureau reach the decision that it did. It is undisputed that the appellees made the first 1980 filing on August 29, 1980, and made the second required filing on December 31, 1980; the Bureau did not declare the mining claims "abandoned and void" until April 4, 1981. Thus, appellees lost their entire livelihood for no practical reason, contrary to the intent of Congress, and because of the hypertechnical construction of a poorly drafted statute, which an agency interprets to allow "filings" far beyond December 30 in some circumstances, but then interprets inflexibly in others. [ Footnote 3/14 ] Appellants acknowledge that "[i]t may well be that Congress wished to require filing by the end of the calendar year and that the earlier deadline resulted from careless draftsmanship." Brief for Appellants 42, n. 31. I have no doubt that Congress would have chosen to adopt a construction of the statute that filing take place by the end of the calendar year if its attention had been focused on this precise issue. Cf. DelCostello v. Teamsters, 462 U. S. 151 , 462 U. S. 158 (1983). [ Footnote 3/15 ] Page 471 U. S. 126 II After concluding its constitutional analysis, the District Court also held that "the standard to be applied to assessment notice requirements is substantial compliance. Measured against this, the Lockes have satisfied their statutory duties under Section 1744 by filing their notices one day late. [ Footnote 3/16 ]" The District Court grounded its holding on this Court's analysis in Hickel v. Oil Shale Corp., 400 U. S. 48 (1970). In Hickel, the Court construed 30 U.S.C. § 28, which reads: "On each claim located after the 10th day of May 1872, and until a patent has been issued therefor, not less than $100 worth of labor shall be performed or improvements Page 471 U. S. 127 made during each year. . . . [U]pon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location." (Emphasis added.) Recognizing that a claimant's "possessory title" should not be disturbed on "flimsy or insubstantial grounds," 400 U.S. at 471 U. S. 57 , the Court wrote: "We agree . . . that every default in assessment work does not cause the claim to be lost. Defaults, however, might be the equivalent of abandonment; and we now hold that token assessment work, or assessment work that does not substantially satisfy the requirements of 30 U.S.C. § 28, is not adequate to 'maintain' the claims within the meaning of § 37 of the Leasing Act. To hold otherwise would help defeat the policy that made the United States, as the prospective recipient of royalties, a beneficiary of these oil shale claims. We cannot support [ Wilbur v. Krushnic, 280 U. S. 306 (1930),] and [ Ickes v. Virginia-Colorado Development Corp., 295 U. S. 639 (1935)], on so broad a ground. Rather, their dicta to the contrary, we conclude that they must be confined to situations where there had been substantial compliance with the assessment work requirements. . . ." Ibid. Hickel thus demonstrates that the District Court was correct that substantial compliance analysis was appropriate in this case, and that appellees substantially complied with the statute. Appellees earned their livelihood since 1960 by mining the 10 unpatented mining claims now in dispute. [ Footnote 3/17 ] They paid income taxes, and property and production taxes to the State of Nevada, which appears as an amicus in support Page 471 U. S. 128 of appellees. The statute, passed in 1976, required appellees to register their mining claims "in the office where the location notice or certificate is recorded" and "in the office of the Bureau" by October 21, 1979; it is not disputed that appellees met the statute's two initial filing requirements. [ Footnote 3/18 ] Moreover, the statute required, within three years of October 21, 1976, that appellees file "in the office of the Bureau designated by the Secretary a copy of the official record of the notice of location or certificate of location." [ Footnote 3/19 ] Appellees also met this third requirement, thus completely informing the Bureau of the existence, the sizes, the locations, and the ownership of appellees' active mining claims. After the three initial filing requirements, the statute required that appellees make two separate annual filings: (1) an initial filing with the county recorder; and (2) a copy of the official record of the first filing filed with the Bureau. Appellees made the first of these filings for the 1980 calendar year on August 29, 1980. Because 1980 was generally the first year that claimants -- including appellees -- had to comply with the annual filing requirements that the new legislation mandated, the Bureau began the practice of mailing reminder notices about the filing due in the Bureau's office. Appellants acknowledge that appellees did not receive a reminder notice. [ Footnote 3/20 ] Nevertheless, appellees responsibly inquired about the date of filing with the Bureau for the 1980 calendar year; it is undisputed that Bureau personnel informed them that the filing was due "on or before December 31, 1980." [ Footnote 3/21 ] On December 31, 1980, appellees made a 700-mile round trip from Ely to Reno, Nevada, to hand-deliver their filings to the Bureau. The Bureau accepted the filings on that date. [ Footnote 3/22 ] In my view, this unique factual matrix unequivocally contradicts the statutory presumption of an intent to abandon by Page 471 U. S. 129 reason of a late filing. In sum, this case presents an ambiguous statute, which, if strictly construed, will destroy valuable rights of appellees, property owners who have complied with all local and federal statutory filing requirements apart from a 1-day "late" filing caused by the Bureau's own failure to mail a reminder notice necessary because of the statute's ambiguity and caused by the Bureau's information to appellees that the date on which the filing occurred would be acceptable. Further, long before the Bureau declared a technical "abandonment," it was in complete possession of all information necessary to assess the activity, locations, and ownership of appellees' mining claims, and it possessed all information needed to carry out its statutory functions. Finally, the Bureau has not claimed that the filing is contrary to the congressional purposes behind the statute, that the filing affected the Bureau's land use planning functions in any manner, or that it interfered "in any measurable way" with the Bureau's need to obtain information. A showing of substantial compliance necessitates a significant burden of proof; appellees, whose active mining claims will be destroyed contrary to Congress' intent, have convinced me that they have substantially complied with the statute. I respectfully dissent. [ Footnote 3/1 ] The full text of 43 U.S.C. § 1744 reads as follows: "Recordation of Mining Claims" "(a) Filing requirements" "The owner of an unpatented lode or placer mining claim located prior to October 21, 1976, shall, within the three-year period following October 21, 1976, and prior to December 31 of each year thereafter, file the instruments required by paragraphs (1) and (2) of this subsection. The owner of an unpatented lode or placer mining claim located after October 21, 1976, shall, prior to December 31 of each year following the calendar year in which the said claim was located, file the instruments required by paragraphs (1) and (2) of this subsection:" "(1) File for record in the office where the location notice or certificate is recorded either a notice of intention to hold the mining claim (including but not limited to such notices as are provided by law to be filed when there has been a suspension or deferment of annual assessment work), an affidavit of assessment work performed thereon, on a detailed report provided by section 28-1 of title 30, relating thereto." "(2) File in the office of the Bureau designated by the Secretary a copy of the official record of the instrument filed or recorded pursuant to paragraph (1) of this subsection, including a description of the location of the mining claim sufficient to locate the claimed lands on the ground." "(b) Additional filing requirements" "The owner of an unpatented lode or placer mining claim or mill or tunnel site located prior to October 21, 1976, shall, within the three-year period following October 21, 1976, file in the office of the Bureau designated by the Secretary a copy of the official record of the notice of location or certificate of location, including a description of the location of the mining claim or mill or tunnel site sufficient to locate the claimed lands on the ground. The owner of an unpatented lode or placer mining claim or mill or tunnel site located after October 21, 1976, shall, within ninety days after the date of location of such claim, file in the office of the Bureau designated by the Secretary a copy of the official record of the notice of location or certificate of location, including a description of the location of the mining claim or mill or tunnel site sufficient to locate the claimed lands on the ground." "(c) Failure to file as constituting abandonment; defective or untimely filing" "The failure to file such instruments as required by subsections (a) and (b) of this section shall be deemed conclusively to constitute an abandonment of the mining claim or mill or tunnel site by the owner; but it shall not be considered a failure to file if the instrument is defective or not timely filed for record under other Federal laws permitting filing or recording thereof, or if the instrument is filed for record by or on behalf of some but not all of the owners of the mining claim or mill or tunnel site." "(d) Validity of claims, waiver of assessment, etc., as unaffected" "Such recordation or application by itself shall not render valid any claim which would not be otherwise valid under applicable law. Nothing in this section shall be construed as a waiver of the assessment and other requirements of such law." [ Footnote 3/2 ] Delaware Tribal Business Committee v. Weeks, 430 U. S. 73 , 430 U. S. 97 (1977) (STEVENS, J., dissenting) (emphasis added). [ Footnote 3/3 ] This view was expressed at the Rocky Mountain Mineral Law Institute in July, 1977: "It is plain that Congress intended the filing requirement to expire with the last day of the year, but inartful draftsmanship requires all filings under Subsection 314(a) of the Act to be made on or before December 30th. Such is the result of the unfortunate use of the words 'prior to December 31.' And since December 31st bears no relationship to the assessment year, which ends at noon on September 1st of each year, the statutory requirement that the locator shall file the necessary documents on or before December 30th of each year following the calendar year in which a claim was located means that, where a claim is located after noon on September 1st in any calendar year, the locator must file in the next full calendar year a notice of intention to hold, because no assessment work requirement has yet arisen." Sherwood, Mining-claim Recordation and Prospecting under The Federal Land Policy and Management Act of 1976, 23 Rocky Mountain Mineral Law Institute 1, 25 (1977) (footnotes omitted). [ Footnote 3/4 ] United States v. Clark, 445 U. S. 23 , 445 U. S. 27 (1980). [ Footnote 3/5 ] Escambia County v. McMillan, 466 U. S. 48 , 466 U. S. 51 (1984) (per curiam); see also Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 347 (1936) (Brandeis, J., concurring). [ Footnote 3/6 ] S.Rep. No. 94-583, P. 65 (1975). The Court agrees regarding the first purpose, but inexplicably and without citation concludes that another purpose of § 314 is "to provide federal land managers with up-to-date information that allows them to make informed management decisions." Ante at 471 U. S. 87 . This latter statutory "purpose" is not mentioned in the legislative history; rather, it is a variation of a "purpose," equally without citation, offered by appellants. See Brief for Appellants 45, 47. [ Footnote 3/7 ] See 471 U.S. 84 fn3/3|>n. 3, supra. [ Footnote 3/8 ] See 43 U.S.C. § 1744(a)(2). [ Footnote 3/9 ] Title 43 CFR § 3833.0-5(m) (1984) provides: "'Filed or file' means being received and date stamped by the proper BLM office. For the purpose of complying with § 3833.2-1 of this title, 'timely filed' means being filed within the time period prescribed by law, or received by January 19th after the period prescribed by law in an envelope bearing a clearly dated postmark affixed by the United States Postal Service within the period prescribed by law. This 20-day period does not apply to a notice of location filed pursuant to § 3833.1-2 of this title. ( See § 1821.2-2(e) of this title where the last day falls on a date the office is closed.)" [ Footnote 3/10 ] 43 CFR § 3833.2-1(b)(1) (1984). It is undisputed that the regulations did not come to the attention of the appellees. To justify the forfeiture in this case on the ground that appellees are chargeable with constructive notice of the contents of the Federal Register is no more acceptable to me today than it would have been to Justice Jackson in 1947. "To my mind, it is an absurdity to hold that every farmer who insures his crops knows what the Federal Register contains or even knows that there is such a publication. If he were to peruse this voluminous and dull publication as it is issued from time to time in order to make sure whether anything has been promulgated that affects his rights, he would never need crop insurance, for he would never get time to plant any crops." Federal Crop Insurance Corporation v. Merrill, 332 U. S. 380 , 332 U. S. 387 (1947) (Jackson, J., dissenting). [ Footnote 3/11 ] The Court, ante at 471 U. S. 102 -103, n. 14, criticizes my citation of the BLM regulations to demonstrate that the agency has itself departed from the "plain" statutory language by allowing mail filings to be received by January 19th. In the same breath, the Court acknowledges that the agency is not bound by the "plain" language in "administering the statute." Ibid. The mail-delivery deadline makes it clear that the Court's judicially created "up-to-date" statutory purpose is utterly lacking in foundation. The agency's adoption of the January 19 deadline illustrates that it does not need the information by December 30; that it is not bound by the language of the provision; and that substantial compliance does not interfere with the agency's statutory functions or with the intent of Congress. [ Footnote 3/12 ] Several amici have filed materials listing numerous cases in which it is asserted that the Bureau is using every technical construction of the statute to suck up active mining claims much as a vacuum cleaner, if not watched closely, will suck up jewelry or loose money. See Brief for Mountain States Legal Foundation as Amicus Curiae 2 (claiming that an "overwhelming number of mining claims have been lost to the pitfalls of section 314"), 3 (claiming that from 1977 to 1984, "unpatented mining claimants lost almost 20,000 active locations due to the technical rigors and conclusive presumption of section 314"); App. 1-86 (listing cases); Brief for Alaska Miners Association, California Mining Association, Nevada Mining Association, Miners Advocacy Council, and Placer Miners Association as Amici Curiae, Exhibit A (letter from Bureau's Utah State Office stating that well over 1,400 claims were invalidated from 1979-1983 because § 1744(a)(1) filings were made on December 31), Exhibit B (letter from Bureau's Billings, Montana Office stating that 198 claims were invalidated from 1979-1983 because § 1744(a)(1) filings were made on December 31), Exhibit C (letter from Bureau's Wyoming State Office stating that 11 claims were invalidated in 1980-1982 because § 1744(a)(2) filings were made on December 31), Exhibit D (letter from Bureau's Arizona State Office stating that "approximately 500 claims have been invalidated due to filing an affidavit one day late"); Brief for Mobil Oil Corporation as Amicus Curiae 2-4 (claiming to be in a situation similar to the appellees'). According to the Bureau's own calculations, thousands of active mining claims have been terminated because filings made on December 31 were considered untimely. These representations confirm the picture painted by amici of a federal bureaucracy virtually running amok, and surely operating contrary to the intent of Congress, by terminating the valuable property rights of hardworking, productive citizens of our country. [ Footnote 3/13 ] S.Rep. No. 94-583, P. 65 (1975). [ Footnote 3/14 ] The Court suggests that appellees' failure to file by December 30 "caused the property right to be extinguished." Ante at 471 U. S. 107 . However, the Court, on the one hand, carefully avoids mentioning the 3-month period that elapsed after December 31 before the Bureau declared the appellees' mining claims abandoned, and, on the other hand, describes the Bureau as needing "up-to-date information that allows them to make informed land management decisions." Ante at 471 U. S. 87 , 471 U. S. 107 . [ Footnote 3/15 ] The Court, ante at 471 U. S. 96 -97, n. 12, lists several provisions in the United States Code as supportive of its position that "prior to December 31" is somehow less ambiguous because of its occasional use in various statutory provisions. It then states that it "is unclear whether the arguments advanced by the dissenters are meant to apply to all of the provisions, or only to some of them." Ibid. However, the provisions cited for support illustrate the lack of justification for the Court's approach, and highlight the uniqueness of the provision in this case. Eleven of the provisions refer to a one-time specific date; the provision at issue here requires specific action on a continual annual basis, thus involving a much greater risk of creating a trap for the unwary. Further, each of the specific dates mentioned in the 11 provisions is long past; thus, contrary to the Court's premise, this decision would have no effect on them, because they require no future action. See 7 U.S.C. § 609(b)(5) ("prior to December 31, 1937"); 12 U.S.C. § 1709)(o)(1)(E) ("prior to December 31, 1976"); 12 U.S.C. § 1823(g) ("prior to December 31, 1950"); 12 U.S.C. § 1841(a)(5)(A) ("prior to December 31, 1970"); 26 U.S.C. § 503(d)(1) ("prior to December 31, 1955"); 33 U.S.C. § 1319(a)(5)(B) ("prior to December 31, 1974"); 42 U.S.C. § 415(a)(7)(E)(ii) (1982 ed., Supp. III) ("prior to December 31, 1983"); 42 U.S.C. § 1962d-17(b) ("prior to December 31, 1969"); 42 U.S.C. § 5614 (b)(5) ("after the first year following October 3, 1977, prior to December 31"); 42 U.S.C. § 7502(a)(2) ("prior to December 31, 1982"); 42 U.S.C. § 7521(b)(2) ("prior to December 31, 1970"); 50 U.S.C.App. § 1741(b)(1) ("prior to December 31, 1946"). The remaining provision cited as authority by the Court, 22 U.S.C. § 3784(c), states that the Panama Canal and certain other property "shall not be transferred to the Republic of Panama prior to December 31, 1999." The legislative history indicates that that language was added to make "clear that the President is not authorized to accelerate the final transfer of the Panama Canal in 1999, as provided by the Panama Canal Treaty of 1977." H.R.Conf.Rep. No. 96-473, p. 61 (1979). The Panama Canal Treaty of 1977, Art. II, indicates that it "shall terminate at noon, Panama time, December 31, 1999." Therefore, the language of § 3784(c) was tailored to a unique treaty provision. [ Footnote 3/16 ] 573 F. Supp. 472 , 479 (Nev.1983). [ Footnote 3/17 ] Id. at 474. [ Footnote 3/18 ] Ibid. . [ Footnote 3/19 ] 43 U.S.C. § 1744(b). [ Footnote 3/20 ] Reply Brief for Appellants 13, n. 12. [ Footnote 3/21 ] Affidavit of Laura C. Locke � 3. [ Footnote 3/22 ] Brief for Appellants 45.

The Supreme Court ruled that the annual filing deadline for mining claims must be met by December 30, and failure to comply results in the claim being lost, regardless of the claimant's intent. The Court also upheld the constitutionality of the filing requirement, which was within Congress's powers.

Property Rights & Land Use

City of Sherrill v. Oneida Indian Nation of New York

https://supreme.justia.com/cases/federal/us/544/197/

OPINION OF THE COURT CITY OF SHERRILL V. ONEIDA INDIAN NATION OF N.&NBSP;Y. 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-855 CITY OF SHERRILL, NEW YORK, PETITIONER v. ONEIDA INDIAN NATION OF NEW YORK et al. on writ of certiorari to the united states court of appeals for the second circuit [March 29, 2005]    Justice Ginsburg delivered the opinion of the Court.    This case concerns properties in the city of Sherrill, New York, purchased by the Oneida Indian Nation of New York (OIN or Tribe) in 1997 and 1998. The separate parcels of land in question, once contained within the Oneidas’ 300,000-acre reservation, were last possessed by the Oneidas as a tribal entity in 1805. For two centuries, governance of the area in which the properties are located has been provided by the State of New York and its county and municipal units. In County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 (1985) (Oneida II) , this Court held that the Oneidas stated a triable claim for damages against the County of Oneida for wrongful possession of lands they conveyed to New York State in 1795 in violation of federal law. In the instant action, OIN resists the payment of property taxes to Sherrill on the ground that OIN’s acquisition of fee title to discrete parcels of historic reservation land revived the Oneidas’ ancient sovereignty piecemeal over each parcel. Consequently, the Tribe maintains, regulatory authority over OIN’s newly purchased properties no longer resides in Sherrill.    Our 1985 decision recognized that the Oneidas could maintain a federal common-law claim for damages for ancient wrongdoing in which both national and state governments were complicit. Today, we decline to project redress for the Tribe into the present and future, thereby disrupting the governance of central New York’s counties and towns. Generations have passed during which non-Indians have owned and developed the area that once composed the Tribe’s historic reservation. And at least since the middle years of the 19th century, most of the Oneidas have resided elsewhere. Given the longstanding, distinctly non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the Tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue. The Oneidas long ago relinquished the reins of government and cannot regain them through open-market purchases from current titleholders. I A    OIN is a federally recognized Indian Tribe and a direct descendant of the Oneida Indian Nation (Oneida Nation), “one of the six nations of the Iroquois, the most powerful Indian Tribe in the Northeast at the time of the American Revolution.” Id. , at 230. At the birth of the United States, the Oneida Nation’s aboriginal homeland comprised some six million acres in what is now central New York. Ibid.; Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661 , 664 (1974) (Oneida I) .    In the years after the Revolutionary War, “the State of New York came under increasingly heavy pressure to open the Oneidas’ land for settlement.” Oneida II , 470 U. S., at 231. Reflective of that pressure, in 1788, New York State and the Oneida Nation entered into the Treaty of Fort Schuyler. For payments in money and kind, the Oneidas ceded to New York “all their lands.” App. to Pet. for Cert. A136. Of the vast area conveyed, “[t]he Oneidas retained a reservation of about 300,000 acres,” Oneida II , 470 U. S., at 231, “for their own use and cultivation,” App. to Pet. for Cert. A137 (internal quotation marks omitted).[ Footnote 1 ] OIN does not here contest the legitimacy of the Fort Schuyler conveyance or the boundaries of the reserved area.    The Federal Government initially pursued a policy protective of the New York Indians, undertaking to secure the Tribes’ rights to reserved lands. See Oneida II , 470 U. S., at 231–232; Oneida I , 414 U. S., at 667; F. Cohen, Handbook of Federal Indian Law 418–419 (1942 ed.); F. Cohen, Handbook of Federal Indian Law 73–74 (1982 ed.) (hereinafter Handbook). In 1790, Congress passed the first Indian Trade and Intercourse Act, commonly known as the Nonintercourse Act. Act of July 22, 1790, ch. 33, 1 Stat. 137. Periodically renewed, see Oneida I , 414 U. S., at 667–668, and n. 4, and remaining substantially in force today, see Rev. Stat. §2116, 25 U. S. C. §177, the Act bars sales of tribal land without the acquiescence of the Federal Government.[ Footnote 2 ] In 1794, in further pursuit of its protective policy, the United States entered into the Treaty of Canandaigua with the Six (Iroquois) Nations. Act of Nov. 11, 1794, 7 Stat. 44. That treaty both “acknowledge[d]” the Oneida Reservation as established by the Treaty of Fort Schuyler and guaranteed the Oneidas’ “free use and enjoyment” of the reserved territory. Id. , at 45, Art. II. The Oneidas in turn agreed they would “never claim any other lands within the boundaries of the United States.” Id., at 45, Art. IV.    New York State nonetheless continued to purchase reservation land from the Oneidas. The Washington administration objected to New York’s 1795 negotiations to buy 100,000 acres of the Oneidas’ Reservation without federal supervision. Oneida II , 470 U. S., at 229, 232. Later administrations, however, “[made not] even a pretense of interfer[ing] with [the] State’s attempts to negotiate treaties [with the Oneidas] for land cessions.” Oneida Nation of N. Y. v. United States , 43 Ind. Cl. Comm’n 373, 385 (1978); see also id. , at 390; Campisi, The Oneida Treaty Period, 1783–1838, in The Oneida Indian Experience: Two Perspectives 48, 59 (J. Campisi & L. Hauptman eds. 1988) (hereinafter Campisi). See generally Gunther 6 (“New York acquired much land from Indians through treaties—perhaps as many as 200—not participated in, though apparently known and not objected to, by the national government.” (footnote omitted)).    The Federal Government’s policy soon veered away from protection of New York and other east coast reservations. In lieu of the commitment made in the Treaty of Canandaigua, the United States pursued a policy designed to open reservation lands to white settlers and to remove tribes westward. D. Getches, C. Wilkinson, & R. Williams, Cases and Materials on Federal Indian Law 94 (4th ed. 1998) (After the Louisiana Purchase in 1803, federal policymakers “began to debate the tactics of inducing [eastern Indians] to exchange their remaining ancestral lands for a permanent territory in the West.”). As recounted by the Indian Claims Commission in 1978, early 19th-century federal Indian agents in New York State did not simply fail to check New York’s land purchases, they “took an active role … in encouraging the removal of the Oneidas … to the west.” Oneida Nation of N. Y. , 43 Ind. Cl. Comm’n, at 390; see id. , at 391 (noting that some federal agents were “deeply involved” in “plans … to bring about removal of the [Oneidas]” and in the State’s acquisition of Oneida land). Beginning in 1817, the Federal Government accelerated its efforts to remove Indian tribes from their east coast homelands. Handbook 78–79, and n. 142.    Pressured by the removal policy to leave their ancestral lands in New York, some 150 Oneidas, by 1825, had moved to Wisconsin. Horsman, The Wisconsin Oneidas in the Preallotment Years, in The Oneida Indian Experience, supra , at 65, 67. In 1838, the Oneidas and the United States entered into the Treaty of Buffalo Creek, which envisioned removal of all remaining New York Indians, including the Oneidas, to Kansas. Act of Jan. 15, 1838, 7 Stat. 550. By this time, the Oneidas had sold all but 5,000 acres of their original reservation. 337 F. 3d 139, 149 (CA2 2003). Six hundred of their members resided in Wisconsin, while 620 remained in New York State. 7 Stat. 556 (Sched. A).    In Article 13 of the Buffalo Creek Treaty, the Oneidas agreed to remove to the Kansas lands the United States had set aside for them “as soon as they c[ould] make satisfactory arrangements” for New York State’s “purchase of their lands at Oneida.” Id. , at 554. As a condition of the treaty’s ratification, the Senate directed that a federal commissioner “fully and fairly explai[n]” the terms to each signatory tribe and band. New York Indians v. United States , 170 U. S. 1 , 21–22 (1898). Commissioner Ransom H. Gillet, who had originally negotiated the treaty terms with the Oneidas, met with them again and assured them they would not be forced to move but could remain on “their lands where they reside ,” i.e. , they could “if they ch[ose] to do so remain where they are forever.” App. 146 (emphases added).    The Oneidas who stayed on in New York after the proclamation of the Buffalo Creek Treaty continued to diminish in number and, during the 1840’s, sold most of their remaining lands to the State. New York Indians v. United States , 40 Ct. Cl. 448, 458, 469–471 (1905). A few hundred Oneidas moved to Canada in 1842, id. , at 458, and “by the mid-1840s, only about 200 Oneidas remained in New York State,” Introduction to Part I, The Oneida Indian Journey: From New York to Wisconsin, 1784–1860, pp. 9, 13 (L. Hauptman & L. McLester eds. 1999). By 1843, the New York Oneidas retained less than 1,000 acres in the State. Campisi 61. That acreage dwindled to 350 in 1890; ultimately, by 1920, only 32 acres continued to be held by the Oneidas. Ibid. The United States eventually abandoned its efforts to remove the New York Indians to Kansas. In 1860, the Federal Government restored the Kansas lands to the public domain, and sold them thereafter. New York Indians , 170 U. S., at 24, 28–29, 31. B    Early litigation concerning the Oneidas’ land claims trained on monetary recompense from the United States for past deprivations. In 1893, the United States agreed to be sued for disposing of the Kansas lands to settlers, and the Oneidas in New York shared in the resulting award of damages. See New York Indians , 170 U. S. 1 ; New York Indians , 40 Ct. Cl. 448 (identifying the Tribes qualified to share in the distribution of the sum recovered). Seeking further compensation from the United States a half century later, the New York and Wisconsin Oneidas initiated proceedings before the Indian Claims Commission in 1951. Oneida Indian Nation of N. Y. v. County of Oneida , 622 F. 2d 624, 626 (CA2 1980). They sought redress for lands New York had acquired through 25 treaties of cession concluded between 1795 and 1846. The Oneidas alleged, and the Claims Commission agreed, that under the Nonintercourse Act of 1790 and successor statutes, the Federal Government had a fiduciary duty to assure that the Oneidas received from New York “conscionable consideration” for the lands in question. Oneida Nation of N. Y. v. United States , 26 Ind. Cl. Comm’n 138, 145 (1971). The Court of Claims affirmed the Commission’s core determination, but held that the United States’ duty extended only to land transactions of which the Government had knowledge. United States v. Oneida Nation of N. Y. , 201 Ct. Cl. 546, 554, 477 F. 2d 939, 944 (1973). Accordingly, the Court of Claims directed the Commission to determine whether the Government actually or constructively knew of the land transactions at issue. Id. , at 555, 477 F. 2d, at 945. On remand, the Commission found that the Federal Government had actual or constructive knowledge of all of the treaties and would be liable if the Oneidas had not received conscionable consideration. Oneida Nation of N. Y. , 43 Ind. Cl. Comm’n, at 375, 406–407. The Commission anticipated further proceedings to determine the Federal Government’s ultimate liability, but the Oneidas had by then decided to pursue a different course. On the Oneidas’ request, the Court of Claims dismissed the proceedings. See Oneida Nation of N. Y. v. United States , 231 Ct. Cl. 990, 991 (1982) (per curiam) . In lieu of concentrating on recovery from the United States, the Oneidas pursued suits against local governments. In 1970, the Oneidas of New York and Wisconsin, asserting federal-question jurisdiction under 28 U. S. C. §1331 or §1362, instituted a “test case” against the New York Counties of Oneida and Madison. They alleged that the cession of 100,000 acres to New York State in 1795, see supra , at 4, violated the Nonintercourse Act and thus did not terminate the Oneidas’ right to possession under the applicable federal treaties and statutes. In this initial endeavor to gain compensation from governmental units other than the United States, the Oneidas confined their demand for relief. They sought only damages measured by the fair rental value, for the years 1968 and 1969, of 872 acres of their ancestral land owned and occupied by the two counties. The District Court, affirmed by the Court of Appeals, dismissed the Oneidas’ complaint for failure to state a claim arising under federal law. We reversed that determination, holding that federal jurisdiction was properly invoked. Oneida I, 414 U. S., at 675, 682. In the next round, the Oneidas prevailed in the lower courts. On review in Oneida II , we rejected various defenses the counties presented that might have barred the action for damages, 470 U. S., at 240–250, and held that the Oneidas could maintain their claim to be compensated “for violation of their possessory rights based on federal common law,” id. , at 236. While upholding the judgment of the Court of Appeals regarding the counties’ liability under federal common law, we noted that “[t]he question whether equitable considerations should limit the relief available to the present day Oneida Indians was not addressed by the Court of Appeals or presented to this Court.” Id. , at 253, n. 27. Accordingly, “we express[ed] no opinion as to whether other considerations m[ight] be relevant to the final disposition of this case.” Ibid. On remand, the District Court entered a final judgment which fixed the amount of damages payable by the counties. Allowing setoffs for the counties’ good-faith improvements to the land, the court ordered recoveries of $15,994 from Oneida County and $18,970 from Madison County, plus prejudgment interest. Oneida Indian Nation of N. Y. v. County of Oneida , 217 F. Supp. 2d 292, 310 (NDNY 2002). In 2000, litigation resumed in an action held in abeyance during the pendency of the test case. In that revitalized action, the Oneidas sought damages from Oneida and Madison Counties for a period spanning over 200 years. The amended complaint alleged that, through a series of agreements concluded during the years 1795 to 1846, approximately 250,000 acres of the Oneidas’ ancestral land had been unlawfully conveyed to New York. Oneida Indian Nation of N. Y. v. County of Oneida , 199 F. R. D. 61, 66–68 (NDNY 2000). The Oneidas further sought to enlarge the action by demanding recovery of land they had not occupied since the 1795–1846 conveyances.[ Footnote 3 ] They attempted to join as defendants, inter alia , approximately 20,000 private landowners, and to obtain declaratory relief that would allow the Oneidas to eject these landowners. Id. , at 67–68.[ Footnote 4 ] The District Court refused permission to join the landowners so late in the day, resting in part on the Oneidas’ bad faith and undue delay. Id. , at 79–85. Further, the court found the proposed amendment “futile.” Id. , at 94. In this regard, the court emphasized the “sharp distinction between the existence of a federal common law right to Indian homelands,” a right this Court recognized in Oneida II , “and how to vindicate that right.” 199 F. R. D., at 90. That distinction “must be drawn,” the court stated, ibid. , for in the two centuries since the alleged wrong, “development of every type imaginable has been ongoing,” id. , at 92. Referring to the “practical concerns” that blocked restoration of Indians to their former lands, the court found it high time “to transcend the theoretical.” Ibid. Cases of this genre, the court observed, “cr[ied] out for a pragmatic approach.” Ibid. The District Court therefore excluded the imposition of any liability against private landowners. Id. , at 93–95. This brings us to the present case, which concerns parcels of land in the city of Sherrill, located in Oneida County, New York. According to the 2000 census, over 99% of the population in the area is non-Indian: American Indians represent less than 1% of the city of Sherrill’s population and less than 0.5% of Oneida County’s population. U. S. Dept. of Commerce, Census Bureau, 2000 Census of Population and Housing, Summary Population and Housing Characteristics: New York, 2000 PHC–1–34, Table 3, p. 124 (July 2002), available at http:// www.census.gov/prod/cen2000/phc-1-34.pdf (as visited Mar. 24, 2005, and available in the Clerk of Court’s case file). OIN owns approximately 17,000 acres of land scattered throughout the Counties of Oneida and Madison, representing less than 1.5% of the counties’ total area. OIN’s predecessor, the Oneida Nation, had transferred the parcels at issue to one of its members in 1805, who sold the land to a non-Indian in 1807. The properties thereafter remained in non-Indian hands until OIN’s acquisitions in 1997 and 1998 in open-market transactions. See 337 F. 3d, at 144, n. 3. OIN now operates commercial enterprises on these parcels: a gasoline station, a convenience store, and a textile facility. Id. , at 144. Because the parcels lie within the boundaries of the reservation originally occupied by the Oneidas, OIN maintained that the properties are exempt from taxation, and accordingly refused to pay the assessed property taxes. The city of Sherrill initiated eviction proceedings in state court, and OIN sued Sherrill in federal court. In contrast to Oneida I and II , which involved demands for monetary compensation, OIN sought equitable relief prohibiting, currently and in the future, the imposition of property taxes. OIN also sued Madison County, seeking a declaration that the Tribe’s properties in Madison are tax exempt. The litigation involved a welter of claims and counterclaims. Relevant here, the District Court concluded that parcels of land owned by the Tribe in Sherrill and Madison are not taxable. See 145 F. Supp. 2d 226, 254–259 (NDNY 2001). A divided panel of the Second Circuit affirmed. 337 F. 3d 139. Writing for the majority, Judge Parker ruled that the parcels qualify as “Indian country,” as that term is defined in 18 U. S. C. §1151,[ Footnote 5 ] because they fall within the boundaries of a reservation set aside by the 1794 Canandaigua Treaty for Indian use under federal supervision. 337 F. 3d, at 155–156; see supra , at 4. The court further held that the Buffalo Creek Treaty did not demonstrate a clear congressional purpose to disestablish or diminish the Oneida Reservation. 337 F. 3d, at 161, 165; see supra , at 5–6. Finally, the court found no legal requirement “that a federally recognized tribe demonstrate its continuous existence in order to assert a claim to its reservation land.” 337 F. 3d, at 165. In any case, the court held, the record demonstrated OIN’s continuous tribal existence. Id. , at 166–167. Judge Van Graafeiland dissented as to the majority’s primary holding. In his view, the record raised a substantial question whether OIN had “forfeited” its aboriginal rights to the land because it abandoned “its tribal existence … for a discernable period of time.” Id. , at 171. We granted the city of Sherrill’s petition for a writ of certiorari, 542 U. S. ___ (2004), and now reverse the judgment of the Court of Appeals. II OIN and the United States argue that because the Court in Oneida II recognized the Oneidas’ aboriginal title to their ancient reservation land and because the Tribe has now acquired the specific parcels involved in this suit in the open market, it has unified fee and aboriginal title and may now assert sovereign dominion over the parcels. Brief for Respondents 1, 12–19; Brief for United States as Amicus Curiae 9–10. When the Oneidas came before this Court 20 years ago in Oneida II , they sought money damages only. 470 U. S., at 229; see also id., at 244, n. 16 (recognizing that the suit was an “action at law”). The Court reserved for another day the question whether “equitable considerations” should limit the relief available to the present-day Oneidas. Id., at 253, n. 27; supra , at 9.[ Footnote 6 ] “The substantive questions whether the plaintiff has any right or the defendant any duty, and if so what it is, are very different questions from the remedial questions whether this remedy or that is preferred, and what the measure of the remedy is.” D. Dobbs, Law of Remedies §1.2, p. 3 (1973); see also Navajo Tribe of Indians v. New Mexico , 809 F. 2d 1455, 1467 (CA10 1987) (“The distinction between a claim or substantive right and a remedy is fundamental.”). “[S]tandards of federal Indian law and federal equity practice” led the District Court, in the litigation revived after Oneida II , see supra , at 9–10, to reject OIN’s plea for ejectment of 20,000 private landowners. Oneida Indian Nation of N. Y. , 199 F. R. D., at 90 (internal quotation marks omitted); ibid. (“[T]here is a sharp distinction between the existence of a federal common law right to Indian homelands and how to vindicate that right … .”). In this action, OIN seeks declaratory and injunctive relief recognizing its present and future sovereign immunity from local taxation on parcels of land the Tribe purchased in the open market, properties that had been subject to state and local taxation for generations.[ Footnote 7 ] We now reject the unification theory of OIN and the United States and hold that “standards of federal Indian law and federal equity practice” preclude the Tribe from rekindling embers of sovereignty that long ago grew cold.[ Footnote 8 ] The appropriateness of the relief OIN here seeks must be evaluated in light of the long history of state sovereign control over the territory. From the early 1800’s into the 1970’s, the United States largely accepted, or was indifferent to, New York’s governance of the land in question and the validity vel non of the Oneidas’ sales to the State. See generally Gunther 23–25 (attributing much of the confusion and conflict in the history of New York Indian affairs to “Federal inattention and ambivalence”). In fact, the United States’ policy and practice through much of the early 19th century was designed to dislodge east coast lands from Indian possession. See supra , at 5–6. Moreover, the properties here involved have greatly increased in value since the Oneidas sold them 200 years ago. Notably, it was not until lately that the Oneidas sought to regain ancient sovereignty over land converted from wilderness to become part of cities like Sherrill. See supra , at 9–12; Oneida II , 470 U. S., at 264–265 (Stevens, J., dissenting in part). This Court has observed in the different, but related, context of the diminishment of an Indian reservation that “[t]he longstanding assumption of jurisdiction by the State over an area that is over 90% non-Indian, both in population and in land use,” may create “justifiable expectations.” Rosebud Sioux Tribe v. Kneip, 430 U. S. 584 , 604–605 (1977); accord Hagen v. Utah, 510 U. S. 399 , 421 (1994) (“jurisdictional history” and “the current population situation … demonstrat[e] a practical acknowledgment” of reservation diminishment; “a contrary conclusion would seriously disrupt the justifiable expectations of the people living in the area” (some internal quotation marks omitted)).[ Footnote 9 ] Similar justifiable expectations, grounded in two centuries of New York’s exercise of regulatory jurisdiction, until recently uncontested by OIN, merit heavy weight here.[ Footnote 10 ] The wrongs of which OIN complains in this action occurred during the early years of the Republic. For the past two centuries, New York and its county and municipal units have continuously governed the territory. The Oneidas did not seek to regain possession of their aboriginal lands by court decree until the 1970’s. See, supra , at 10, n. 4. And not until the 1990’s did OIN acquire the properties in question and assert its unification theory to ground its demand for exemption of the parcels from local taxation. 337 F. 3d, at 144.[ Footnote 11 ] This long lapse of time, during which the Oneidas did not seek to revive their sovereign control through equitable relief in court, and the attendant dramatic changes in the character of the properties, preclude OIN from gaining the disruptive remedy it now seeks. The principle that the passage of time can preclude relief has deep roots in our law, and this Court has recognized this prescription in various guises. It is well established that laches, a doctrine focused on one side’s inaction and the other’s legitimate reliance, may bar long-dormant claims for equitable relief. See, e.g., Badger v. Badger, 2 Wall. 87, 94 (1865) (“[C]ourts of equity act upon their own inherent doctrine of discouraging, for the peace of society, antiquated demands, refuse to interfere where there has been gross laches in prosecuting the claim, or long acquiescence in the assertion of adverse rights.” (internal quotation marks omitted)); Wagner v. Baird, 7 How. 234, 258 (1849) (same); Bowman v. Wathen, 1 How. 189, 194 (1843) (“[The] doctrine of an equitable bar by lapse of time, so distinctly announced by the chancellors of England and Ireland, … should now be regarded as settled law in this court.”). This Court applied the doctrine of laches in Felix v. Patrick, 145 U. S. 317 (1892), to bar the heirs of an Indian from establishing a constructive trust over land their Indian ancestor had conveyed in violation of a statutory restriction. In the nearly three decades between the conveyance and the lawsuit, “[a] large part of the tract ha[d] been platted and recorded as an addition to the city of Omaha, and … sold to purchasers.” Id., at 326. “[A]s the case stands at present,” the Court observed, “justice requires only what the law … would demand—the repayment of the value of the [illegally conveyed] scrip.” Id., at 334. The Court also recognized the disproportion between the value of the scrip issued to the Indian ($150) and the value of the property the heirs sought to acquire (over $1 million). Id., at 333. The sort of changes to the value and character of the land noted by the Felix Court are present in even greater magnitude in this suit. Cf. Galliher v. Cadwell, 145 U. S. 368 , 373 (1892) (“[L]aches is not … a mere matter of time; but principally a question of the inequity of permitting the claim to be enforced—an inequity founded upon some change in the condition or relations of the property or the parties.”). As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory. Ohio v. Kentucky, 410 U. S. 641 , 651 (1973) (“The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter’s title and rightful authority.” (quoting Michigan v. Wisconsin, 270 U. S. 295 , 308 (1926))); Massachusetts v. New York, 271 U. S. 65 , 95 (1926) (“Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary.”). The acquiescence doctrine does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary. California v. Nevada, 447 U. S. 125 , 131 (1980) (No relationship need exist “between the origins of a boundary and the legal consequences of acquiescence in that boundary… . Longstanding acquiescence by California and Nevada can give [the boundary lines] the force of law whether or not federal authorities had the power to draw them.”). This Court’s original-jurisdiction state-sovereignty cases do not dictate a result here, but they provide a helpful point of reference: When a party belatedly asserts a right to present and future sovereign control over territory,[ Footnote 12 ] longstanding observances and settled expectations are prime considerations. There is no dispute that it has been two centuries since the Oneidas last exercised regulatory control over the properties here or held them free from local taxation. Parcel-by-parcel revival of their sovereign status, given the extraordinary passage of time, would dishonor “the historic wisdom in the value of repose.” Oneida II , 470 U. S., at 262 (Stevens, J., dissenting in part). Finally, this Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands. See Yankton Sioux Tribe v. United States, 272 U. S. 351 , 357 (1926) (“It is impossible … to rescind the cession and restore the Indians to their former rights because the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers … .”); Felix, 145 U. S., at 334 (observing, in declining to award equitable relief, “[t]hat which was wild land thirty years ago is now intersected by streets, subdivided into blocks and lots, and largely occupied by persons who have bought upon the strength of Patrick’s title, and have erected buildings of a permanent character”). The District Court, in the litigation dormant during the pendency of Oneida II , see supra , at 9–10, rightly found these pragmatic concerns about restoring Indian sovereign control over land “magnified exponentially here, where development of every type imaginable has been ongoing for more than two centuries.” Oneida Indian Nation of N. Y. , 199 F. R. D., at 92. In this case, the Court of Appeals concluded that the “impossibility” doctrine had no application because OIN acquired the land in the open market and does not seek to uproot current property owners. 337 F. 3d, at 157. But the unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led this Court in Yankton Sioux to initiate the impossibility doctrine. The city of Sherrill and Oneida County are today overwhelmingly populated by non-Indians. See supra , at 11. A checkerboard of alternating state and tribal jurisdiction in New York State—created unilaterally at OIN’s behest—would “seriously burde[n] the administration of state and local governments” and would adversely affect landowners neighboring the tribal patches. Hagen, 510 U. S., at 421 (quoting Solem v. Bartlett, 465 U. S. 463 , 471–472, n. 12 (1984)). If OIN may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent the Tribe from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area. See Felix , 145 U. S., at 335 (“decree prayed for in this case, if granted, would offer a distinct encouragement to … similar claims”); cf. Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408 , 433–437 (1989) (opinion of Stevens, J.) (discussing tribal land-use controls); post , at 5, n. 6 (Stevens, J., dissenting) (noting that “the balance of interests” supports continued state zoning jurisdiction).[ Footnote 13 ] Recognizing these practical concerns, Congress has provided a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stakes in the area’s governance and well being. Title 25 U. S. C. §465 authorizes the Secretary of the Interior to acquire land in trust for Indians and provides that the land “shall be exempt from State and local taxation.” See Cass County v. Leech Lake Band of Chippewa Indians, 524 U. S. 103 , 114–115 (1998). The regulations implementing §465 are sensitive to the complex interjurisdictional concerns that arise when a tribe seeks to regain sovereign control over territory. Before approving an acquisition, the Secretary must consider, among other things, the tribe’s need for additional land; “[t]he purposes for which the land will be used”; “the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls”; and “[j]urisdictional problems and potential conflicts of land use which may arise.” 25 CFR §151.10 (2004). Section 465 provides the proper avenue for OIN to reestablish sovereign authority over territory last held by the Oneidas 200 years ago. In sum, the question of damages for the Tribe’s ancient dispossession is not at issue in this case, and we therefore do not disturb our holding in Oneida II . However, the distance from 1805 to the present day, the Oneidas’ long delay in seeking equitable relief against New York or its local units, and developments in the city of Sherrill spanning several generations, evoke the doctrines of laches, acquiescence, and impossibility, and render inequitable the piecemeal shift in governance this suit seeks unilaterally to initiate.[ Footnote 14 ] *** For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Footnote 1 Under the “doctrine of discovery,” County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 , 234 (1985) (Oneida II), “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States,” Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661 , 667 (1974) (Oneida I) . In the original 13 States, “fee title to Indian lands,” or “the pre-emptive right to purchase from the Indians, was in the State.” Id. , at 670; see Oneida Indian Nation of N. Y. v. New York , 860 F. 2d 1145, 1159–1167 (CA2 1988). Both before and after the adoption of the Constitution, New York State acquired vast tracts of land from Indian tribes through treaties it independently negotiated, without National Government participation. See Gunther, Governmental Power and New York Indian Lands—A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L. Rev. 1, 4–6 (1959) (hereinafter Gunther). Footnote 2 By its terms, the 1790 Nonintercourse Act governed Indian lands within the boundaries of the original 13 States. The Act provided “[t]hat no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not , unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.” Act of July 22, 1790, ch. 33, §4, 1 Stat. 138 (emphasis added). Our prior decisions state in this regard that, “[w]ith the adoption of the Constitution, Indian relations became the exclusive province of federal law.” Oneida II , 470 U. S., at 234 (citing Oneida I , 414 U. S., at 670). See generally Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 23–38 (1979) (discussing Indian relations under the Articles of Confederation and the Constitution). Footnote 3 In contrast, United States v. Boylan , 265 F. 165 (CA2 1920), involved land the Oneidas never left. Boylan concerned the 1885 conveyances by individual Oneida Indians of a 32-acre tract of reservation land to non-Indians. Despite the conveyances, a band of Oneidas continued to live on the land. After a non-Indian gained a state-court order ejecting the remaining Oneidas, the United States brought suit on behalf of the Oneidas to reclaim the land. The Second Circuit observed that the Oneidas were “actually in possession” of the 32 acres in question, id. , at 167, and had occupied the land continuously for over a century, id. , at 171. Given that occupation and the absence of Federal Government approval for the individual Oneidas’ conveyances, the Second Circuit upheld the District Court’s “decree restoring the ejected Indians to possession.” Id. , at 173–174. Footnote 4 In another lawsuit, commenced in 1978, the Oneidas sought from the State of New York and others both damages and recovery of land New York had purchased from the Oneidas in 1785 and 1788. Oneida Indian Nation of N. Y. , 860 F. 2d, at 1148. The Second Circuit affirmed the District Court’s dismissal of that action, holding that treaties between New York and the Oneidas during the years in which the Articles of Confederation were operative did not require the assent of Congress. Id. , at 1167; see supra , at 3, n. 1. Footnote 5 Titled “Indian country defined,”18 U. S. C. §1151 provides, in relevant part, that “the term ‘Indian Country’ . . . means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” Footnote 6 The United States acknowledged in its brief to the Court in Oneida II that equitable considerations unaddressed by the Court of Appeals in that suit might limit the relief available to the present-day Oneidas. Brief for United States as Amicus Curiae in County of Oneida v. Oneida Indian Nation of N. Y., O. T. 1984, No. 83–1065 etc., pp. 33–40. Footnote 7 The dissent suggests that, compatibly with today’s decision, the Tribe may assert tax immunity defensively in the eviction proceeding initiated by Sherrill. Post , at 4. We disagree. The equitable cast of the relief sought remains the same whether asserted affirmatively or defensively. Footnote 8 We resolve this case on considerations not discretely identified in the parties’ briefs. But the question of equitable considerations limiting the relief available to OIN, which we reserved in Oneida II , is inextricably linked to, and is thus “fairly included” within, the questions presented. See this Court’s Rule 14.1(a) (“The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.”); Ballard v. Commissioner , 544 U. S. ____, ____, n. 2 (2005) (slip op., at 4, n. 2); R. A. V. v. St. Paul , 505 U. S. 377 , 381, n. 3 (1992). See generally R. Stern, E. Gressman, S. Shapiro, & K. Geller, Supreme Court Practice 414 (8th ed. 2002) (“Questions not explicitly mentioned but essential to analysis of the decisions below or to the correct disposition of the other issues have been treated as subsidiary issues fairly comprised by the question presented.” (internal quotation marks omitted)). Footnote 9 The Court has recognized that “only Congress can divest a reservation of its land and diminish its boundaries.” Solem v. Bartlett, 465 U. S. 463 , 470 (1984); see also 18 U. S. C. §1151 (defining Indian country); South Dakota v. Yankton Sioux Tribe, 522 U. S. 329 , 343 (1998) (“[O]nly Congress can alter the terms of an Indian treaty by diminishing a reservation.”). The Court need not decide today whether, contrary to the Second Circuit’s determination, the 1838 Treaty of Buffalo Creek disestablished the Oneidas’ Reservation, as Sherrill argues. See Brief for Petitioner 31–39; Oneida II , 470 U. S., at 269, n. 24 (Stevens, J., dissenting in part) (“There is … a serious question whether the Oneida did not abandon their claim to the aboriginal lands in New York when they accepted the Treaty of Buffalo Creek of 1838 … .”). The relief OIN seeks—recognition of present and future sovereign authority to remove the land from local taxation—is unavailable because of the long lapse of time, during which New York’s governance remained undisturbed, and the present-day and future disruption such relief would engender. Footnote 10 Citing Montana v. Blackfeet Tribe, 471 U. S. 759 (1985), The Kansas Indians, 5 Wall. 737 (1867), and The New York Indians, 5 Wall. 761 (1867), the dissent notes that only Congress may revoke the tax-exempt status of Indian reservation land. Post , at 2–3, and n. 3. Those cases, however, concerned land the Indians had continuously occupied. See Brief for Respondents in Montana v. Blackfeet Tribe, O. T. 1984, No. 83–2161, p. 3, and n. 1 (noting Indians’ occupation of reservation); Kansas Indians , 5 Wall., at 738–742 (concerning Indians removed to and residing on Kansas lands before statehood); New York Indians , 5 Wall., at 768 (taxation by State would “interfer[e] with the possession, and occupation, and exercise of authority” by the Indians residing on the reservation). The Oneidas last occupied the parcels here at issue in 1805. See supra , at 11. The dissent additionally refers to Cass County v. Leech Lake Band of Chippewa Indians, 524 U. S. 103 (1998). Post , at 3, n. 3. But in that case, the Court held that an Indian tribe could not revive the tax-exempt status of its former reservation lands—which Congress had expressly removed from federal protection—by reacquiring the lands in the open market. 524 U. S., at 113–114. Footnote 11 The fact that OIN brought this action promptly after acquiring the properties does not overcome the Oneidas’ failure to reclaim ancient prerogatives earlier or lessen the problems associated with upsetting New York’s long-exercised sovereignty over the area. OIN’s claim concerns grave, but ancient, wrongs, and the relief available must be commensurate with that historical reality. Footnote 12 It bears repetition that for generations, the Oneidas dominantly complained, not against New York or its local units, but about “[mis]treatment at the hands of the United States Government.” Oneida II , 470 U. S., at 269 (Stevens, J., dissenting in part); see supra , at 7–8. Footnote 13 Other tribal entities have already sought to free historic reservation lands purchased in the open market from local regulatory controls. See Seneca-Cayuga Tribe of Okla. v. Town of Aurelius, New York , No. 5:03–CV–00690 (NPM), 2004 WL 1945359, *1–3 (NDNY, Sept. 1, 2004) (tribe seeks declaratory and injunctive relief to avoid application of municipal zoning and land use laws to 229 acres); Cayuga Indian Nation of N. Y. v. Village of Union Springs , 317 F. Supp. 2d 128, 131–134, 147–148 (NDNY 2004) (granting declaratory and injunctive relief to tribe, to block application of zoning regulations to property—“located within 300 yards” of a school—under renovation by the tribe for use as a gaming facility). Footnote 14 Justice Stevens, after vigorously urging the application of laches to block further proceedings in Oneida II , 470 U. S., at 255, now faults the Court for rejecting the claim presented here, post , at 1. The majority indicated in Oneida II that application of a nonstatutory time limitation in an action for damages would be “novel.” 470 U. S., at 244, n. 16; cf. id. , at 261–262 (Stevens, J., dissenting in part) (acknowledging “the application of a traditional equitable defense in an action at law is something of a novelty”). No similar novelty exists when the specific relief OIN now seeks would project redress for the Tribe into the present and future. The claim to a sovereign’s prerogative asserted by OIN, we hold, does “not survive eternally,” id. , at 272 (Stevens, J., dissenting in part); rather, it is a claim “best left in repose.” Id. , at 273 (same). 544 U. S. ____ (2005) 544 U. S. ____ (2005) 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-855 CITY OF SHERRILL, NEW YORK, PETITIONER v. ONEIDA INDIAN NATION OF NEW YORK et al. on writ of certiorari to the united states court of appeals for the second circuit [March 29, 2005]    Justice Souter, concurring.    I join the opinion of the Court with one qualification that goes to the appropriateness of considering the long dormancy of any claim to tribal authority over the parcels in question, as a basis to hold that the Oneida Indian Nation is not now immune from the taxing authority of local government. The Tribe’s claim, whether affirmative or defensive, see ante , at 14, n. 7, is one of territorial sovereign status entitled to recognition by the territorial state sovereign and its subdivisions. The claim of present sovereign status turns not only on background law and the provisions of treaties, but also on the Tribe’s behavior over a long period of time: the absence of the Tribe and tribal members from the particular lots of land, and the Tribe’s failure to assert sovereignty over them. The Tribe’s inaction cannot, therefore, be ignored here as affecting only a remedy to be considered later; it is, rather, central to the very claims of right made by the contending parties. Since the subject of inaction was not expressly raised as a separate question presented for review, see ante , at 14, n. 8, there is some question whether we should order reargument before dealing with it. I think that is unnecessary; the issue was addressed by each side in the argument prior to submission of the case, notwithstanding the terms of the questions on which review was granted. STEVENS, J., DISSENTING CITY OF SHERRILL V. ONEIDA INDIAN NATION OF N.&NBSP;Y. 544 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 03-855 CITY OF SHERRILL, NEW YORK, PETITIONER v. ONEIDA INDIAN NATION OF NEW YORK et al. on writ of certiorari to the united states court of appeals for the second circuit [March 29, 2005]    Justice Stevens, dissenting.    This case involves an Indian tribe’s claim to tax immunity on its own property located within its reservation. It does not implicate the tribe’s immunity from other forms of state jurisdiction, nor does it concern the tribe’s regulatory authority over property owned by non-Indians within the reservation.    For the purposes of its decision the Court assumes that the District Court and the Court of Appeals correctly resolved the major issues of fact and law that the parties debated in those courts and that the City of Sherrill (City) presented to us in its petition for certiorari. Thus, we accept those courts’ conclusions that the Oneida Indian Nation of New York (Tribe) is a federally recognized Indian Tribe; that it is the successor-in-interest to the original Oneida Nation; that in 1788 the Treaty of Fort Schuyler created a 300,000 acre reservation for the Oneida; that in 1794 the Treaty of Canandaigua established that tract as a federally protected reservation; and that the reservation was not disestablished or diminished by the Treaty of Buffalo Creek in 1838. It is undisputed that the City seeks to collect property taxes on parcels of land that are owned by the Tribe and located within the historic boundaries of its reservation.    Since the outset of this litigation it has been common ground that if the Tribe’s properties are “Indian Country,” the City has no jurisdiction to tax them without express congressional consent.[ Footnote 1 ] For the reasons set forth at length in the opinions of the District Court and the Court of Appeals, it is abundantly clear that all of the land owned by the Tribe within the boundaries of its reservation qualifies as Indian country. Without questioning the accuracy of that conclusion, the Court today nevertheless decides that the fact that most of the reservation has been occupied and governed by non-Indians for a long period of time precludes the Tribe “from rekindling embers of sovereignty that long ago grew cold.” Ante , at 14. This is a novel holding, and in my judgment even more unwise than the Court’s holding in County of Oneida v. Oneida Indian Nation of N. Y., 470 U. S. 226 (1985), that the Tribe may recover damages for the alleged illegal conveyance of its lands that occurred in 1795. In that case, I argued that the “remedy for the ancient wrong established at trial should be provided by Congress, not by judges seeking to rewrite history at this late date,” id. , at 270 (opinion dissenting in part). In the present case, the Tribe is not attempting to collect damages or eject landowners as a remedy for a wrong that occurred centuries ago; rather, it is invoking an ancient immunity against a city’s present-day attempts to tax its reservation lands.    Without the benefit of relevant briefing from the parties, the Court has ventured into legal territory that belongs to Congress. Its decision today is at war with at least two bedrock principles of Indian law. First, only Congress has the power to diminish or disestablish a tribe’s reservation.[ Footnote 2 ] Second, as a core incident of tribal sovereignty, a tribe enjoys immunity from state and local taxation of its reservation lands, until that immunity is explicitly revoked by Congress.[ Footnote 3 ] Far from revoking this immunity, Congress has specifically reconfirmed it with respect to the reservation lands of the New York Indians.[ Footnote 4 ] Ignoring these principles, the Court has done what only Congress may do—it has effectively proclaimed a diminishment of the Tribe’s reservation and an abrogation of its elemental right to tax immunity. Under our precedents, whether it is wise policy to honor the Tribe’s tax immunity is a question for Congress, not this Court, to decide.    As a justification for its lawmaking decision, the Court relies heavily on the fact that the Tribe is seeking equitable relief in the form of an injunction. The distinction between law and equity is unpersuasive because the outcome of the case turns on a narrow legal issue that could just as easily, if not most naturally, be raised by a tribe as a defense against a state collection proceeding. In fact, that scenario actually occurred in this case: The City brought an eviction proceeding against the Tribe based on its refusal to pay property taxes; that proceeding was removed to federal court and consolidated with the present action; the District Court granted summary judgment for the Tribe; and the Court of Appeals affirmed on the basis of tribal tax immunity.[ Footnote 5 ] Either this defensive use of tax immunity should still be available to the Tribe on remand, but see ante , at 14, n. 7, or the Court’s reliance on the distinctions between law and equity and between substantive rights and remedies, see ante , at 13, is indefensible.    In any event, as a matter of equity I believe that the “principle that the passage of time can preclude relief,” ante, at 16, should be applied sensibly and with an even hand. It seems perverse to hold that the reliance interests of non-Indian New Yorkers that are predicated on almost two centuries of inaction by the Tribe do not foreclose the Tribe’s enforcement of judicially created damages remedies for ancient wrongs, but do somehow mandate a forfeiture of a tribal immunity that has been consistently and uniformly protected throughout our history. In this case, the Tribe reacquired reservation land in a peaceful and lawful manner that fully respected the interests of innocent landowners—it purchased the land on the open market. To now deny the Tribe its right to tax immunity—at once the most fundamental of tribal rights and the least disruptive to other sovereigns—is not only inequitable, but also irreconcilable with the principle that only Congress may abrogate or extinguish tribal sovereignty. I would not decide this case on the basis of speculation about what may happen in future litigation over other regulatory issues.[ Footnote 6 ] For the answer to the question whether the City may require the Tribe to pay taxes on its own property within its own reservation is pellucidly clear. Under settled law, it may not.    Accordingly, I respectfully dissent. Footnote 1 The District Court noted that “[n]o argument is made that should a finding be made that the properties in question are Indian Country, they are nonetheless taxable.” 145 F. Supp. 2d 226, 241, n. 7 (NDNY 2001). Footnote 2 See South Dakota v. Yankton Sioux Tribe , 522 U. S. 329 , 343 (1998) (“Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights. Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation, and its intent to do so must be ‘clear and plain’ ” (citations omitted)); Solem v. Bartlett , 465 U. S. 463 , 470 (1984) (“Once a block of land is set aside for an Indian reservation and no matter what happens to the title of individual plots within the area, the entire block retains its reservation status until Congress explicitly indicates otherwise”). Footnote 3 See Montana v . Blackfeet Tribe , 471 U. S. 759 , 764–765 (1985) (noting that the Court has “never wavered” from the view that a State’s attempt to tax Indian reservation land is illegal and inconsistent with Indian title) (citing The Kansas Indians, 5 Wall. 737 (1867), and The New York Indians , 5 Wall. 761 (1867)); Cass County v. Leech Lake Band of Chippewa Indians , 524 U. S. 103 , 110 (1998) (“We have consistently declined to find that Congress has authorized such taxation unless it has ‘ “made its intention to do so unmistakably clear” ’ ”). Footnote 4 In providing New York state courts with jurisdiction over civil actions between Indians, Congress emphasized that the statute was not to be “construed as subjecting the lands within any Indian reservation in the State of New York to taxation for State or local purposes.” 25 U. S. C. §233. See Oneida Indian Nation of N. Y. v. County of Oneida, 414 U. S. 661 , 680–681, n. 15 (1974) (“ ‘The text and history of the new legislation are replete with indications that congressional consent is necessary to validate the exercise of state power over tribal Indians and, most significantly, that New York cannot unilaterally deprive Indians of their tribal lands or authorize such deprivations. The civil jurisdiction law, to make assurance doubly sure, contains a proviso that explicitly exempts reservations from state and local taxation … . Moreover, both federal and state officials agreed that the bills would retain ultimate federal power over the Indians and that federal guardianship, particularly with respect to property rights, would continue’ ” (quoting Gunther, Governmental Power and New York Indian Lands—A Reassessment of a Persistent Problem of Federal-State Relations, 8 Buffalo L. Rev. 1, 16 (1958))). Footnote 5 See 337 F. 3d 139, 167 (CA2 2003). Additionally, to the extent that we are dealing with genuine equitable defenses, these defenses are subject to waiver. Here, the City sought to add the defense of laches to its answer; the District Court refused on the ground of futility, 145 F. Supp. 2d, at 259; the Court of Appeals upheld this determination, 337 F. 3d, at 168–169; and the City failed to preserve this point in its petition for certiorari or brief on the merits. The City similarly failed to preserve its impossibility defense in its submissions to this Court, and there is no indication that the City ever raised an acquiescence defense in the proceedings below. Footnote 6 It is not necessary to engage in any speculation to recognize that the majority’s fear of opening a Pandora’s box of tribal powers is greatly exaggerated. Given the State’s strong interest in zoning its land without exception for a small number of Indian-held properties arranged in checkerboard fashion, the balance of interests obviously supports the retention of state jurisdiction in this sphere. See California v. Cabazon Band of Mission Indians , 480 U. S. 202 , 215 (1987) (“ ‘[I]n exceptional circumstances a State may assert jurisdiction over the on-reservation activities of tribal members’ ”). Nor, as the Tribe acknowledges, Brief for Respondents 19, n. 4, could it credibly assert the right to tax or exercise other regulatory authority over reservation land owned by non-Indians. See Atkinson Trading Co. v. Shirley , 532 U. S. 645 (2001); Strate v. A–1 Contractors , 520 U. S. 438 , 456 (1997) (denying tribal jurisdiction in part because the Tribe could not “assert a landowner’s right to occupy and exclude” over the land in question); see also Brendale v. Confederated Tribes and Bands of Yakima Nation , 492 U. S. 408 , 444–445 (1989) (opinion of Stevens, J.) (“Because the Tribe no longer has the power to exclude nonmembers from a large portion of this area, it also lacks the power to define the essential character of the territory [through zoning]”).

The case concerns a dispute over land purchased by the Oneida Indian Nation in New York, which was once part of their 300,000-acre reservation but had not been possessed by the tribe since 1805. The Supreme Court held that the tribe could not unilaterally revive its ancient sovereignty over the land, as generations had passed with non-Indians owning and developing the area, and the tribe had long relinquished governance of the region to New York State and local authorities. The court declined to disrupt the current governance structure of central New York, and the tribe's attempt to regain sovereignty through open-market purchases was rejected.

Property Rights & Land Use

Kelo v. City of New London

https://supreme.justia.com/cases/federal/us/545/469/

OPINION OF THE COURT KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al. on writ of certiorari to the supreme court of connecticut [June 23, 2005]    Justice Stevens delivered the opinion of the Court.    In 2000, the city of New London approved a development plan that, in the words of the Supreme Court of Connecticut, was “projected to create in excess of 1,000 jobs, to increase tax and other revenues, and to revitalize an economically distressed city, including its downtown and waterfront areas.” 268 Conn. 1, 5, 843 A. 2d 500, 507 (2004). In assembling the land needed for this project, the city’s development agent has purchased property from willing sellers and proposes to use the power of eminent domain to acquire the remainder of the property from unwilling owners in exchange for just compensation. The question presented is whether the city’s proposed disposition of this property qualifies as a “public use” within the meaning of the Takings Clause of the Fifth Amendment to the Constitution.[ Footnote 1 ] I    The city of New London (hereinafter City) sits at the junction of the Thames River and the Long Island Sound in southeastern Connecticut. Decades of economic decline led a state agency in 1990 to designate the City a “distressed municipality.” In 1996, the Federal Government closed the Naval Undersea Warfare Center, which had been located in the Fort Trumbull area of the City and had employed over 1,500 people. In 1998, the City’s unemployment rate was nearly double that of the State, and its population of just under 24,000 residents was at its lowest since 1920.    These conditions prompted state and local officials to target New London, and particularly its Fort Trumbull area, for economic revitalization. To this end, respondent New London Development Corporation (NLDC), a private nonprofit entity established some years earlier to assist the City in planning economic development, was reactivated. In January 1998, the State authorized a $5.35 million bond issue to support the NLDC’s planning activities and a $10 million bond issue toward the creation of a Fort Trumbull State Park. In February, the pharmaceutical company Pfizer Inc. announced that it would build a $300 million research facility on a site immediately adjacent to Fort Trumbull; local planners hoped that Pfizer would draw new business to the area, thereby serving as a catalyst to the area’s rejuvenation. After receiving initial approval from the city council, the NLDC continued its planning activities and held a series of neighborhood meetings to educate the public about the process. In May, the city council authorized the NLDC to formally submit its plans to the relevant state agencies for review.[ Footnote 2 ] Upon obtaining state-level approval, the NLDC finalized an integrated development plan focused on 90 acres of the Fort Trumbull area.    The Fort Trumbull area is situated on a peninsula that juts into the Thames River. The area comprises approximately 115 privately owned properties, as well as the 32 acres of land formerly occupied by the naval facility (Trumbull State Park now occupies 18 of those 32 acres). The development plan encompasses seven parcels. Parcel 1 is designated for a waterfront conference hotel at the center of a “small urban village” that will include restaurants and shopping. This parcel will also have marinas for both recreational and commercial uses. A pedestrian “riverwalk” will originate here and continue down the coast, connecting the waterfront areas of the development. Parcel 2 will be the site of approximately 80 new residences organized into an urban neighborhood and linked by public walkway to the remainder of the development, including the state park. This parcel also includes space reserved for a new U. S. Coast Guard Museum. Parcel 3, which is located immediately north of the Pfizer facility, will contain at least 90,000 square feet of research and development office space. Parcel 4A is a 2.4-acre site that will be used either to support the adjacent state park, by providing parking or retail services for visitors, or to support the nearby marina. Parcel 4B will include a renovated marina, as well as the final stretch of the riverwalk. Parcels 5, 6, and 7 will provide land for office and retail space, parking, and water-dependent commercial uses. 1 App. 109–113.    The NLDC intended the development plan to capitalize on the arrival of the Pfizer facility and the new commerce it was expected to attract. In addition to creating jobs, generating tax revenue, and helping to “build momentum for the revitalization of downtown New London,” id. , at 92, the plan was also designed to make the City more attractive and to create leisure and recreational opportunities on the waterfront and in the park.    The city council approved the plan in January 2000, and designated the NLDC as its development agent in charge of implementation. See Conn. Gen. Stat. §8–188 (2005). The city council also authorized the NLDC to purchase property or to acquire property by exercising eminent domain in the City’s name. §8–193. The NLDC successfully negotiated the purchase of most of the real estate in the 90-acre area, but its negotiations with petitioners failed. As a consequence, in November 2000, the NLDC initiated the condemnation proceedings that gave rise to this case.[ Footnote 3 ] II    Petitioner Susette Kelo has lived in the Fort Trumbull area since 1997. She has made extensive improvements to her house, which she prizes for its water view. Petitioner Wilhelmina Dery was born in her Fort Trumbull house in 1918 and has lived there her entire life. Her husband Charles (also a petitioner) has lived in the house since they married some 60 years ago. In all, the nine petitioners own 15 properties in Fort Trumbull—4 in parcel 3 of the development plan and 11 in parcel 4A. Ten of the parcels are occupied by the owner or a family member; the other five are held as investment properties. There is no allegation that any of these properties is blighted or otherwise in poor condition; rather, they were condemned only because they happen to be located in the development area.    In December 2000, petitioners brought this action in the New London Superior Court. They claimed, among other things, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment. After a 7-day bench trial, the Superior Court granted a permanent restraining order prohibiting the taking of the properties located in parcel 4A (park or marina support). It, however, denied petitioners relief as to the properties located in parcel 3 (office space). 2 App. to Pet. for Cert. 343–350.[ Footnote 4 ]    After the Superior Court ruled, both sides took appeals to the Supreme Court of Connecticut. That court held, over a dissent, that all of the City’s proposed takings were valid. It began by upholding the lower court’s determination that the takings were authorized by chapter 132, the State’s municipal development statute. See Conn. Gen. Stat. §8–186 et seq . (2005). That statute expresses a legislative determination that the taking of land, even developed land, as part of an economic development project is a “public use” and in the “public interest.” 268 Conn., at 18–28, 843 A. 2d, at 515–521. Next, relying on cases such as Hawaii Housing Authority v. Midkiff , 467 U. S. 229 (1984), and Berman v. Parker , 348 U. S. 26 (1954), the court held that such economic development qualified as a valid public use under both the Federal and State Constitutions. 268 Conn., at 40, 843 A. 2d, at 527.    Finally, adhering to its precedents, the court went on to determine, first, whether the takings of the particular properties at issue were “reasonably necessary” to achieving the City’s intended public use, id. , at 82, 843 A. 2d, at 552–553, and, second, whether the takings were for “reasonably foreseeable needs,” id. , at 93, 843 A. 2d, at 558–559. The court upheld the trial court’s factual findings as to parcel 3, but reversed the trial court as to parcel 4A, agreeing with the City that the intended use of this land was sufficiently definite and had been given “reasonable attention” during the planning process. Id. , at 120–121, 843 A. 2d, at 574.    The three dissenting justices would have imposed a “heightened” standard of judicial review for takings justified by economic development. Although they agreed that the plan was intended to serve a valid public use, they would have found all the takings unconstitutional because the City had failed to adduce “clear and convincing evidence” that the economic benefits of the plan would in fact come to pass. Id. , at 144, 146, 843 A. 2d, at 587, 588 (Zarella, J., joined by Sullivan, C. J., and Katz, J., concurring in part and dissenting in part).    We granted certiorari to determine whether a city’s decision to take property for the purpose of economic development satisfies the “public use” requirement of the Fifth Amendment. 542 U. S. ___ (2004). III    Two polar propositions are perfectly clear. On the one hand, it has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B , even though A is paid just compensation. On the other hand, it is equally clear that a State may transfer property from one private party to another if future “use by the public” is the purpose of the taking; the condemnation of land for a railroad with common-carrier duties is a familiar example. Neither of these propositions, however, determines the disposition of this case.    As for the first proposition, the City would no doubt be forbidden from taking petitioners’ land for the purpose of conferring a private benefit on a particular private party. See Midkiff, 467 U. S., at 245 (“A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void”); Missouri Pacific R. Co. v. Nebraska, 164 U. S. 403 (1896).[ Footnote 5 ] Nor would the City be allowed to take property under the mere pretext of a public purpose, when its actual purpose was to bestow a private benefit. The takings before us, however, would be executed pursuant to a “carefully considered” development plan. 268 Conn., at 54, 843 A. 2d, at 536. The trial judge and all the members of the Supreme Court of Connecticut agreed that there was no evidence of an illegitimate purpose in this case.[ Footnote 6 ] Therefore, as was true of the statute challenged in Midkiff, 467 U. S., at 245, the City’s development plan was not adopted “to benefit a particular class of identifiable individuals.”    On the other hand, this is not a case in which the City is planning to open the condemned land—at least not in its entirety—to use by the general public. Nor will the private lessees of the land in any sense be required to operate like common carriers, making their services available to all comers. But although such a projected use would be sufficient to satisfy the public use requirement, this “Court long ago rejected any literal requirement that condemned property be put into use for the general public.” Id., at 244. Indeed, while many state courts in the mid-19th century endorsed “use by the public” as the proper definition of public use, that narrow view steadily eroded over time. Not only was the “use by the public” test difficult to administer ( e.g. , what proportion of the public need have access to the property? at what price?),[ Footnote 7 ] but it proved to be impractical given the diverse and always evolving needs of society.[ Footnote 8 ] Accordingly, when this Court began applying the Fifth Amendment to the States at the close of the 19th century, it embraced the broader and more natural interpretation of public use as “public purpose.” See, e.g. , Fallbrook Irrigation Dist . v. Bradley , 164 U. S. 112 , 158–164 (1896). Thus, in a case upholding a mining company’s use of an aerial bucket line to transport ore over property it did not own, Justice Holmes’ opinion for the Court stressed “the inadequacy of use by the general public as a universal test.” Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527 , 531 (1906).[ Footnote 9 ] We have repeatedly and consistently rejected that narrow test ever since.[ Footnote 10 ]    The disposition of this case therefore turns on the question whether the City’s development plan serves a “public purpose.” Without exception, our cases have defined that concept broadly, reflecting our longstanding policy of deference to legislative judgments in this field.    In Berman v. Parker, 348 U. S. 26 (1954), this Court upheld a redevelopment plan targeting a blighted area of Washington, D. C., in which most of the housing for the area’s 5,000 inhabitants was beyond repair. Under the plan, the area would be condemned and part of it utilized for the construction of streets, schools, and other public facilities. The remainder of the land would be leased or sold to private parties for the purpose of redevelopment, including the construction of low-cost housing.    The owner of a department store located in the area challenged the condemnation, pointing out that his store was not itself blighted and arguing that the creation of a “better balanced, more attractive community” was not a valid public use. Id. , at 31 . Writing for a unanimous Court, Justice Douglas refused to evaluate this claim in isolation, deferring instead to the legislative and agency judgment that the area “must be planned as a whole” for the plan to be successful. Id. , at 34. The Court explained that “community redevelopment programs need not, by force of the Constitution, be on a piecemeal basis—lot by lot, building by building.” Id. , at 35. The public use underlying the taking was unequivocally affirmed: “We do not sit to determine whether a particular housing project is or is not desirable. The concept of the public welfare is broad and inclusive… . The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled. In the present case, the Congress and its authorized agencies have made determinations that take into account a wide variety of values. It is not for us to reappraise them. If those who govern the District of Columbia decide that the Nation’s Capital should be beautiful as well as sanitary, there is nothing in the Fifth Amendment that stands in the way.” Id. , at 33.    In Hawaii Housing Authority v. Midkiff , 467 U. S. 229 (1984), the Court considered a Hawaii statute whereby fee title was taken from lessors and transferred to lessees (for just compensation) in order to reduce the concentration of land ownership. We unanimously upheld the statute and rejected the Ninth Circuit’s view that it was “a naked attempt on the part of the state of Hawaii to take the property of A and transfer it to B solely for B’s private use and benefit.” Id. , at 235 (internal quotation marks omitted). Reaffirming Berman ’s deferential approach to legislative judgments in this field, we concluded that the State’s purpose of eliminating the “social and economic evils of a land oligopoly” qualified as a valid public use. 467 U. S., at 241–242. Our opinion also rejected the contention that the mere fact that the State immediately transferred the properties to private individuals upon condemnation somehow diminished the public character of the taking. “[I]t is only the taking’s purpose, and not its mechanics,” we explained, that matters in determining public use. Id. , at 244.    In that same Term we decided another public use case that arose in a purely economic context. In Ruckelshaus v. Monsanto , Co., 467 U. S. 986 (1984), the Court dealt with provisions of the Federal Insecticide, Fungicide, and Rodenticide Act under which the Environmental Protection Agency could consider the data (including trade secrets) submitted by a prior pesticide applicant in evaluating a subsequent application, so long as the second applicant paid just compensation for the data. We acknowledged that the “most direct beneficiaries” of these provisions were the subsequent applicants, id., at 1014, but we nevertheless upheld the statute under Berman and Midkiff . We found sufficient Congress’ belief that sparing applicants the cost of time-consuming research eliminated a significant barrier to entry in the pesticide market and thereby enhanced competition. 467 U. S., at 1015.    Viewed as a whole, our jurisprudence has recognized that the needs of society have varied between different parts of the Nation, just as they have evolved over time in response to changed circumstances. Our earliest cases in particular embodied a strong theme of federalism, emphasizing the “great respect” that we owe to state legislatures and state courts in discerning local public needs. See Hairston v. Danville & Western R. Co ., 208 U. S. 598 , 606–607 (1908) (noting that these needs were likely to vary depending on a State’s “resources, the capacity of the soil, the relative importance of industries to the general public welfare, and the long-established methods and habits of the people”).[ Footnote 11 ] For more than a century, our public use jurisprudence has wisely eschewed rigid formulas and intrusive scrutiny in favor of affording legislatures broad latitude in determining what public needs justify the use of the takings power. IV    Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including—but by no means limited to—new jobs and increased tax revenue. As with other exercises in urban planning and development,[ Footnote 12 ] the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts. To effectuate this plan, the City has invoked a state statute that specifically authorizes the use of eminent domain to promote economic development. Given the comprehensive character of the plan, the thorough deliberation that preceded its adoption, and the limited scope of our review, it is appropriate for us, as it was in Berman , to resolve the challenges of the individual owners, not on a piecemeal basis, but rather in light of the entire plan. Because that plan unquestionably serves a public purpose, the takings challenged here satisfy the public use requirement of the Fifth Amendment.    To avoid this result, petitioners urge us to adopt a new bright-line rule that economic development does not qualify as a public use. Putting aside the unpersuasive suggestion that the City’s plan will provide only purely economic benefits, neither precedent nor logic supports petitioners’ proposal. Promoting economic development is a traditional and long accepted function of government. There is, moreover, no principled way of distinguishing economic development from the other public purposes that we have recognized. In our cases upholding takings that facilitated agriculture and mining, for example, we emphasized the importance of those industries to the welfare of the States in question, see, e.g., Strickley , 200 U. S. 527 ; in Berman, we endorsed the purpose of transforming a blighted area into a “well-balanced” community through redevelopment, 348 U. S., at 33;[ Footnote 13 ] in Midkiff , we upheld the interest in breaking up a land oligopoly that “created artificial deterrents to the normal functioning of the State’s residential land market,” 467 U. S., at 242; and in Monsanto , we accepted Congress’ purpose of eliminating a “significant barrier to entry in the pesticide market,” 467 U. S., at 1014–1015. It would be incongruous to hold that the City’s interest in the economic benefits to be derived from the development of the Fort Trumbull area has less of a public character than any of those other interests. Clearly, there is no basis for exempting economic development from our traditionally broad understanding of public purpose.    Petitioners contend that using eminent domain for economic development impermissibly blurs the boundary between public and private takings. Again, our cases foreclose this objection. Quite simply, the government’s pursuit of a public purpose will often benefit individual private parties. For example, in Midkiff , the forced transfer of property conferred a direct and significant benefit on those lessees who were previously unable to purchase their homes. In Monsanto , we recognized that the “most direct beneficiaries” of the data-sharing provisions were the subsequent pesticide applicants, but benefiting them in this way was necessary to promoting competition in the pesticide market. 467 U. S., at 1014.[ Footnote 14 ] The owner of the department store in Berman objected to “taking from one businessman for the benefit of another businessman,” 348 U. S., at 33, referring to the fact that under the redevelopment plan land would be leased or sold to private developers for redevelopment.[ Footnote 15 ] Our rejection of that contention has particular relevance to the instant case: “The public end may be as well or better served through an agency of private enterprise than through a department of government—or so the Congress might conclude. We cannot say that public ownership is the sole method of promoting the public purposes of community redevelopment projects.” Id. , at 34.[ Footnote 16 ]    It is further argued that without a bright-line rule nothing would stop a city from transferring citizen A ’s property to citizen B for the sole reason that citizen B will put the property to a more productive use and thus pay more taxes. Such a one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case. While such an unusual exercise of government power would certainly raise a suspicion that a private purpose was afoot,[ Footnote 17 ] the hypothetical cases posited by petitioners can be confronted if and when they arise.[ Footnote 18 ] They do not warrant the crafting of an artificial restriction on the concept of public use.[ Footnote 19 ]    Alternatively, petitioners maintain that for takings of this kind we should require a “reasonable certainty” that the expected public benefits will actually accrue. Such a rule, however, would represent an even greater departure from our precedent. “When the legislature’s purpose is legitimate and its means are not irrational, our cases make clear that empirical debates over the wisdom of takings—no less than debates over the wisdom of other kinds of socioeconomic legislation—are not to be carried out in the federal courts.” Midkiff, 467 U. S., at 242.[ Footnote 20 ] Indeed, earlier this Term we explained why similar practical concerns (among others) undermined the use of the “substantially advances” formula in our regulatory takings doctrine. See Lingle v. Chevron U. S. A. Inc. , 544 U. S. ___, ___ (2005) (slip op., at 14–15) (noting that this formula “would empower—and might often require—courts to substitute their predictive judgments for those of elected legislatures and expert agencies”). The disadvantages of a heightened form of review are especially pronounced in this type of case. Orderly implementation of a comprehensive redevelopment plan obviously requires that the legal rights of all interested parties be established before new construction can be commenced. A constitutional rule that required postponement of the judicial approval of every condemnation until the likelihood of success of the plan had been assured would unquestionably impose a significant impediment to the successful consummation of many such plans.    Just as we decline to second-guess the City’s considered judgments about the efficacy of its development plan, we also decline to second-guess the City’s determinations as to what lands it needs to acquire in order to effectuate the project. “It is not for the courts to oversee the choice of the boundary line nor to sit in review on the size of a particular project area. Once the question of the public purpose has been decided, the amount and character of land to be taken for the project and the need for a particular tract to complete the integrated plan rests in the discretion of the legislative branch.” Berman , 348 U. S., at 35–36.    In affirming the City’s authority to take petitioners’ properties, we do not minimize the hardship that condemnations may entail, notwithstanding the payment of just compensation.[ Footnote 21 ] We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law,[ Footnote 22 ] while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.[ Footnote 23 ] As the submissions of the parties and their amici make clear, the necessity and wisdom of using eminent domain to promote economic development are certainly matters of legitimate public debate.[ Footnote 24 ] This Court’s authority, however, extends only to determining whether the City’s proposed condemnations are for a “public use” within the meaning of the Fifth Amendment to the Federal Constitution. Because over a century of our case law interpreting that provision dictates an affirmative answer to that question, we may not grant petitioners the relief that they seek.    The judgment of the Supreme Court of Connecticut is affirmed. It is so ordered. Footnote 1 “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. That Clause is made applicable to the States by the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). Footnote 2 Various state agencies studied the project’s economic, environmental, and social ramifications. As part of this process, a team of consultants evaluated six alternative development proposals for the area, which varied in extensiveness and emphasis. The Office of Planning and Management, one of the primary state agencies undertaking the review, made findings that the project was consistent with relevant state and municipal development policies. See 1 App. 89–95. Footnote 3 In the remainder of the opinion we will differentiate between the City and the NLDC only where necessary. Footnote 4 While this litigation was pending before the Superior Court, the NLDC announced that it would lease some of the parcels to private developers in exchange for their agreement to develop the land according to the terms of the development plan. Specifically, the NLDC was negotiating a 99-year ground lease with Corcoran Jennison, a developer selected from a group of applicants. The negotiations contemplated a nominal rent of $1 per year, but no agreement had yet been signed. See 268 Conn. 1, 9, 61, 843 A. 2d 500, 509–510, 540 (2004). Footnote 5 See also Calder v. Bull , 3 Dall. 386, 388 (1798) (“An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legis- lative authority… . A few instances will suffice to explain what I mean… [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Governments, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them” (emphasis deleted)). Footnote 6 See 268 Conn., at 159, 843 A. 2d, at 595 (Zarella, J., concurring in part and dissenting in part) (“The record clearly demonstrates that the development plan was not intended to serve the interests of Pfizer, Inc., or any other private entity, but rather, to revitalize the local economy by creating temporary and permanent jobs, generating a significant increase in tax revenue, encouraging spin-off economic activities and maximizing public access to the waterfront”). And while the City intends to transfer certain of the parcels to a private developer in a long-term lease—which developer, in turn, is expected to lease the office space and so forth to other private tenants—the identities of those private parties were not known when the plan was adopted. It is, of course, difficult to accuse the government of having taken A ’s property to benefit the private interests of B when the identity of B was unknown. Footnote 7 See, e.g. , Dayton Gold & Silver Mining Co. v. Seawell , 11 Nev. 394, 410, 1876 WL 4573, *11 (1876) (“If public occupation and enjoyment of the object for which land is to be condemned furnishes the only and true test for the right of eminent domain, then the legislature would certainly have the constitutional authority to condemn the lands of any private citizen for the purpose of building hotels and theaters. Why not? A hotel is used by the public as much as a railroad. The public have the same right, upon payment of a fixed compensation, to seek rest and refreshment at a public inn as they have to travel upon a railroad”). Footnote 8 From upholding the Mill Acts (which authorized manufacturers dependent on power-producing dams to flood upstream lands in exchange for just compensation), to approving takings necessary for the economic development of the West through mining and irrigation, many state courts either circumvented the “use by the public” test when necessary or abandoned it completely. See Nichols, The Meaning of Public Use in the Law of Eminent Domain, 20 B. U. L. Rev. 615, 619–624 (1940) (tracing this development and collecting cases). For example, in rejecting the “use by the public” test as overly restrictive, the Nevada Supreme Court stressed that “[m]ining is the greatest of the industrial pursuits in this state. All other interests are subservient to it. Our mountains are almost barren of timber, and our valleys could never be made profitable for agricultural purposes except for the fact of a home market having been created by the mining developments in different sections of the state. The mining and milling interests give employment to many men, and the benefits derived from this business are distributed as much, and sometimes more, among the laboring classes than with the owners of the mines and mills. … The present prosperity of the state is entirely due to the mining developments already made, and the entire people of the state are directly interested in having the future developments unobstructed by the obstinate action of any individual or individuals.” Dayton Gold & Silver Mining Co. , 11 Nev., at 409–410, 1876 WL, at *11. Footnote 9 See also Clark v. Nash, 198 U. S. 361 (1905) (upholding a statute that authorized the owner of arid land to widen a ditch on his neighbor’s property so as to permit a nearby stream to irrigate his land). Footnote 10 See, e.g. , Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. , 240 U. S. 30 , 32 (1916) (“The inadequacy of use by the general public as a universal test is established”); Ruckelshaus v. Monsanto Co. , 467 U. S. 986 , 1014–1015 (1984) (“This Court, however, has rejected the notion that a use is a public use only if the property taken is put to use for the general public”). Footnote 11 See also Clark , 198 U. S., at 367–368; Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527 , 531 (1906) (“In the opinion of the legislature and the Supreme Court of Utah the public welfare of that State demands that aerial lines between the mines upon its mountain sides and railways in the valleys below should not be made impossible by the refusal of a private owner to sell the right to cross his land. The Constitution of the United States does not require us to say that they are wrong”); O’Neill v. Leamer, 239 U. S. 244 , 253 (1915) (“States may take account of their special exigencies, and when the extent of their arid or wet lands is such that a plan for irrigation or reclamation according to districts may fairly be regarded as one which promotes the public interest, there is nothing in the Federal Constitution which denies to them the right to formulate this policy or to exercise the power of eminent domain in carrying it into effect. With the local situation the state court is peculiarly familiar and its judgment is entitled to the highest respect”). Footnote 12 Cf. Village of Euclid v. Ambler Realty Co. , 272 U. S. 365 (1926). Footnote 13 It is a misreading of Berman to suggest that the only public use upheld in that case was the initial removal of blight. See Reply Brief for Petitioners 8. The public use described in Berman extended beyond that to encompass the purpose of developing that area to create conditions that would prevent a reversion to blight in the future. See 348 U. S., at 34–35 (“It was not enough, [the experts] believed, to remove existing buildings that were insanitary or unsightly. It was important to redesign the whole area so as to eliminate the conditions that cause slums. . . . The entire area needed redesigning so that a balanced, integrated plan could be developed for the region, including not only new homes, but also schools, churches, parks, streets, and shopping centers. In this way it was hoped that the cycle of decay of the area could be controlled and the birth of future slums prevented”). Had the public use in Berman been defined more narrowly, it would have been difficult to justify the taking of the plaintiff’s nonblighted department store. Footnote 14 Any number of cases illustrate that the achievement of a public good often coincides with the immediate benefiting of private parties. See, e.g. , National Railroad Passenger Corporation v. Boston & Maine Corp., 503 U. S. 407 , 422 (1992) (public purpose of “facilitating Amtrak’s rail service” served by taking rail track from one private company and transferring it to another private company); Brown v. Legal Foundation of Wash. , 538 U. S. 216 (2003) (provision of legal services to the poor is a valid public purpose). It is worth noting that in Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), Monsanto , and Boston & Maine Corp ., the property in question retained the same use even after the change of ownership. Footnote 15 Notably, as in the instant case, the private developers in Berman were required by contract to use the property to carry out the redevelopment plan. See 348 U. S., at 30. Footnote 16 Nor do our cases support Justice O’Connor’s novel theory that the government may only take property and transfer it to private parties when the initial taking eliminates some “harmful property use.” Post , at 8 (dissenting opinion). There was nothing “harmful” about the nonblighted department store at issue in Berman , 348 U. S. 26 ; see also n. 13, supra; nothing “harmful” about the lands at issue in the mining and agriculture cases, see, e.g. , Strickley , 200 U. S. 527 ; see also nn. 9, 11, supra; and certainly nothing “harmful” about the trade secrets owned by the pesticide manufacturers in Monsanto , 467 U. S. 986 . In each case, the public purpose we upheld depended on a private party’s future use of the concededly nonharmful property that was taken.  By focusing on a property’s future use, as opposed to its past use, our cases are faithful to the text of the Takings Clause. See U. S. Const., Amdt. 5. (“[N]or shall private property be taken for public use, without just compensation”). Justice O’Connor’s intimation that a “public purpose” may not be achieved by the action of private parties, see post , at 8, confuses the purpose of a taking with its mechanics , a mistake we warned of in Midkiff , 467 U. S., at 244. See also Berman , 348 U. S., at 33–34 (“The public end may be as well or better served through an agency of private enterprise than through a department of government”). Footnote 17 Courts have viewed such aberrations with a skeptical eye. See, e.g. , 99 Cents Only Stores v. Lancaster Redevelopment Agency , 237 F. Supp. 2d 1123 (CD Cal. 2001); cf. Cincinnati v. Vester , 281 U. S. 439 , 448 (1930) (taking invalid under state eminent domain statute for lack of a reasoned explanation). These types of takings may also implicate other constitutional guarantees. See Village of Willowbrook v. Olech , 528 U. S. 562 (2000) (per curiam). Footnote 18 Cf. Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218 , 223 (1928) (Holmes, J., dissenting) (“The power to tax is not the power to destroy while this Court sits”). Footnote 19 A parade of horribles is especially unpersuasive in this context, since the Takings Clause largely “operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge.” Eastern Enterprises v. Apfel , 524 U. S. 498 , 545 (1998) (Kennedy, J., concurring in judgment and dissenting in part). Speaking of the takings power, Justice Iredell observed that “[i]t is not sufficient to urge, that the power may be abused, for, such is the nature of all power—such is the tendency of every human institution: and, it might as fairly be said, that the power of taxation, which is only circumscribed by the discretion of the Body, in which it is vested, ought not to be granted, because the Legislature, disregarding its true objects, might, for visionary and useless projects, impose a tax to the amount of nineteen shillings in the pound. We must be content to limit power where we can, and where we cannot, consistently with its use, we must be content to repose a salutory confidence.” Calder , 3 Dall., at 400 (opinion concurring in result). Footnote 20 See also Boston & Maine Corp., 503 U. S., at 422–423 (“[W]e need not make a specific factual determination whether the condemnation will accomplish its objectives”); Monsanto , 467 U. S., at 1015, n. 18 (“Monsanto argues that EPA and, by implication, Congress, misapprehended the true ‘barriers to entry’ in the pesticide industry and that the challenged provisions of the law create, rather than reduce, barriers to entry… . Such economic arguments are better directed to Congress. The proper inquiry before this Court is not whether the provisions in fact will accomplish their stated objectives. Our review is limited to determining that the purpose is legitimate and that Congress rationally could have believed that the provisions would promote that objective”). Footnote 21 The amici raise questions about the fairness of the measure of just compensation. See, e.g. , Brief for American Planning Association et al. as Amici Curiae 26–30. While important, these questions are not before us in this litigation. Footnote 22 See, e.g. , County of Wayne v. Hathcock , 471 Mich. 445, 684 N. W. 2d 765 (2004). Footnote 23 Under California law, for instance, a city may only take land for economic development purposes in blighted areas. Cal. Health & Safety Code Ann. §§33030–33037 (West 1997). See, e.g. , Redevelopment Agency of Chula Vista v. Rados Bros ., 95 Cal. App. 4th 309 (2002). Footnote 24 For example, some argue that the need for eminent domain has been greatly exaggerated because private developers can use numerous techniques, including secret negotiations or precommitment strategies, to overcome holdout problems and assemble lands for genuinely profitable projects. See Brief for Jane Jacobs as Amicus Curiae 13–15; see also Brief for John Norquist as Amicus Curiae . Others argue to the contrary, urging that the need for eminent domain is especially great with regard to older, small cities like New London, where centuries of development have created an extreme overdivision of land and thus a real market impediment to land assembly. See Brief for Connecticut Conference for Municipalities et al. as Amici Curiae 13, 21; see also Brief for National League of Cities et al. as Amici Curiae . KENNEDY, J., CONCURRING KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al. on writ of certiorari to the supreme court of connecticut [June 23, 2005]    Justice Kennedy, concurring.    I join the opinion for the Court and add these further observations.    This Court has declared that a taking should be upheld as consistent with the Public Use Clause, U. S. Const., Amdt. 5., as long as it is “rationally related to a conceivable public purpose.” Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 241 (1984); see also Berman v. Parker, 348 U. S. 26 (1954). This deferential standard of review echoes the rational-basis test used to review economic regulation under the Due Process and Equal Protection Clauses, see, e.g. , FCC v. Beach Communications, Inc., 508 U. S. 307 , 313–314 (1993); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483 (1955). The determination that a rational-basis standard of review is appropriate does not, however, alter the fact that transfers intended to confer benefits on particular, favored private entities, and with only incidental or pretextual public benefits, are forbidden by the Public Use Clause.    A court applying rational-basis review under the Public Use Clause should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits, just as a court applying rational-basis review under the Equal Protection Clause must strike down a government classification that is clearly intended to injure a particular class of private parties, with only incidental or pretextual public justifications. See Cleburne v. Cleburne Living Center, Inc., 473 U. S. 432 , 446–447, 450 (1985); Department of Agriculture v. Moreno, 413 U. S. 528 , 533–536 (1973). As the trial court in this case was correct to observe, “Where the purpose [of a taking] is economic development and that development is to be carried out by private parties or private parties will be benefited, the court must decide if the stated public purpose—economic advantage to a city sorely in need of it—is only incidental to the benefits that will be confined on private parties of a development plan.” 2 App. to Pet. for Cert. 263. See also ante , at 7.    A court confronted with a plausible accusation of impermissible favoritism to private parties should treat the objection as a serious one and review the record to see if it has merit, though with the presumption that the government’s actions were reasonable and intended to serve a public purpose. Here, the trial court conducted a careful and extensive inquiry into “whether, in fact, the development plan is of primary benefit to … the developer [ i.e. , Corcoran Jennison], and private businesses which may eventually locate in the plan area [ e.g. , Pfizer], and in that regard, only of incidental benefit to the city.” 2 App. to Pet. for Cert. 261. The trial court considered testimony from government officials and corporate officers; id ., at 266–271; documentary evidence of communications between these parties, ibid .; respondents’ awareness of New London’s depressed economic condition and evidence corroborating the validity of this concern, id ., at 272–273, 278–279; the substantial commitment of public funds by the State to the development project before most of the private beneficiaries were known, id ., at 276; evidence that respondents reviewed a variety of development plans and chose a private developer from a group of applicants rather than picking out a particular transferee beforehand, id ., at 273, 278; and the fact that the other private beneficiaries of the project are still unknown because the office space proposed to be built has not yet been rented, id ., at 278.    The trial court concluded, based on these findings, that benefiting Pfizer was not “the primary motivation or effect of this development plan”; instead, “the primary motivation for [respondents] was to take advantage of Pfizer’s presence.” Id ., at 276. Likewise, the trial court concluded that “[t]here is nothing in the record to indicate that … [respondents] were motivated by a desire to aid [other] particular private entities.” Id ., at 278. See also ante , at 7–8. Even the dissenting justices on the Connecticut Supreme Court agreed that respondents’ development plan was intended to revitalize the local economy, not to serve the interests of Pfizer, Corcoran Jennison, or any other private party. 268 Conn. 1, 159, 843 A. 2d 500, 595 (2004) (Zarella, J., concurring in part and dissenting in part). This case, then, survives the meaningful rational basis review that in my view is required under the Public Use Clause.    Petitioners and their amici argue that any taking justified by the promotion of economic development must be treated by the courts as per se invalid, or at least presumptively invalid. Petitioners overstate the need for such a rule, however, by making the incorrect assumption that review under Berman and Midkiff imposes no meaningful judicial limits on the government’s power to condemn any property it likes. A broad per se rule or a strong presumption of invalidity, furthermore, would prohibit a large number of government takings that have the purpose and expected effect of conferring substantial benefits on the public at large and so do not offend the Public Use Clause.    My agreement with the Court that a presumption of invalidity is not warranted for economic development takings in general, or for the particular takings at issue in this case, does not foreclose the possibility that a more stringent standard of review than that announced in Berman and Midkiff might be appropriate for a more narrowly drawn category of takings. There may be private transfers in which the risk of undetected impermissible favoritism of private parties is so acute that a presumption (rebuttable or otherwise) of invalidity is warranted under the Public Use Clause. Cf. Eastern Enterprises v. Apfel, 524 U. S. 498 , 549–550 (1998) (Kennedy, J., concurring in judgment and dissenting in part) (heightened scrutiny for retroactive legislation under the Due Process Clause). This demanding level of scrutiny, however, is not required simply because the purpose of the taking is economic development.    This is not the occasion for conjecture as to what sort of cases might justify a more demanding standard, but it is appropriate to underscore aspects of the instant case that convince me no departure from Berman and Midkiff is appropriate here. This taking occurred in the context of a comprehensive development plan meant to address a serious city-wide depression, and the projected economic benefits of the project cannot be characterized as de minimus . The identity of most of the private beneficiaries were unknown at the time the city formulated its plans. The city complied with elaborate procedural requirements that facilitate review of the record and inquiry into the city’s purposes. In sum, while there may be categories of cases in which the transfers are so suspicious, or the procedures employed so prone to abuse, or the purported benefits are so trivial or implausible, that courts should presume an impermissible private purpose, no such circumstances are present in this case. ***    For the foregoing reasons, I join in the Court’s opinion. O'CONNOR, J., DISSENTING KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al. on writ of certiorari to the supreme court of connecticut [June 23, 2005]    Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.    Over two centuries ago, just after the Bill of Rights was ratified, Justice Chase wrote: “An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority … . A few instances will suffice to explain what I mean… . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it.” Calder v. Bull , 3 Dall. 386, 388 (1798) (emphasis deleted). Today the Court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded— i.e. , given to an owner who will use it in a way that the legislature deems more beneficial to the public—in the process. To reason, as the Court does, that the incidental public benefits resulting from the subsequent ordinary use of private property render economic development takings “for public use” is to wash out any distinction between private and public use of property—and thereby effectively to delete the words “for public use” from the Takings Clause of the Fifth Amendment. Accordingly I respectfully dissent. I    Petitioners are nine resident or investment owners of 15 homes in the Fort Trumbull neighborhood of New London, Connecticut. Petitioner Wilhelmina Dery, for example, lives in a house on Walbach Street that has been in her family for over 100 years. She was born in the house in 1918; her husband, petitioner Charles Dery, moved into the house when they married in 1946. Their son lives next door with his family in the house he received as a wedding gift, and joins his parents in this suit. Two petitioners keep rental properties in the neighborhood.    In February 1998, Pfizer Inc., the pharmaceuticals manufacturer, announced that it would build a global research facility near the Fort Trumbull neighborhood. Two months later, New London’s city council gave initial approval for the New London Development Corporation (NLDC) to prepare the development plan at issue here. The NLDC is a private, nonprofit corporation whose mission is to assist the city council in economic development planning. It is not elected by popular vote, and its directors and employees are privately appointed. Consistent with its mandate, the NLDC generated an ambitious plan for redeveloping 90 acres of Fort Trumbull in order to “complement the facility that Pfizer was planning to build, create jobs, increase tax and other revenues, encourage public access to and use of the city’s waterfront, and eventually ‘build momentum’ for the revitalization of the rest of the city.” App. to Pet. for Cert. 5.    Petitioners own properties in two of the plan’s seven parcels—Parcel 3 and Parcel 4A. Under the plan, Parcel 3 is slated for the construction of research and office space as a market develops for such space. It will also retain the existing Italian Dramatic Club (a private cultural organization) though the homes of three plaintiffs in that parcel are to be demolished. Parcel 4A is slated, mysteriously, for “ ‘park support.’ ” Id., at 345–346. At oral argument, counsel for respondents conceded the vagueness of this proposed use, and offered that the parcel might eventually be used for parking. Tr. of Oral Arg. 36.    To save their homes, petitioners sued New London and the NLDC, to whom New London has delegated eminent domain power. Petitioners maintain that the Fifth Amendment prohibits the NLDC from condemning their properties for the sake of an economic development plan. Petitioners are not hold-outs; they do not seek increased compensation, and none is opposed to new development in the area. Theirs is an objection in principle: They claim that the NLDC’s proposed use for their confiscated property is not a “public” one for purposes of the Fifth Amendment. While the government may take their homes to build a road or a railroad or to eliminate a property use that harms the public, say petitioners, it cannot take their property for the private use of other owners simply because the new owners may make more productive use of the property. II    The Fifth Amendment to the Constitution, made applicable to the States by the Fourteenth Amendment, provides that “private property [shall not] be taken for public use, without just compensation.” When interpreting the Constitution, we begin with the unremarkable presumption that every word in the document has independent meaning, “that no word was unnecessarily used, or needlessly added.” Wright v. United States , 302 U. S. 583 , 588 (1938). In keeping with that presumption, we have read the Fifth Amendment’s language to impose two distinct conditions on the exercise of eminent domain: “the taking must be for a ‘public use’ and ‘just compensation’ must be paid to the owner.” Brown v. Legal Foundation of Wash. , 538 U. S. 216 , 231–232 (2003).    These two limitations serve to protect “the security of Property,” which Alexander Hamilton described to the Philadelphia Convention as one of the “great obj[ects] of Gov[ernment].” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1934). Together they ensure stable property ownership by providing safeguards against excessive, unpredictable, or unfair use of the government’s eminent domain power—particularly against those owners who, for whatever reasons, may be unable to protect themselves in the political process against the majority’s will.    While the Takings Clause presupposes that government can take private property without the owner’s consent, the just compensation requirement spreads the cost of condemnations and thus “prevents the public from loading upon one individual more than his just share of the burdens of government.” Monongahela Nav. Co. v. United States , 148 U. S. 312 , 325 (1893); see also Armstrong v. United States , 364 U. S. 40 , 49 (1960). The public use requirement, in turn, imposes a more basic limitation, circumscribing the very scope of the eminent domain power: Government may compel an individual to forfeit her property for the public’s use, but not for the benefit of another private person. This requirement promotes fairness as well as security. Cf. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302 , 336 (2002) (“The concepts of ‘fairness and justice’ … underlie the Takings Clause”).    Where is the line between “public” and “private” property use? We give considerable deference to legislatures’ determinations about what governmental activities will advantage the public. But were the political branches the sole arbiters of the public-private distinction, the Public Use Clause would amount to little more than hortatory fluff. An external, judicial check on how the public use requirement is interpreted, however limited, is necessary if this constraint on government power is to retain any meaning. See Cincinnati v. Vester , 281 U. S. 439 , 446 (1930) (“It is well established that … the question [of] what is a public use is a judicial one”).    Our cases have generally identified three categories of takings that comply with the public use requirement, though it is in the nature of things that the boundaries between these categories are not always firm. Two are relatively straightforward and uncontroversial. First, the sovereign may transfer private property to public ownership—such as for a road, a hospital, or a military base. See, e.g. , Old Dominion Land Co. v. United States , 269 U. S. 55 (1925); Rindge Co. v. County of Los Angeles , 262 U. S. 700 (1923). Second, the sovereign may transfer private property to private parties, often common carriers, who make the property available for the public’s use—such as with a railroad, a public utility, or a stadium. See, e.g. , National Railroad Passenger Corporation v. Boston & Maine Corp ., 503 U. S. 407 (1992); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co. , 240 U. S. 30 (1916). But “public ownership” and “use-by-the-public” are sometimes too constricting and impractical ways to define the scope of the Public Use Clause. Thus we have allowed that, in certain circumstances and to meet certain exigencies, takings that serve a public purpose also satisfy the Constitution even if the property is destined for subsequent private use. See, e.g. , Berman v. Parker , 348 U. S. 26 (1954); Hawaii Housing Authority v. Midkiff , 467 U. S. 229 (1984).    This case returns us for the first time in over 20 years to the hard question of when a purportedly “public purpose” taking meets the public use requirement. It presents an issue of first impression: Are economic development takings constitutional? I would hold that they are not. We are guided by two precedents about the taking of real property by eminent domain. In Berman , we upheld takings within a blighted neighborhood of Washington, D. C. The neighborhood had so deteriorated that, for example, 64.3% of its dwellings were beyond repair. 348 U. S., at 30. It had become burdened with “overcrowding of dwellings,” “lack of adequate streets and alleys,” and “lack of light and air.” Id., at 34. Congress had determined that the neighborhood had become “injurious to the public health, safety, morals, and welfare” and that it was necessary to “eliminat[e] all such injurious conditions by employing all means necessary and appropriate for the purpose,” including eminent domain. Id ., at 28. Mr. Berman’s department store was not itself blighted. Having approved of Congress’ decision to eliminate the harm to the public emanating from the blighted neighborhood, however, we did not second-guess its decision to treat the neighborhood as a whole rather than lot-by-lot. Id ., at 34–35; see also Midkiff , 467 U. S., at 244 (“it is only the taking’s purpose, and not its mechanics, that must pass scrutiny”).    In Midkiff , we upheld a land condemnation scheme in Hawaii whereby title in real property was taken from lessors and transferred to lessees. At that time, the State and Federal Governments owned nearly 49% of the State’s land, and another 47% was in the hands of only 72 private landowners. Concentration of land ownership was so dramatic that on the State’s most urbanized island, Oahu, 22 landowners owned 72.5% of the fee simple titles. Id. , at 232. The Hawaii Legislature had concluded that the oligopoly in land ownership was “skewing the State’s residential fee simple market, inflating land prices, and injuring the public tranquility and welfare,” and therefore enacted a condemnation scheme for redistributing title. Ibid .    In those decisions, we emphasized the importance of deferring to legislative judgments about public purpose. Because courts are ill-equipped to evaluate the efficacy of proposed legislative initiatives, we rejected as unworkable the idea of courts’ “ ‘deciding on what is and is not a governmental function and … invalidating legislation on the basis of their view on that question at the moment of decision, a practice which has proved impracticable in other fields.’ ” Id. , at 240–241 (quoting United States ex rel. TVA v. Welch , 327 U. S. 546 , 552 (1946)); see Berman , supra , at 32 (“[T]he legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation”); see also Lingle v. Chevron U. S. A., Inc. , 544 U. S. __ (2005). Likewise, we recognized our inability to evaluate whether, in a given case, eminent domain is a necessary means by which to pursue the legislature’s ends. Midkiff , supra , at 242; Berman , supra , at 103.    Yet for all the emphasis on deference, Berman and Midkiff hewed to a bedrock principle without which our public use jurisprudence would collapse: “A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.” Midkiff , 467 U. S., at 245; id ., at 241 (“[T]he Court’s cases have repeatedly stated that ‘one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid’ ” (quoting Thompson v. Consolidated Gas Util. Corp ., 300 U. S. 55 , 80 (1937))); see also Missouri Pacific R. Co. v. Nebraska , 164 U. S. 403 , 417 (1896). To protect that principle, those decisions reserved “a role for courts to play in reviewing a legislature’s judgment of what constitutes a public use … [though] the Court in Berman made clear that it is ‘an extremely narrow’ one.” Midkiff , supra , at 240 (quoting Berman , supra , at 32).    The Court’s holdings in Berman and Midkiff were true to the principle underlying the Public Use Clause. In both those cases, the extraordinary, precondemnation use of the targeted property inflicted affirmative harm on society—in Berman through blight resulting from extreme poverty and in Midkiff through oligopoly resulting from extreme wealth. And in both cases, the relevant legislative body had found that eliminating the existing property use was necessary to remedy the harm. Berman , supra , at 28–29; Midkiff , supra , at 232. Thus a public purpose was realized when the harmful use was eliminated. Because each taking directly achieved a public benefit, it did not matter that the property was turned over to private use. Here, in contrast, New London does not claim that Susette Kelo’s and Wilhelmina Dery’s well-maintained homes are the source of any social harm. Indeed, it could not so claim without adopting the absurd argument that any single-family home that might be razed to make way for an apartment building, or any church that might be replaced with a retail store, or any small business that might be more lucrative if it were instead part of a national franchise, is inherently harmful to society and thus within the government’s power to condemn.    In moving away from our decisions sanctioning the condemnation of harmful property use, the Court today significantly expands the meaning of public use. It holds that the sovereign may take private property currently put to ordinary private use, and give it over for new, ordinary private use, so long as the new use is predicted to generate some secondary benefit for the public—such as increased tax revenue, more jobs, maybe even aesthetic pleasure. But nearly any lawful use of real private property can be said to generate some incidental benefit to the public. Thus, if predicted (or even guaranteed) positive side-effects are enough to render transfer from one private party to another constitutional, then the words “for public use” do not realistically exclude any takings, and thus do not exert any constraint on the eminent domain power.    There is a sense in which this troubling result follows from errant language in Berman and Midkiff . In discussing whether takings within a blighted neighborhood were for a public use, Berman began by observing: “We deal, in other words, with what traditionally has been known as the police power.” 348 U. S., at 32. From there it declared that “[o]nce the object is within the authority of Congress, the right to realize it through the exercise of eminent domain is clear.” Id ., at 33. Following up, we said in Midkiff that “[t]he ‘public use’ requirement is coterminous with the scope of a sovereign’s police powers.” 467 U. S., at 240. This language was unnecessary to the specific holdings of those decisions. Berman and Midkiff simply did not put such language to the constitutional test, because the takings in those cases were within the police power but also for “public use” for the reasons I have described. The case before us now demonstrates why, when deciding if a taking’s purpose is constitutional, the police power and “public use” cannot always be equated.   The Court protests that it does not sanction the bare transfer from A to B for B’s benefit. It suggests two limitations on what can be taken after today’s decision. First, it maintains a role for courts in ferreting out takings whose sole purpose is to bestow a benefit on the private transferee—without detailing how courts are to conduct that complicated inquiry. Ante , at 7. For his part, Justice Kennedy suggests that courts may divine illicit purpose by a careful review of the record and the process by which a legislature arrived at the decision to take—without specifying what courts should look for in a case with different facts, how they will know if they have found it, and what to do if they do not. Ante , at 2–3 (concurring opinion). Whatever the details of Justice Kennedy’s as-yet-undisclosed test, it is difficult to envision anyone but the “stupid staff[er]” failing it. See Lucas v. South Carolina Coastal Council , 505 U. S. 1003 , 1025–1026, n. 12 (1992). The trouble with economic development takings is that private benefit and incidental public benefit are, by definition, merged and mutually reinforcing. In this case, for example, any boon for Pfizer or the plan’s developer is difficult to disaggregate from the promised public gains in taxes and jobs. See App. to Pet. for Cert. 275–277.    Even if there were a practical way to isolate the motives behind a given taking, the gesture toward a purpose test is theoretically flawed. If it is true that incidental public benefits from new private use are enough to ensure the “public purpose” in a taking, why should it matter, as far as the Fifth Amendment is concerned, what inspired the taking in the first place? How much the government does or does not desire to benefit a favored private party has no bearing on whether an economic development taking will or will not generate secondary benefit for the public. And whatever the reason for a given condemnation, the effect is the same from the constitutional perspective—private property is forcibly relinquished to new private ownership.    A second proposed limitation is implicit in the Court’s opinion. The logic of today’s decision is that eminent domain may only be used to upgrade—not downgrade—property. At best this makes the Public Use Clause redundant with the Due Process Clause, which already prohibits irrational government action. See Lingle , 544 U. S. __. The Court rightfully admits, however, that the judiciary cannot get bogged down in predictive judgments about whether the public will actually be better off after a property transfer. In any event, this constraint has no realistic import. For who among us can say she already makes the most productive or attractive possible use of her property? The specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory. Cf. Bugryn v. Bristol , 63 Conn. App. 98, 774 A. 2d 1042 (2001) (taking the homes and farm of four owners in their 70’s and 80’s and giving it to an “industrial park”); 99 Cents Only Stores v. Lancaster Redevelopment Authority , 237 F. Supp. 2d 1123 (CD Cal. 2001) (attempted taking of 99 Cents store to replace with a Costco); Poletown Neighborhood Council v. Detroit , 410 Mich. 616, 304 N. W. 2d 455 (1981) (taking a working-class, immigrant community in Detroit and giving it to a General Motors assembly plant), overruled by County of Wayne v. Hathcock , 471 Mich. 415, 684 N. W. 2d 765 (2004); Brief for the Becket Fund for Religious Liberty as Amicus Curiae 4–11 (describing takings of religious institutions’ properties); Institute for Justice, D. Berliner, Public Power, Private Gain: A Five-Year, State-by-State Report Examining the Abuse of Eminent Domain (2003) (collecting accounts of economic development takings).    The Court also puts special emphasis on facts peculiar to this case: The NLDC’s plan is the product of a relatively careful deliberative process; it proposes to use eminent domain for a multipart, integrated plan rather than for isolated property transfer; it promises an array of incidental benefits (even aesthetic ones), not just increased tax revenue; it comes on the heels of a legislative determination that New London is a depressed municipality. See, e.g ., ante , at 16 (“[A] one-to-one transfer of property, executed outside the confines of an integrated development plan, is not presented in this case”). Justice Kennedy, too, takes great comfort in these facts. Ante , at 4 (concurring opinion). But none has legal significance to blunt the force of today’s holding. If legislative prognostications about the secondary public benefits of a new use can legitimate a taking, there is nothing in the Court’s rule or in Justice Kennedy’s gloss on that rule to prohibit property transfers generated with less care, that are less comprehensive, that happen to result from less elaborate process, whose only projected advantage is the incidence of higher taxes, or that hope to transform an already prosperous city into an even more prosperous one.    Finally, in a coda, the Court suggests that property owners should turn to the States, who may or may not choose to impose appropriate limits on economic development takings. Ante , at 19. This is an abdication of our responsibility. States play many important functions in our system of dual sovereignty, but compensating for our refusal to enforce properly the Federal Constitution (and a provision meant to curtail state action, no less) is not among them. ***    It was possible after Berman and Midkiff to imagine unconstitutional transfers from A to B. Those decisions endorsed government intervention when private property use had veered to such an extreme that the public was suffering as a consequence. Today nearly all real property is susceptible to condemnation on the Court’s theory. In the prescient words of a dissenter from the infamous decision in Poletown , “[n]ow that we have authorized local legislative bodies to decide that a different commercial or industrial use of property will produce greater public benefits than its present use, no homeowner’s, merchant’s or manufacturer’s property, however productive or valuable to its owner, is immune from condemnation for the benefit of other private interests that will put it to a ‘higher’ use.” 410 Mich., at 644–645, 304 N. W. 2d, at 464 (opinion of Fitzgerald, J.). This is why economic development takings “seriously jeopardiz[e] the security of all private property ownership.” Id ., at 645, 304 N. W. 2d, at 465 (Ryan, J., dissenting).    Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result. “[T]hat alone is a just government,” wrote James Madison, “which impartially secures to every man, whatever is his own .” For the National Gazette, Property, (Mar. 29, 1792), reprinted in 14 Papers of James Madison 266 (R. Rutland et al. eds. 1983).    I would hold that the takings in both Parcel 3 and Parcel 4A are unconstitutional, reverse the judgment of the Supreme Court of Connecticut, and remand for further proceedings. THOMAS, J., DISSENTING KELO V. NEW LONDON 545 U. S. ____ (2005) SUPREME COURT OF THE UNITED STATES NO. 04-108 SUSETTE KELO, et al., PETITIONERS v. CITY OF NEW LONDON, CONNECTICUT, et al. on writ of certiorari to the supreme court of connecticut [June 23, 2005]    Justice Thomas, dissenting.    Long ago, William Blackstone wrote that “the law of the land … postpone[s] even public necessity to the sacred and inviolable rights of private property.” 1 Commentaries on the Laws of England 134–135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for “public necessity,” but instead for “public use.” Amdt. 5. Defying this understanding, the Court replaces the Public Use Clause with a “ ‘[P]ublic [P]urpose’ ” Clause, ante , at 9–10 (or perhaps the “Diverse and Always Evolving Needs of Society” Clause, ante , at 8 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is “legitimate” and the means “not irrational,” ante , at 17 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a “public use.”    I cannot agree. If such “economic development” takings are for a “public use,” any taking is, and the Court has erased the Public Use Clause from our Constitution, as Justice O’Connor powerfully argues in dissent. Ante , at 1–2, 8–13. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court’s error runs deeper than this. Today’s decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meaning. In my view, the Public Use Clause, originally understood, is a meaningful limit on the government’s eminent domain power. Our cases have strayed from the Clause’s original meaning, and I would reconsider them. I    The Fifth Amendment provides: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process, of law; nor shall private property be taken for public use, without just compensation .” (Emphasis added.) It is the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is “imperative that the Court maintain absolute fidelity to” the Clause’s express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally. Shepard v. United States, 544 U. S. ___, ___ (2005) (slip op., at 2) (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted).    Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides “just compensation” for the taking, the Takings Clause also prohibits the government from taking property except “for public use.” Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain power—for public or private uses—then it would be surplusage. See ante , at 3–4 (O’Connor, J., dissenting); see also Marbury v. Madison, 1 Cranch 137, 174 (1803) (“It cannot be presumed that any clause in the constitution is intended to be without effect”); Myers v. United States, 272 U. S. 52 , 151 (1926). Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, “would permit private property to be taken or appropriated for private use without any compensation whatever.” Cole v. La Grange, 113 U. S. 1 , 8 (1885) (interpreting same language in the Missouri Public Use Clause). In other words, the Clause would require the government to compensate for takings done “for public use,” leaving it free to take property for purely private uses without the payment of compensation. This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 275 (1827) (hereinafter Kent); J. Madison, for the National Property Gazette, (Mar. 27, 1792), in 14 Papers of James Madison 266, 267 (R. Rutland et al. eds. 1983) (arguing that no property “shall be taken directly even for public use without indemnification to the owner”).[ Footnote 1 ] The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government’s power of eminent domain.    The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun “use” as “[t]he act of employing any thing to any purpose.” 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term “use,” moreover, “is from the Latin utor , which means ‘to use, make use of, avail one’s self of, employ, apply, enjoy, etc.” J. Lewis, Law of Eminent Domain §165, p. 224, n. 4 (1888) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is “employing” the property, regardless of the incidental benefits that might accrue to the public from the private use. The term “public use,” then, means that either the government or its citizens as a whole must actually “employ” the taken property. See id. , at 223 (reviewing founding-era dictionaries).    Granted, another sense of the word “use” was broader in meaning, extending to “[c]onvenience” or “help,” or “[q]ualities that make a thing proper for any purpose.” 2 Johnson 2194. Nevertheless, read in context, the term “public use” possesses the narrower meaning. Elsewhere, the Constitution twice employs the word “use,” both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 877, 897 (hereinafter Public Use Limitations). Article 1, §10 provides that “the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States,” meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, §8 grants Congress power “[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Here again, “use” means “employed to raise and support Armies,” not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meaning.    Tellingly, the phrase “public use” contrasts with the very different phrase “general Welfare” used elsewhere in the Constitution. See ibid. (“Congress shall have Power To … provide for the common Defence and general Welfare of the United States”); preamble (Constitution established “to promote the general Welfare”). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. See Sales, Classical Republicanism and the Fifth Amendment’s “Public Use” Requirement, 49 Duke L. J. 339, 368 (2000) (hereinafter Sales) (noting contrast between, on the one hand, the term “public use” used by 6 of the first 13 States and, on the other, the terms “public exigencies” employed in the Massachusetts Bill of Rights and the Northwest Ordinance, and the term “public necessity” used in the Vermont Constitution of 1786). The Constitution’s text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, not if the public realizes any conceivable benefit from the taking.    The Constitution’s common-law background reinforces this understanding. The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of nuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government’s power to take private property with compensation), with 3 id. , at 216 (noting action to remedy “ public …nuisances, which affect the public and are an annoyance to all the king’s subjects”); see also 2 Kent 274–276 (distinguishing the two). Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. “So great … is the regard of the law for private property,” he explained, “that it will not authorize the least violation of it; no, not even for the general good of the whole community.” 1 Blackstone 135. He continued: “If a new road … were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land.” Ibid . Only “by giving [the landowner] full indemnification” could the government take property, and even then “[t]he public [was] now considered as an individual, treating with an individual for an exchange.” Ibid. When the public took property, in other words, it took it as an individual buying property from another typically would: for one’s own use. The Public Use Clause, in short, embodied the Framers’ understanding that property is a natural, fundamental right, prohibiting the government from “tak[ing] property from A. and giv[ing] it to B.” Calder v. Bull, 3 Dall. 386, 388 (1798); see also Wilkinson v. Leland, 2 Pet. 627, 658 (1829); Vanhorne’s Lessee v. Dorrance, 2 Dall. 304, 311 (CC Pa. 1795).    The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Clause. The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See Kohl v. United States, 91 U. S. 367 , 371–372 (1876) (noting Federal Government’s power under the Necessary and Proper Clause to take property “needed for forts, armories, and arsenals, for navy-yards and light-houses, for custom-houses, post-offices, and court-houses, and for other public uses”). For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an “obvious, simple, and direct relation” to an exercise of Congress’ enumerated powers, Sabri v. United States, 541 U. S. 600 , 613 (2004) (Thomas, J., concurring in judgment), and it must not “subvert basic principles of” constitutional design, Gonzales v. Raich, ante, at __ (Thomas, J., dissenting). In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. See supra , at 3. The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public. II    Early American eminent domain practice largely bears out this understanding of the Public Use Clause. This practice concerns state limits on eminent domain power, not the Fifth Amendment, since it was not until the late 19th century that the Federal Government began to use the power of eminent domain, and since the Takings Clause did not even arguably limit state power until after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on Eminent Domain: An Advance Requiem, 58 Yale L. J. 599, 599–600, and nn. 3–4 (1949); Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 250–251 (1833) (holding the Takings Clause inapplicable to the States of its own force). Nevertheless, several early state constitutions at the time of the founding likewise limited the power of eminent domain to “public uses.” See Sales 367–369, and n. 137 (emphasis deleted). Their practices therefore shed light on the original meaning of the same words contained in the Public Use Clause.    States employed the eminent domain power to provide quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks. Lewis §§166, 168–171, 175, at 227–228, 234–241, 243. Though use of the eminent domain power was sparse at the time of the founding, many States did have so-called Mill Acts, which authorized the owners of grist mills operated by water power to flood upstream lands with the payment of compensation to the upstream landowner. See, e.g., id. , §178, at 245–246; Head v. Amoskeag Mfg. Co., 113 U. S. 9 , 16–19, and n. (1885). Those early grist mills “were regulated by law and compelled to serve the public for a stipulated toll and in regular order,” and therefore were actually used by the public. Lewis §178, at 246, and n. 3; see also Head , supra , at 18–19. They were common carriers—quasi-public entities. These were “public uses” in the fullest sense of the word, because the public could legally use and benefit from them equally. See Public Use Limitations 903 (common-carrier status traditionally afforded to “private beneficiaries of a state franchise or another form of state monopoly, or to companies that operated in conditions of natural monopoly”). To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private roads. See Lewis §167, at 230. These statutes were mixed; some required the private landowner to keep the road open to the public, and others did not. See id. , §167, at 230–234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in addition to grist mills that had common-carrier duties. See, e.g., M. Horwitz, The Transformation of American Law 1780–1860, pp. 51–52 (1977). These early uses of the eminent domain power are often cited as evidence for the broad “public purpose” interpretation of the Public Use Clause, see, e.g., ante , at 8, n. 8 (majority opinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae at 6–7, but in fact the constitutionality of these exercises of eminent domain power under state public use restrictions was a hotly contested question in state courts throughout the 19th and into the 20th century. Some courts construed those clauses to authorize takings for public purposes, but others adhered to the natural meaning of “public use.”[ Footnote 2 ] As noted above, the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Clause. See McIntyre v. Ohio Elections Comm’n, 514 U. S. 334 , 370 (1995) (Thomas, J., concurring in judgment). At the time of the founding, “[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d’&eogon;tre of chartered associations was their service to the public,” Horwitz, supra , at 49–50, so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities. The disagreement among state courts, and state legislatures’ attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property. III Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Clause. Ante , at 8–10. The Court adopted its modern reading blindly, with little discussion of the Clause’s history and original meaning, in two distinct lines of cases: first, in cases adopting the “public purpose” interpretation of the Clause, and second, in cases deferring to legislatures’ judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential conception of “public use” adopted by this Court in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), cases that take center stage in the Court’s opinion. See ante , 10–12. The weakness of those two lines of cases, and consequently Berman and Midkiff , fatally undermines the doctrinal foundations of the Court’s decision. Today’s questionable application of these cases is further proof that the “public purpose” standard is not susceptible of principled application. This Court’s reliance by rote on this standard is ill advised and should be reconsidered. A As the Court notes, the “public purpose” interpretation of the Public Use Clause stems from Fallbrook Irrigation Dist. v. Bradley, 164 U. S. 112 , 161–162 (1896). Ante , at 11. The issue in Bradley was whether a condemnation for purposes of constructing an irrigation ditch was for a public use. 164 U. S., at 161. This was a public use, Justice Peckham declared for the Court, because “[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State.” Ibid . That broad statement was dictum, for the law under review also provided that “[a]ll landowners in the district have the right to a proportionate share of the water.” Id. , at 162. Thus, the “public” did have the right to use the irrigation ditch because all similarly situated members of the public—those who owned lands irrigated by the ditch–had a right to use it. The Court cited no authority for its dictum, and did not discuss either the Public Use Clause’s original meaning or the numerous authorities that had adopted the “actual use” test (though it at least acknowledged the conflict of authority in state courts, see id. , at 158; supra , at 9, and n. 2). Instead, the Court reasoned that “[t]he use must be regarded as a public use, or else it would seem to follow that no general scheme of irrigation can be formed or carried into effect.” Bradley , supra , at 160–161. This is no statement of constitutional principle: Whatever the utility of irrigation districts or the merits of the Court’s view that another rule would be “impractical given the diverse and always evolving needs of society,” ante , at 8, the Constitution does not embody those policy preferences any more than it “enact[s] Mr. Herbert Spencer’s Social Statics.” Lochner v. New York, 198 U. S. 45 , 75 (1905) (Holmes, J., dissenting); but see id. , at 58–62 (Peckham, J., for the Court). This Court’s cases followed Bradley ’s test with little analysis. In Clark v. Nash, 198 U. S. 361 (1905) (Peckham, J., for the Court), this Court relied on little more than a citation to Bradley in upholding another condemnation for the purpose of laying an irrigation ditch. 198 U. S., at 369–370. As in Bradley , use of the “public purpose” test was unnecessary to the result the Court reached. The government condemned the irrigation ditch for the purpose of ensuring access to water in which “[o]ther land owners adjoining the defendant in error … might share,” 198 U. S., at 370, and therefore Clark also involved a condemnation for the purpose of ensuring access to a resource to which similarly situated members of the public had a legal right of access. Likewise, in Strickley v. Highland Boy Gold Mining Co., 200 U. S. 527 (1906), the Court upheld a condemnation establishing an aerial right-of-way for a bucket line operated by a mining company, relying on little more than Clark , see Strickley, supra, at 531. This case, too, could have been disposed of on the narrower ground that “the plaintiff [was] a carrier for itself and others,” 200 U. S., at 531–532, and therefore that the bucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the “inadequacy of use by the general public as a universal test.” Id. , at 531. This Court’s cases quickly incorporated the public purpose standard set forth in Clark and Strickley by barren citation. See, e.g., Rindge Co. v. County of Los Angeles, 262 U. S. 700 , 707 (1923); Block v. Hirsh, 256 U. S. 135 , 155 (1921); Mt. Vernon-Woodberry Cotton Duck Co. v. Alabama Interstate Power Co., 240 U. S. 30 , 32 (1916); O’Neill v. Leamer, 239 U. S. 244 , 253 (1915). B A second line of this Court’s cases also deviated from the Public Use Clause’s original meaning by allowing legislatures to define the scope of valid “public uses.” United States v. Gettysburg Electric R. Co., 160 U. S. 668 (1896), involved the question whether Congress’ decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public use. Id. , at 679–680. Since the Federal Government was to use the lands in question, id. , at 682, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that “when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation.” Id. , at 680. As it had with the “public purpose” dictum in Bradley , supra , the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e.g., United States ex rel. TVA v. Welch, 327 U. S. 546 , 552 (1946); Old Dominion Land Co. v. United States, 269 U. S. 55 , 66 (1925). There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a “public use.” To begin with, a court owes no deference to a legislature’s judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the “public purpose” interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely among all the express provisions of the Bill of Rights. We would not defer to a legislature’s determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e.g., Payton v. New York, 445 U. S. 573 , 589–590 (1980), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see Deck v. Missouri, 544 U. S. ___ (2005), or when state law creates a property interest protected by the Due Process Clause, see, e.g., Castle Rock v. Gonzales, post, at __; Board of Regents of State Colleges v. Roth, 408 U. S. 564 , 576 (1972); Goldberg v. Kelly, 397 U. S. 254 , 262–263 (1970). Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e.g. , Goldberg , supra , while deferring to the legislature’s determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals’ traditional rights in real property. The Court has elsewhere recognized “the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic,” Payton , supra , at 601, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to “second-guess the City’s considered judgments,” ante , at 18, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners’ homes. Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante , at 6, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it. C These two misguided lines of precedent converged in Berman v. Parker, 348 U. S. 26 (1954), and Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984). Relying on those lines of cases, the Court in Berman and Midkiff upheld condemnations for the purposes of slum clearance and land redistribution, respectively. “Subject to specific constitutional limitations,” Berman proclaimed, “when the legislature has spoken, the public interest has been declared in terms well-nigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation.” 348 U. S., at 32. That reasoning was question begging, since the question to be decided was whether the “specific constitutional limitation” of the Public Use Clause prevented the taking of the appellant’s (concededly “nonblighted”) department store. Id. , at 31, 34. Berman also appeared to reason that any exercise by Congress of an enumerated power (in this case, its plenary power over the District of Columbia) was per se a “public use” under the Fifth Amendment. Id. , at 33. But the very point of the Public Use Clause is to limit that power. See supra , at 3–4. More fundamentally, Berman and Midkiff erred by equating the eminent domain power with the police power of States. See Midkiff, 467 U. S., at 240 (“The ‘public use’ requirement is … coterminous with the scope of a sovereign’s police powers”); Berman, 348 U. S., at 32. Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever, see Mugler v. Kansas, 123 U. S. 623 , 668–669 (1887), in sharp contrast to the takings power, which has always required compensation, see supra , at 3, and n. 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. See, e.g., Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1014 (1992); Mugler , supra , at 668–669. In Berman , for example, if the slums at issue were truly “blighted,” then state nuisance law, see, e.g., supra , at 5–6; Lucas, supra , at 1029, not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States’ police power conflates these two categories.[ Footnote 3 ] The “public purpose” test applied by Berman and Midkiff also cannot be applied in principled manner. “When we depart from the natural import of the term ‘public use,’ and substitute for the simple idea of a public possession and occupation, that of public utility, public interest, common benefit, general advantage or convenience … we are afloat without any certain principle to guide us.” Bloodgood v. Mohawk & Hudson R. Co. , 18 Wend. 9, 60–61 (NY 1837) (opinion of Tracy, Sen.). Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public use–at least, none beyond Justice O’Connor’s (entirely proper) appeal to the text of the Constitution itself. See ante , at 1–2, 8–13 (dissenting opinion). I share the Court’s skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante , at 16–19. The “public purpose” standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private taking. Ante , at 7–8. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest. Cf. ante , at 9–10 (O’Connor, J., dissenting) (noting the complicated inquiry the Court’s test requires). The Court is therefore wrong to criticize the “actual use” test as “difficult to administer.” Ante , at 8. It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a “purely private purpose”–unless the Court means to eliminate public use scrutiny of takings entirely. Ante , at 7–8, 16–17. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property. IV The consequences of today’s decision are not difficult to predict, and promise to be harmful. So-called “urban renewal” programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect “discrete and insular minorities,” United States v. Carolene Products Co., 304 U. S. 144 , 152, n. 4 (1938), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages “those citizens with dis- proportionate influence and power in the political pro- cess, including large corporations and development firms” to victimize the weak. Ante , at 11 (O’Connor, J., dissenting). Those incentives have made the legacy of this Court’s “public purpose” test an unhappy one. In the 1950’s, no doubt emboldened in part by the expansive understanding of “public use” this Court adopted in Berman , cities “rushed to draw plans” for downtown development. B. Frieden & L. Sagalayn, Downtown, Inc. How America Rebuilds Cities 17 (1989). “Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 38 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available to them.” Id. , at 28. Public works projects in the 1950’s and 1960’s destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. Id. , at 28–29. In 1981, urban planners in Detroit, Michigan, uprooted the largely “lower-income and elderly” Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 58 (1989). Urban renewal projects have long been associated with the displacement of blacks; “[i]n cities across the country, urban renewal came to be known as ‘Negro removal.’ ” Pritchett, The “Public Menace” of Blight: Urban Renewal and the Private Uses of Eminent Domain, 21 Yale L. & Pol’y Rev. 1, 47 (2003). Over 97 percent of the individuals forcibly removed from their homes by the “slum-clearance” project upheld by this Court in Berman were black. 348 U. S., at 30. Regrettably, the predictable consequence of the Court’s decision will be to exacerbate these effects. *** The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante , at 8–12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra , at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning. For the reasons I have given, and for the reasons given in Justice O’Connor’s dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners’ favor. I would reverse the judgment of the Connecticut Supreme Court. Footnote 1 Some state constitutions at the time of the founding lacked just compensation clauses and took property even without providing compensation. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1056–1057 (1992) (Blackmun, J., dissenting). The Framers of the Fifth Amendment apparently disagreed, for they expressly prohibited uncompensated takings, and the Fifth Amendment was not incorporated against the States until much later. See id. , at 1028, n. 15. Footnote 2 Compare ante , at 8, and n. 8 (majority opinion) (noting that some state courts upheld the validity of applying the Mill Acts to private purposes and arguing that the “ ‘use by the public’ test” “eroded over time”), with, e.g. , Ryerson v. Brown , 35 Mich. 333, 338–339 (1877) (holding it “essential” to the constitutionality of a Mill Act “that the statute should require the use to be public in fact; in other words, that it should contain provisions entitling the public to accommodations”); Gaylord v. Sanitary Dist. of Chicago , 204 Ill. 576, 581–584, 68 N. E. 522, 524 (1903) (same); Tyler v. Beacher , 44 Vt. 648, 652–656 (1871) (same); Sadler v. Langham , 34 Ala. 311, 332–334 (1859) (striking down taking for purely private road and grist mill); Varner v. Martin , 21 W. Va. 534, 546–548, 556–557, 566–567 (1883) (grist mill and private road had to be open to public for them to constitute public use); Harding v. Goodlett , 3 Yerg. 41, 53 (1832); Jacobs v. Clearview Water Supply Co. , 220 Pa. 388, 393–395, 69 A. 870, 872 (1908) (endorsing actual public use standard); Minnesota Canal & Power Co. v. Koochiching Co. , 97 Minn. 429, 449–451, 107 N. W. 405, 413 (1906) (same); Chesapeake Stone Co. v. Moreland, 126 Ky. 656, 663–667, 104 S. W. 762, 765 (Ct. App. 1907) (same); Note, Public Use in Eminent Domain, 21 N. Y. U. L. Q. Rev. 285, 286, and n. 11 (1946) (calling the actual public use standard the “majority view” and citing other cases). Footnote 3 Some States also promoted the alienability of property by abolishing the feudal “quit rent” system, i.e. , long-term leases under which the proprietor reserved to himself the right to perpetual payment of rents from his tenant. See Vance, The Quest for Tenure in the United States, 33 Yale L. J. 248, 256–257, 260–263 (1923). In Hawaii Housing Authority v. Midkiff, 467 U. S. 229 (1984), the Court cited those state policies favoring the alienability of land as evidence that the government’s eminent domain power was similarly expansive, see id. , at 241–242, and n. 5. But they were uses of the States’ regulatory power, not the takings power, and therefore were irrelevant to the issue in Midkiff . This mismatch underscores the error of conflating a State’s regulatory power with its taking power.

The Supreme Court ruled in favor of the City of New London's use of eminent domain to acquire land for economic development, despite opposition from some property owners. This decision was based on the expected benefits of the development plan for the economically distressed city.

Property Rights & Land Use

Lucas v. South Carolina Coastal Council

https://supreme.justia.com/cases/federal/us/505/1003/

OCTOBER TERM, 1991 Syllabus LUCAS v. SOUTH CAROLINA COASTAL COUNCIL CERTIORARI TO THE SUPREME COURT OF SOUTH CAROLINA No. 91-453. Argued March 2, 1992-Decided June 29, 1992 In 1986, petitioner Lucas bought two residential lots on a South Carolina barrier island, intending to build single-family homes such as those on the immediately adjacent parcels. At that time, Lucas's lots were not subject to the State's coastal zone building permit requirements. In 1988, however, the state legislature enacted the Beachfront Management Act, which barred Lucas from erecting any permanent habitable structures on his parcels. He filed suit against respondent state agency, contending that, even though the Act may have been a lawful exercise of the State's police power, the ban on construction deprived him of all "economically viable use" of his property and therefore effected a "taking" under the Fifth and Fourteenth Amendments that required the payment of just compensation. See, e. g., Agins v. City of Tiburon, 447 U. S. 255 , 261. The state trial court agreed, finding that the ban rendered Lucas's parcels "valueless," and entered an award exceeding $1.2 million. In reversing, the State Supreme Court held itself bound, in light of Lucas's failure to attack the Act's validity, to accept the legislature's "uncontested ... findings" that new construction in the coastal zone threatened a valuable public resource. The court ruled that, under the Mugler v. Kansas, 123 U. S. 623 , line of cases, when a regulation is designed to prevent "harmful or noxious uses" of property akin to public nuisances, no compensation is owing under the Takings Clause regardless of the regulation's effect on the property's value. Held: 1. Lucas's takings claim is not rendered unripe by the fact that he may yet be able to secure a special permit to build on his property under an amendment to the Act passed after briefing and argument before the State Supreme Court, but prior to issuance of that court's opinion. Because it declined to rest its judgment on ripeness grounds, preferring to dispose of the case on the merits, the latter court's decision precludes, both practically and legally, any takings claim with respect to Lucas's pre amendment deprivation. Lucas has properly alleged injury in fact with respect to this pre amendment deprivation, and it would not accord with sound process in these circumstances to insist that he pursue the late-created procedure before that component of his takings claim can be considered ripe. Pp. 1010-1014. 1004 2. The State Supreme Court erred in applying the "harmful or noxious uses" principle to decide this case. Pp. 1014-1032. (a) Regulations that deny the property owner all "economically viable use of his land" constitute one of the discrete categories of regulatory deprivations that require compensation without the usual casespecific inquiry into the public interest advanced in support of the restraint. Although the Court has never set forth the justification for this categorical rule, the practical-and economic- equivalence of physically appropriating and eliminating all beneficial use of land counsels its preservation. Pp. 1014-1019. (b) A review of the relevant decisions demonstrates that the "harmful or noxious use" principle was merely this Court's early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; that the distinction between regulation that "prevents harmful use" and that which "confers benefits" is difficult, if not impossible, to discern on an objective, value-free basis; and that, therefore, noxious-use logic cannot be the basis for departing from this Court's categorical rule that total regulatory takings must be compensated. Pp. 1020-1026. (c) Rather, the question must turn, in accord with this Court's "takings" jurisprudence, on citizens' historic understandings regarding the content of, and the State's power over, the "bundle of rights" that they acquire when they take title to property. Because it is not consistent with the historical compact embodied in the Takings Clause that title to real estate is held subject to the State's subsequent decision to eliminate all economically beneficial use, a regulation having that effect cannot be newly decreed, and sustained, without compensation's being paid the owner. However, no compensation is owed-in this setting as with all takings claims-if the State's affirmative decree simply makes explicit what already inheres in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. Cf. Scranton v. Wheeler, 179 U. S. 141 , 163. Pp. 1027-1031. (d) Although it seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on Lucas's land, this state-law question must be dealt with on remand. To win its case, respondent cannot simply proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a commonlaw maxim such as sic utere tuo ut alienum non laedas, but must identify background principles of nuisance and property law that prohibit the uses Lucas now intends in the property's present circumstances. P.1031. 304 S. C. 376, 404 S. E. 2d 895, reversed and remanded. 1005 SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and THOMAS, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 1032. BLACKMUN, J., post, p. 1036, and STEVENS, J., post, p. 1061, filed dissenting opinions. SOUTER, J., filed a separate statement, post, p. 1076. A. Camden Lewis argued the cause for petitioner. With him on the briefs were Gerald M. Finkel and David J. Bederman. C. C. Harness III argued the cause for respondent. With him on the brief were T. Travis Medlock, Attorney General of South Carolina, Kenneth P. Woodington, Senior Assistant Attorney General, and Richard J. Lazarus. * *Briefs of amici curiae urging reversal were filed for the United States by Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Clegg, Acting Deputy Assistant Attorney General Cohen, Edwin S. Kneedler, Peter R. Steen land, James E. Brookshire, John A. Bryson, and Martin W Matzen; for United States Senator Steve Symms et al. by Peter D. Dickson, Howard E. Shapiro, and D. Eric Hultman; for the American Farm Bureau Federation et al. by James D. Holzhauer, Clifford M. Sloan, Timothy S. Bishop, John J. Rademacher, and Richard L. Krause; for the American Mining Congress et al. by George W Miller, Walter A. Smith, Jr., Stuart A. Sanderson, William E. Hynan, and Robert A. Kirshner; for the Chamber of Commerce of the United States of America by Stephen A. Bokat, Robin S. Conrad, Herbert L. Fenster, and Tami Lyn Azorsky; for Defenders of Property Rights et al. by Nancy G. Marzulla; for the Fire Island Association, Inc., by Bernard S. Meyer; for the Institute for Justice by Richard A. Epstein, William H. Mellor III, Clint Bolick, and Jonathan W Emord; for the Long Beach Island Oceanfront Homeowners Association et al. by Theodore J. Carlson; for the Mountain States Legal Foundation et al. by William Perry Pendley; for the National Association of Home Builders et al. by Michael M. Berger and William H. Ethier; for the Nemours Foundation, Inc., by John J. Mullenholz; for the Northern Virginia Chapter of the National Association of Industrial and Office Parks et al. by John Holland Foote and John F. Cahill; for the Pacific Legal Foundation by Ronald A. Zumbrun, Edward J. Connor, Jr., and R. S. Radford; and for the South Carolina Policy Council Education Foundation et al. by G. Stephen Parker. Briefs of amici curiae urging affirmance were filed for the State of California by Daniel E. Lungren, Attorney General, Roderick E. Walston, 1006 JUSTICE SCALIA delivered the opinion of the Court. In 1986, petitioner David H. Lucas paid $975,000 for two residential lots on the Isle of Palms in Charleston County, Chief Assistant Attorney General, Jan S. Stevens, Assistant Attorney General, Richard M. Frank and Craig C. Thompson, Supervising Deputy Attorneys General, and Maria Dante Brown and Virna L. Santos, Deputy Attorneys General; for the State of Florida et al. by Robert A. Butterworth, Attorney General of Florida, and Lewis F. Hubener, Assistant Attorney General, James H. Evans, Attorney General of Alabama, Richard Blumenthal, Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price, Attorney General of Hawaii, Bonnie J. Campbell, Attorney General of Iowa, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Scott Harshbarger, Attorney General of Massachusetts, Frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Frankie Sue Del Papa, Attorney General of Nevada, Robert J. Del Tufo, Attorney General of New Jersey, John P. Arnold, Attorney General of New Hampshire, Tom Udall, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, and Jerry Boone, Solicitor General, Lacy H. Thornburg, Attorney General of North Carolina, Charles S. Crookham, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Jorges Perez-Diaz, Attorney General of Puerto Rico, James E. O'Neil, Attorney General of Rhode Island, Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, James E. Doyle, Attorney General of Wisconsin, Dan Morales, Attorney General of Texas, and Brian A. Goldman; for Broward County et al. by John J. Copelan, Jr., Herbert W A. Thiele, and H. Hamilton Rice, Jr.; for California Cities and Counties by Robin D. Faisant, Gary T. Ragghianti, Manuela Albuquerque, F. Thomas Caporael, William Camil, Scott H. Howard, Roger Picquet, Joseph Barron, David J. Erwin, Charles J. Williams, John Calhoun, Robert K. Booth, Jr., Anthony S. Alperin, Leland H. Jordan, John L. Cook, Jayne Williams, Gary L. Gillig, Dave Larsen, Don G. Kircher, Jean Leonard Harris, Michael F. Dean, John W Witt, C. Alan Sumption, Joan Gallo, George Rios, Daniel S. Hentschke, Joseph Lawrence, Peter Bulens, and Thomas Haas; for Nueces County, Texas, et al. by Peter A. A. Berle, Glenn P. Sugameli, Ann Powers, and Zygmunt J. B. Plater; for the American Planning Association et al. by H. Bissell Carey III and Gary A. Owen; for Members of the National Growth Management Leadership Project by John A. Humbach; for the Municipal Art Society of New York, 1007 South Carolina, on which he intended to build single-family homes. In 1988, however, the South Carolina Legislature enacted the Beachfront Management Act, S. C. Code Ann. § 48-39-250 et seq. (Supp. 1990), which had the direct effect of barring petitioner from erecting any permanent habitable structures on his two parcels. See § 48-39-290(A). A state trial court found that this prohibition rendered Lucas's parcels "valueless." App. to Pet. for Cert. 37. This case requires us to decide whether the Act's dramatic effect on the economic value of Lucas's lots accomplished a taking of private property under the Fifth and Fourteenth Amendments requiring the payment of "just compensation." U. S. Const., Arndt. 5. I A South Carolina's expressed interest in intensively managing development activities in the so-called "coastal zone" dates from 1977 when, in the aftermath of Congress's passage of the federal Coastal Zone Management Act of 1972, 86 Stat. 1280, as amended, 16 U. S. C. § 1451 et seq., the legislature enacted a Coastal Zone Management Act of its own. See S. C. Code Ann. § 48-39-10 et seq. (1987). In its original form, the South Carolina Act required owners of coastal zone land that qualified as a "critical area" (defined in the legislation to include beaches and immediately adjacent sand dunes, Inc., by William E. Hegarty, Michael S. Gruen, Philip K. Howard, Norman Marcus, and Philip Weinberg; for the National Trust for Historic Preservation in the United States by Lloyd N. Cutler, Louis R. Cohen, David R. Johnson, Peter B. Hutt II, Jerold S. Kayden, David A. Doheny, and Elizabeth S. Merritt; for the Sierra Club et al. by Lawrence N. Minch, Laurens H. Silver, and Charles M. Chambers; and for the U. S. Conference of Mayors et al. by Richard Ruda, Michael G. Dzialo, and Barbara Etkind. Briefs of amici curiae were filed for the National Association of Realtors by Ralph W Holmen; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar. 1008 §48-39-10(J)) to obtain a permit from the newly created South Carolina Coastal Council (Council) (respondent here) prior to committing the land to a "use other than the use the critical area was devoted to on [September 28, 1977]." § 48-39-130(A). In the late 1970's, Lucas and others began extensive residential development of the Isle of Palms, a barrier island situated eastward of the city of Charleston. Toward the close of the development cycle for one residential subdivision known as "Beachwood East," Lucas in 1986 purchased the two lots at issue in this litigation for his own account. No portion of the lots, which were located approximately 300 feet from the beach, qualified as a "critical area" under the 1977 Act; accordingly, at the time Lucas acquired these parcels, he was not legally obliged to obtain a permit from the Council in advance of any development activity. His intention with respect to the lots was to do what the owners of the immediately adjacent parcels had already done: erect singlefamily residences. He commissioned architectural drawings for this purpose. The Beachfront Management Act brought Lucas's plans to an abrupt end. Under that 1988 legislation, the Council was directed to establish a "baseline" connecting the landwardmost "point[s] of erosion ... during the past forty years" in the region of the Isle of Palms that includes Lucas's lots. S. C. Code Ann. § 48-39-280(A)(2) (Supp. 1988).1 In action not challenged here, the Council fixed this baseline landward of Lucas's parcels. That was significant, for under the Act 1 This specialized historical method of determining the baseline applied because the Beachwood East subdivision is located adjacent to a so-called "inlet erosion zone" (defined in the Act to mean "a segment of shoreline along or adjacent to tidal inlets which are directly influenced by the inlet and its associated shoals," S. C. Code Ann. § 48-39-270(7) (Supp. 1988)) that is "not stabilized by jetties, terminal groins, or other structures," § 48-39-280(A)(2). For areas other than these unstabilized inlet erosion zones, the statute directs that the baseline be established along "the crest of an ideal primary oceanfront sand dune." §48-39-280(A)(1). 1009 construction of occupable improvements 2 was flatly prohibited seaward of a line drawn 20 feet landward of, and parallel to, the baseline. § 48-39-290(A). The Act provided no exceptions. B Lucas promptly filed suit in the South Carolina Court of Common Pleas, contending that the Beachfront Management Act's construction bar effected a taking of his property without just compensation. Lucas did not take issue with the validity of the Act as a lawful exercise of South Carolina's police power, but contended that the Act's complete extinguishment of his property's value entitled him to compensation regardless of whether the legislature had acted in furtherance of legitimate police power objectives. Following a bench trial, the court agreed. Among its factual determinations was the finding that "at the time Lucas purchased the two lots, both were zoned for single-family residential construction and ... there were no restrictions imposed upon such use of the property by either the State of South Carolina, the County of Charleston, or the Town of the Isle of Palms." App. to Pet. for Cert. 36. The trial court further found that the Beachfront Management Act decreed a permanent ban on construction insofar as Lucas's lots were concerned, and that this prohibition "deprive[d] Lucas of any reasonable economic use of the lots, ... eliminated the unrestricted right of use, and render[ed] them valueless." Id., at 37. The court thus concluded that Lucas's properties had been "taken" by operation of the Act, and it ordered respondent to pay "just compensation" in the amount of $1,232,387.50. Id., at 40. The Supreme Court of South Carolina reversed. It found dispositive what it described as Lucas's concession "that the 2 The Act did allow the construction of certain nonhabitable improvements, e. g., "wooden walkways no larger in width than six feet," and "small wooden decks no larger than one hundred forty-four square feet." §§ 48-39-290(A)(1) and (2). 1010 Beachfront Management Act [was] properly and validly designed to preserve ... South Carolina's beaches." 304 S. C. 376, 379, 404 S. E. 2d 895, 896 (1991). Failing an attack on the validity of the statute as such, the court believed itself bound to accept the "uncontested ... findings" of the South Carolina Legislature that new construction in the coastal zone-such as petitioner intended-threatened this public resource. Id., at 383, 404 S. E. 2d, at 898. The court ruled that when a regulation respecting the use of property is designed "to prevent serious public harm," id., at 383, 404 S. E. 2d, at 899 (citing, inter alia, Mugler v. Kansas, 123 U. S. 623 (1887)), no compensation is owing under the Takings Clause regardless of the regulation's effect on the property's value. Two justices dissented. They acknowledged that our Mugler line of cases recognizes governmental power to prohibit "noxious" uses of property-i. e., uses of property akin to "public nuisances"-without having to pay compensation. But they would not have characterized the Beachfront Management Act's "primary purpose [as] the prevention of a nuisance." 304 S. C., at 395, 404 S. E. 2d, at 906 (Harwell, J., dissenting). To the dissenters, the chief purposes of the legislation, among them the promotion of tourism and the creation of a "habitat for indigenous flora and fauna," could not fairly be compared to nuisance abatement. Id., at 396, 404 S. E. 2d, at 906. As a consequence, they would have affirmed the trial court's conclusion that the Act's obliteration of the value of petitioner's lots accomplished a taking. We granted certiorari. 502 U. S. 966 (1991). II As a threshold matter, we must briefly address the Council's suggestion that this case is inappropriate for plenary review. After briefing and argument before the South Carolina Supreme Court, but prior to issuance of that court's opinion, the Beachfront Management Act was amended to 1011 authorize the Council, in certain circumstances, to issue "special permits" for the construction or reconstruction of habitable structures seaward of the baseline. See S. C. Code Ann. § 48-39-290(D)(1) (Supp. 1991). According to the Council, this amendment renders Lucas's claim of a permanent deprivation unripe, as Lucas may yet be able to secure permission to build on his property. "[The Court's] cases," we are reminded, "uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it." MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 351 (1986). See also Agins v. City of Tiburon, 447 U. S. 255 , 260 (1980). Because petitioner "has not yet obtained a final decision regarding how [he] will be allowed to develop [his] property," Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172, 190 (1985), the Council argues that he is not yet entitled to definitive adjudication of his takings claim in this Court. We think these considerations would preclude review had the South Carolina Supreme Court rested its judgment on ripeness grounds, as it was (essentially) invited to do by the Council. See Brief for Respondent 9, n. 3. The South Carolina Supreme Court shrugged off the possibility of further administrative and trial proceedings, however, preferring to dispose of Lucas's takings claim on the merits. Cf., e. g., San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 631-632 (1981). This unusual disposition does not preclude Lucas from applying for a permit under the 1990 amendment for future construction, and challenging, on takings grounds, any denial. But it does preclude, both practically and legally, any takings claim with respect to Lucas's past deprivation, i. e., for his having been denied construction rights during the period before the 1990 amendment. See generally First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987) (holding that 1012 temporary deprivations of use are compensable under the Takings Clause). Without even so much as commenting upon the consequences of the South Carolina Supreme Court's judgment in this respect, the Council insists that permitting Lucas to press his claim of a past deprivation on this appeal would be improper, since "the issues of whether and to what extent [Lucas] has incurred a temporary taking ... have simply never been addressed." Brief for Respondent 11. Yet Lucas had no reason to proceed on a "temporary taking" theory at trial, or even to seek remand for that purpose prior to submission of the case to the South Carolina Supreme Court, since as the Act then read, the taking was unconditional and permanent. Moreover, given the breadth of the South Carolina Supreme Court's holding and judgment, Lucas would plainly be unable (absent our intervention now) to obtain further state-court adjudication with respect to the 1988-1990 period. In these circumstances, we think it would not accord with sound process to insist that Lucas pursue the late-created "special permit" procedure before his takings claim can be considered ripe. Lucas has properly alleged Article III injury in fact in this case, with respect to both the pre-1990 and post-1990 constraints placed on the use of his parcels by the Beachfront Management Act.3 That there is a discre- 3 JUSTICE BLACKMUN insists that this aspect of Lucas's claim is "not justiciable," post, at 1042, because Lucas never fulfilled his obligation under Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), to "submi[t] a plan for development of [his] property" to the proper state authorities, id., at 187. See post, at 1043. But such a submission would have been pointless, as the Council stipulated below that no building permit would have been issued under the 1988 Act, application or no application. Record 14 (stipulations). Nor does the peculiar posture of this case mean that we are without Article III jurisdiction, as JUSTICE BLACKMUN apparently believes. See post, at 1042, and n. 5. Given the South Carolina Supreme Court's dismissive foreclosure of further pleading and adjudication with respect to the pre-1990 component of Lucas's takings claim, it is appropriate for us 1013 tionary "special permit" procedure by which he may regain-for the future, at least-beneficial use of his land goes only to the prudential "ripeness" of Lucas's challenge, and for the reasons discussed we do not think it prudent to apply that prudential requirement here. See Esposito v. South Carolina Coastal Council, 939 F.2d 165 , 168 (CA4 1991), cert. denied, post, p. 1219.4 We leave for decision on remand, of course, the questions left unaddressed by the South to address that component as if the case were here on the pleadings alone. Lucas properly alleged injury in fact in his complaint. See App. to Pet. for Cert. 154 (complaint); id., at 156 (asking "damages for the temporary taking of his property" from the date of the 1988 Act's passage to "such time as this matter is finally resolved"). No more can reasonably be demanded. Cf. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , 312-313 (1987). JUSTICE BLACKMUN finds it "baffling," post, at 1043, n. 5, that we grant standing here, whereas "just a few days ago, in Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992)," we denied standing. He sees in that strong evidence to support his repeated imputations that the Court "presses" to take this case, post, at 1036, is "eager to decide" it, post, at 1045, and is unwilling to "be denied," post, at 1042. He has a point: The decisions are indeed very close in time, yet one grants standing and the other denies it. The distinction, however, rests in law rather than chronology. Lujan, since it involved the establishment of injury in fact at the summary judgment stage, required specific facts to be adduced by sworn testimony; had the same challenge to a generalized allegation of injury in fact been made at the pleading stage, it would have been unsuccessful. 4 In that case, the Court of Appeals for the Fourth Circuit reached the merits of a takings challenge to the 1988 Beachfront Management Act identical to the one Lucas brings here even though the Act was amended, and the special permit procedure established, while the case was under submission. The court observed: "The enactment of the 1990 Act during the pendency of this appeal, with its provisions for special permits and other changes that may affect the plaintiffs, does not relieve us of the need to address the plaintiffs' claims under the provisions of the 1988 Act. Even if the amended Act cured all of the plaintiffs' concerns, the amendments would not foreclose the possibility that a taking had occurred during the years when the 1988 Act was in effect." Esposito v. South Carolina Coastal Council, 939 F.2d 165 , 168 (1991). 1014 Carolina Supreme Court as a consequence of its categorical disposition.5 III A Prior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it was generally thought that the Takings Clause reached only a "direct appropriation" of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a "practical ouster of [the owner's] possession," Transportation Co. v. Chicago, 99 U. S. 635 , 642 (1879). See also Gibson v. United States, 166 U. S. 269, 275-276 (1897). Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government's power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. 260 U. S., at 414-415. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, "the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed]." Id., at 415. These considerations gave birth in that case to the oft-cited maxim that, "while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." Ibid. 5JU8TICE BLACKMUN states that our "intense interest in Lucas' plight ... would have been more prudently expressed by vacating the judgment below and remanding for further consideration in light of the 1990 amendments" to the Beachfront Management Act. Post, at 1045, n. 7. That is a strange suggestion, given that the South Carolina Supreme Court rendered its categorical disposition in this case after the Act had been amended, and after it had been invited to consider the effect of those amendments on Lucas's case. We have no reason to believe that the justices of the South Carolina Supreme Court are any more desirous of using a narrower ground now than they were then; and neither "prudence" nor any other principle of judicial restraint requires that we remand to find out whether they have changed their mind. 1015 Nevertheless, our decision in Mahon offered little insight into when, and under what circumstances, a given regulation would be seen as going "too far" for purposes of the Fifth Amendment. In 70-odd years of succeeding "regulatory takings" jurisprudence, we have generally eschewed any " 'set formula' " for determining how far is too far, preferring to "engag[e] in ... essentially ad hoc, factual inquiries." Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 124 (1978) (quoting Goldblatt v. Hempstead, 369 U. S. 590 ,594 (1962)). See Epstein, Takings: Descent and Resurrection, 1987 S. Ct. Rev. 1, 4. We have, however, described at least two discrete categories of regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the restraint. The first encompasses regulations that compel the property owner to suffer a physical "invasion" of his property. In general (at least with regard to permanent invasions), no matter how minute the intrusion, and no matter how weighty the public purpose behind it, we have required compensation. For example, in Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), we determined that New York's law requiring landlords to allow television cable companies to emplace cable facilities in their apartment buildings constituted a taking, id., at 435-440, even though the facilities occupied at most only 11/2 cubic feet of the landlords' property, see id., at 438, n. 16. See also United States v. Causby, 328 U. S. 256 , 265, and n. 10 (1946) (physical invasions of airspace); cf. Kaiser Aetna v. United States, 444 U. S. 164 (1979) (imposition of navigational servitude upon private marina). The second situation in which we have found categorical treatment appropriate is where regulation denies all economically beneficial or productive use of land. See Agins, 447 U. S., at 260; see also Nollan v. California Coastal Comm'n, 483 U. S. 825 , 834 (1987); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 495 (1987); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 1016 u. S. 264, 295-296 (1981).6 As we have said on numerous occasions, the Fifth Amendment is violated when land-use regulation "does not substantially advance legitimate state interests or denies an owner economically viable use of his land." Agins, supra, at 260 (citations omitted) (emphasis added).7 6We will not attempt to respond to all of JUSTICE BLACKMUN'S mistaken citation of case precedent. Characteristic of its nature is his assertion that the cases we discuss here stand merely for the proposition "that proof that a regulation does not deny an owner economic use of his property is sufficient to defeat a facial takings challenge" and not for the point that "denial of such use is sufficient to establish a takings claim regardless of any other consideration." Post, at 1050, n. 11. The cases say, repeatedly and unmistakably, that" '[t]he test to be applied in considering [a] facial [takings] challenge is fairly straightforward. A statute regulating the uses that can be made of property effects a taking if it "denies an owner economically viable use of his land."'" Keystone, 480 U. S., at 495 (quoting Hodel, 452 U. S., at 295-296 (quoting Agins, 447 U. S., at 260)) (emphasis added). JUSTICE BLACKMUN describes that rule (which we do not invent but merely apply today) as "alter[ing] the long-settled rules of review" by foisting on the State "the burden of showing [its] regulation is not a taking." Post, at 1045, 1046. This is of course wrong. Lucas had to do more than simply file a lawsuit to establish his constitutional entitlement; he had to show that the Beachfront Management Act denied him economically beneficial use of his land. Our analysis presumes the unconstitutionality of state land-use regulation only in the sense that any rule with exceptions presumes the invalidity of a law that violates it-for example, the rule generally prohibiting content-based restrictions on speech. See, e. g., Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Ed., 502 U. S. 105 , 115 (1991) ("A statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech"). JUSTICE BLACKMUN'S real quarrel is with the substantive standard of liability we apply in this case, a longestablished standard we see no need to repudiate. 7 Regrettably, the rhetorical force of our "deprivation of all economically feasible use" rule is greater than its precision, since the rule does not make clear the "property interest" against which the loss of value is to be measured. When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is unclear whether we would 1017 We have never set forth the justification for this rule. Perhaps it is simply, as Justice Brennan suggested, that total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation. See San Diego Gas & Electric Co. v. San Diego, 450 U. S., at 652 (dissenting opinion). "[F]or what is the land but the profits thereof[?]" 1 E. Coke, Institutes, ch. 1, § 1 (1st Am. ed. 1812). Surely, at least, in the extraordinary circumstance when no productive or economically beneficial use of land is permitted, it is less realistic to indulge our usual assumption that the legislature is simply "adjusting the benefits and burdens of economic life," Penn Central Transportation Co., 438 analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole. (For an extreme-and, we think, unsupportable-view of the relevant calculus, see Penn Central Transportation Co. v. New York City, 42 N. Y. 2d 324, 333-334, 366 N. E. 2d 1271, 1276-1277 (1977), aff'd, 438 U. S. 104 (1978), where the state court examined the diminution in a particular parcel's value produced by a municipal ordinance in light of total value of the takings claimant's other holdings in the vicinity.) Unsurprisingly, this uncertainty regarding the composition of the denominator in our "deprivation" fraction has produced inconsistent pronouncements by the Court. Compare Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 414 (1922) (law restricting subsurface extraction of coal held to effect a taking), with Key stone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 497-502 (1987) (nearly identical law held not to effect a taking); see also id., at 515-520 (REHNQUIST, C. J., dissenting); Rose, Mahon Reconstructed: Why the Takings Issue is Still a Muddle, 57 S. Cal. L. Rev. 561,566-569 (1984). The answer to this difficult question may lie in how the owner's reasonable expectations have been shaped by the State's law of property-i. e., whether and to what degree the State's law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value. In any event, we avoid this difficulty in the present case, since the "interest in land" that Lucas has pleaded (a fee simple interest) is an estate with a rich tradition of protection at common law, and since the South Carolina Court of Common Pleas found that the Beachfront Management Act left each of Lucas's beachfront lots without economic value. 1018 u. S., at 124, in a manner that secures an "average reciprocity of advantage" to everyone concerned, Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415. And the functional basis for permitting the government, by regulation, to affect property values without compensation-that "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law," id., at 413-does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses. On the other side of the balance, affirmatively supporting a compensation requirement, is the fact that regulations that leave the owner of land without economically beneficial or productive options for its use-typically, as here, by requiring land to be left substantially in its natural state-carry with them a heightened risk that private property is being pressed into some form of public service under the guise of mitigating serious public harm. See, e. g., Annicelli v. South Kingstown, 463 A. 2d 133, 140-141 (R. 1. 1983) (prohibition on construction adjacent to beach justified on twin grounds of safety and "conservation of open space"); Morris County Land Improvement Co. v. Parsippany-Troy Hills Township, 40 N. J. 539, 552-553, 193 A. 2d 232, 240 (1963) (prohibition on filling marshlands imposed in order to preserve region as water detention basin and create wildlife refuge). As Justice Brennan explained: "From the government's point of view, the benefits flowing to the public from preservation of open space through regulation may be equally great as from creating a wildlife refuge through formal condemnation or increasing electricity production through a dam project that floods private property." San Diego Gas & Elec. Co., supra, at 652 (dissenting opinion). The many statutes on the books, both state and federal, that 1019 provide for the use of eminent domain to impose servitudes on private scenic lands preventing developmental uses, or to acquire such lands altogether, suggest the practical equivalence in this setting of negative regulation and appropriation. See, e. g., 16 U. S. C. §410ff-1(a) (authorizing acquisition of "lands, waters, or interests [within Channel Islands National Park] (including but not limited to scenic easements)"); § 460aa-2(a) (authorizing acquisition of "any lands, or lesser interests therein, including mineral interests and scenic easements" within Sawtooth National Recreation Area); §§ 3921-3923 (authorizing acquisition of wetlands); N. C. Gen. Stat. § 113A-38 (1990) (authorizing acquisition of, inter alia, "'scenic easements'" within the North Carolina natural and scenic rivers system); Tenn. Code Ann. §§ 11-15-101 to 1115-108 (1987) (authorizing acquisition of "protective easements" and other rights in real property adjacent to State's historic, architectural, archaeological, or cultural resources). We think, in short, that there are good reasons for our frequently expressed belief that when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking.8 8JUSTICE STEVENS criticizes the "deprivation of all economically beneficial use" rule as "wholly arbitrary," in that "[the] landowner whose property is diminished in value 95% recovers nothing," while the landowner who suffers a complete elimination of value "recovers the land's full value." Post, at 1064. This analysis errs in its assumption that the landowner whose deprivation is one step short of complete is not entitled to compensation. Such an owner might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, "[t]he economic impact of the regulation on the claimant and ... the extent to which the regulation has interfered with distinct investment-backed expectations" are keenly relevant to takings analysis generally. Penn 1020 B The trial court found Lucas's two beachfront lots to have been rendered valueless by respondent's enforcement of the coastal-zone construction ban.9 Under Lucas's theory of the case, which rested upon our "no economically viable use" statements, that finding entitled him to compensation. Lucas believed it unnecessary to take issue with either the purposes behind the Beachfront Management Act, or the means chosen by the South Carolina Legislature to effectuate those purposes. The South Carolina Supreme Court, however, thought otherwise. In its view, the Beachfront Management Act was no ordinary enactment, but involved an exercise of South Carolina's "police powers" to mitigate the harm to the public interest that petitioner's use of his Central Transportation Co. v. New York City, 438 U. S. 104 , 124 (1978). It is true that in at least some cases the landowner with 95% loss will get nothing, while the landowner with total loss will recover in full. But that occasional result is no more strange than the gross disparity between the landowner whose premises are taken for a highway (who recovers in full) and the landowner whose property is reduced to 5% of its former value by the highway (who recovers nothing). Takings law is full of these "allor-nothing" situations. JUSTICE STEVENS similarly misinterprets our focus on "developmental" uses of property (the uses proscribed by the Beachfront Management Act) as betraying an "assumption that the only uses of property cognizable under the Constitution are developmental uses." Post, at 1065, n. 3. We make no such assumption. Though our prior takings cases evince an abiding concern for the productive use of, and economic investment in, land, there are plainly a number of noneconomic interests in land whose impairment will invite exceedingly close scrutiny under the Takings Clause. See, e. g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 436 (1982) (interest in excluding strangers from one's land). 9 This finding was the premise of the petition for certiorari, and since it was not challenged in the brief in opposition we decline to entertain the argument in respondent's brief on the merits, see Brief for Respondent 45-50, that the finding was erroneous. Instead, we decide the question presented under the same factual assumptions as did the Supreme Court of South Carolina. See Oklahoma City v. Tuttle, 471 U. S. 808 ,816 (1985). 1021 land might occasion. 304 S. C., at 384, 404 S. E. 2d, at 899. By neglecting to dispute the findings enumerated in the Act 10 or otherwise to challenge the legislature's purposes, 10 The legislature's express findings include the following: "The General Assembly finds that: "(1) The beach/dune system along the coast of South Carolina is extremely important to the people of this State and serves the following functions: "(a) protects life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and effective manner; "(b) provides the basis for a tourism industry that generates approximately two-thirds of South Carolina's annual tourism industry revenue which constitutes a significant portion of the state's economy. The tourists who come to the South Carolina coast to enjoy the ocean and dry sand beach contribute significantly to state and local tax revenues; "(c) provides habitat for numerous species of plants and animals, several of which are threatened or endangered. Waters adjacent to the beach/ dune system also provide habitat for many other marine species; "(d) provides a natural health environment for the citizens of South Carolina to spend leisure time which serves their physical and mental wellbeing. "(2) Beach/dune system vegetation is unique and extremely important to the vitality and preservation of the system. "(3) Many miles of South Carolina's beaches have been identified as critically eroding. "(4) ... [D]evelopment unwisely has been sited too close to the [beach/ dune] system. This type of development has jeopardized the stability of the beach/dune system, accelerated erosion, and endangered adjacent property. It is in both the public and private interests to protect the system from this unwise development. "(5) The use of armoring in the form of hard erosion control devices such as seawalls, bulkheads, and rip-rap to protect erosion-threatened structures adjacent to the beach has not proven effective. These armoring devices have given a false sense of security to beachfront property owners. In reality, these hard structures, in many instances, have increased the vulnerability of beachfront property to damage from wind and waves while contributing to the deterioration and loss of the dry sand beach which is so important to the tourism industry. "(6) Erosion is a natural process which becomes a significant problem for man only when structures are erected in close proximity to the beach/ 1022 petitioner "concede[d] that the beach/dune area of South Carolina's shores is an extremely valuable public resource; that the erection of new construction, inter alia, contributes to the erosion and destruction of this public resource; and that discouraging new construction in close proximity to the beach/dune area is necessary to prevent a great public harm." Id., at 382-383,404 S. E. 2d, at 898. In the court's view, these concessions brought petitioner's challenge within a long line of this Court's cases sustaining against Due Process and Takings Clause challenges the State's use of its "police powers" to enjoin a property owner from activities akin to public nuisances. See Mugler v. Kansas, 123 U. S. 623 (1887) (law prohibiting manufacture of alcoholic beverages); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (law barring operation of brick mill in residential area); Miller v. Schoene, 276 U. S. 272 (1928) (order to destroy diseased cedar trees to prevent infection of nearby orchards); Goldblatt v. Hempstead, 369 U. S. 590 (1962) (law effectively preventing continued operation of quarry in residential area). It is correct that many of our prior opinions have suggested that "harmful or noxious uses" of property may be proscribed by government regulation without the requirement of compensation. For a number of reasons, however, we think the South Carolina Supreme Court was too quick to conclude that that principle decides the present case. The "harmful or noxious uses" principle was the Court's early attempt to describe in theoretical terms why government dune system. It is in both the public and private interests to afford the beach/dune system space to accrete and erode in its natural cycle. This space can be provided only by discouraging new construction in close proximity to the beach/dune system and encouraging those who have erected structures too close to the system to retreat from it. "(8) It is in the state's best interest to protect and to promote increased public access to South Carolina's beaches for out-of-state tourists and South Carolina residents alike." S. C. Code Ann. § 48-39-250 (Supp. 1991). 1023 may, consistent with the Takings Clause, affect property values by regulation without incurring an obligation to compensate-a reality we nowadays acknowledge explicitly with respect to the full scope of the State's police power. See, e. g., Penn Central Transportation Co., 438 U. S., at 125 (where State "reasonably conclude[s] that 'the health, safety, morals, or general welfare' would be promoted by prohibiting particular contemplated uses of land," compensation need not accompany prohibition); see also Nollan v. California Coastal Comm'n, 483 U. S., at 834-835 ("Our cases have not elaborated on the standards for determining what constitutes a 'legitimate state interest[,J' [but] [t]hey have made clear ... that a broad range of governmental purposes and regulations satisfy these requirements"). We made this very point in Penn Central Transportation Co., where, in the course of sustaining New York City's landmarks preservation program against a takings challenge, we rejected the petitioner's suggestion that Mugler and the cases following it were premised on, and thus limited by, some objective conception of "noxiousness": "[T]he uses in issue in Hadacheck, Miller, and Goldblatt were perfectly lawful in themselves. They involved no 'blameworthiness, ... moral wrongdoing or conscious act of dangerous risk-taking which induce[d society] to shift the cost to a pa[rt]icular individual.' Sax, Takings and the Police Power, 74 Yale L. J. 36, 50 (1964). These cases are better understood as resting not on any supposed 'noxious' quality of the prohibited uses but rather on the ground that the restrictions were reasonably related to the implementation of a policy-not unlike historic preservation-expected to produce a widespread public benefit and applicable to all similarly situated property." 438 U. S., at 133-134, n. 30. "Harmful or noxious use" analysis was, in other words, simply the progenitor of our more contemporary statements that 1024 "land-use regulation does not effect a taking if it 'substantially advance[s] legitimate state interests' .... " Nollan, supra, at 834 (quoting Agins v. Tiburon, 447 U. S., at 260); see also Penn Central Transportation Co., supra, at 127; Euclid v. Ambler Realty Co., 272 U. S. 365 , 387-388 (1926). The transition from our early focus on control of "noxious" uses to our contemporary understanding of the broad realm within which government may regulate without compensation was an easy one, since the distinction between "harmpreventing" and "benefit-conferring" regulation is often in the eye of the beholder. It is quite possible, for example, to describe in either fashion the ecological, economic, and esthetic concerns that inspired the South Carolina Legislature in the present case. One could say that imposing a servitude on Lucas's land is necessary in order to prevent his use of it from "harming" South Carolina's ecological resources; or, instead, in order to achieve the "benefits" of an ecological preserveY Compare, e. g., Claridge v. New Hampshire 11 In the present case, in fact, some of the "[South Carolina] legislature's 'findings' " to which the South Carolina Supreme Court purported to defer in characterizing the purpose of the Act as "harm-preventing," 304 S. C. 376, 385, 404 S. E. 2d 895, 900 (1991), seem to us phrased in "benefitconferring" language instead. For example, they describe the importance of a construction ban in enhancing "South Carolina's annual tourism industry revenue," S. C. Code Ann. § 48-39-250(1)(b) (Supp. 1991), in "provid[ing] habitat for numerous species of plants and animals, several of which are threatened or endangered," § 48-39-250(1)(c), and in "provid[ing] a natural healthy environment for the citizens of South Carolina to spend leisure time which serves their physical and mental well-being," § 48-39250(1)(d). It would be pointless to make the outcome of this case hang upon this terminology, since the same interests could readily be described in "harm-preventing" fashion. JUSTICE BLACKMUN, however, apparently insists that we must make the outcome hinge (exclusively) upon the South Carolina Legislature's other, "harm-preventing" characterizations, focusing on the declaration that "prohibitions on building in front of the setback line are necessary to protect people and property from storms, high tides, and beach erosion." Post, at 1040. He says "[n]othing in the record undermines [this] assessment," ibid., apparently seeing no significance in the fact that the statute permits owners of existing structures to remain (and even to rebuild 1025 Wetlands Board, 125 N. H. 745, 752, 485 A. 2d 287,292 (1984) (owner may, without compensation, be barred from filling wetlands because landfilling would deprive adjacent coastal habitats and marine fisheries of ecological support), with, e. g., Bartlett v. Zoning Comm'n of Old Lyme, 161 Conn. 24, 30, 282 A. 2d 907, 910 (1971) (owner barred from filling tidal marshland must be compensated, despite municipality's "laudable" goal of "preserv[ing] marshlands from encroachment or destruction"). Whether one or the other of the competing characterizations will come to one's lips in a particular case depends primarily upon one's evaluation of the worth of competing uses of real estate. See Restatement (Second) of Torts § 822, Comment g, p. 112 (1979) ("Practically all human activities unless carried on in a wilderness interfere to some extent with others or involve some risk of interference"). A given restraint will be seen as mitigating "harm" to the adjacent parcels or securing a "benefit" for them, depending upon the observer's evaluation of the relative importance of the use that the restraint favors. See Sax, Takings and the Police Power, 74 Yale L. J. 36, 49 (1964) ("[T]he problem [in this area] is not one of noxiousness or harm-creating activity at all; rather it is a problem of inconsistency between perfectly innocent and independently desirable uses"). Whether Lucas's construction of singlefamily residences on his parcels should be described as bringing "harm" to South Carolina's adjacent ecological resources thus depends principally upon whether the describer believes that the State's use interest in nurturing those resources is so important that any competing adjacent use must yield.12 if their structures are not "destroyed beyond repair," S. C. Code Ann. § 48-39-290(B) (Supp. 1988)), and in the fact that the 1990 amendment authorizes the Council to issue permits for new construction in violation of the uniform prohibition, see S. C. Code Ann. § 48-39-290(D)(1) (Supp. 1991). 12 In JUSTICE BLACKMUN'S view, even with respect to regulations that deprive an owner of all developmental or economically beneficial land uses, 1026 When it is understood that "prevention of harmful use" was merely our early formulation of the police power justification necessary to sustain (without compensation) any regulatory diminution in value; and that the distinction between regulation that "prevents harmful use" and that which "confers benefits" is difficult, if not impossible, to discern on an objective, value-free basis; it becomes self-evident that noxious-use logic cannot serve as a touchstone to distinguish regulatory "takings"-which require compensation-from regulatory deprivations that do not require compensation. A fortiori the legislature's recitation of a noxious-use justification cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated. If it were, departure would virtually always be allowed. The South Carolina Supreme Court's approach would essentially nullify Mahon's affirmation of limits to the noncompensable exercise of the police power. Our cases provide no support for this: None of them that employed the logic of "harmful use" prevention to sustain a regulation involved an allegation that the regulation wholly eliminated the value of the claimant's land. See Keystone Bituminous Coal Assn., 480 U. S., at 513-514 (REHNQUIST, C. J., dissenting)P the test for required compensation is whether the legislature has recited a harm-preventing justification for its action. See post, at 1039, 1040-1041, 1047-1051. Since such a justification can be formulated in practically every case, this amounts to a test of whether the legislature has a stupid staff. We think the Takings Clause requires courts to do more than insist upon artful harm-preventing characterizations. 13 E. g., Mugler v. Kansas, 123 U. S. 623 (1887) (prohibition upon use of a building as a brewery; other uses permitted); Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531 (1914) (requirement that "pillar" of coal be left in ground to safeguard mine workers; mineral rights could otherwise be exploited); Reinman v. Little Rock, 237 U. S. 171 (1915) (declaration that livery stable constituted a public nuisance; other uses of the property permitted); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (prohibition of brick manufacturing in residential area; other uses permitted); Goldblatt v. Hempstead, 369 U. S. 590 (1962) (prohibition on excavation; other uses permitted). 1027 Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with.14 This accords, we think, with our "takings" jurisprudence, which has traditionally been guided by the understandings of our citizens regarding the content of, and the State's power over, the "bundle of rights" that they acquire when they obtain title to property. It seems to us that the property owner necessarily expects the uses of his property to be restricted, from time to time, by various measures newly enacted by the State in legitimate exercise of its police powers; "[a]s long recognized, some values are enjoyed under an implied limitation and must yield to the police power." Pennsylvania Coal Co. v. Mahon, 260 U. S., at 413. And in the case of personal property, by reason of the State's traditionally high degree of control over commercial dealings, he ought to be aware of the possibility that new regulation might even ren- 14 Drawing on our First Amendment jurisprudence, see, e. g., Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , 878-879 (1990), JUSTICE STEVENS would "loo[k] to the generality of a regulation of property" to determine whether compensation is owing. Post, at 1072. The Beachfront Management Act is general, in his view, because it "regulates the use of the coastline of the entire State." Post, at 1074. There may be some validity to the principle JUSTICE STEVENS proposes, but it does not properly apply to the present case. The equivalent of a law of general application that inhibits the practice of religion without being aimed at religion, see Oregon v. Smith, supra, is a law that destroys the value of land without being aimed at land. Perhaps such a law-the generally applicable criminal prohibition on the manufacturing of alcoholic beverages challenged in Mugler comes to mind-cannot constitute a compensable taking. See 123 U. S., at 655-656. But a regulation specifically directed to land use no more acquires immunity by plundering landowners generally than does a law specifically directed at religious practice acquire immunity by prohibiting all religions. JUSTICE STEVENS'S approach renders the Takings Clause little more than a particularized restatement of the Equal Protection Clause. 1028 der his property economically worthless (at least if the property's only economically productive use is sale or manufacture for sale). See Andrus v. Allard, 444 U. S. 51 , 66-67 (1979) (prohibition on sale of eagle feathers). In the case of land, however, we think the notion pressed by the Council that title is somehow held subject to the "implied limitation" that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture.15 Where "permanent physical occupation" of land is concerned, we have refused to allow the government to decree it anew (without compensation), no matter how weighty the asserted "public interests" involved, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S., at 426-though we assuredly would permit the government to assert a permanent easement that was a pre-existing limitation upon the land- 15 After accusing us of "launch[ing] a missile to kill a mouse," post, at 1036, JUSTICE BLACKMUN expends a good deal of throw-weight of his own upon a noncombatant, arguing that our description of the "understanding" of land ownership that informs the Takings Clause is not supported by early American experience. That is largely true, but entirely irrelevant. The practices of the States prior to incorporation of the Takings and Just Compensation Clauses, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897)-which, as JUSTICE BLACKMUN acknowledges, occasionally included outright physical appropriation of land without compensation, see post, at 1056-were out of accord with any plausible interpretation of those provisions. JUSTICE BLACKMUN is correct that early constitutional theorists did not believe the Takings Clause embraced regulations of property at all, see post, at 1057-1058, and n. 23, but even he does not suggest (explicitly, at least) that we renounce the Court's contrary conclusion in Mahon. Since the text of the Clause can be read to encompass regulatory as well as physical deprivations (in contrast to the text originally proposed by Madison, see Speech Proposing Bill of Rights (June 8, 1789), in 12 J. Madison, The Papers of James Madison 201 (C. Hobson, R. Rutland, W. Rachal, & J. Sisson ed. 1979) ("No person shall be ... obliged to relinquish his property, where it may be necessary for public use, without a just compensation"), we decline to do so as well. 1029 owner's title. Compare Scranton v. Wheeler, 179 U. S. 141 , 163 (1900) (interests of "riparian owner in the submerged lands ... bordering on a public navigable water" held subject to Government's navigational servitude), with Kaiser Aetna v. United States, 444 U. S., at 178-180 (imposition of navigational servitude on marina created and rendered navigable at private expense held to constitute a taking). We believe similar treatment must be accorded confiscatory regulations, i. e., regulations that prohibit all economically beneficial use of land: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplicate the result that could have been achieved in the courts-by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise. 16 On this analysis, the owner of a lakebed, for example, would not be entitled to compensation when he is denied the requisite permit to engage in a landfilling operation that would have the effect of flooding others' land. Nor the corporate owner of a nuclear generating plant, when it is directed to remove all improvements from its land upon discovery that the plant sits astride an earthquake fault. Such regulatory action may well have the effect of eliminating the land's only economically productive use, but it does not proscribe a productive use that was previously permissible 16 The principal "otherwise" that we have in mind is litigation absolving the State (or private parties) of liability for the destruction of "real and personal property, in cases of actual necessity, to prevent the spreading of a fire" or to forestall other grave threats to the lives and property of others. Bowditch v. Boston, 101 U. S. 16 , 18-19 (1880); see United States v. Pacific R. Co., 120 U. S. 227 , 238-239 (1887). 1030 under relevant property and nuisance principles. The use of these properties for what are now expressly prohibited purposes was always unlawful, and (subject to other constitutionallimitations) it was open to the State at any point to make the implication of those background principles of nuisance and property law explicit. See Michelman, Property, Utility, and Fairness, Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 12391241 (1967). In light of our traditional resort to "existing rules or understandings that stem from an independent source such as state law" to define the range of interests that qualify for protection as "property" under the Fifth and Fourteenth Amendments, Board of Regents of State Colleges v. Roth, 408 U. S. 564 , 577 (1972); see, e. g., Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 1011-1012 (1984); Hughes v. Washington, 389 U. S. 290 , 295 (1967) (Stewart, J., concurring), this recognition that the Takings Clause does not require compensation when an owner is barred from putting land to a use that is proscribed by those "existing rules or understandings" is surely unexceptional. When, however, a regulation that declares "off-limits" all economically productive or beneficial uses of land goes beyond what the relevant background principles would dictate, compensation must be paid to sustain it.17 The "total taking" inquiry we require today will ordinarily entail (as the application of state nuisance law ordinarily entails) analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property, 17 Of course, the State may elect to rescind its regulation and thereby avoid having to pay compensation for a permanent deprivation. See First English Evangelical Lutheran Church, 482 U. S., at 321. But "where the [regulation has] already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." Ibid. 1031 posed by the claimant's proposed activities, see, e. g., Restatement (Second) of Torts §§ 826, 827, the social value of the claimant's activities and their suitability to the locality in question, see, e. g., id., §§ 828(a) and (b), 831, and the relative ease with which the alleged harm can be avoided through measures taken by the claimant and the government (or adjacent private landowners) alike, see, e. g., id., §§827(e), 828(c), 830. The fact that a particular use has long been engaged in by similarly situated owners ordinarily imports a lack of any common-law prohibition (though changed circumstances or new knowledge may make what was previously permissible no longer so, see id., §827, Comment g. So also does the fact that other landowners, similarly situated, are permitted to continue the use denied to the claimant. It seems unlikely that common-law principles would have prevented the erection of any habitable or productive improvements on petitioner's land; they rarely support prohibition of the "essential use" of land, Curtin v. Benson, 222 U. S. 78 , 86 (1911). The question, however, is one of state law to be dealt with on remand. We emphasize that to win its case South Carolina must do more than proffer the legislature's declaration that the uses Lucas desires are inconsistent with the public interest, or the conclusory assertion that they violate a common-law maxim such as sic utere tuo ut alienum non laedas. As we have said, a "State, by ipse dixit, may not transform private property into public property without compensation .... " Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 164 (1980). Instead, as it would be required to do if it sought to restrain Lucas in a commonlaw action for public nuisance, South Carolina must identify background principles of nuisance and property law that prohibit the uses he now intends in the circumstances in which the property is presently found. Only on this showing can 1032 the State fairly claim that, in proscribing all such beneficial uses, the Beachfront Management Act is taking nothing.18 *** The judgment is reversed, and the case is remanded for proceedings not inconsistent with this opinion. So ordered. JUSTICE KENNEDY, concurring in the judgment. The case comes to the Court in an unusual posture, as all my colleagues observe. Ante, at 1010-1011; post, at 1041 (BLACKMUN, J., dissenting); post, at 1061-1062 (STEVENS, J., dissenting); post, at 1076-1077 (statement of SOUTER, J.). After the suit was initiated but before it reached us, South Carolina amended its Beachfront Management Act to authorize the issuance of special permits at variance with the Act's general limitations. See S. C. Code Ann. § 48-39-290(D)(1) (Supp. 1991). Petitioner has not applied for a special permit but may still do so. The availability of this alternative, if it can be invoked, may dispose of petitioner's claim of a permanent taking. As I read the Court's opinion, it does not decide the permanent taking claim, but neither does it foreclose the Supreme Court of South Carolina from considering the claim or requiring petitioner to pursue an administrative alternative not previously available. The potential for future relief does not control our disposition, because whatever may occur in the future cannot undo 18JUSTICE BLACKMUN decries our reliance on background nuisance principles at least in part because he believes those principles to be as manipulable as we find the "harm prevention" /"benefit conferral" dichotomy, see post, at 1054-1055. There is no doubt some leeway in a court's interpretation of what existing state law permits-but not remotely as much, we think, as in a legislative crafting of the reasons for its confiscatory regulation. We stress that an affirmative decree eliminating all economically beneficial uses may be defended only if an objectively reasonable application of relevant precedents would exclude those beneficial uses in the circumstances in which the land is presently found. 1033 what has occurred in the past. The Beachfront Management Act was enacted in 1988. S. C. Code Ann. § 48-39-250 et seq. (Supp. 1990). It may have deprived petitioner of the use of his land in an interim period. § 48-39-290(A). If this deprivation amounts to a taking, its limited duration will not bar constitutional relief. It is well established that temporary takings are as protected by the Constitution as are permanent ones. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , 318 (1987). The issues presented in the case are ready for our decision. The Supreme Court of South Carolina decided the case on constitutional grounds, and its rulings are now before us. There exists no jurisdictional bar to our disposition, and prudential considerations ought not to militate against it. The State cannot complain of the manner in which the issues arose. Any uncertainty in this regard is attributable to the State, as a consequence of its amendment to the Beachfront Management Act. If the Takings Clause is to protect against temporary deprivations, as well as permanent ones, its enforcement must not be frustrated by a shifting background of state law. Although we establish a framework for remand, moreover, we do not decide the ultimate question whether a temporary taking has occurred in this case. The facts necessary to the determination have not been developed in the record. Among the matters to be considered on remand must be whether petitioner had the intent and capacity to develop the property and failed to do so in the interim period because the State prevented him. Any failure by petitioner to comply with relevant administrative requirements will be part of that analysis. The South Carolina Court of Common Pleas found that petitioner's real property has been rendered valueless by the State's regulation. App. to Pet. for Cert. 37. The finding appears to presume that the property has no significant mar- 1034 ket value or resale potential. This is a curious finding, and I share the reservations of some of my colleagues about a finding that a beachfront lot loses all value because of a development restriction. Post, at 1043-1045 (BLACKMUN, J., dissenting); post, at 1065, n. 3 (STEVENS, J., dissenting); post, at 1076 (statement of SOUTER, J.). While the Supreme Court of South Carolina on remand need not consider the case subject to this constraint, we must accept the finding as entered below. See Oklahoma City v. Tuttle, 471 U. S. 808 , 816 (1985). Accepting the finding as entered, it follows that petitioner is entitled to invoke the line of cases discussing regulations that deprive real property of all economic value. See Agins v. City of Tiburon, 447 U. S. 255 , 260 (1980). The finding of no value must be considered under the Takings Clause by reference to the owner's reasonable, investment-backed expectations. Kaiser Aetna v. United States, 444 U. S. 164 , 175 (1979); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 124 (1978); see also W B. Worthen Co. v. Kavanaugh, 295 U. S. 56 (1935). The Takings Clause, while conferring substantial protection on property owners, does not eliminate the police power of the State to enact limitations on the use of their property. Mugler v. Kansas, 123 U. S. 623 , 669 (1887). The rights conferred by the Takings Clause and the police power of the State may coexist without conflict. Property is bought and sold, investments are made, subject to the State's power to regulate. Where a taking is alleged from regulations which deprive the property of all value, the test must be whether the deprivation is contrary to reasonable, investmentbacked expectations. There is an inherent tendency towards circularity in this synthesis, of course; for if the owner's reasonable expectations are shaped by what courts allow as a proper exercise of governmental authority, property tends to become what courts say it is. Some circularity must be tolerated in these matters, however, as it is in other spheres. E. g., Katz v. 1035 United States, 389 U. S. 347 (1967) (Fourth Amendment protections defined by reasonable expectations of privacy). The definition, moreover, is not circular in its entirety. The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved. In my view, reasonable expectations must be understood in light of the whole of our legal tradition. The common law of nuisance is too narrow a confine for the exercise of regulatory power in a complex and interdependent society. Gold blatt v. Hempstead, 369 U. S. 590 , 593 (1962). The State should not be prevented from enacting new regulatory initiatives in response to changing conditions, and courts must consider all reasonable expectations whatever their source. The Takings Clause does not require a static body of state property law; it protects private expectations to ensure private investment. I agree with the Court that nuisance prevention accords with the most common expectations of property owners who face regulation, but I do not believe this can be the sole source of state authority to impose severe restrictions. Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit. The Supreme Court of South Carolina erred, in my view, by reciting the general purposes for which the state regulations were enacted without a determination that they were in accord with the owner's reasonable expectations and therefore sufficient to support a severe restriction on specific parcels of property. See 304 S. C. 376, 383, 404 S. E. 2d 895, 899 (1991). The promotion of tourism, for instance, ought not to suffice to deprive specific property of all value without a corresponding duty to compensate. Furthermore, the means, as well as the ends, of regulation must accord with the owner's reasonable expectations. Here, the State did not act until after the property had been zoned for individual 1036 lot development and most other parcels had been improved, throwing the whole burden of the regulation on the remaining lots. This too must be measured in the balance. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 416 (1922). With these observations, I concur in the judgment of the Court. JUSTICE BLACKMUN, dissenting. Today the Court launches a missile to kill a mouse. The State of South Carolina prohibited petitioner Lucas from building a permanent structure on his property from 1988 to 1990. Relying on an unreviewed (and implausible) state trial court finding that this restriction left Lucas' property valueless, this Court granted review to determine whether compensation must be paid in cases where the State prohibits all economic use of real estate. According to the Court, such an occasion never has arisen in any of our prior cases, and the Court imagines that it will arise "relatively rarely" or only in "extraordinary circumstances." Almost certainly it did not happen in this case. Nonetheless, the Court presses on to decide the issue, and as it does, it ignores its jurisdictional limits, remakes its traditional rules of review, and creates simultaneously a new categorical rule and an exception (neither of which is rooted in our prior case law, common law, or common sense). I protest not only the Court's decision, but each step taken to reach it. More fundamentally, I question the Court's wisdom in issuing sweeping new rules to decide such a narrow case. Surely, as JUSTICE KENNEDY demonstrates, the Court could have reached the result it wanted without inflicting this damage upon our Takings Clause jurisprudence. My fear is that the Court's new policies will spread beyond the narrow confines of the present case. For that reason, I, like the Court, will give far greater attention to this case than its narrow scope suggests-not because I can intercept 1037 the Court's missile, or save the targeted mouse, but because I hope perhaps to limit the collateral damage. I A In 1972 Congress passed the Coastal Zone Management Act. 16 U. S. C. § 1451 et seq. The Act was designed to provide States with money and incentives to carry out Congress' goal of protecting the public from shoreline erosion and coastal hazards. In the 1980 amendments to the Act, Congress directed States to enhance their coastal programs by "[p]reventing or significantly reducing threats to life and the destruction of property by eliminating development and redevelopment in high-hazard areas." 1 16 U. S. C. § 1456b(a)(2) (1988 ed., Supp. II). South Carolina began implementing the congressional directive by enacting the South Carolina Coastal Zone Management Act of 1977. Under the 1977 Act, any construction activity in what was designated the "critical area" required a permit from the South Carolina Coastal Council (Council), and the construction of any habitable structure was prohibited. The 1977 critical area was relatively narrow. This effort did not stop the loss of shoreline. In October 1986, the Council appointed a "Blue Ribbon Committee on Beachfront Management" to investigate beach erosion and 1 The country has come to recognize that uncontrolled beachfront development can cause serious damage to life and property. See Brief for Sierra Club et al. as Amici Curiae 2-5. Hurricane Hugo's September 1989 attack upon South Carolina's coastline, for example, caused 29 deaths and approximately $6 billion in property damage, much of it the result of uncontrolled beachfront development. See Zalkin, Shifting Sands and Shifting Doctrines: The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone Statute, 79 Calif. L. Rev. 205, 212-213 (1991). The beachfront buildings are not only themselves destroyed in such a storm, "but they are often driven, like battering rams, into adjacent inland homes." Ibid. Moreover, the development often destroys the natural sand dune barriers that provide storm breaks. Ibid. 1038 propose possible solutions. In March 1987, the Committee found that South Carolina's beaches were "critically eroding," and proposed land-use restrictions. Report of the South Carolina Blue Ribbon Committee on Beachfront Management i, 6-10 (Mar. 1987). In response, South Carolina enacted the Beachfront Management Act on July 1, 1988. S. C. Code Ann. § 48-39-250 et seq. (Supp. 1990). The 1988 Act did not change the uses permitted within the designated critical areas. Rather, it enlarged those areas to encompass the distance from the mean high watermark to a setback line established on the basis of "the best scientific and historical data" available.2 S. C. Code Ann. §48-39-280 (Supp. 1991). B Petitioner Lucas is a contractor, manager, and part owner of the Wild Dune development on the Isle of Palms. He has lived there since 1978. In December 1986, he purchased two of the last four pieces of vacant property in the development.3 The area is notoriously unstable. In roughly half of the last 40 years, all or part of petitioner's property was part of the beach or flooded twice daily by the ebb and flow of the tide. Tr. 84. Between 1957 and 1963, petitioner's property was under water. Id., at 79, 81-82. Between 1963 and 1973 the shoreline was 100 to 150 feet onto petitioner's property. Ibid. In 1973 the first line of stable vegetation was about halfway through the property. Id., at 80. Between 1981 and 1983, the Isle of Palms issued 12 emergency orders for 2 The setback line was determined by calculating the distance landward from the crest of an ideal oceanfront sand dune which is 40 times the annual erosion rate. S. C. Code Ann. § 48-39-280 (Supp. 1991). 3 The properties were sold frequently at rapidly escalating prices before Lucas purchased them. Lot 22 was first sold in 1979 for $96,660, sold in 1984 for $187,500, then in 1985 for $260,000, and, finally, to Lucas in 1986 for $475,000. He estimated its worth in 1991 at $650,000. Lot 24 had a similar past. The record does not indicate who purchased the properties prior to Lucas, or why none of the purchasers held on to the lots and built on them. Tr. 44-46. 1039 sandbagging to protect property in the Wild Dune development. Id., at 99. Determining that local habitable structures were in imminent danger of collapse, the Council issued permits for two rock revetments to protect condominium developments near petitioner's property from erosion; one of the revetments extends more than halfway onto one of his lots. Id., at 102. C The South Carolina Supreme Court found that the Beachfront Management Act did not take petitioner's property without compensation. The decision rested on two premises that until today were unassailable-that the State has the power to prevent any use of property it finds to be harmful to its citizens, and that a state statute is entitled to a presumption of constitutionality. The Beachfront Management Act includes a finding by the South Carolina General Assembly that the beach/dune system serves the purpose of "protect[ing] life and property by serving as a storm barrier which dissipates wave energy and contributes to shoreline stability in an economical and effective manner." S. C. Code Ann. § 48-39-250(1)(a) (Supp. 1990). The General Assembly also found that "development unwisely has been sited too close to the [beach/dune] system. This type of development has jeopardized the stability of the beach/dune system, accelerated erosion, and endangered adjacent property." §48-39-250(4); see also §48-39-250(6) (discussing the need to "afford the beach/dune system space to accrete and erode"). If the state legislature is correct that the prohibition on building in front of the setback line prevents serious harm, then, under this Court's prior cases, the Act is constitutional. "Long ago it was recognized that all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community, and the Takings Clause did not transform that principle to one that requires compensation whenever the State asserts its power to en- 1040 force it." Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 491-492 (1987) (internal quotation marks omitted); see also id., at 488-489, and n. 18. The Court consistently has upheld regulations imposed to arrest a significant threat to the common welfare, whatever their economic effect on the owner. See, e. g., Goldblatt v. Hempstead, 369 U. S. 590, 592-593 (1962); Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Gorieb v. Fox, 274 U. S. 603 , 608 (1927); Mugler v. Kansas, 123 U. S. 623 (1887). Petitioner never challenged the legislature's findings that a building ban was necessary to protect property and life. Nor did he contend that the threatened harm was not sufficiently serious to make building a house in a particular location a "harmful" use, that the legislature had not made sufficient findings, or that the legislature was motivated by anything other than a desire to minimize damage to coastal areas. Indeed, petitioner objected at trial that evidence as to the purposes of the setback requirement was irrelevant. Tr. 68. The South Carolina Supreme Court accordingly understood petitioner not to contest the State's position that "discouraging new construction in close proximity to the beach/dune area is necessary to prevent a great public harm," 304 S. C. 376, 383, 404 S. E. 2d 895, 898 (1991), and "to prevent serious injury to the community." Id., at 387, 404 S. E. 2d, at 901. The court considered itself "bound by these uncontested legislative findings ... [in the absence of] any attack whatsoever on the statutory scheme." Id., at 383, 404 S. E. 2d, at 898. Nothing in the record undermines the General Assembly's assessment that prohibitions on building in front of the setback line are necessary to protect people and property from storms, high tides, and beach erosion. Because that legislative determination cannot be disregarded in the absence of such evidence, see, e. g., Euclid, 272 U. S., at 388; O'Gorman & Young, Inc. v. Hartford Fire Ins. Co., 282 U. S. 251 , 257-258 (1931) (Brandeis, J.), and because its determination 1041 of harm to life and property from building is sufficient to prohibit that use under this Court's cases, the South Carolina Supreme Court correctly found no taking. II My disagreement with the Court begins with its decision to review this case. This Court has held consistently that a land-use challenge is not ripe for review until there is a final decision about what uses of the property will be permitted. The ripeness requirement is not simply a gesture of good will to land-use planners. In the absence of "a final and authoritative determination of the type and intensity of development legally permitted on the subject property," MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 348 (1986), and the utilization of state procedures for just compensation, there is no final judgment, and in the absence of a final judgment there is no jurisdiction, see San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 633 (1981); Agins v. City of Tiburon, 447 U. S. 255 , 260 (1980). This rule is "compelled by the very nature of the inquiry required by the Just Compensation Clause," because the factors applied in deciding a takings claim "simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question." Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 , 190, 191 (1985). See also MacDonald, Sommer & Frates, 477 U. S., at 348 ("A court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes") (citation omitted). The Court admits that the 1990 amendments to the Beachfront Management Act allowing special permits preclude Lucas from asserting that his property has been permanently taken. See ante, at 1011-1012. The Court agrees that such a claim would not be ripe because there has been no final decision by respondent on what uses will be permitted. 1042 The Court, however, will not be denied: It determines that petitioner's "temporary takings" claim for the period from July 1, 1988, to June 25, 1990, is ripe. But this claim also is not justiciable.4 From the very beginning of this litigation, respondent has argued that the courts "lac[k] jurisdiction in this matter because the Plaintiff has sought no authorization from Council for use of his property, has not challenged the location of the baseline or setback line as alleged in the Complaint and because no final agency decision has been rendered concerning use of his property or location of said baseline or setback line." Tr. 10 (answer, as amended). Although the Council's plea has been ignored by every court, it is undoubtedly correct. Under the Beachfront Management Act, petitioner was entitled to challenge the setback line or the baseline or erosion rate applied to his property in formal administrative, followed by judicial, proceedings. S. C. Code Ann. § 48-39280(E) (Supp. 1991). Because Lucas failed to pursue this administrative remedy, the Council never finally decided whether Lucas' particular piece of property was correctly categorized as a critical area in which building would not be permitted. This is all the more crucial because Lucas argued strenuously in the trial court that his land was perfectly safe to build on, and that his company had studies to prove it. Tr. 20, 25, 36. If he was correct, the Council's 4The Court's reliance, ante, at 1013, on Esposito v. South Carolina Coastal Council, 939 F.2d 165 , 168 (CA4 1991), cert. denied, post, p. 1219, in support of its decision to consider Lucas' temporary takings claim ripe is misplaced. In Esposito the plaintiffs brought a facial challenge to the mere enactment of the Act. Here, of course, Lucas has brought an asapplied challenge. See Brief for Petitioner 16. Facial challenges are ripe when the Act is passed; applied challenges require a final decision on the Act's application to the property in question. 1043 final decision would have been to alter the setback line, eliminating the construction ban on Lucas' property. That petitioner's property fell within the critical area as initially interpreted by the Council does not excuse petitioner's failure to challenge the Act's application to his property in the administrative process. The claim is not ripe until petitioner seeks a variance from that status. "[WJe have made it quite clear that the mere assertion of regulatory jurisdiction by a governmental body does not constitute a regulatory taking." United States v. Riverside Bayview Homes, Inc., 474 U. S. 121 , 126 (1985). See also Williamson County, 473 U. S., at 188 (claim not ripe because respondent did not seek variances that would have allowed it to develop the property, notwithstanding the commission's finding that the plan did not comply with the zoning ordinance and subdivision regulations).5 Even if I agreed with the Court that there were no jurisdictional barriers to deciding this case, I still would not try to decide it. The Court creates its new takings jurisprudence based on the trial court's finding that the property 5 Even more baffling, given its decision, just a few days ago, in Lujan v. Defenders of Wildlife, 504 U. S. 555 (1992), the Court decides petitioner has demonstrated injury in fact. In his complaint, petitioner made no allegations that he had any definite plans for using his property. App. to Pet. for Cert. 153-156. At trial, Lucas testified that he had house plans drawn up, but that he was "in no hurry" to build "because the lot was appreciating in value." Tr. 28-29. The trial court made no findings of fact that Lucas had any plans to use the property from 1988 to 1990. "'[S]ome day' intentions-without any description of concrete plans, or indeed even any specification of when the some day will be-do not support a finding of the 'actual or imminent' injury that our cases require." 504 U. S., at 564. The Court circumvents Defenders of Wildlife by deciding to resolve this case as if it arrived on the pleadings alone. But it did not. Lucas had a full trial on his claim for '''damages for the temporary taking of his property' from the date of the 1988 Act's passage to 'such time as this matter is finally resolved,'" ante, at 1013, n. 3, quoting the complaint, and failed to demonstrate any immediate concrete plans to build or sell. 1044 had lost all economic value.6 This finding is almost certainly erroneous. Petitioner still can enjoy other attributes of ownership, such as the right to exclude others, "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna v. United States, 444 U. S. 164 , 176 (1979). Petitioner can picnic, swim, camp in a tent, or live on the property in a movable trailer. State courts frequently have recognized that land has economic value where the only residual economic uses are recreation or camping. See, e. g., Turnpike Realty Co. v. Dedham, 362 Mass. 221, 284 N. E. 2d 891 (1972); Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972), cert. denied, 409 U. S. 1108 (1973); Hall v. Board of Environmental Protection, 528 A. 2d 453 (Me. 1987). Petitioner also retains the right to alienate the land, which would have value for neighbors and for those prepared to enjoy proximity to the ocean without a house. Yet the trial court, apparently believing that "less value" and "valueless" could be used interchangeably, found the property "valueless." The court accepted no evidence from the State on the property's value without a home, and petitioner's appraiser testified that he never had considered what the value would be absent a residence. Tr. 54-55. The appraiser's value was based on the fact that the "highest and best use of these lots ... [is] luxury single family detached dwellings." Id., at 48. The trial court appeared to believe that the property could be considered "valueless" if it was not available for its most profitable use. Absent that erroneous assumption, see Goldblatt, 369 U. S., at 592, I find no evidence in the record supporting the trial court's conclusion that the damage to the lots by virtue of the restrictions 6 Respondent contested the findings of fact of the trial court in the South Carolina Supreme Court, but that court did not resolve the issue. This Court's decision to assume for its purposes that petitioner had been denied all economic use of his land does not, of course, dispose of the issue on remand. 1045 was "total." Record 128 (findings of fact). I agree with the Court, ante, at 1020, n. 9, that it has the power to decide a case that turns on an erroneous finding, but I question the wisdom of deciding an issue based on a factual premise that does not exist in this case, and in the judgment of the Court will exist in the future only in "extraordinary circumstance[s]," ante, at 1017. Clearly, the Court was eager to decide this case.7 But eagerness, in the absence of proper jurisdiction, must-and in this case should have been-met with restraint. III The Court's willingness to dispense with precedent in its haste to reach a result is not limited to its initial jurisdictional decision. The Court also alters the long-settled rules of review. The South Carolina Supreme Court's decision to defer to legislative judgments in the absence of a challenge from petitioner comports with one of this Court's oldest maxims: "[T]he existence of facts supporting the legislative judgment is to be presumed." United States v. Carolene Products Co., 304 U. S. 144 , 152 (1938). Indeed, we have said the legislature's judgment is "well-nigh conclusive." Berman v. Par- 7 The Court overlooks the lack of a ripe and justiciable claim apparently out of concern that in the absence of its intervention Lucas will be unable to obtain further adjudication of his temporary takings claim. The Court chastises respondent for arguing that Lucas' temporary takings claim is premature because it failed "so much as [to] commen[t]" upon the effect of the South Carolina Supreme Court's decision on petitioner's ability to obtain relief for the 2-year period, and it frets that Lucas would "be unable (absent our intervention now) to obtain further state-court adjudication with respect to the 1988-1990 period." Ante, at 1012. Whatever the explanation for the Court's intense interest in Lucas' plight when ordinarily we are more cautious in granting discretionary review, the concern would have been more prudently expressed by vacating the judgment below and remanding for further consideration in light of the 1990 amendments. At that point, petitioner could have brought a temporary takings claim in the state courts. 1046 ker, 348 U. S. 26 , 32 (1954). See also Sweet v. Rechel, 159 U. S. 380 , 392 (1895); Euclid, 272 U. S., at 388 ("If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control"). Accordingly, this Court always has required plaintiffs challenging the constitutionality of an ordinance to provide "some factual foundation of record" that contravenes the legislative findings. O'Gorman & Young, 282 U. S., at 258. In the absence of such proof, "the presumption of constitutionality must prevail." Id., at 257. We only recently have reaffirmed that claimants have the burden of showing a state law constitutes a taking. See Keystone Bituminous Coal, 480 U. S., at 485. See also Goldblatt, 369 U. S., at 594 (citing "the usual presumption of constitutionality" that applies to statutes attacked as takings). Rather than invoking these traditional rules, the Court decides the State has the burden to convince the courts that its legislative judgments are correct. Despite Lucas' complete failure to contest the legislature's findings of serious harm to life and property if a permanent structure is built, the Court decides that the legislative findings are not sufficient to justify the use prohibition. Instead, the Court "emphasize[s]" the State must do more than merely proffer its legislative judgments to avoid invalidating its law. Ante, at 1031. In this case, apparently, the State now has the burden of showing the regulation is not a taking. The Court offers no justification for its sudden hostility toward state legislators, and I doubt that it could. IV The Court does not reject the South Carolina Supreme Court's decision simply on the basis of its disbelief and distrust of the legislature's findings. It also takes the opportunity to create a new scheme for regulations that eliminate all economic value. From now on, there is a categorical rule finding these regulations to be a taking unless the use they 1047 prohibit is a background common-law nuisance or property principle. See ante, at 1028-1031. A I first question the Court's rationale in creating a category that obviates a "case-specific inquiry into the public interest advanced," ante, at 1015, if all economic value has been lost. If one fact about the Court's takings jurisprudence can be stated without contradiction, it is that "the particular circumstances of each case" determine whether a specific restriction will be rendered invalid by the government's failure to pay compensation. United States v. Central Eureka Mining Co., 357 U. S. 155 , 168 (1958). This is so because although we have articulated certain factors to be considered, including the economic impact on the property owner, the ultimate conclusion "necessarily requires a weighing of private and public interests." Agins, 447 U. S., at 261. When the government regulation prevents the owner from any economically valuable use of his property, the private interest is unquestionably substantial, but we have never before held that no public interest can outweigh it. Instead the Court's prior decisions "uniformly reject the proposition that diminution in property value, standing alone, can establish a 'taking.''' Penn Central Transp. Co. v. New York City, 438 U. S. 104 , 131 (1978). This Court repeatedly has recognized the ability of government, in certain circumstances, to regulate property without compensation no matter how adverse the financial effect on the owner may be. More than a century ago, the Court explicitly upheld the right of States to prohibit uses of property injurious to public health, safety, or welfare without paying compensation: "A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property." Mugler v. Kansas, 123 1048 u. S., at 668-669. On this basis, the Court upheld an ordinance effectively prohibiting operation of a previously lawful brewery, although the "establishments will become of no value as property." Id., at 664; see also id., at 668. Mugler was only the beginning in a long line of cases.8 In Powell v. Pennsylvania, 127 U. S. 678 (1888), the Court upheld legislation prohibiting the manufacture of oleomargarine, despite the owner's allegation that "if prevented from continuing it, the value of his property employed therein would be entirely lost and he be deprived of the means of livelihood." Id., at 682. In Hadacheck v. Sebastian, 239 U. S. 394 (1915), the Court upheld an ordinance prohibiting a brickyard, although the owner had made excavations on the land that prevented it from being utilized for any purpose but a brickyard. Id., at 405. In Miller v. Schoene, 276 U. S. 272 (1928), the Court held that the Fifth Amendment did not require Virginia to pay compensation to the owner of cedar trees ordered destroyed to prevent a disease from spreading to nearby apple orchards. The "preferment of [the public interest] over the property interest of the individual, to the extent even of its destruction, is one of the distinguishing characteristics of every exercise of the police power which affects property." Id., at 280. Again, in Omnia Commercial Co. v. United States, 261 U. S. 502 (1923), the Court stated that "destruction of, or injury to, property is frequently accomplished without a 'taking' in the constitutional sense." Id., at 508. More recently, in Goldblatt, the Court upheld a town regulation that barred continued operation of an existing sand and gravel operation in order to protect public safety. 369 8 Prior to Mugler, the Court had held that owners whose real property is wholly destroyed to prevent the spread of a fire are not entitled to compensation. Bowditch v. Boston, 101 U. S. 16 , 18-19 (1880). And the Court recognized in the License Cases, 5 How. 504, 589 (1847) (opinion of McLean, J.), that "[t]he acknowledged police power of a State extends often to the destruction of property." 1049 u. S., at 596. "Although a comparison of values before and after is relevant," the Court stated, "it is by no means conclusive." 9 Id., at 594. In 1978, the Court declared that "in instances in which a state tribunal reasonably concluded that 'the health, safety, morals, or general welfare' would be promoted by prohibiting particular contemplated uses of land, this Court has upheld land-use regulation that destroyed ... recognized real property interests." Penn Central Transp. Co., 438 U. S., at 125. In First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987), the owner alleged that a floodplain ordinance had deprived it of "all use" of the property. Id., at 312. The Court remanded the case for consideration whether, even if the ordinance denied the owner all use, it could be justified as a safety measure.10 Id., at 313. And in Key stone Bituminous Coal, the Court summarized over 100 years of precedent: "[T]he Court has repeatedly upheld regulations that destroy or adversely affect real property interests." 11 480 U. S., at 489, n. 18. 9 That same year, an appeal came to the Court asking "[w]hether zoning ordinances which altogether destroy the worth of valuable land by prohibiting the only economic use of which it is capable effect a taking of real property without compensation." Juris. Statement, O. T. 1962, No. 307, p. 5. The Court dismissed the appeal for lack of a substantial federal question. Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism'd, 371 U. S. 36 (1962). 10 On remand, the California court found no taking in part because the zoning regulation "involves this highest of public interests-the prevention of death and injury." First Lutheran Church v. Los Angeles, 210 Cal. App. 3d 1353, 1370, 258 Cal. Rptr. 893, 904 (1989), cert. denied, 493 11 The Court's suggestion that Agins v. City of Tiburon, 447 U. S. 255 (1980), a unanimous opinion, created a new per se rule, only now discovered, is unpersuasive. In Agins, the Court stated that "no precise rule determines when property has been taken" but instead that "the question necessarily requires a weighing of public and private interest." Id., at 260-262. The other cases cited by the Court, ante, at 1015, repeat the Agins sentence, but in no way suggest that the public interest is irrelevant 1050 The Court recognizes that "our prior opinions have suggested that 'harmful or noxious uses' of property may be proscribed by government regulation without the requirement of compensation," ante, at 1022, but seeks to reconcile them with its categorical rule by claiming that the Court never has upheld a regulation when the owner alleged the loss of all economic value. Even if the Court's factual premise were correct, its understanding of the Court's cases is distorted. In none of the cases did the Court suggest that the right of a State to prohibit certain activities without paying compensation turned on the availability of some residual valuable use.12 Instead, the cases depended on whether the if total value has been taken. The Court has indicated that proof that a regulation does not deny an owner economic use of his property is sufficient to defeat a facial takings challenge. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 , 295-297 (1981). But the conclusion that a regulation is not on its face a taking because it allows the landowner some economic use of property is a far cry from the proposition that denial of such use is sufficient to establish a takings claim regardless of any other consideration. The Court never has accepted the latter proposition. The Court relies today on dicta in Agins, Hodel, Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), and Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 (1987), for its new categorical rule. Ante, at 1015-1016. I prefer to rely on the directly contrary holdings in cases such as Mugler v. Kansas, 123 U. S. 623 (1887), and Hadacheck v. Sebastian, 239 U. S. 394 (1915), not to mention contrary statements in the very cases on which the Court relies. See Agins, 447 U. S., at 260-262; Keystone Bituminous Coal, 480 U. S., at 489, n. 18,491-492. 12 Miller v. Schoene, 276 U. S. 272 (1928), is an example. In the course of demonstrating that apple trees are more valuable than red cedar trees, the Court noted that red cedar has "occasional use and value as lumber." Id., at 279. But the Court did not discuss whether the timber owned by the petitioner in that case was commercially salable, and nothing in the opinion suggests that the State's right to require uncompensated felling of the trees depended on any such salvage value. To the contrary, it is clear from its unanimous opinion that the Schoene Court would have sustained a law requiring the burning of cedar trees if that had been necessary to protect apple trees in which there was a public interest: The Court 1051 government interest was sufficient to prohibit the activity, given the significant private cost.13 These cases rest on the principle that the State has full power to prohibit an owner's use of property if it is harmful to the public. "[S]ince no individual has a right to use his property so as to create a nuisance or otherwise harm others, the State has not 'taken' anything when it asserts its power to enjoin the nuisance-like activity." Keystone Bituminous Coal, 480 U. S., at 491, n. 20. It would make no sense under this theory to suggest that an owner has a constitutionally protected right to harm others, if only he makes the proper showing of economic loss.14 See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 418 (1922) (Brandeis, J., dissenting) ("Restriction upon [harmful] use does not become inappropriate as a means, merely because it deprives the owner of the only use to which the property can then be profitably put"). spoke of preferment of the public interest over the property interest of the individual, "to the extent even of its destruction." Id., at 280. 13 The Court seeks to disavow the holdings and reasoning of Mugler and subsequent cases by explaining that they were the Court's early efforts to define the scope of the police power. There is language in the earliest takings cases suggesting that the police power was considered to be the power simply to prevent harms. Subsequently, the Court expanded its understanding of what were government's legitimate interests. But it does not follow that the holding of those early cases-that harmful and noxious uses of property can be forbidden whatever the harm to the property owner and without the payment of compensation-was repudiated. To the contrary, as the Court consciously expanded the scope of the police power beyond preventing harm, it clarified that there was a core of public interests that overrode any private interest. See Keystone Bituminous Coal, 480 U. S., at 491, n. 20. 14 "Indeed, it would be extraordinary to construe the Constitution to require a government to compensate private landowners because it denied them 'the right' to use property which cannot be used without risking injury and death." First Lutheran Church, 210 Cal. App. 3d, at 1366, 258 Cal. Rptr., at 901-902. 1052 B Ultimately even the Court cannot embrace the full implications of its per se rule: It eventually agrees that there cannot be a categorical rule for a taking based on economic value that wholly disregards the public need asserted. Instead, the Court decides that it will permit a State to regulate all economic value only if the State prohibits uses that would not be permitted under "background principles of nuisance and property law." 15 Ante, at 1031. Until today, the Court explicitly had rejected the contention that the government's power to act without paying compensation turns on whether the prohibited activity is a common-law nuisance.16 The brewery closed in Mugler itself was not a common-law nuisance, and the Court specifically stated that it was the role of the legislature to deter- 15 Although it refers to state nuisance and property law, the Court apparently does not mean just any state nuisance and property law. Public nuisance was first a common-law creation, see Newark, The Boundaries of Nuisance, 65 L. Q. Rev. 480, 482 (1949) (attributing development of nuisance to 1535), but by the 1800's in both the United States and England, legislatures had the power to define what is a public nuisance, and particular uses often have been selectively targeted. See Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997, 999-1000 (1966); J. Stephen, A General View of the Criminal Law of England 105-107 (2d ed. 1890). The Court's references to "common-law" background principles, however, indicate that legislative determinations do not constitute "state nuisance and property law" for the Court. 16 Also, until today the fact that the regulation prohibited uses that were lawful at the time the owner purchased did not determine the constitutional question. The brewery, the brickyard, the cedar trees, and the gravel pit were all perfectly legitimate uses prior to the passage of the regulation. See Mugler v. Kansas, 123 U. S., at 654; Hadacheck v. Sebastian, 239 U. S. 394 (1915); Miller, 276 U. S., at 272; Goldblatt v. Hempstead, 369 U. S. 590 (1962). This Court explicitly acknowledged in Hadacheck that "[a] vested interest cannot be asserted against [the police power] because of conditions once obtaining. To so hold would preclude development and fix a city forever in its primitive conditions." 239 U. S., at 410 (citation omitted). 1053 mine what measures would be appropriate for the protection of public health and safety. See 123 U. S., at 661. In upholding the state action in Miller, the Court found it unnecessary to "weigh with nicety the question whether the infected cedars constitute a nuisance according to common law; or whether they may be so declared by statute." 276 U. S., at 280. See also Goldblatt, 369 U. S., at 593; Hadacheck, 239 U. S., at 411. Instead the Court has relied in the past, as the South Carolina court has done here, on legislative judgments of what constitutes a harmP The Court rejects the notion that the State always can prohibit uses it deems a harm to the public without granting compensation because "the distinction between 'harmpreventing' and 'benefit-conferring' regulation is often in the eye of the beholder." Ante, at 1024. Since the characterization will depend "primarily upon one's evaluation of the worth of competing uses of real estate," ante, at 1025, the Court decides a legislative judgment of this kind no longer can provide the desired "objective, value-free basis" for upholding a regulation, ante, at 1026. The Court, however, fails to explain how its proposed common-law alternative escapes the same trap. 17The Court argues that finding no taking when the legislature prohibits a harmful use, such as the Court did in Mugler and the South Carolina Supreme Court did in the instant case, would nullify Pennsylvania Coal. See ante, at 1022-1023. Justice Holmes, the author of Pennsylvania Coal, joined Miller v. Schoene, 276 U. S. 272 (1928), six years later. In Miller, the Court adopted the exact approach of the South Carolina court: It found the cedar trees harmful, and their destruction not a taking, whether or not they were a nuisance. Justice Holmes apparently believed that such an approach did not repudiate his earlier opinion. Moreover, this Court already has been over this ground five years ago, and at that point rejected the assertion that Pennsylvania Coal was inconsistent with Mugler, Hadacheck, Miller, or the others in the string of "noxious use" cases, recognizing instead that the nature of the State's action is critical in takings analysis. Keystone Bituminous Coal, 480 U. S., at 490. 1054 The threshold inquiry for imposition of the Court's new rule, "deprivation of all economically valuable use," itself cannot be determined objectively. As the Court admits, whether the owner has been deprived of all economic value of his property will depend on how "property" is defined. The "composition of the denominator in our 'deprivation' fraction," ante, at 1017, n. 7, is the dispositive inquiry. Yet there is no "objective" way to define what that denominator should be. "We have long understood that any land-use regulation can be characterized as the 'total' deprivation of an aptly defined entitlement .... Alternatively, the same regulation can always be characterized as a mere 'partial' withdrawal from full, unencumbered ownership of the landholding affected by the regulation .... " 18 Michelman, Takings, 1987, 88 Colum. L. Rev. 1600, 1614 (1988). The Court's decision in Keystone Bituminous Coal illustrates this principle perfectly. In Keystone, the Court determined that the "support estate" was "merely a part of the entire bundle of rights possessed by the owner." 480 U. S., at 501. Thus, the Court concluded that the support estate's destruction merely eliminated one segment of the total property. Ibid. The dissent, however, characterized the support estate as a distinct property interest that was wholly destroyed. Id., at 519. The Court could agree on no "value-free basis" to resolve this dispute. Even more perplexing, however, is the Court's reliance on common-law principles of nuisance in its quest for a valuefree takings jurisprudence. In determining what is a nuisance at common law, state courts make exactly the decision that the Court finds so troubling when made by the South Carolina General Assembly today: They determine whether the use is harmful. Common-law public and private nui- 18 See also Michelman, Property, Utility, and Fairness, Comments on the Ethical Foundations of "Just Compensation" Law, 80 Harv. L. Rev. 1165, 1192-1193 (1967); Sax, Takings and the Police Power, 74 Yale L. J. 36, 60 (1964). 1055 sance law is simply a determination whether a particular use causes harm. See Prosser, Private Action for Public Nuisance, 52 Va. L. Rev. 997 (1966) ("Nuisance is a French word which means nothing more than harm"). There is nothing magical in the reasoning of judges long dead. They determined a harm in the same way as state judges and legislatures do today. If judges in the 18th and 19th centuries can distinguish a harm from a benefit, why not judges in the 20th century, and if judges can, why not legislators? There simply is no reason to believe that new interpretations of the hoary common-law nuisance doctrine will be particularly "objective" or "value free." 19 Once one abandons the level of generality of sic utere tuo ut alienum non laedas, ante, at 1031, one searches in vain, I think, for anything resembling a principle in the common law of nuisance. C Finally, the Court justifies its new rule that the legislature may not deprive a property owner of the only economically valuable use of his land, even if the legislature finds it to be a harmful use, because such action is not part of the" 'long recognized'" "understandings of our citizens." Ante, at 1027. These "understandings" permit such regulation only if the use is a nuisance under the common law. Any other course is "inconsistent with the historical compact recorded in the Takings Clause." Ante, at 1028. It is not clear from the Court's 19 "There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance.' It has meant all things to all people, and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on The Law of Torts 616 (5th ed. 1984) (footnotes omitted). It is an area of law that "straddles the legal universe, virtually defies synthesis, and generates case law to suit every taste." W. Rodgers, Environmental Law § 2.4, p. 48 (1986) (footnotes omitted). The Court itself has noted that "nuisance concepts" are "often vague and indeterminate." Milwaukee v. Illinois, 451 U. S. 304 , 317 (1981). 1056 opinion where our "historical compact" or "citizens' understanding" comes from, but it does not appear to be history. The principle that the State should compensate individuals for property taken for public use was not widely established in America at the time of the Revolution. "The colonists ... inherited ... a concept of property which permitted extensive regulation of the use of that property for the public benefit-regulation that could even go so far as to deny all productive use of the property to the owner if, as Coke himself stated, the regulation 'extends to the public benefit ... for this is for the public, and every one hath benefit by it.'" F. Bosselman, D. Callies, & J. Banta, The Taking Issue 80-81 (1973), quoting The Case of the King's Prerogative in Saltpetre, 12 Co. Rep. 12-13 (1606) (hereinafter Bosselman). See also Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 697, n. 9 (1985).20 Even into the 19th century, state governments often felt free to take property for roads and other public projects without paying compensation to the owners.21 See M. Horwitz, The Transformation of American Law, 1780-1860, pp. 63-64 (1977) (hereinafter Horwitz); Treanor, 94 Yale L. J., at 695. As one court declared in 1802, citizens "were bound 20 See generally Sax, 74 Yale L. J., at 56-59. "The evidence certainly seems to indicate that the mere fact that government activity destroyed existing economic advantages and power did not disturb [the English theorists who formulated the compensation notion] at all." Id., at 56. Professor Sax contends that even Blackstone, "remembered champion of the language of private property," did not believe that the Compensation Clause was meant to preserve economic value. Id., at 58-59. 21 In 1796, the attorney general of South Carolina responded to property holders' demand for compensation when the State took their land to build a road by arguing that "there is not one instance on record, and certainly none within the memory of the oldest man now living, of any demand being made for compensation for the soil or freehold of the lands." Lindsay v. Commissioners, 2 S. C. L. 38, 49 (1796). 1057 to contribute as much of [land], as by the laws of the country, were deemed necessary for the public convenience." M'Clenachan v. Curwin, 3 Yeates 362, 373 (Pa. 1802). There was an obvious movement toward establishing the just compensation principle during the 19th century, but "there continued to be a strong current in American legal thought that regarded compensation simply as a 'bounty given ... by the State' out of 'kindness' and not out of justice." Horwitz 65, quoting Commonwealth v. Fisher, 1 Pen. & W. 462, 465 (Pa. 1830). See also State v. Dawson, 3 Hill 100, 103 (S. C. 1836).22 Although, prior to the adoption of the Bill of Rights, America was replete with land-use regulations describing which activities were considered noxious and forbidden, see Bender, The Takings Clause: Principles or Politics?, 34 Buffalo L. Rev. 735, 751 (1985); L. Friedman, A History of American Law 66-68 (1973), the Fifth Amendment's Takings Clause originally did not extend to regulations of property, whatever the effect.23 See ante, at 1014. Most state courts agreed with this narrow interpretation of a taking. "Until the end of the nineteenth century ... jurists held that 22 Only the Constitutions of Vermont and Massachusetts required that compensation be paid when private property was taken for public use; and although eminent domain was mentioned in the Pennsylvania Constitution, its sole requirement was that property not be taken without the consent of the legislature. See Grant, The "Higher Law" Background of the Law of Eminent Domain, in 2 Selected Essays on Constitutional Law 912, 915916 (1938). By 1868, five of the original States still had no just compensation clauses in their Constitutions. Ibid. 23 James Madison, author of the Takings Clause, apparently intended it to apply only to direct, physical takings of property by the Federal Government. See Treanor, The Origins and Original Significance of the Just Compensation Clause of the Fifth Amendment, 94 Yale L. J. 694, 711 (1985). Professor Sax argues that although "contemporaneous commentary upon the meaning of the compensation clause is in very short supply," 74 Yale L. J., at 58, the "few authorities that are available" indicate that the Clause was "designed to prevent arbitrary government action," not to protect economic value. Id., at 58-60. 1058 the constitution protected possession only, and not value." Siegel, Understanding the Nineteenth Century Contract Clause: The Role of the Property-Privilege Distinction and "Takings" Clause Jurisprudence, 60 S. Cal. L. Rev. 1, 76 (1986); Bosselman 106. Even indirect and consequential injuries to property resulting from regulations were excluded from the definition of a taking. See ibid.; Callender v. Marsh, 1 Pick. 418, 430 (Mass. 1823). Even when courts began to consider that regulation in some situations could constitute a taking, they continued to uphold bans on particular uses without paying compensation, notwithstanding the economic impact, under the rationale that no one can obtain a vested right to injure or endanger the public.24 In the Coates cases, for example, the Supreme Court of New York found no taking in New York's ban on the interment of the dead within the city, although "no other use can be made of these lands." Coates v. City of New York, 7 Cow. 585, 592 (N. Y. 1827). See also Brick Presbyterian Church v. City of New York, 5 Cow. 538 (N. Y. 1826); Commonwealth v. Alger, 7 Cush. 53, 59, 104 (Mass. 1851); St. Louis Gunning Advertisement Co. v. St. Louis, 235 Mo. 99, 146, 137 S. W. 929, 942 (1911), appeal dism'd, 231 U. S. 761 (1913). More recent cases reach the same result. See Consolidated Rock Products Co. v. Los Angeles, 57 Cal. 2d 515, 370 P. 2d 342, appeal dism'd, 371 U. S. 36 (1962); Nassr v. 24 For this reason, the retroactive application of the regulation to formerly lawful uses was not a controlling distinction in the past. "Nor can it make any difference that the right is purchased previous to the passage of the by-law," for "[e]very right, from an absolute ownership in property, down to a mere easement, is purchased and holden subject to the restriction, that it shall be so exercised as not to injure others. Though, at the time, it be remote and inoffensive, the purchaser is bound to know, at his peril, that it may become otherwise." Coates v. City of New York, 7 Cow. 585, 605 (N. Y. 1827). See also Brick Presbyterian Church v. City of New York, 5 Cow. 538, 542 (N. Y. 1826); Commonwealth v. Tewksbury, 11 Metc. 55 (Mass. 1846); State v. Paul, 5 R. 1. 185 (1858). 1059 Commonwealth, 394 Mass. 767, 477 N. E. 2d 987 (1985); Eno v. Burlington, 125 Vt. 8, 209 A. 2d 499 (1965); Turner v. County of Del Norte, 24 Cal. App. 3d 311, 101 Cal. Rptr. 93 (1972). In addition, state courts historically have been less likely to find that a government action constitutes a taking when the affected land is undeveloped. According to the South Carolina court, the power of the legislature to take unimproved land without providing compensation was sanctioned by "ancient rights and principles." Lindsay v. Commissioners, 2 S. C. L. 38, 57 (1796). "Except for Massachusetts, no colony appears to have paid compensation when it built a state-owned road across unimproved land. Legislatures provided compensation only for enclosed or improved land." Treanor, 94 Yale L. J., at 695 (footnotes omitted). This rule was followed by some States into the 1800's. See Horwitz 63-65. With similar result, the common agrarian conception of property limited owners to "natural" uses of their land prior to and during much of the 18th century. See id., at 32. Thus, for example, the owner could build nothing on his land that would alter the natural flow of water. See id., at 44; see also, e. g., Merritt v. Parker, 1 Coxe 460, 463 (N. J. 1795). Some more recent state courts still follow this reasoning. See, e. g., Just v. Marinette County, 56 Wis. 2d 7, 201 N. W. 2d 761, 768 (1972). Nor does history indicate any common-law limit on the State's power to regulate harmful uses even to the point of destroying all economic value. Nothing in the discussions in Congress concerning the Takings Clause indicates that the Clause was limited by the common-law nuisance doctrine. Common-law courts themselves rejected such an understanding. They regularly recognized that it is "for the legislature to interpose, and by positive enactment to prohibit a use of property which would be injurious to the public." 1060 Tewksbury, 11 Mete., at 57.25 Chief Justice Shaw explained in upholding a regulation prohibiting construction of wharves, the existence of a taking did not depend on "whether a certain erection in tide water is a nuisance at common law or not." Alger, 7 Cush., at 104; see also State v. Paul, 5 R. 1. 185, 193 (1858); Commonwealth v. Parks, 155 Mass. 531, 532, 30 N. E. 174 (1892) (Holmes, J.) ("[T]he legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances"). In short, I find no clear and accepted "historical compact" or "understanding of our citizens" justifying the Court's new takings doctrine. Instead, the Court seems to treat history as a grab bag of principles, to be adopted where they support the Court's theory, and ignored where they do not. If the Court decided that the early common law provides the background principles for interpreting the Takings Clause, then regulation, as opposed to physical confiscation, would not be compensable. If the Court decided that the law of a later period provides the background principles, then regulation might be compensable, but the Court would have to confront the fact that legislatures regularly determined which uses were prohibited, independent of the common law, and independent of whether the uses were lawful when the owner purchased. What makes the Court's analysis unworkable is its attempt to package the law of two incompatible eras and peddle it as historical fact.26 25 More recent state-court decisions agree. See, e. g., Lane v. Mt. Vernon, 38 N. Y. 2d 344, 348-349, 342 N. E. 2d 571, 573 (1976); Commonwealth 26 The Court asserts that all early American experience, prior to and after passage of the Bill of Rights, and any case law prior to 1897 are "entirely irrelevant" in determining what is "the historical compact recorded in the Takings Clause." Ante, at 1028, and n. 15. Nor apparently are we to find this compact in the early federal takings cases, which clearly permitted prohibition of harmful uses despite the alleged loss of all value, 1061 v The Court makes sweeping and, in my view, misguided and unsupported changes in our takings doctrine. While it limits these changes to the most narrow subset of government regulation-those that eliminate all economic value from land-these changes go far beyond what is necessary to secure petitioner Lucas' private benefit. One hopes they do not go beyond the narrow confines the Court assigns them to today. I dissent. JUSTICE STEVENS, dissenting. Today the Court restricts one judge-made rule and expands another. In my opinion it errs on both counts. Proper application of the doctrine of judicial restraint would avoid the premature adjudication of an important constitutional question. Proper respect for our precedents would avoid an illogical expansion of the concept of "regulatory takings." I As the Court notes, ante, at 1010-1011, South Carolina's Beachfront Management Act has been amended to permit some construction of residences seaward of the line that frustrated petitioner's proposed use of his property. Until he exhausts his right to apply for a special permit under that amendment, petitioner is not entitled to an adjudication by this Court of the merits of his permanent takings claim. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 351 (1986). It is also not clear that he has a viable "temporary takings" claim. If we assume that petitioner is now able to build on the lot, the only injury that he may have suffered is whether or not the prohibition was a common-law nuisance, and whether or not the prohibition occurred subsequent to the purchase. See supra, at 1047-1048, 1052-1053, and n. 16. I cannot imagine where the Court finds its "historical compact," if not in history. 1062 the delay caused by the temporary existence of the absolute statutory ban on construction. We cannot be sure, however, that that delay caused petitioner any harm because the record does not tell us whether his building plans were even temporarily frustrated by the enactment of the statute.1 Thus, on the present record it is entirely possible that petitioner has suffered no injury in fact even if the state statute was unconstitutional when he filed this lawsuit. It is true, as the Court notes, that the argument against deciding the constitutional issue in this case rests on prudential considerations rather than a want of jurisdiction. I think it equally clear, however, that a Court less eager to decide the merits would follow the wise counsel of Justice Brandeis in his deservedly famous concurring opinion in Ashwander v. TVA, 297 U. S. 288 , 341 (1936). As he explained, the Court has developed "for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision." Id., at 346. The second of those rules applies directly to this case. "2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it.' Liverpool, N. Y. & P. S. S. Co. v. Emigration Commissioners, 113 U. S. 33 , 39; [citing five additional cases]. 'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.' Burton v. United States, 196 U. S. 283 , 295." Id., at 346-347. Cavalierly dismissing the doctrine of judicial restraint, the Court today tersely announces that "we do not think it prudent to apply that prudential requirement here." Ante, at 1 In this regard, it is noteworthy that petitioner acquired the lot about 18 months before the statute was passed; there is no evidence that he ever sought a building permit from the local authorities. 1063 1013. I respectfully disagree and would save consideration of the merits for another day. Since, however, the Court has reached the merits, I shall do so as well. II In its analysis of the merits, the Court starts from the premise that this Court has adopted a "categorical rule that total regulatory takings must be compensated," ante, at 1026, and then sets itself to the task of identifying the exceptional cases in which a State may be relieved of this categorical obligation, ante, at 1027-1029. The test the Court announces is that the regulation must "do no more than duplicate the result that could have been achieved" under a State's nuisance law. Ante, at 1029. Under this test the categorical rule will apply unless the regulation merely makes explicit what was otherwise an implicit limitation on the owner's property rights. In my opinion, the Court is doubly in error. The categorical rule the Court establishes is an unsound and unwise addition to the law and the Court's formulation of the exception to that rule is too rigid and too narrow. The Categorical Rule As the Court recognizes, ante, at 1015, Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), provides no support for its-or, indeed, any-categorical rule. To the contrary, Justice Holmes recognized that such absolute rules ill fit the inquiry into "regulatory takings." Thus, in the paragraph that contains his famous observation that a regulation may go "too far" and thereby constitute a taking, the Justice wrote: "As we already have said, this is a question of degree-and therefore cannot be disposed of by general propositions." Id., at 416. What he had "already ... said" made perfectly clear that Justice Holmes regarded economic injury to be merely one factor to be weighed: "One fact for consideration in determining such limits is the extent of the diminu- 1064 tion [of value.] So the question depends upon the particular facts." Id., at 413. Nor does the Court's new categorical rule find support in decisions following Mahon. Although in dicta we have sometimes recited that a law "effects a taking if [it] ... denies an owner economically viable use of his land," Agins v. City of Tiburon, 447 U. S. 255 , 260 (1980), our rulings have rejected such an absolute position. We have frequentlyand recently-held that, in some circumstances, a law that renders property valueless may nonetheless not constitute a taking. See, e. g., First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , 313 (1987); Goldblatt v. Hempstead, 369 U. S. 590 , 596 (1962); United States v. Caltex, 344 U. S. 149 , 155 (1952); Miller v. Schoene, 276 U. S. 272 (1928); Hadacheck v. Sebastian, 239 U. S. 394, 405 (1915); Mugler v. Kansas, 123 U. S. 623 , 657 (1887); cf. Ruckelshaus v. Monsanto Co., 467 U. S. 986 , 1011 (1984); Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211 , 225 (1986). In short, as we stated in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 490 (1987), "'Although a comparison of values before and after' a regulatory action 'is relevant, ... it is by no means conclusive.' " In addition to lacking support in past decisions, the Court's new rule is wholly arbitrary. A landowner whose property is diminished in value 95% recovers nothing, while an owner whose property is diminished 100% recovers the land's full value. The case at hand illustrates this arbitrariness well. The Beachfront Management Act not only prohibited the building of new dwellings in certain areas, it also prohibited the rebuilding of houses that were "destroyed beyond repair by natural causes or by fire." 1988 S. C. Acts 634, § 3; see also Esposito v. South Carolina Coastal Council, 939 F.2d 165 , 167 (CA4 1991).2 Thus, if the homes adjacent to Lucas' 2 This aspect of the Act was amended in 1990. See S. C. Code Ann. § 48-39-290(B) (Supp. 1990). 1065 lot were destroyed by a hurricane one day after the Act took effect, the owners would not be able to rebuild, nor would they be assured recovery. Under the Court's categorical approach, Lucas (who has lost the opportunity to build) recovers, while his neighbors (who have lost both the opportunity to build and their homes) do not recover. The arbitrariness of such a rule is palpable. Moreover, because of the elastic nature of property rights, the Court's new rule will also prove unsound in practice. In response to the rule, courts may define "property" broadly and only rarely find regulations to effect total takings. This is the approach the Court itself adopts in its revisionist reading of venerable precedents. We are told that-notwithstanding the Court's findings to the contrary in each casethe brewery in Mugler, the brickyard in Hadacheck, and the gravel pit in Goldblatt all could be put to "other uses" and that, therefore, those cases did not involve total regulatory takings.3 Ante, at 1026, n. 13. On the other hand, developers and investors may market specialized estates to take advantage of the Court's new rule. The smaller the estate, the more likely that a regulatory change will effect a total taking. Thus, an investor may, for example, purchase the right to build a multifamily home on a specific lot, with the result that a zoning regulation that 3 Of course, the same could easily be said in this case: Lucas may put his land to "other uses" -fishing or camping, for example-or may sell his land to his neighbors as a buffer. In either event, his land is far from "valueless." This highlights a fundamental weakness in the Court's analysis: its failure to explain why only the impairment of "economically beneficial or productive use," ante, at 1015 (emphasis added), of property is relevant in takings analysis. I should think that a regulation arbitrarily prohibiting an owner from continuing to use her property for bird watching or sunbathing might constitute a taking under some circumstances; and, conversely, that such uses are of value to the owner. Yet the Court offers no basis for its assumption that the only uses of property cognizable under the Constitution are developmental uses. 1066 allows only single-family homes would render the investor's property interest "valueless."4 In short, the categorical rule will likely have one of two effects: Either courts will alter the definition of the "denominator" in the takings "fraction," rendering the Court's categorical rule meaningless, or investors will manipulate the relevant property interests, giving the Court's rule sweeping effect. To my mind, neither of these results is desirable or appropriate, and both are distortions of our takings jurisprudence. Finally, the Court's justification for its new categorical rule is remarkably thin. The Court mentions in passing three arguments in support of its rule; none is convincing. First, the Court suggests that "total deprivation of feasible use is, from the landowner's point of view, the equivalent of a physical appropriation." Ante, at 1017. This argument proves too much. From the "landowner's point of view," a regulation that diminishes a lot's value by 50% is as well "the equivalent" of the condemnation of half of the lot. Yet, it is well established that a 50% diminution in value does not by itself constitute a taking. See Euclid v. Ambler Realty Co., 272 U. S. 365 , 384 (1926) (75% diminution in value). Thus, the landowner's perception of the regulation cannot justify the Court's new rule. Second, the Court emphasizes that because total takings are "relatively rare" its new rule will not adversely affect the government's ability to "go on." Ante, at 1018. This argument proves too little. Certainly it is true that defining a small class of regulations that are per se takings will not 4 This unfortunate possibility is created by the Court's subtle revision of the "total regulatory takings" dicta. In past decisions, we have stated that a regulation effects a taking if it "denies an owner economically viable use of his land," Agins v. City of Tiburon, 447 U. S. 255 , 260 (1980) (emphasis added), indicating that this "total takings" test did not apply to other estates. Today, however, the Court suggests that a regulation may effect a total taking of any real property interest. See ante, at 10161017, n. 7. 1067 greatly hinder important governmental functions-but this is true of any small class of regulations. The Court's suggestion only begs the question of why regulations of this particular class should always be found to effect takings. Finally, the Court suggests that "regulations that leave the owner ... without economically beneficial ... use ... carry with them a heightened risk that private property is being pressed into some form of public service." Ibid. As discussed more fully below, see Part III, infra, I agree that the risks of such singling out are of central concern in takings law. However, such risks do not justify a per se rule for total regulatory takings. There is no necessary correlation between "singling out" and total takings: A regulation may single out a property owner without depriving him of all of his property, see, e. g., Nollan v. California Coastal Comm'n, 483 U. S. 825 , 837 (1987); J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 432 A. 2d 12 (1981); and it may deprive him of all of his property without singling him out, see, e. g., Mugler v. Kansas, 123 U. S. 623 (1887); Hadacheck v. Sebastian, 239 U. S. 394 (1915). What matters in such cases is not the degree of diminution of value, but rather the specificity of the expropriating act. For this reason, the Court's third justification for its new rule also fails. In short, the Court's new rule is unsupported by prior decisions, arbitrary and unsound in practice, and theoretically unjustified. In my opinion, a categorical rule as important as the one established by the Court today should be supported by more history or more reason than has yet been provided. The Nuisance Exception Like many bright-line rules, the categorical rule established in this case is only "categorical" for a page or two in the U. S. Reports. No sooner does the Court state that "total regulatory takings must be compensated," ante, at 1026, than it quickly establishes an exception to that rule. 1068 The exception provides that a regulation that renders property valueless is not a taking if it prohibits uses of property that were not "previously permissible under relevant property and nuisance principles." Ante, at 1029-1030. The Court thus rejects the basic holding in Mugler v. Kan sas, 123 U. S. 623 (1887). There we held that a statewide statute that prohibited the owner of a brewery from making alcoholic beverages did not effect a taking, even though the use of the property had been perfectly lawful and caused no public harm before the statute was enacted. We squarely rejected the rule the Court adopts today: "It is true, that, when the defendants ... erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. [T]he supervision of the public health and the public morals is a governmental power, 'continuing in its nature,' and 'to be dealt with as the special exigencies of the moment may require;' ... 'for this purpose, the largest legislative discretion is allowed, and the discretion cannot be parted with any more than the power itself.''' Id., at 669. Under our reasoning in Mugler, a State's decision to prohibit or to regulate certain uses of property is not a compensable taking just because the particular uses were previously lawful. Under the Court's opinion today, however, if a State should decide to prohibit the manufacture of asbestos, cigarettes, or concealable firearms, for example, it must be prepared to pay for the adverse economic consequences of its decision. One must wonder if government will be able to "go on" effectively if it must risk compensation "for every such change in the general law." Mahon, 260 U. S., at 413. The Court's holding today effectively freezes the State's common law, denying the legislature much of its traditional 1069 power to revise the law governing the rights and uses of property. Until today, I had thought that we had long abandoned this approach to constitutional law. More than a century ago we recognized that "the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to the changes of time and circumstances." Munn v. Illinois, 94 U. S. 113 , 134 (1877). As Justice Marshall observed about a position similar to that adopted by the Court today: "If accepted, that claim would represent a return to the era of Lochner v. New York, 198 U. S. 45 (1905), when common-law rights were also found immune from revision by State or Federal Government. Such an approach would freeze the common law as it has been constructed by the courts, perhaps at its 19th-century state of development. It would allow no room for change in response to changes in circumstance. The Due Process Clause does not require such a result." PruneYard Shopping Center v. Robins, 447 U. S. 74 , 93 (1980) (concurring opinion). Arresting the development of the common law is not only a departure from our prior decisions; it is also profoundly unwise. The human condition is one of constant learning and evolution-both moral and practical. Legislatures implement that new learning; in doing so they must often revise the definition of property and the rights of property owners. Thus, when the Nation came to understand that slavery was morally wrong and mandated the emancipation of all slaves, it, in effect, redefined "property." On a lesser scale, our ongoing self-education produces similar changes in the rights of property owners: New appreciation of the significance of endangered species, see, e. g., Andrus v. Allard, 444 U. S. 51 (1979); the importance of wetlands, see, e. g., 16 U. S. C. § 3801 et seq.; and the vulnerability of coastal 1070 lands, see, e. g., 16 U. s. C. § 1451 et seq., shapes our evolving understandings of property rights. Of course, some legislative redefinitions of property will effect a taking and must be compensated-but it certainly cannot be the case that every movement away from common law does so. There is no reason, and less sense, in such an absolute rule. We live in a world in which changes in the economy and the environment occur with increasing frequency and importance. If it was wise a century ago to allow government "'the largest legislative discretion'" to deal with" 'the special exigencies of the moment,'" Mugler, 123 U. S., at 669, it is imperative to do so today. The rule that should govern a decision in a case of this kind should focus on the future, not the past.5 The Court's categorical approach rule will, I fear, greatly hamper the efforts of local officials and planners who must deal with increasingly complex problems in land-use and environmental regulation. As this case-in which the claims of an individual property owner exceed $1 million-well demonstrates, these officials face both substantial uncertainty because of the ad hoc nature of takings law and unacceptable penalties if they guess incorrectly about that law.6 5 Even measured in terms of efficiency, the Court's rule is unsound. The Court today effectively establishes a form of insurance against certain changes in land-use regulations. Like other forms of insurance, the Court's rule creates a "moral hazard" and inefficiencies: In the face of uncertainty about changes in the law, developers will overinvest, safe in the knowledge that if the law changes adversely, they will be entitled to compensation. See generally Farber, Economic Analysis and Just Compensation, 12 Int'l Rev. of Law & Econ. 125 (1992). 6 As the Court correctly notes, in regulatory takings, unlike physical takings, courts have a choice of remedies. See ante, at 1030, n. 17. They may "invalidat[e the] excessive regulation" or they may "allo[w] the regulation to stand and orde[r] the government to afford compensation for the permanent taking." First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , 335 (1987) (STEVENS, J., dissenting); see also id., at 319-321. In either event, however, the costs to the government are likely to be substantial and are therefore likely to impede the development of sound land-use policy. 1071 Viewed more broadly, the Court's new rule and exception conflict with the very character of our takings jurisprudence. We have frequently and consistently recognized that the definition of a taking cannot be reduced to a "set formula" and that determining whether a regulation is a taking is "essentially [an] ad hoc, factual inquir[y]." Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 124 (1978) (quoting Goldblatt v. Hempstead, 369 U. S., at 594). This is unavoidable, for the determination whether a law effects a taking is ultimately a matter of "fairness and justice," Armstrong v. United States, 364 U. S. 40 , 49 (1960), and "necessarily requires a weighing of private and public interests," Agins, 447 U. S., at 261. The rigid rules fixed by the Court today clash with this enterprise: "fairness and justice" are often disserved by categorical rules. III It is well established that a takings case "entails inquiry into [several factors:] the character of the governmental action, its economic impact, and its interference with reasonable investment-backed expectations." Prune Yard, 447 U. S., at 83. The Court's analysis today focuses on the last two of these three factors: The categorical rule addresses a regulation's "economic impact," while the nuisance exception recognizes that ownership brings with it only certain "expectations." Neglected by the Court today is the first and, in some ways, the most important factor in takings analysis: the character of the regulatory action. The Just Compensation Clause "was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong, 364 U. S., at 49. Accordingly, one of the central concerns of our takings jurisprudence is "prevent[ing] the public from loading upon one individual more than his just share of the burdens of government." Monongahela Navigation Co. v. United 1072 States, 148 U. S. 312 , 325 (1893). We have, therefore, in our takings law frequently looked to the generality of a regulation of property.7 For example, in the case of so-called "developmental exactions," we have paid special attention to the risk that particular landowners might "b[e] singled out to bear the burden" of a broader problem not of his own making. Nollan, 483 U. S., at 835, n. 4; see also Pennell v. San Jose, 485 U. S. 1 , 23 (1988). Similarly, in distinguishing between the Kohler Act (at issue in Mahon) and the Subsidence Act (at issue in Keystone), we found significant that the regulatory function of the latter was substantially broader. Unlike the Kohler 7This principle of generality is well rooted in our broader understandings of the Constitution as designed in part to control the "mischiefs of faction." See The Federalist No. 10, p. 43 (G. Wills ed. 1982) (J. Madison). An analogous concern arises in First Amendment law. There we have recognized that an individual's rights are not violated when his religious practices are prohibited under a neutral law of general applicability. For example, in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 , 879-880 (1990), we observed: "[Our] decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).' United States v. Lee, 455 U. S. 252 , 263, n. 3 (1982) (STEVENS, J., concurring in judgment) .... In Prince v. Massachusetts, 321 U. S. 158 (1944), we held that a mother could be prosecuted under the child labor laws for using her children to dispense literature in the streets, her religious motivation notwithstanding. We found no constitutional infirmity in 'excluding [these children] from doing there what no other children may do.' Id., at 171. In Braunfeld v. Brown, 366 U. S. 599 (1961) (plurality opinion), we upheld Sunday-closing laws against the claim that they burdened the religious practices of persons whose religions compelled them to refrain from work on other days. In Gillette v. United States, 401 U. S. 437 ,461 (1971), we sustained the military Selective Service System against the claim that it violated free exercise by conscripting persons who opposed a particular war on religious grounds." If such a neutral law of general applicability may severely burden constitutionally protected interests in liberty, a comparable burden on property owners should not be considered unreasonably onerous. 1073 Act, which simply transferred back to the surface owners certain rights that they had earlier sold to the coal companies, the Subsidence Act affected all surface owners-including the coal companies-equally. See Keystone, 480 U. S., at 486. Perhaps the most familiar application of this principle of generality arises in zoning cases. A diminution in value caused by a zoning regulation is far less likely to constitute a taking if it is part of a general and comprehensive land-use plan, see Euclid v. Amber Realty Co., 272 U. S. 365 (1926); conversely, "spot zoning" is far more likely to constitute a taking, see Penn Central, 438 U. S., at 132, and n. 28. The presumption that a permanent physical occupation, no matter how slight, effects a taking is wholly consistent with this principle. A physical taking entails a certain amount of "singling out." 8 Consistent with this principle, physical occupations by third parties are more likely to effect takings than other physical occupations. Thus, a regulation requiring the installation of a junction box owned by a third party, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982), is more troubling than a regulation requiring the installation of sprinklers or smoke detectors; just as an order granting third parties access to a marina, Kaiser Aetna v. United States, 444 U. S. 164 (1979), is more troubling than an order requiring the placement of safety buoys in the marina. In analyzing takings claims, courts have long recognized the difference between a regulation that targets one or two parcels of land and a regulation that enforces a statewide policy. See, e. g., A. A. Profiles, Inc. v. Ft. Lauderdale, 850 F. 2d 1483, 1488 (CA111988); Wheeler v. Pleasant Grove, 664 F. 2d 99, 100 (CA5 1981); Trustees Under Will of Pomeroy v. Westlake, 357 So. 2d 1299, 1304 (La. App. 1978); see also Burrows v. Keene, 121 N. H. 590, 596, 432 A. 2d 15, 21 (1981); Herman Glick Realty Co. v. St. Louis County, 545 S. W. 2d 320, 324-325 (Mo. App. 1976); Huttig v. Richmond Heights, 8 See Levrnore, Takings, Torts, and Special Interests, 77 Va. L. Rev. 1333, 1352-1354 (1991). 1074 372 S. W. 2d 833, 842-843 (Mo. 1963). As one early court stated with regard to a waterfront regulation, "If such restraint were in fact imposed upon the estate of one proprietor only, out of several estates on the same line of shore, the objection would be much more formidable." Common wealth v. Alger, 61 Mass. 53, 102 (1851). In considering Lucas' claim, the generality of the Beachfront Management Act is significant. The Act does not target particular landowners, but rather regulates the use of the coastline of the entire State. See S. C. Code Ann. § 4839-10 (Supp. 1990). Indeed, South Carolina's Act is best understood as part of a national effort to protect the coastline, one initiated by the federal Coastal Zone Management Act of 1972. Pub. L. 92-583, 86 Stat. 1280, codified as amended at 16 U. S. C. § 1451 et seq. Pursuant to the federal Act, every coastal State has implemented coastline regulations.9 Moreover, the Act did not single out owners of undeveloped land. The Act also prohibited owners of developed land from rebuilding if their structures were destroyed, see 1988 S. C. Acts 634, § 3,10 and what is equally significant, from repairing erosion control devices, such as seawalls, see S. C. Code Ann. § 48-39-290(B)(2) (Supp. 1990). In addition, in some situations, owners of developed land were required to "renouris[h] the beach ... on a yearly basis with an amount ... of sand ... not ... less than one and one-half times the yearly volume of sand lost due to erosion." 1988 S. C. Acts 634, § 3, p. 5140.11 In short, the South Carolina Act imposed substantial burdens on owners of developed and undeveloped 9 See Zalkin, Shifting Sands and Shifting Doctrines: The Supreme Court's Changing Takings Doctrine and South Carolina's Coastal Zone Statute, 79 Calif. L. Rev. 205, 216-217, nn. 46-47 (1991) (collecting statutes). 10 This provision was amended in 1990. See S. C. Code Ann. § 48-39290(B) (Supp. 1990). 11 This provision was amended in 1990; authority for renourishment was shifted to local governments. See S. C. Code Ann. § 48-39-350(A) (Supp. 1990). 1075 land alike.12 This generality indicates that the Act is not an effort to expropriate owners of undeveloped land. Admittedly, the economic impact of this regulation is dramatic and petitioner's investment-backed expectations are substantial. Yet, if anything, the costs to and expectations of the owners of developed land are even greater: I doubt, however, that the cost to owners of developed land of renourishing the beach and allowing their seawalls to deteriorate effects a taking. The costs imposed on the owners of undeveloped land, such as petitioner, differ from these costs only in degree, not in kind. The impact of the ban on developmental uses must also be viewed in light of the purposes of the Act. The legislature stated the purposes of the Act as "protect[ing], preserv[ing], restor[ing] and enhanc[ing] the beach/dune system" of the State not only for recreational and ecological purposes, but also to "protec[t] life and property." S. C. Code Ann. § 4839-260(1)(a) (Supp. 1990). The State, with much science on its side, believes that the "beach/dune system [acts] as a buffer from high tides, storm surge, [and] hurricanes." Ibid. This is a traditional and important exercise of the State's police power, as demonstrated by Hurricane Hugo, which in 1989, caused 29 deaths and more than $6 billion in property damage in South Carolina alone.13 In view of all of these factors, even assuming that petitioner's property was rendered valueless, the risk inherent in investments of the sort made by petitioner, the generality of the Act, and the compelling purpose motivating the South 12 In this regard, the Act more closely resembles the Subsidence Act in Keystone than the Kohler Act in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), and more closely resembles the general zoning scheme in Euclid v. Amber Realty Co., 272 U. S. 365 (1926), than the specific landmark designation in Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). 13 Zalkin, 79 Calif. L. Rev., at 212-213. 1076 Carolina Legislature persuade me that the Act did not effect a taking of petitioner's property. Accordingly, I respectfully dissent. Statement of JUSTICE SOUTER. I would dismiss the writ of certiorari in this case as having been granted improvidently. After briefing and argument it is abundantly clear that an unreviewable assumption on which this case comes to us is both questionable as a conclusion of Fifth Amendment law and sufficient to frustrate the Court's ability to render certain the legal premises on which its holding rests. The petition for review was granted on the assumption that the State by regulation had deprived the owner of his entire economic interest in the subject property. Such was the state trial court's conclusion, which the State Supreme Court did not review. It is apparent now that in light of our prior cases, see, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 493-502 (1987); Andrus v. Allard, 444 U. S. 51 , 65-66 (1979); Penn Central Transportation Corp. v. New York City, 438 U. S. 104 , 130-131 (1978), the trial court's conclusion is highly questionable. While the respondent now wishes to contest the point, see Brief for Respondent 45-50, the Court is certainly right to refuse to take up the issue, which is not fairly included within the question presented, and has received only the most superficial and one-sided treatment before us. Because the questionable conclusion of total deprivation cannot be reviewed, the Court is precluded from attempting to clarify the concept of total (and, in the Court's view, categorically compensable) taking on which it rests, a concept which the Court describes, see ante, at 1016-1017, n. 6, as so uncertain under existing law as to have fostered inconsistent pronouncements by the Court itself. Because that concept is left uncertain, so is the significance of the exceptions to the compensation requirement that the Court proceeds to recog- 1077 nize. This alone is enough to show that there is little utility in attempting to deal with this case on the merits. The imprudence of proceeding to the merits in spite of these unpromising circumstances is underscored by the fact that, in doing so, the Court cannot help but assume something about the scope of the uncertain concept of total deprivation, even when it is barred from explicating total deprivation directly. Thus, when the Court concludes that the application of nuisance law provides an exception to the general rule that complete denial of economically beneficial use of property amounts to a compensable taking, the Court will be understood to suggest (if it does not assume) that there are in fact circumstances in which state-law nuisance abatement may amount to a denial of all beneficial land use as that concept is to be employed in our takings jurisprudence under the Fifth and Fourteenth Amendments. The nature of nuisance law, however, indicates that application of a regulation defensible on grounds of nuisance prevention or abatement will quite probably not amount to a complete deprivation in fact. The nuisance enquiry focuses on conduct, not on the character of the property on which that conduct is performed, see 4 Restatement (Second) of Torts § 821B (1979) (public nuisance); id., § 822 (private nuisance), and the remedies for such conduct usually leave the property owner with other reasonable uses of his property, see W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 90 (5th ed. 1984) (public nuisances usually remedied by criminal prosecution or abatement), id., § 89 (private nuisances usually remedied by damages, injunction, or abatement); see also, e. g., Mugler v. Kansas, 123 U. S. 623 , 668669 (1887) (prohibition on use of property to manufacture intoxicating beverages "does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use ... for certain forbidden purposes, is prejudicial to the public interests"); Hadacheck v. Sebastian, 1078 239 U. S. 394 , 412 (1915) (prohibition on operation of brickyard did not prohibit extraction of clay from which bricks were produced). Indeed, it is difficult to imagine property that can be used only to create a nuisance, such that its sole economic value must presuppose the right to occupy it for such seriously noxious activity. The upshot is that the issue of what constitutes a total deprivation is being addressed by indirection, and with uncertain results, in the Court's treatment of defenses to compensation claims. While the issue of what constitutes total deprivation deserves the Court's attention, as does the relationship between nuisance abatement and such total deprivation, the Court should confront these matters directly. Because it can neither do so in this case, nor skip over those preliminary issues and deal independently with defenses to the Court's categorical compensation rule, the Court should dismiss the instant writ and await an opportunity to face the total deprivation question squarely. Under these circumstances, I believe it proper for me to vote to dismiss the writ, despite the Court's contrary preference. See, e. g., Welsh v. Wisconsin, 466 U. S. 740 , 755 (1984) (Burger, C. J.); United States v. Shannon, 342 U. S. 288 , 294 (1952) (Frankfurter, J.).

Here is a summary of the Lucas v. South Carolina Coastal Council case: David Lucas bought two residential lots on a South Carolina barrier island in 1986, intending to build single-family homes. At the time, his lots were not subject to any coastal zone building permit requirements. However, in 1988, the state passed the Beachfront Management Act, which barred Lucas from constructing any permanent habitable structures on his land. Lucas filed a lawsuit arguing that the Act deprived him of all "economically viable use" of his property and therefore constituted a "taking" under the Fifth and Fourteenth Amendments, requiring just compensation. The state trial court agreed and awarded him over $1.2 million. However, the State Supreme Court reversed the decision, ruling that the Act was a lawful exercise of the state's police power to prevent "harmful or noxious uses" of property. The U.S. Supreme Court granted certiorari and held that: 1. Lucas's claim was not unripe despite the possibility of him securing a special permit to build under an amendment to the Act. 2. The State Supreme Court erred in applying the "harmful or noxious uses" principle. Regulations that deny all economically viable use of land require compensation without the usual case-specific inquiry. The Court concluded that the issue of what constitutes a total deprivation of economically viable use deserves further attention and opted to dismiss the writ, awaiting a more suitable case to address the matter directly.

Property Rights & Land Use

First English Evangelical Lutheran Church v. Los Angeles County

https://supreme.justia.com/cases/federal/us/482/304/

U.S. Supreme Court Lutheran Church v. County of Los Angeles, 482 U.S. 304 (1987) First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California No. 85-1199 Argued January 14, 1987 Decided June 9, 1987 482 U.S. 304 APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT Syllabus In 1957, appellant church purchased land on which it operated a campground, known as "Lutherglen," as a retreat center and a recreational area for handicapped children. The land is located in a canyon along the banks of a creek that is the natural drainage channel for a watershed area. In 1978, a flood destroyed Lutherglen's buildings. In response to the flood, appellee Los Angeles County, in 1979, adopted an interim ordinance prohibiting the construction or reconstruction of any building or structure in an interim flood protection area that included the land on which Lutherglen had stood. Shortly after the ordinance was adopted, appellant filed suit in a California court, alleging, inter alia, that the ordinance denied appellant all use of Lutherglen, and seeking to recover damages in inverse condemnation for such loss of use. The court granted a motion to strike the allegation, basing its ruling on Agins v. Tiburon, 24 Cal. 3d 266 , 598 P.2d 25, aff'd on other grounds, 447 U. S. 255 , in which the California Supreme Court held that a landowner may not maintain an inverse condemnation suit based upon a "regulatory" taking, and that compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory relief or a writ of mandamus and the government has nevertheless decided to continue the regulation in effect. Because appellant alleged a regulatory taking and sought only damages, the trial court deemed the allegation that the ordinance denied all use of Lutherglen to be irrelevant. The California Court of Appeal affirmed. Held: 1. The claim that the Agins case improperly held that the Just Compensation Clause of the Fifth Amendment does not require compensation as a remedy for "temporary" regulatory takings -- those regulatory takings which are ultimately invalidated by the courts -- is properly presented in this case. In earlier cases, this Court was unable to reach the question because either the regulations considered to be in issue by the state courts did not effect a taking or the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred. Here, the California Court of Appeal assumed Page 482 U. S. 305 that the complaint sought damages for the uncompensated "taking" of all use of Lutherglen by the ordinance, and relied on the California Supreme Court's Agins decision for the conclusion that the remedy for the taking was limited to nonmonetary relief, thus isolating the remedial question for this Court's consideration. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 ; Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 ; San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 ; and Agins, all distinguished. Pp. 482 U. S. 311 -313. 2. Under the Just Compensation Clause, where the government has "taken" property by a land use regulation, the landowner may recover damages for the time before it is finally determined that the regulation constitutes a "taking" of his property. The Clause is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. A landowner is entitled to bring an action in inverse condemnation as a result of the self-executing character of the constitutional provision with respect to compensation. While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. "Temporary" regulatory takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings for which the Constitution clearly requires compensation. Once a court determines that a taking has occurred, the government retains the whole range of options already available -- amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. But where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. Invalidation of the ordinance without payment of fair value for the use of the property during such period would be a constitutionally insufficient remedy. Pp. 482 U. S. 314 -322. Reversed and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in Parts I and III of which BLACKMUN and O'CONNOR, JJ., joined, post, p. 482 U. S. 322 . Page 482 U. S. 306 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In this case, the California Court of Appeal held that a landowner who claims that his property has been "taken" by a land use regulation may not recover damages for the time before Page 482 U. S. 307 it is finally determined that the regulation constitutes a "taking" of his property. We disagree, and conclude that, in these circumstances, the Fifth and Fourteenth Amendments to the United States Constitution would require compensation for that period. In 1957, appellant First English Evangelical Lutheran Church purchased a 21-acre parcel of land in a canyon along the banks of the Middle Fork of Mill Creek in the Angeles National Forest. The Middle Fork is the natural drainage channel for a watershed area owned by the National Forest Service. Twelve of the acres owned by the church are flat land, and contained a dining hall, two bunkhouses, a caretaker's lodge, an outdoor chapel, and a footbridge across the creek. The church operated on the site a campground, known as "Lutherglen," as a retreat center and a recreational area for handicapped children. In July, 1977, a forest fire denuded the hills upstream from Lutherglen, destroying approximately 3,860 acres of the watershed area and creating a serious flood hazard. Such flooding occurred on February 9 and 10, 1978, when a storm dropped 11 inches of rain in the watershed. The runoff from the storm overflowed the banks of the Mill Creek, flooding Lutherglen and destroying its buildings. In response to the flooding of the canyon, appellee County of Los Angeles adopted Interim Ordinance No. 11,855 in January, 1979. The ordinance provided that "[a] person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon. . . ." App. to Juris. Statement A31. The ordinance was effective immediately, because the county determined that it was "required for the immediate preservation of the public health and safety. . . ." Id. at A32. The interim flood protection area described by the ordinance included the flat areas on either side of Mill Creek on which Lutherglen had stood. Page 482 U. S. 308 The church filed a complaint in the Superior Court of California a little more than a month after the ordinance was adopted. As subsequently amended, the complaint alleged two claims against the county and the Los Angeles County Flood Control District. The first alleged that the defendants were liable under Cal.Govt.Code Ann. § 835 (West 1980) [ Footnote 1 ] for dangerous conditions on their upstream properties that contributed to the flooding of Lutherglen. As a part of this claim, appellant also alleged that "Ordinance No. 11,855 denies [appellant] all use of Lutherglen." App. 12, 49. The second claim sought to recover from the Flood Control District in inverse condemnation and in tort for engaging in cloud-seeding during the storm that flooded Lutherglen. Appellant sought damages under each count for loss of use of Lutherglen. The defendants moved to strike the portions of the complaint alleging that the county's ordinance denied all use of Lutherglen, on the view that the California Supreme Court's decision in Agins v. Tiburon, 24 Cal. 3d 266 , 598 P.2d 25 (1979), aff'd, on other grounds, 447 U. S. 255 (1980), rendered the allegation "entirely immaterial and irrelevant[, with] no bearing upon any conceivable cause of action herein." App. 22. See Cal.Civ.Proc.Code Ann. § 436(a) (West Supp.1987) ("The court may . . . [s]trike out any irrelevant, false, or improper matter inserted in any pleading"). In Agins v. Tiburon, supra, the California Supreme Court decided that a landowner may not maintain an inverse condemnation suit in the courts of that State based upon a "regulatory" taking. 24 Cal. 3d at 275-277, 598 P.2d at 29-31. In the court's view, maintenance of such a suit would allow a landowner to force the legislature to exercise its power of eminent domain. Under this decision, then, compensation is not required until the challenged regulation or ordinance has been held excessive in an action for declaratory Page 482 U. S. 309 relief or a writ of mandamus and the government has nevertheless decided to continue the regulation in effect. Based on this decision, the trial court in the present case granted the motion to strike the allegation that the church had been denied all use of Lutherglen. It explained that "a careful rereading of the Agins case persuades the Court that, when an ordinance, even a non-zoning ordinance, deprives a person of the total use of his lands, his challenge to the ordinance is by way of declaratory relief or possibly mandamus." App. 26. Because the appellant alleged a regulatory taking and sought only damages, the allegation that the ordinance denied all use of Lutherglen was deemed irrelevant. [ Footnote 2 ] On appeal, the California Court of Appeal read the complaint as one seeking "damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855. . . ." App. to Juris. Statement A13-A14. It too relied on the California Supreme Court's decision in Agins in rejecting the cause of action, declining appellant's invitation to reevaluate Agins in light of this Court's opinions in San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 (1981). The court found itself obligated to follow Agins "because the United States Supreme Court has not yet ruled on the question of whether a state may constitutionally limit the remedy for a taking to nonmonetary relief. . . ." App. to Juris. Statement A16. It accordingly affirmed the trial court's decision to strike the allegations concerning appellee's ordinance. [ Footnote 3 ] The California Supreme Court denied review. Page 482 U. S. 310 This appeal followed, and we noted probable jurisdiction. 478 U.S. 1003 (1986). Appellant asks us to hold that the California Supreme Court erred in Agins v. Tibron in determining that the Fifth Amendment, as made applicable to the States through the Fourteenth Amendment, does not require compensation as a remedy for "temporary" regulatory takings -- those regulatory takings which are ultimately invalidated by the courts. [ Footnote 4 ] Four times this decade, we have considered similar claims and have found ourselves, for one reason or another, unable to consider the merits of the Agins rule. See MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 (1986); Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 (1985); San Diego Gas & Electric Co., supra; Agins v. Tiburon, supra. For the reasons explained below, however, we find the constitutional claim properly presented in this case, and hold that, Page 482 U. S. 311 on these facts, the California courts have decided the compensation question inconsistently with the requirements of the Fifth Amendment. I Concerns with finality left us unable to reach the remedial question in the earlier cases where we have been asked to consider the rule of Agins. See MacDonald, Sommer & Frates, supra, at 477 U. S. 351 (summarizing cases). In each of these cases, we concluded either that regulations considered to be in issue by the state court did not effect a taking, Agins v. Tiburon, 447 U.S. at 447 U. S. 263 , or that the factual disputes yet to be resolved by state authorities might still lead to the conclusion that no taking had occurred. MacDonald, Sommer & Frates, supra, at 477 U. S. 351 -353; Williamson County, supra, at 473 U. S. 188 -194; San Diego Gas & Electric Co., supra, at 450 U. S. 631 -632. Consideration of the remedial question in those circumstances, we concluded, would be premature. The posture of the present case is quite different. Appellant's complaint alleged that "Ordinance No. 11,855 denies [it] all use of Lutherglen," and sought damages for this deprivation. App. 12, 49. In affirming the decision to strike this allegation, the Court of Appeal assumed that the complaint sought "damages for the uncompensated taking of all use of Lutherglen by County Ordinance No. 11,855." App. to Juris. Statement A13-A14 (emphasis added). It relied on the California Supreme Court's Agins decision for the conclusion that "the remedy for a taking [is limited] to nonmonetary relief. . . ." App. to Juris. Statement A16 (emphasis added). The disposition of the case on these grounds isolates the remedial question for our consideration. The rejection of appellant's allegations did not rest on the view that they were false. Cf. MacDonald, Sommer & Frates, supra, at 477 U. S. 352 -353, n. 8 (California court rejected allegation in the complaint that appellant was deprived of all beneficial use of its property); Agins v. Tiburon, supra, at 447 U. S. 259 , n. 6 (same). Nor did the court rely on the theory that regulatory measures such as Page 482 U. S. 312 Ordinance No. 11,855 may never constitute a taking in the constitutional sense. Instead, the claims were deemed irrelevant solely because of the California Supreme Court's decision in Agins that damages are unavailable to redress a "temporary" regulatory taking. [ Footnote 5 ] The California Court of Appeal has thus held that, regardless of the correctness of appellant's claim that the challenged ordinance denies it "all use of Lutherglen," appellant may not recover damages until the ordinance is finally declared unconstitutional, and then only for any period after that declaration for which the county seeks to enforce it. The constitutional question pretermitted in our earlier cases is therefore squarely presented here. [ Footnote 6 ] We reject appellee's suggestion that, regardless of the state court's treatment of the question, we must independently evaluate the adequacy of the complaint and resolve the Page 482 U. S. 313 takings claim on the merits before we can reach the remedial question. However "cryptic" -- to use appellee's description -- the allegations with respect to the taking were, the California courts deemed them sufficient to present the issue. We accordingly have no occasion to decide whether the ordinance at issue actually denied appellant all use of its property [ Footnote 7 ] or whether the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations. See, e.g., Goldblatt v. Hempstead, 369 U. S. 590 (1962); Haaacheck v. Sebastian, 239 U. S. 394 (1915); Mugler v. Kansas, 123 U. S. 623 (1887). These questions, of course, remain open for decision on the remand we direct today. We now turn to the question whether the Just Compensation Clause requires the government to pay for "temporary" regulatory takings. [ Footnote 8 ] Page 482 U. S. 314 II Consideration of the compensation question must begin with direct reference to the language of the Fifth Amendment, which provides in relevant part that "private property [shall not] be taken for public use, without just compensation." As its language indicates, and as the Court has frequently noted, this provision does not prohibit the taking of private property, but instead places a condition on the exercise of that power. See Williamson County, 473 U.S. at 473 U. S. 194 ; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 , 452 U. S. 297 , n. 40 (1981); Hurley v. Page 482 U. S. 315 Kincaid, 285 U. S. 95 , 285 U. S. 104 (1932); Monongahela Navigation Co. v. United States, 148 U. S. 312 , 148 U. S. 336 (1893); United States v. Jones, 109 U. S. 513 , 109 U. S. 518 (1883). This basic understanding of the Amendment makes clear that it is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking. Thus, government action that works a taking of property rights necessarily implicates the "constitutional obligation to pay just compensation." Armstrong v. United States, 364 U. S. 40 , 364 U. S. 49 (1960). We have recognized that a landowner is entitled to bring an action in inverse condemnation as a result of " the self-executing character of the constitutional provision with respect to compensation. . . .'" United States v. Clarke, 445 U. S. 253 , 445 U. S. 257 (1980), quoting 6 P. Nichols, Eminent Domain § 25.41 (3d rev. ed.1972). As noted in JUSTICE BRENNAN's dissent in San Diego Gas & Electric Co., 450 U.S. at 450 U. S. 654 -655, it has been established at least since Jacobs v. United States, 290 U. S. 13 (1933), that claims for just compensation are grounded in the Constitution itself: "The suits were based on the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States. " Id. at 16. (Emphasis added.) Page 482 U. S. 316 Jacobs, moreover, does not stand alone, for the Court has frequently repeated the view that, in the event of a taking, the compensation remedy is required by the Constitution. See, e.g., Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 6 (1984); United States v. Causby, 328 U. S. 256 , 328 U. S. 267 (1946); Seaboard Air Line R. Co. v. United States, 261 U. S. 299 , 261 U. S. 304 -306 (1923); Monongahela Navigation, supra, at 148 U. S. 327 . [ Footnote 9 ] It has also been established doctrine at least since Justice Holmes' opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), that "[t]he general rule at least is that, while property may be regulated to a certain extent, if regulation goes too far, it will be recognized as a taking." Id. at 260 U. S. 415 . While the typical taking occurs when the government acts to condemn property in the exercise of its power of eminent domain, the entire doctrine of inverse condemnation is predicated on the proposition that a taking may occur without such formal proceedings. In Pumpelly v. Green Bay Co. , 13 Wall. 166, 80 U. S. 177 -178 (1872), construing a provision in the Wisconsin Constitution identical to the Just Compensation Clause, this Court said: "It would be a very curious and unsatisfactory result, if . . . it shall be held that, if the government refrains from the absolute conversion of real property to the uses of Page 482 U. S. 317 the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction without making any compensation, because, in the narrowest sense of that word, it is not taken for the public use." Later cases have unhesitatingly applied this principle. See, e.g., Kaiser Aetna v. United States, 444 U. S. 164 (1979); United States v. Dickinson, 331 U. S. 745 , 750 (1947); United States v. Causby, supra. While the California Supreme Court may not have actually disavowed this general rule in Agins, we believe that it has truncated the rule by disallowing damages that occurred prior to the ultimate invalidation of the challenged regulation. The California Supreme Court justified its conclusion at length in the Agins opinion, concluding that: "In combination, the need for preserving a degree of freedom in the land use planning function, and the inhibiting financial force which inheres in the inverse condemnation remedy, persuade us that, on balance, mandamus or declaratory relief, rather than inverse condemnation, is the appropriate relief under the circumstances." 24 Cal. 3d at 276-277, 598 P.2d at 31. We, of course, are not unmindful of these considerations, but they must be evaluated in the light of the command of the Just Compensation Clause of the Fifth Amendment. The Court has recognized in more than one case that the government may elect to abandon its intrusion or discontinue regulations. See, e.g., Kirby Forest Industries, Inc. v. United States, supra; United States v. Dow, 357 U. S. 17 , 357 U. S. 26 (1958). Similarly, a governmental body may acquiesce in a judicial declaration that one of its ordinances has effected an unconstitutional taking of property; the landowner has no right under the Just Compensation Clause to insist that a "temporary" taking be deemed a permanent taking. But we have Page 482 U. S. 318 not resolved whether abandonment by the government requires payment of compensation for the period of time during which regulations deny a landowner all use of his land. In considering this question, we find substantial guidance in cases where the government has only temporarily exercised its right to use private property. In United States v. Dow, supra, at 357 U. S. 26 , though rejecting a claim that the Government may not abandon condemnation proceedings, the Court observed that abandonment "results in an alteration in the property interest taken -- from [one of] full ownership to one of temporary use and occupation. . . . In such cases, compensation would be measured by the principles normally governing the taking of a right to use property temporarily. See Kimball Laundry Co. v. United States, 338 U. S. 1 [1949]; United States v. Petty Motor Co., 327 U. S. 372 [1946]; United States v. General Motors Corp., 323 U. S. 373 [1945]." Each of the cases cited by the Dow Court involved appropriation of private property by the United States for use during World War II. Though the takings were in fact "temporary," see United States v. Petty Motor Co., 327 U. S. 372 , 327 U. S. 375 (1946), there was no question that compensation would be required for the Government's interference with the use of the property; the Court was concerned in each case with determining the proper measure of the monetary relief to which the property holders were entitled. See Kimball Laundry Co. v. United States, 338 U. S. 1 , 338 U. S. 4 -21 (1949); Petty Motor Co., supra, at 327 U. S. 377 -381; United States v. General Motors Corp., 323 U. S. 373 , 323 U. S. 379 -384 (1945). These cases reflect the fact that "temporary" takings which, as here, deny a landowner all use of his property, are not different in kind from permanent takings, for which the Constitution clearly requires compensation. Cf. San Diego Gas & Electric Co., 450 U.S. at 450 U. S. 657 (BRENNAN, J., dissenting) ("Nothing in the Just Compensation Clause suggests that takings' must be permanent and irrevocable"). It is axiomatic that the Fifth Amendment's just compensation provision is "designed to bar Government from forcing some Page 482 U. S. 319 people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U.S. at 364 U. S. 49 . See also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 123 -125 (1978); Monongahela Navigation Co. v. United States, 148 U.S. at 148 U. S. 325 . In the present case, the interim ordinance was adopted by the County of Los Angeles in January, 1979, and became effective immediately. Appellant filed suit within a month after the effective date of the ordinance, and yet, when the California Supreme Court denied a hearing in the case on October 17, 1985, the merits of appellant's claim had yet to be determined. The United States has been required to pay compensation for leasehold interests of shorter duration than this. The value of a leasehold interest in property for a period of years may be substantial, and the burden on the property owner in extinguishing such an interest for a period of years may be great indeed. See, e.g., United States v. General Motors, supra. Where this burden results from governmental action that amounted to a taking, the Just Compensation Clause of the Fifth Amendment requires that the government pay the landowner for the value of the use of the land during this period. Cf. United States v. Causby, 328 U.S. at 328 U. S. 261 ("It is the owner's loss, not the taker's gain, which is the measure of the value of the property taken"). Invalidation of the ordinance or its successor ordinance after this period of time, though converting the taking into a "temporary" one, is not a sufficient remedy to meet the demands of the Just Compensation Clause. Appellee argues that requiring compensation for denial of all use of land prior to invalidation is inconsistent with this Court's decisions in Danforth v. United States, 308 U. S. 271 (1939), and Agins v. Tiburon, 447 U. S. 255 (1980). In Danforth, the landowner contended that the "taking" of his property had occurred prior to the institution of condemnation proceedings, by reason of the enactment of the Flood Control Act itself. He claimed that the passage of that Act had diminished Page 482 U. S. 320 the value of his property because the plan embodied in the Act required condemnation of a flowage easement across his property. The Court held that, in the context of condemnation proceedings, a taking does not occur until compensation is determined and paid, and went on to say that "[a] reduction or increase in the value of property may occur by reason of legislation for or the beginning or completion of a project," but "[s]uch changes in value are incidents of ownership. They cannot be considered as a taking' in the constitutional sense." Danforth, supra, at 308 U. S. 285 . Agins likewise rejected a claim that the city's preliminary activities constituted a taking, saying that "[m]ere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are 'incidents of ownership.'" See 447 U.S. at 447 U. S. 263 , n. 9. But these cases merely stand for the unexceptional proposition that the valuation of property which has been taken must be calculated as of the time of the taking, and that depreciation in value of the property by reason of preliminary activity is not chargeable to the government. Thus, in Agins, we concluded that the preliminary activity did not work a taking. It would require a considerable extension of these decisions to say that no compensable regulatory taking may occur until a challenged ordinance has ultimately been held invalid. [ Footnote 10 ] Page 482 U. S. 321 Nothing we say today is intended to abrogate the principle that the decision to exercise the power of eminent domain is a legislative function " for Congress and Congress alone to determine.'" Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 467 U. S. 240 (1984), quoting Berman v. Parker, 348 U. S. 26 , 348 U. S. 33 (1954). Once a court determines that a taking has occurred, the government retains the whole range of options already available -- amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain. Thus we do not, as the Solicitor General suggests, "permit a court, at the behest of a private person, to require the . . . Government to exercise the power of eminent domain. . . ." Brief for the United States as Amicus Curiae 22. We merely hold that, where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. We also point out that the allegation of the complaint, which we treat as true for purposes of our decision, was that the ordinance in question denied appellant all use of its property. We limit our holding to the facts presented, and, of course, do not deal with the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like, which are not before us. We realize that even our present holding will undoubtedly lessen to some extent the freedom and flexibility of land use planners and governing bodies of municipal corporations when enacting land use regulations. But such consequences necessarily flow from any decision upholding a claim of constitutional right; many of the provisions of the Constitution are designed to limit the flexibility and freedom of governmental authorities, and the Just Compensation Clause of the Fifth Amendment is one of them. As Justice Holmes aptly noted more than 50 years ago, "a strong public Page 482 U. S. 322 desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 416 . Here we must assume that the Los Angeles County ordinance has denied appellant all use of its property for a considerable period of years, and we hold that invalidation of the ordinance without payment of fair value for the use of the property during this period of time would be a constitutionally insufficient remedy. The judgment of the California Court of Appeal is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Section 835 of the California Government Code establishes conditions under which a public entity may be liable "for injury caused by a dangerous condition of its property. . . ." [ Footnote 2 ] The trial court also granted defendants' motion for judgment on the pleadings on the second cause of action, based on cloud seeding. It limited trial on the first cause of action for damages under Cal.Govt.Code Ann. § 835 (West 1980), rejecting the inverse condemnation claim. At the close of plaintiff's evidence, the trial court granted a nonsuit on behalf of defendants, dismissing the entire complaint. [ Footnote 3 ] The California Court of Appeal also affirmed the lower court's orders limiting the issues for trial on the first cause of action, granting a nonsuit on the issues that proceeded to trial, and dismissing the second cause of action -- based on cloud-seeding -- to the extent it was founded on a theory of strict liability in tort. The court reversed the trial court's ruling that the second cause of action could not be maintained against the Flood Control District under the theory of inverse condemnation. The case was remanded for further proceedings on this claim. These circumstances alone, apart from the more particular issues presented in takings cases and discussed in the text, require us to consider whether the pending resolution of further liability questions deprives us of jurisdiction because we are not presented with a "final judgmen[t] or decre[e]" within the meaning of 28 U.S.C. § 1257. We think that this case is fairly characterized as one "in which the federal issue, finally decided by the highest court in the State [in which a decision could be had], will survive and require decision regardless of the outcome of future state court proceedings." Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 , 420 U. S. 480 (1975). As we explain infra at 482 U. S. 311 -313, the California Court of Appeal rejected appellant's federal claim that it was entitled to just compensation from the county for the taking of its property; this distinct issue of federal law will survive and require decision no matter how further proceedings resolve the issues concerning the liability of the Flood Control District for its cloud seeding operation. [ Footnote 4 ] The Fifth Amendment provides "nor shall private property be taken for public use, without just compensation," and applies to the States through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897). [ Footnote 5 ] It has been urged that the California Supreme Court's discussion of the compensation question in Agins v. Tiburon was dictum, because the court had already decided that the regulations could not work a taking. See Martino v. Santa Clara Valley Water District, 703 F.2d 1141, 1147 (CA9 1983) ("extended dictum"). The Court of Appeal in this case considered and rejected the possibility that the compensation discussion in Agins was dictum. See App. to Juris. Statement A14-A15, quoting Aptos Seascape Corp. v. County of Santa Cruz, 138 Cal. App. 3d 484 , 493, 188 Cal. Rptr. 191 , 195 (1982) ("[I]t is apparent that the Supreme Court itself did not intend its discussion [of inverse condemnation as a remedy for a taking] to be considered dictum, . . . and it has not been treated as such in subsequent Court of Appeal cases"). Whether treating the claim as a takings claim is inconsistent with the first holding of Agins is not a matter for our concern. It is enough that the court did so for us to reach the remedial question. [ Footnote 6 ] Our cases have also required that one seeking compensation must "seek compensation through the procedures the State has provided for doing so" before the claim is ripe for review. Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 , 473 U. S. 194 (1985). It is clear that appellant met this requirement. Having assumed that a taking occurred, the California court's dismissal of the action establishes that "the inverse condemnation procedure is unavailable. . . ." Id. at 473 U. S. 197 . The compensation claim is accordingly ripe for our consideration. [ Footnote 7 ] Because the issue was not raised in the complaint or considered relevant by the California courts in their assumption that a taking had occurred, we also do not consider the effect of the county's permanent ordinance on the conclusions of the courts below. That ordinance, adopted in 1981 and reproduced at App. to Juris. Statement A32-A33, provides that "[a] person shall not use, erect, construct, move onto, or . . . alter, modify, enlarge or reconstruct any building or structure within the boundaries of a flood protection district except . . . [a]ccessory buildings and structures that will not substantially impede the flow of water, including sewer, gas, electrical, and water systems, approved by the county engineer . . . ; [a]utomobile parking facilities incidental to a lawfully established use; [and] [f]lood-control structures approved by the chief engineer of the Los Angeles County Flood Control District." County Code § 22.44.220. [ Footnote 8 ] In addition to challenging the finality of the takings decision below, appellee raises two other challenges to our jurisdiction. First, going to both the appellate and certiorari jurisdiction of this Court under 28 U.S.C. § 1257, appellee alleges that appellant has failed to preserve for review any claim under federal law. Though the complaint in this case invoked only the California Constitution, appellant argued in the Court of Appeal that "recent Federal decisions . . . show the Federal Constitutional error in . . . Agins [v. Tiburon, 24 Cal. 3d 266 , 598 P.2d 25 (1979)]." App. to Appellant's Opposition to Appellee's Second Motion to Dismiss A13. The Court of Appeal, by applying the state rule of Agins to dismiss appellant's action, rejected on the merits the claim that the rule violated the United States Constitution. This disposition makes irrelevant for our purposes any deficiencies in the complaint as to federal issues. Where the state court has considered and decided the constitutional claim, we need not consider how or when the question was raised. Manhattan Life Ins. Co. v. Cohen, 234 U. S. 123 , 234 U. S. 134 (1914). Having succeeded in bringing the federal issue into the case, appellant preserved this question on appeal to the California Supreme Court, see App. to Appellant's Opposition to Appellee's Second Motion to Dismiss A14-A-22, which declined to review its Agins decision. Accordingly, we find that the issue urged here was both raised and passed upon below. Second, appellee challenges our appellate jurisdiction on the grounds that the case below did not draw "in question the validity of a statute of any state. . . ." 28 U.S.C. § 1257(2). There is, of course, no doubt that the ordinance at issue in this case is "a statute of [a] state" for purposes of § 1257. See Erznoznik v. City of Jacksonville, 422 U. S. 205 , 422 U. S. 207 , n. 3 (1975). As construed by the state courts, the complaint in this case alleged that the ordinance, by denying all use of the property, worked a taking without providing for just compensation. We have frequently treated such challenges to zoning ordinances as challenges to their validity under the Federal Constitution, and see no reason to revise that approach here. See, e.g., MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 (1986); Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982); Agins v. Tiburon, 447 U. S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978). By holding that the failure to provide compensation was not unconstitutional, moreover, the California courts upheld the validity of the ordinance against the particular federal constitutional question at issue here -- just compensation -- and the case is therefore within the terms of § 1257(2). [ Footnote 9 ] The Solicitor General urges that the prohibitory nature of the Fifth Amendment, see supra, at 482 U. S. 314 , combined with principles of sovereign immunity, establishes that the Amendment itself is only a limitation on the power of the Government to act, not a remedial provision. The cases cited in the text, we think, refute the argument of the United States that "the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government." Brief for United States as Amicus Curiae 14. Though arising in various factual and jurisdictional settings, these cases make clear that it is the Constitution that dictates the remedy for interference with property rights amounting to a taking. See San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 666 , n. 21 (1981) (BRENNAN, J., dissenting), quoting United States v. Dickinson, 331 U. S. 745 , 331 U. S. 748 (1947). [ Footnote 10 ] Williamson County Regional Planning Comm'n is not to the contrary. There, we noted that "no constitutional violation occurs until just compensation has been denied." 473 U.S. at 473 U. S. 194 , n. 13. This statement, however, was addressed to the issue whether the constitutional claim was ripe for review, and did not establish that compensation is unavailable for government activity occurring before compensation is actually denied. Though, as a matter of law, an illegitimate taking might not occur until the government refuses to pay, the interference that effects a taking might begin much earlier, and compensation is measured from that time. See Kirby Forest Industries, Inc. v. United States, 467 U. S. 1 , 467 U. S. 6 (1984) (Where Government physically occupies land without condemnation proceedings, "the owner has a right to bring an inverse condemnation' suit to recover the value of the land on the date of the intrusion by the Government. "). (Emphasis added.) JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE O'CONNOR join as to Parts I and III, dissenting. One thing is certain. The Court's decision today will generate a great deal of litigation. Most of it, I believe, will be unproductive. But the mere duty to defend the actions that today's decision will spawn will undoubtedly have a significant adverse impact on the land use regulatory process. The Court has reached out to address an issue not actually presented in this case, and has then answered that self-imposed question in a superficial and, I believe, dangerous way. Four flaws in the Court's analysis merit special comment. First, the Court unnecessarily and imprudently assumes that appellant's complaint alleges an unconstitutional taking of Lutherglen. Second, the Court distorts our precedents in the area of regulatory takings when it concludes that all ordinances which would constitute takings if allowed to remain in effect permanently, necessarily also constitute takings if they are in effect for only a limited period of time. Third, the Court incorrectly assumes that the California Supreme Court has already decided that it will never allow a state court to grant monetary relief for a temporary regulatory taking, and Page 482 U. S. 323 then uses that conclusion to reverse a judgment which is correct under the Court's own theories. Finally, the Court errs in concluding that it is the Takings Clause, rather than the Due Process Clause, which is the primary constraint on the use of unfair and dilatory procedures in the land use area. I In the relevant portion of its complaint for inverse condemnation, appellant alleged: " 16" "On January 11, 1979, the County adopted Ordinance No. 11,855, which provides:" "Section 1. A person shall not construct, reconstruct, place or enlarge any building or structure, any portion of which is, or will be, located within the outer boundary lines of the interim flood protection area located in Mill Creek Canyon, vicinity of Hidden Springs, as shown on Map No. 63 ML 52, attached hereto and incorporated herein by reference as though fully set forth." " 17" "Lutherglen is within the flood protection area created by Ordinance No. 11,855." " 18" "Ordinance No. 11,855 denies First Church all use of Lutherglen." App. 49. Because the Church sought only compensation, and did not request invalidation of the ordinance, the Superior Court granted a motion to strike those three paragraphs, and consequently never decided whether they alleged a "taking." [ Footnote 2/1 ] Page 482 U. S. 324 The Superior Court granted the motion to strike on the basis of the rule announced in Agins v. Tiburon, 24 Cal. 3d 266 , 598 P.2d 25 (1979). Under the rule of that case, a property owner who claims that a land use restriction has taken property for public use without compensation must file an action seeking invalidation of the regulation, and may not simply demand compensation. The Court of Appeal affirmed on the authority of Agins alone, [ Footnote 2/2 ] also without holding that the complaint had alleged a violation of either the California Constitution or the Federal Constitution. At most, it assumed, arguendo, that a constitutional violation had been alleged. This Court clearly has the authority to decide this case by ruling that the complaint did not allege a taking under the Federal Constitution, [ Footnote 2/3 ] and therefore to avoid the novel constitutional Page 482 U. S. 325 issue that it addresses. Even though I believe the Court's lack of self-restraint is imprudent, it is imperative to stress that the Court does not hold that appellant is entitled to compensation as a result of the flood protection regulation that the county enacted. No matter whether the regulation is treated as one that deprives appellant of its property on a permanent or temporary basis, this Court's precedents demonstrate that the type of regulatory program at issue here cannot constitute a taking. "Long ago it was recognized that 'all property in this country is held under the implied obligation that the owner's use of it shall not be injurious to the community.'" Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S. 491 -492 (1987), quoting Mugler v. Kansas, 123 U. S. 623 , 123 U. S. 665 (1887). Thus, in order to protect the health and safety of the community, [ Footnote 2/4 ] government may condemn unsafe structures, Page 482 U. S. 326 may close unlawful business operations, may destroy infected trees, and surely may restrict access to hazardous areas -- for example, land on which radioactive materials have been discharged, land in the path of a lava flow from an erupting volcano, or land in the path of a potentially life-threatening flood. [ Footnote 2/5 ] When a governmental entity imposes these types of health and safety regulations, it may not be "burdened with the condition that [it] must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community." Mugler, supra, at 123 U. S. 668 -669; see generally Keystone Bituminous, supra, at 480 U. S. 485 -493. In this case, the legitimacy of the county's interest in the enactment of Ordinance No. 11,855 is apparent from the face of the ordinance, and has never been challenged. [ Footnote 2/6 ] It was enacted Page 482 U. S. 327 as an "interim" measure "temporarily prohibiting" certain construction in a specified area because the County Board believed the prohibition was "urgently required for the immediate preservation of the public health and safety." Even if that were not true, the strong presumption of constitutionality that applies to legislative enactments certainly requires one challenging the constitutionality of an ordinance of this kind to allege some sort of improper purpose or insufficient justification in order to state a colorable federal claim for relief. A presumption of validity is particularly appropriate in this case, because the complaint did not even allege that the ordinance is invalid, or pray for a declaration of invalidity or an injunction against its enforcement. [ Footnote 2/7 ] Nor did it allege any facts indicating how the ordinance interfered with any future use of the property contemplated or planned by appellant. In light of the tragic flood and the loss of life that precipitated Page 482 U. S. 328 the safety regulations here, it is hard to understand how appellant ever expected to rebuild on Lutherglen. Thus, although the Court uses the allegations of this complaint as a springboard for its discussion of a discrete legal issue, it does not, and could not under our precedents, hold that the allegations sufficiently alleged a taking or that the county's effort to preserve life and property could ever constitute a taking. As far as the United States Constitution is concerned, the claim that the ordinance was a taking of Lutherglen should be summarily rejected on its merits. II There is no dispute about the proposition that a regulation which goes "too far" must be deemed a taking. See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 (1922). When that happens, the government has a choice: it may abandon the regulation or it may continue to regulate and compensate those whose property it takes. In the usual case, either of these options is wholly satisfactory. Paying compensation for the property is, of course, a constitutional prerogative of the sovereign. Alternatively, if the sovereign chooses not to retain the regulation, repeal will, in virtually all cases, mitigate the overall effect of the regulation so substantially that the slight diminution in value that the regulation caused while in effect cannot be classified as a taking of property. We may assume, however, that this may not always be the case. There may be some situations in which even the temporary existence of a regulation has such severe consequences that invalidation or repeal will not mitigate the damage enough to remove the "taking" label. This hypothetical situation is what the Court calls a "temporary taking." But, contrary to the Court's implications, the fact that a regulation would constitute a taking if allowed to remain in effect permanently is by no means dispositive of the question whether the effect that the regulation has already had on the Page 482 U. S. 329 property is so severe that a taking occurred during the period before the regulation was invalidated. A temporary interference with an owner's use of his property may constitute a taking for which the Constitution requires that compensation be paid. At least with respect to physical takings, the Court has so held. See ante at 482 U. S. 318 (citing cases). Thus, if the government appropriates a leasehold interest and uses it for a public purpose, the return of the premises at the expiration of the lease would obviously not erase the fact of the government's temporary occupation. Or if the government destroys a chicken farm by building a road through it or flying planes over it, removing the road or terminating the flights would not palliate the physical damage that had already occurred. These examples are consistent with the rule that even minimal physical occupations constitute takings which give rise to a duty to compensate. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982). But our cases also make it clear that regulatory takings and physical takings are very different in this, as well as other, respects. While virtually all physical invasions are deemed takings, see, e.g., Loretto, supra; United States v. Causby, 328 U. S. 256 (1946), a regulatory program that adversely affects property values does not constitute a taking unless it destroys a major portion of the property's value. See Keystone Bituminous, 480 U.S. at 480 U. S. 493 -502; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 , 452 U. S. 296 (1981); Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980). This diminution of value inquiry is unique to regulatory takings. Unlike physical invasions, which are relatively rare and easily identifiable without making any economic analysis, regulatory programs constantly affect property values in countless ways, and only the most extreme regulations can constitute takings. Some dividing line must be established between everyday regulatory inconveniences and those so severe that they constitute takings. The diminution of value Page 482 U. S. 330 inquiry has long been used in identifying that line. As Justice Holmes put it: "Government hardly could go on if, to some extent, values incident to property could not be diminished without paying for every such change in the general law." Pennsylvania Coal, supra, at 260 U. S. 413 . It is this basic distinction between regulatory and physical takings that the Court ignores today. Regulations are three-dimensional; they have depth, width, and length. As for depth, regulations define the extent to which the owner may not use the property in question. With respect to width, regulations define the amount of property encompassed by the restrictions. Finally, and for purposes of this case, essentially, regulations set forth the duration of the restrictions. It is obvious that no one of these elements can be analyzed alone to evaluate the impact of a regulation, and hence to determine whether a taking has occurred. For example, in Keystone Bituminous we declined to focus in on any discrete segment of the coal in the petitioners' mines, but rather looked to the effect that the restriction had on their entire mining project. See 480 U.S. at 480 U. S. 493 -502; see also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 137 (1978) (looking at owner's other buildings). Similarly, in Penn Central, the Court concluded that it was error to focus on the nature of the uses which were prohibited without also examining the many profitable uses to which the property could still be put. Id. at 438 U. S. 130 -131; see also Agins, supra, at 447 U. S. 262 -263; Andrus v. Allard, 444 U. S. 51 , 444 U. S. 64 -67 (1979). Both of these factors are essential to a meaningful analysis of the economic effect that regulations have on the value of property and on an owner's reasonable investment-based expectations with respect to the property. Just as it would be senseless to ignore these first two factors in assessing the economic effect of a regulation, one cannot conduct the inquiry without considering the duration of the restriction. See generally Williams, Smith, Siemon, Page 482 U. S. 331 Mandelker, & Babcock, The White River Junction Manifesto, 9 Vt.L.Rev.193, 215-218 (1984). For example, while I agreed with the Chief Justice's view that the permanent restriction on building involved in Penn Central constituted a taking, I assume that no one would have suggested that a temporary freeze on building would have also constituted a taking. Similarly, I am confident that even the dissenters in Keystone Bituminous would not have concluded that the restriction on bituminous coal mining would have constituted a taking had it simply required the mining companies to delay their operations until an appropriate safety inspection could be made. On the other hand, I am willing to assume that some cases may arise in which a property owner can show that prospective invalidation of the regulation cannot cure the taking -- that the temporary operation of a regulation has caused such a significant diminution in the property's value that compensation must be afforded for the taking that has already occurred. For this ever to happen, the restriction on the use of the property would not only have to be a substantial one, but it would also have to remain in effect for a significant percentage of the property's useful life. In such a case, an application of our test for regulatory takings would obviously require an inquiry into the duration of the restriction, as well as its scope and severity. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 , 473 U. S. 190 -191 (1985) (refusing to evaluate taking claim when the long-term economic effects were uncertain because it was not clear that restrictions would remain in effect permanently). The cases that the Court relies upon for the proposition that there is no distinction between temporary and permanent takings, see ante at 482 U. S. 318 , are inapposite, for they all deal with physical takings -- where the diminution of value test is inapplicable. [ Footnote 2/8 ] None of those cases is controversial; the state Page 482 U. S. 332 certainly may not occupy an individual's home for a month and then escape compensation by leaving and declaring the occupation "temporary." But what does that have to do with the proper inquiry for regulatory takings? Why should there be a constitutional distinction between a permanent restriction that only reduces the economic value of the property by a fraction -- perhaps one-third -- and a restriction that merely postpones the development of a property for a fraction of its useful life -- presumably far less than a third? In the former instance, no taking has occurred; in the latter case, the Court now proclaims that compensation for a taking must be provided. The Court makes no effort to explain these irreconcilable results. Instead, without any attempt to fit its proclamation into our regulatory takings cases, the Court boldly announces that, once a property owner makes out a claim that a regulation would constitute a taking if allowed to stand, then he or she is entitled to damages for the period of time between its enactment and its invalidation. Until today, we have repeatedly rejected the notion that all temporary diminutions in the value of property automatically activate the compensation requirement of the Takings Clause. In Agins, we held: "The State Supreme Court correctly rejected the contention that the municipality's good faith planning activities, which did not result in successful prosecution of an eminent domain claim, so burdened the appellants' enjoyment of their property as to constitute a taking. . . . Even if the appellants' ability to sell their property was Page 482 U. S. 333 limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are "incidents of ownership. They cannot be considered as a taking' in the constitutional sense."" 447 U.S. at 447 U. S. 263 , n. 9, quoting Danforth v. United States, 308 U. S. 271 , 308 U. S. 285 (1939). [ Footnote 2/9 ] Our more recent takings cases also cut against the approach the Court now takes. In Williamson, supra, and MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 (1986), we held that we could not review a taking claim as long as the property owner had an opportunity to obtain a variance or some other form of relief from the zoning authorities that would permit the development of the property to go forward. See Williamson, supra, at 473 U. S. 190 -191; Yolo County, supra, at 477 U. S. 348 -353. Implicit in those holdings was the assumption that the temporary deprivation of all use of the property would not constitute a taking if it would be adequately remedied by a belated grant of approval of the developer's plans. See Sallet, Regulatory "Takings" and Just Compensation: The Supreme Court's Search for a Solution Continues, 18 Urb.Law. 635, 653 (1986). Page 482 U. S. 334 The Court's reasoning also suffers from severe internal inconsistency. Although it purports to put to one side "normal delays in obtaining building permits, changes in zoning ordinances, variances and the like," ante at 482 U. S. 321 , the Court does not explain why there is a constitutional distinction between a total denial of all use of property during such "normal delays" and an equally total denial for the same length of time in order to determine whether a regulation has "gone too far" to be sustained unless the government is prepared to condemn the property. Precisely the same interference with a real estate developer's plans may be occasioned by protracted proceedings which terminate with a zoning board's decision that the public interest would be served by modification of its regulation and equally protracted litigation which ends with a judicial determination that the existing zoning restraint has "gone too far," and that the board must therefore grant the developer a variance. The Court's analysis takes no cognizance of these realities. Instead, it appears to erect an artificial distinction between "normal delays" and the delays involved in obtaining a court declaration that the regulation constitutes a taking. [ Footnote 2/10 ] In my opinion, the question whether a "temporary taking" has occurred should not be answered by simply looking at the reason a temporary interference with an owner's use of his property is terminated. [ Footnote 2/11 ] Litigation challenging the validity of a land use restriction gives rise to a delay that is just as "normal" as an administrative procedure seeking a variance Page 482 U. S. 335 or an approval of a controversial plan. [ Footnote 2/12 ] Just because a plaintiff can prove that a land use restriction would constitute a taking if allowed to remain in effect permanently does not mean that he or she can also prove that its temporary application rose to the level of a constitutional taking. III The Court recognizes that the California courts have the right to adopt invalidation of an excessive regulation as the appropriate remedy for the permanent effects of overburdensome regulations, rather than allowing the regulation to stand and ordering the government to afford compensation for the permanent taking. See ante at 482 U. S. 319 ; see also Yolo County, supra, at 477 U. S. 362 -363, and n. 4 (WHITE, J., dissenting); San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 657 (1981) (BRENNAN, J., dissenting). The difference between these two remedies is less substantial than one might assume. When a court invalidates a regulation, the Legislative or Executive Branch must then decide whether to condemn the property in order to proceed with the regulatory scheme. On the other hand, if the court requires compensation for a permanent taking, the Executive or Legislative Branch may still repeal the regulation, and thus prevent the permanent taking. The difference, therefore, is only in what will happen in the case of Legislative or Executive inertia. Many scholars have debated the respective merits of the alternative approaches in light of separation of powers concerns, [ Footnote 2/13 ] but our only concern is with a state court's decision on Page 482 U. S. 336 which procedure it considers more appropriate. California is fully competent to decide how it wishes to deal with the separation of powers implications of the remedy it routinely uses. [ Footnote 2/14 ] Once it is recognized that California may deal with the permanent taking problem by invalidating objectionable regulations, it becomes clear that the California Court of Appeal's decision in this case should be affirmed. Even if this Court is correct in stating that one who makes out a claim for a permanent taking is automatically entitled to some compensation for the temporary aspect of the taking as well, the States still have the right to deal with the permanent aspect of a taking by invalidating the regulation. That is all that the California courts have done in this case. They have refused to proceed upon a complaint which sought only damages, and which did not contain a request for a declaratory invalidation of the regulation, as clearly required by California precedent. The Court seriously errs, therefore, when it claims that the California court held that "a landowner who claims that his property has been 'taken' by a land use regulation may not recover damages for the time before it is finally determined that the regulation constitutes a 'taking' of his property." Ante at 482 U. S. 306 -307. Perhaps the Court discerns such a practice from some of the California Supreme Court's earlier decisions, but that is surely no reason for reversing a procedural judgment in a case in which the dismissal of the complaint was entirely consistent with an approach that the Page 482 U. S. 337 Court endorses. Indeed, I am not all that sure how the California courts would deal with a landowner who seeks both invalidation of the regulation and damages for the temporary taking that occurred prior to the requested invalidation. As a matter of regulating the procedure in its own state courts, the California Supreme Court has decided that mandamus or declaratory relief, rather than inverse condemnation, provides "the appropriate relief" for one who challenges a regulation as a taking. Agins v. Tiburon, 24 Cal. 3d at 277, 598 P.2d at 31. This statement in Agins can be interpreted in two quite different ways. First, it may merely require the property owner to exhaust his equitable remedies before asserting any claim for damages. Under that reading, a postponement of any consideration of monetary relief, or even a requirement that a "temporary regulatory taking" claim be asserted in a separate proceeding after the temporary interference has ended, would not violate the Federal Constitution. Second, the Agins opinion may be read to indicate that California courts will never award damages for a temporary regulatory taking. [ Footnote 2/15 ] Even if we assume that such a rigid rule would bar recovery in the California courts in a few meritorious cases, we should not allow a litigant to challenge the rule unless his complaint contains allegations explaining why declaratory relief would not provide him with an adequate remedy, and unless his complaint at least complies with the California rule of procedure to the extent that the rule is clearly legitimate. Since the First Amendment is not implicated, the fact that California's rule may be somewhat "overbroad" is no reason for permitting a party to complain about the impact of the rule on other property owners Page 482 U. S. 338 who actually file complaints that call California's rule into question. In any event, the Court has no business speculating on how the California courts will deal with this problem when it is presented to them. Despite the many cases in which the California courts have applied the Agins rule, the Court can point to no case in which application of the rule has deprived a property owner of his rightful compensation. In criminal litigation, we have steadfastly adhered to the practice of requiring the defendant to exhaust his or her state remedies before collaterally attacking a conviction based on a claimed violation of the Federal Constitution. That requirement is supported by our respect for the sovereignty of the several States and by our interest in having federal judges decide federal constitutional issues only on the basis of fully developed records. See generally Rose v. Lundy, 455 U. S. 509 (1982). The States' interest in controlling land use development and in exploring all the ramifications of a challenge to a zoning restriction should command the same deference from the federal judiciary. See Williamson, 473 U.S. at 473 U. S. 194 -197. And our interest in avoiding the decision of federal constitutional questions on anything less than a fully informed basis counsels against trying to decide whether equitable relief has forestalled a temporary taking until after we know what the relief is. In short, even if the California courts adhere to a rule of never granting monetary relief for a temporary regulatory taking, I believe we should require the property owner to exhaust his state remedies before confronting the question whether the net result of the state proceedings has amounted to a temporary taking of property without just compensation. In this case, the Church should be required to pursue an action demanding invalidation of the ordinance prior to seeking this Court's review of California's procedures. [ Footnote 2/16 ] Page 482 U. S. 339 The appellant should not be permitted to circumvent that requirement by omitting any prayer for equitable relief from its complaint. I believe the California Supreme Court is justified in insisting that the owner recover as much of its property as possible before foisting any of it on an unwilling governmental purchaser. The Court apparently agrees with this proposition. Thus, even on the Court's own radical view of temporary regulatory takings announced today, the California courts had the right to strike this complaint. IV There is, of course, a possibility that land use planning, like other forms of regulation, will unfairly deprive a citizen of the right to develop his property at the time and in the manner that will best serve his economic interests. The "regulatory taking" doctrine announced in Pennsylvania Coal places a limit on the permissible scope of land use restrictions. In my opinion, however, it is the Due Process Clause, rather than that doctrine, that protects the property owner from improperly motivated, unfairly conducted, or unnecessarily protracted governmental decisionmaking. Violation of the procedural safeguards mandated by the Due Process Clause will give rise to actions for damages under 42 U.S.C. § 1983, but I am not persuaded that delays in the development of property that are occasioned by fairly conducted administrative or judicial proceedings are compensable, except perhaps in the most unusual circumstances. On the contrary, I am convinced that the public interest in having important governmental decisions made in an orderly, fully informed way amply justifies the temporary burden on the citizen that is the inevitable by-product of democratic government. Page 482 U. S. 340 As I recently wrote: "The Due Process Clause of the Fourteenth Amendment requires a State to employ fair procedures in the administration and enforcement of all kinds of regulations. It does not, however, impose the utopian requirement that enforcement action may not impose any cost upon the citizen unless the government's position is completely vindicated. We must presume that regulatory bodies such as zoning boards, school boards, and health boards, generally make a good faith effort to advance the public interest when they are performing their official duties, but we must also recognize that they will often become involved in controversies that they will ultimately lose. Even though these controversies are costly and temporarily harmful to the private citizen, as long as fair procedures are followed, I do not believe there is any basis in the Constitution for characterizing the inevitable byproduct of every such dispute as a 'taking' of private property." Williamson, supra, at 473 U. S. 205 (opinion concurring in judgment). The policy implications of today's decision are obvious and, I fear, far-reaching. Cautious local officials and land use planners may avoid taking any action that might later be challenged and thus give rise to a damages action. Much important regulation will never be enacted, [ Footnote 2/17 ] even perhaps in Page 482 U. S. 341 the health and safety area. Were this result mandated by the Constitution, these serious implications would have to be ignored. But the loose cannon the Court fires today is not only unattached to the Constitution, but it also takes aim at a long line of precedents in the regulatory takings area. It would be the better part of valor simply to decide the case at hand, instead of igniting the kind of litigation explosion that this decision will undoubtedly touch off. I respectfully dissent. [ Footnote 2/1 ] The Superior Court's entire explanation for its decision to grant the motion to strike reads as follows: "However, a careful rereading of the Agins case persuades the Court that, when an ordinance, even a non-zoning ordinance, deprives a person of the total use of his lands, his challenge to the ordinance is by way of declaratory relief, or possibly mandamus." App. 26. [ Footnote 2/2 ] The Court of Appeal described the Agins case in this way: "In Agins v. City of Tiburon (1979), 24 Cal. 3d 266 , the plaintiffs filed an action for damages in inverse condemnation and for declaratory relief against the City of Tiburon, which had passed a zoning ordinance in part for 'open space' that would have permitted a maximum of five or a minimum of one dwelling units on the plaintiffs' five acres. A demurrer to both causes of action was sustained, and a judgment of dismissal was entered. The California Supreme Court affirmed the dismissal, finding that the ordinance did not, on its face, 'deprive the landowner of substantially an reasonable use of his property,' ( Agins, supra, 24 Cal.3d at p. 277), and did not 'unconstitutionally interfere with plaintiff's entire use of the land or impermissibly decrease its value' ( ibid. ). The Supreme Court further said that 'mandamus or declaratory relief, rather than inverse condemnation, [was] the appropriate relief under the circumstances.' ( Ibid. )." App. to Juris. Statement A14. [ Footnote 2/3 ] "The familiar rule of appellate court procedure in federal courts [is] that, without a cross-petition or appeal, a respondent or appellee may support the judgment in his favor upon grounds different from those upon which the court below rested its decision." McGoldrick v. Compagnie Generale, 309 U. S. 430 , 309 U. S. 434 (1940), citing United States v. American Railway Express Co., 265 U. S. 425 , 265 U. S. 435 (1924); see also Dandridge v. Williams, 397 U. S. 471 , 397 U. S. 475 -476, n. 6 (1970). It is also well settled that this Court is not bound by a state court's determination (much less an assumption) that a complaint states a federal claim. See Staub v. City of Baxley, 355 U. S. 313 , 355 U. S. 318 (1968); First National Bank of Guthrie Center v. Anderson, 269 U. S. 341 , 269 U. S. 346 (1926). Especially in the takings context, where the details of the deprivation are so significant, the economic drain of litigation on public resources is "too great to permit cases to go forward without a more substantial indication that a constitutional violation may have occurred." Pace Resources, Inc. v. Shrewsbury Township, 808 F.2d 1023, 1026 (CA3), cert. denied, post p. 906. [ Footnote 2/4 ] See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S. 485 -493 (1987) (coal mine subsidence); Goldblatt v. Hempstead, 369 U. S. 590 (1962) (rock quarry excavation); Miller v. Schoene, 276 U. S. 272 (1928) (infectious tree disease); Hadacheck v. Sebastian, 239 U. S. 394 (1915) (emissions from factory); Mugler v. Kansas, 123 U. S. 623 (1887) (intoxicating liquors); see also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 145 (1978) (REHNQUIST, J., dissenting) ("The question is whether the forbidden use is dangerous to the safety, health, or welfare of others"). Many state courts have reached the identical conclusion. See Keystone Bituminous, supra, at 480 U. S. 492 , n. 22 (citing cases). In Keystone Bituminous, we explained that one of the justifications for the rule that health and safety regulation cannot constitute a taking is that individuals hold their property subject to the limitation that they not use it in dangerous or noxious ways. 480 U.S. at 480 U. S. 491 , n. 20. The Court's recent decision in United States v. Cherokee Nation of Oklahoma, 480 U. S. 700 (1987), adds support to this thesis. There, the Court reaffirmed the traditional rule that, when the United States exercises its power to assert a navigational servitude it does not "take" property because the damage sustained results "from the lawful exercise of a power to which the interests of riparian owners have always been subject." Id. at 480 U. S. 704 . [ Footnote 2/5 ] See generally Plater, The Takings Issue in a Natural Setting: Floodlines and the Police Power, 52 Tex.L.Rev. 201 (1974); F. Bosselman, D. Callies, & J. Banta, The Taking Issue 147-155 (1973). [ Footnote 2/6 ] It is proper to take judicial notice of the ordinance. It provides, in relevant part: " ORDINANCE NO. 11,855." "An interim ordinance temporarily prohibiting the construction, reconstruction, placement or enlargement of any building or structure within any portion of the interim flood protection area delineated within Mill Creek, vicinity of Hidden Springs, declaring the urgency thereof and that this ordinance shall take immediate effect." "The Board of Supervisors of the County of Los Angeles does ordain as follows:" " * * * *" "Section 4. Studies are now under way by the Department of Regional Planning in connection with the County Engineer and the Los Angeles County Flood Control District, to develop permanent flood protection areas for Mill Creek and other specific areas as part of a comprehensive flood plain management project. Mapping and evaluation of flood data has progressed to the point where an interim flood protection area in Mill Creek can be designated. Development is now occurring which will encroach within the limits of the permanent flood protection area and which will be incompatible with the anticipated uses to be permitted within the permanent flood protection area. If this ordinance does not take immediate effect, said uses will be established prior to the contemplated ordinance amendment, and once established may continue after such amendment has been made because of the provisions of Article 9 of Chapter 5 of Ordinance No. 1494." "By reason of the foregoing facts this ordinance is urgently required for the immediate preservation of the public health and safety, and the same shall take effect immediately upon passage thereof." App. to Juris. Statement 31-32. [ Footnote 2/7 ] Because the complaint did not pray for an injunction against enforcement of the ordinance, or a declaration that it is invalid, but merely sought monetary relief, it is doubtful that we have appellate jurisdiction under 28 U.S.C. § 1257(2). Section 1257(2) provides: "(2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity." Even if we do not have appellate jurisdiction, however, presumably the Court would exercise its certiorari jurisdiction pursuant to 28 U.S.C. § 1257(3). [ Footnote 2/8 ] In United States v. Dow, 357 U. S. 17 (1958), the United States had "entered into physical possession and began laying the pipeline through the tract." Id. at 357 U. S. 19 . In Kimball Laundry Co. v. United States, 338 U. S. 1 (1949), the United States Army had taken possession of the laundry plant, including all "the facilities of the company, except delivery equipment." Id. at 338 U. S. 3 . In United States v. Petty Motor Co., 327 U. S. 372 (1946), the United States acquired by condemnation a building occupied by tenants and ordered the tenants to vacate. In United States v. General Motors Corp., 323 U. S. 373 (1945), the Government occupied a portion of a leased building. [ Footnote 2/9 ] The Court makes only a feeble attempt to explain why the holdings in Agins and Danforth are not controlling here. It is tautological to claim that the cases stand for the "unexceptional proposition that the valuation of property which has been taken must be calculated as of the time of the taking. " Ante, at 482 U. S. 320 (emphasis added). The question in Danforth was when the taking occurred. The question addressed in the relevant portion of Agins was whether the temporary fluctuations in value themselves constituted a taking. In rejecting the claims in those cases, the Court necessarily held that the temporary effects did not constitute taking of their own right. The cases are therefore directly on point here. If even the temporary effects of a decision to condemn, the ultimate taking, do not ordinarily constitute a taking in and of themselves, then, a fortiori, the temporary effects of a regulation should not. [ Footnote 2/10 ] Whether delays associated with a judicial proceeding that terminates with a holding that a regulation was not authorized by state law would be a "normal delay" or a temporary taking depends, I suppose, on the unexplained rationale for the Court's artificial distinction. [ Footnote 2/11 ] "[T]he Constitution measures a taking of property not by what a State says, or what it intends, but by what it does." Hughes v. Washington, 389 U. S. 290 , 389 U. S. 298 (1967) (Stewart, J., concurring). The fact that the effects of the regulation are stopped by judicial, as opposed to administrative, decree should not affect the question whether compensation is required. [ Footnote 2/12 ] States may surely provide a forum in their courts for review of general challenges to zoning ordinances and other regulations. Such a procedure then becomes part of the "normal" process. Indeed, when States have set up such procedures in their courts, we have required resort to those processes before considering takings claims. See Williamson County Regional Planning Comm'n v. Hamilton Bank, 473 U. S. 172 (1986). [ Footnote 2/13 ] See, e.g., Mandelker, Land Use Takings: The Compensation Issue, 8 Hastings Const.L.Q. 491 (1981); Williams, Smith, Siemon, Mandelker, & Babcock, The White River Junction Manifesto, 9 Vt.L.Rev.193, 233-234 (1984); Berger & Kanner, Thoughts on the White River Junction Manifesto: A Reply to the "Gang of Five's" Views on Just Compensation for Regulatory Taking of Property, 19 Loyola (LA) L.Rev. 685, 704-712 (1986); Comment, Just Compensation or Just Invalidation: The Availability of a Damages Remedy in Challenging Land Use Regulations, 29 UCLA L.Rev. 711, 725-726 (1982). [ Footnote 2/14 ] For this same reason, the parties' and amici's conflicting claims about whether this Court's cases, such as Hurley v. Kincaid, 285 U. S. 95 (1932), provide that compensation is a less intrusive remedy than invalidation are not relevant here. [ Footnote 2/15 ] The California Supreme Court's discussion of the policy implications in Agins is entirely consistent with the view that the court was choosing between remedies (invalidation or compensation) with respect to the permanent effect of a regulation, and was not dealing with the temporary taking question at all. Subsequent California Supreme Court cases applying the Agins rule do not shed light on this question. [ Footnote 2/16 ] In the habeas corpus context, we have held that a prisoner has not exhausted his state remedies when the state court refuses to consider his claim because he has not sought the appropriate state remedy. See Woods v. Nierstheimer, 328 U. S. 211 , 328 U. S. 216 (1946); Ex parte Hawk, 321 U. S. 114 , 116-117 (1944). This rule should be applied with equal force here. [ Footnote 2/17 ] It is no answer to say that "[a]fter all, if a policeman must know the Constitution, then why not a planner?" San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 661 , n. 26 (1981) (BRENNAN, J., dissenting). To begin with, the Court has repeatedly recognized that it itself cannot establish any objective rules to assess when a regulation becomes a taking. See Hodel v. Irving, 481 U. S. 704 , 481 U. S. 713 -714 (1987); Andrus . Allard, 444 U. S. 51 , 444 U. S. 65 (1979); Penn Central, 438 U.S. at 438 U. S. 123 -124. How then can it demand that land planners do any better? However confusing some of our criminal procedure cases may be, I do not believe they have been as open-ended and standardless as our regulatory takings cases are. As one commentator concluded: "The chaotic state of taking law makes it especially likely that availability of the damages remedy will induce land use planning officials to stay well back of the invisible line that they dare not cross." Johnson, Compensation for Invalid Land-Use Regulations, 15 Ga.L.Rev. 569, 594 (1981); see also Sallet, The Problem of Municipal Liability for Zoning and Land-Use Regulation, 31 Cath.U.L.Rev. 465, 478 (1982); Charles v. Diamond, 41 N.Y.2d 318, 331-332, 360 N.E.2d 1295, 1305 (1977); Allen v. City and County of Honolulu, 58 Haw. 432, 439, 571 P.2d 328 , 331 (1977). Another critical distinction between police activity and land use planning is that not every missed call by a policeman gives rise to civil liability; police officers enjoy individual immunity for actions taken in good faith. See Harlow v. Fitzgerald, 457 U. S. 800 (1982); Davis v. Scherer, 468 U. S. 183 (1984). Moreover, municipalities are not subject to civil liability for police officers' routine judgment errors. See Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). In the land regulation context, however, I am afraid that any decision by a competent regulatory body may establish a "policy or custom" and give rise to liability after today.

Here is a summary of the case: The First English Evangelical Lutheran Church of Glendale sued the County of Los Angeles, California, after a flood destroyed the church's campground, "Lutherglen," in 1978. The church alleged that an interim ordinance passed by the county in 1979, which prohibited construction or reconstruction in a designated flood protection area, denied them all use of their property and sought to recover damages through inverse condemnation. The California Court of Appeal, relying on the California Supreme Court's decision in Agins v. Tiburon, ruled that the church could not maintain an inverse condemnation suit based on a "regulatory" taking and that compensation was not required until the ordinance was deemed excessive and the government chose to continue it. The U.S. Supreme Court held that the case properly presented the claim that the Agins case improperly held that the Just Compensation Clause of the Fifth Amendment does not require compensation for "temporary" regulatory takings, which are ultimately invalidated by the courts. The Court isolated the remedial question for consideration, whether compensation is required for regulatory takings that are later invalidated. The Court's decision discusses the distinction between choosing between remedies (invalidation or compensation) for the permanent effect of a regulation and dealing with temporary takings. It also highlights the challenges of establishing objective rules for assessing when a regulation becomes a taking and the potential impact on land-use planning officials.

Property Rights & Land Use

Nollan v. California Coastal Commission

https://supreme.justia.com/cases/federal/us/483/825/

U.S. Supreme Court Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) Nollan v. California Coastal Commission No. 86-133 Argued March 30, 1987 Decided June 26, 1987 483 U.S. 825 APPEAL FROM THE COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT Syllabus The California Coastal Commission granted a permit to appellants to replace a small bungalow on their beachfront lot with a larger house upon the condition that they allow the public an easement to pass across their beach, which was located between two public beaches. The County Superior Court granted appellants a writ of administrative mandamus and directed that the permit condition be struck. However, the State Court of Appeal reversed, ruling that imposition of the condition did not violate the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. Held: 1. Although the outright taking of an uncompensated, permanent, public access easement would violate the Takings Clause, conditioning appellants' rebuilding permit on their granting such an easement would be lawful land use regulation if it substantially furthered governmental purposes that would justify denial of the permit. The government's power to forbid particular land uses in order to advance some legitimate police power purpose includes the power to condition such use upon some concession by the owner, even a concession of property rights, so long as the condition furthers the same governmental purpose advanced as justification for prohibiting the use. Pp. 483 U. S. 831 -837. 2. Here, the Commission's imposition of the access easement condition cannot be treated as an exercise of land use regulation power, since the condition does not serve public purposes related to the permit requirement. Of those put forth to justify it -- protecting the public's ability to see the beach, assisting the public in overcoming a perceived "psychological" barrier to using the beach, and preventing beach congestion -- none is plausible. Moreover, the Commission's justification for the access requirement unrelated to land use regulation -- that it is part of a comprehensive program to provide beach access arising from prior coastal permit decisions -- is simply an expression of the belief that the public interest will be served by a continuous strip of publicly accessible beach. Although the State is free to advance its "comprehensive program" by exercising its eminent domain power and paying for access easements, it Page 483 U. S. 826 cannot compel coastal residents alone to contribute to the realization of that goal. Pp. 483 U. S. 838 -842. 177 Cal. App. 3d 719 , 223 Cal. Rptr. 28 , reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post p. 483 U. S. 842 . BLACKMUN, J., filed a dissenting opinion, post p. 483 U. S. 865 . STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post p. 483 U. S. 866 . Page 483 U. S. 827 JUSTICE SCALIA delivered the opinion of the Court. James and Marilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commission could condition its grant of permission to rebuild their house on their transfer to the public of an easement across their beachfront property. 177 Cal. App. 3d 719 , 223 Cal. Rptr. 28 (1986). The California court rejected their claim that imposition of that condition violates the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. Ibid. We noted probable jurisdiction. 479 U.S. 913 (1986). I The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their property with an option to buy. The building on the lot was a small bungalow, totaling 504 square feet, which for a time they rented to summer vacationers. After years of rental use, however, the building had fallen into disrepair, and could no longer be rented out. Page 483 U. S. 828 The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. In order to do so, under Cal.Pub.Res.Code Ann. §§ 30106, 30212, and 30600 (West 1986), they were required to obtain a coastal development permit from the California Coastal Commission. On February 25, 1982, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood. The Nollans were informed that their application had been placed on the administrative calendar, and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line on one side and their seawall on the other side. This would make it easier for the public to get to Faria County Park and the Cove. The Nollans protested imposition of the condition, but the Commission overruled their objections and granted the permit subject to their recordation of a deed restriction granting the easement. App. 31, 34. On June 3, 1982, the Nollans filed a petition for writ of administrative mandamus asking the Ventura County Superior Court to invalidate the access condition. They argued that the condition could not be imposed absent evidence that their proposed development would have a direct adverse impact on public access to the beach. The court agreed, and remanded the case to the Commission for a full evidentiary hearing on that issue. Id. at 36. On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a wall' of residential structures" that would prevent the public "psychologically . . . from realizing a stretch of coastline exists nearby that they have every right Page 483 U. S. 829 to visit." Id. at 58. The new house would also increase private use of the shorefront. Id. at 59. These effects of construction of the house, along with other area development, would cumulatively "burden the public's ability to traverse to and along the shorefront." Id. at 65-66. Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that, of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. Id. at 47-48. The Nollans filed a supplemental petition for a writ of administrative mandamus with the Superior Court, in which they argued that imposition of the access condition violated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. The Superior Court ruled in their favor on statutory grounds, finding, in part to avoid "issues of constitutionality," that the California Coastal Act of 1976, Cal.Pub.Res.Code Ann. § 30000 et seq. (West 1986), authorized the Commission to impose public access conditions on coastal development permits for the replacement of an existing single-family home with a new one only where the proposed development would have an adverse impact on public access to the sea. App. 419. In the court's view, the administrative record did not provide an adequate factual basis for concluding that replacement of the bungalow with the house would create a direct or cumulative burden on public access to the sea. Id. at 416-417. Accordingly, the Superior Court granted the writ of mandamus and directed that the permit condition be struck. The Commission appealed to the California Court of Appeal. While that appeal was pending, the Nollans satisfied Page 483 U. S. 830 the condition on their option to purchase by tearing down the bungalow and building the new house, and bought the property. They did not notify the Commission that they were taking that action. The Court of Appeal reversed the Superior Court. 177 Cal. App. 3d 719 , 223 Cal. Rptr. 28 (1986). It disagreed with the Superior Court's interpretation of the Coastal Act, finding that it required that a coastal permit for the construction of a new house whose floor area, height or bulk was more than 10% larger than that of the house it was replacing be conditioned on a grant of access. Id. at 723-724, 223 Cal. Rptr. at 31; see Cal.Pub.Res.Code Ann. § 30212. It also ruled that that requirement did not violate the Constitution under the reasoning of an earlier case of the Court of Appeal, Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148 , 212 Cal. Rptr. 578 (1985). In that case, the court had found that, so long as a project contributed to the need for public access, even if the project, standing alone, had not created the need for access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional. 177 Cal. App. 3d at 723, 223 Cal.Rptr. at 30-31; see Grupe, supra, at 165-168, 212 Cal.Rptr. at 587-590; see also Remmenga v. California Coastal Comm'n, 163 Cal. App. 3d 623 , 628, 209 Cal. Rptr. 628 , 631, appeal dism'd, 474 U.S. 915 (1985). The Court of Appeal ruled that the record established that that was the situation with respect to the Nollans' house. 177 Cal. App. 3d at 722-723, 223 Cal. Rptr. at 30-31. It ruled that the Nollans' taking claim also failed because, although the condition diminished the value of the Nollans' lot, it did not deprive them of all reasonable use of their property. Id. at 723, 223 Cal. Rptr. at 30; see Grupe, supra, at 175-176, 212 Cal. Rptr. at 595-596. Since, in the Court of Appeal's view, there was no statutory or constitutional obstacle to imposition Page 483 U. S. 831 of the access condition, the Superior Court erred in granting the writ of mandamus. The Nollans appealed to this Court, raising only the constitutional question. II Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest, but rather (as JUSTICE BRENNAN contends) "a mere restriction on its use," post at 483 U. S. 848 -849, n. 3, is to use words in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them. J. Sackman, 1 Nichols on Eminent Domain § 2.1[1] (Rev. 3d ed.1985), 2 id. § 5.01[5]; see 1 id. § 1.42[9], 2 id. § 6.14. Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases' analysis of the effect of other governmental action leads to the same conclusion. We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] one of the most essential sticks in the bundle of rights that are commonly characterized as property.'" Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 458 U. S. 433 (1982), quoting Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 176 (1979). In Loretto, we observed that, where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others, see 458 U.S. at 458 U. S. 432 -433, n. 9, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public Page 483 U. S. 832 benefit or has only minimal economic impact on the owner," id. at 458 U. S. 434 -435. We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises. [ Footnote 1 ] JUSTICE BRENNAN argues that, while this might ordinarily be the case, the California Constitution's prohibition on any individual's "exclu[ding] the right of way to [any navigable] water whenever it is required for any public purpose," Art. X, § 4, produces a different result here. Post at 483 U. S. 847 -848, see also post at 483 U. S. 855 , 483 U. S. 857 . There are a number of difficulties with that argument. Most obviously, the right of way sought here is not naturally described as one to navigable water (from the street to the sea), but along it; it is at least highly questionable whether the text of the California Constitution has any prima facie application to the situation before us. Even if it does, however, several California cases suggest that JUSTICE BRENNAN's interpretation of the effect of the clause is erroneous, and that, to obtain easements of access across private property, the State must proceed through its eminent domain power. See Bolsa Land Co. v. Burdick, 151 Cal. 254, 260, 90 P. 532, 534-535 (1907); Oakland v. Oakland Water Front Co., 118 Cal. 160, 185, 50 P. 277, 286 (1897); Heist v. County of Colusa, 163 Cal. App. 3d 841 , 851, 213 Cal. Rptr. 278 , 285 (1984); Aptos Seascape Corp. v. Santa Cruz, 138 Cal. App. 3d 484 , 505-506, 188 Cal. Rptr. 191 , 204-205 (1982). (None of these cases specifically addressed Page 483 U. S. 833 the argument that Art. X, § 4, allowed the public to cross private property to get to navigable water, but if that provision meant what JUSTICE BRENNAN believes, it is hard to see why it was not invoked.) See also 41 Op.Cal.Atty.Gen. 39, 41 (1963) ("In spite of the sweeping provisions of [Art. X, § 4], and the injunction therein to the Legislature to give its provisions the most liberal interpretation, the few reported cases in California have adopted the general rule that one may not trespass on private land to get to navigable tidewaters for the purpose of commerce, navigation or fishing"). In light of these uncertainties, and given the fact that, as JUSTICE BLACKMUN notes, the Court of Appeal did not rest its decision on Art. X, § 4, post at 483 U. S. 865 , we should assuredly not take it upon ourselves to resolve this question of California constitutional law in the first instance. See, e.g., Jenkins v. Anderson, 447 U. S. 231 , 447 U. S. 234 , n. 1 (1980). That would be doubly inappropriate since the Commission did not advance this argument in the Court of Appeal, and the Nollans argued in the Superior Court that any claim that there was a preexisting public right of access had to be asserted through a quiet title action, see Points and Authorities in Support of Motion for Writ of Administrative Mandamus, No. SP50805 (Super.Ct.Cal.), p. 20, which the Commission, possessing no claim to the easement itself, probably would not have had standing under California law to bring. See Cal.Code Civ.Proc.Ann. § 738 (West 1980). [ Footnote 2 ] Page 483 U. S. 834 Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land use permit alters the outcome. We have long recognized that land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land," Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980). See also Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 127 (1978) ("[A] use restriction may constitute a taking' if not reasonably necessary to the effectuation of a substantial government purpose"). Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter. [ Footnote 3 ] They have made clear, however, that a Page 483 U. S. 835 broad range of governmental purposes and regulations satisfies these requirements. See Agins v. Tiburon, supra, at 447 U. S. 260 -262 (scenic zoning); Penn Central Transportation Co. v. New York City, supra, (landmark preservation); Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) (residential zoning); Laitos & Westfall, Government Interference with Private Interests in Public Resources, 11 Harv.Envtl.L.Rev. 1, 66 (1987). The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so -- in which case, the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction) [ Footnote 4 ] would substantially impede these purposes, Page 483 U. S. 836 unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking. See Penn Central Transportation Co. v. New York City, supra. The Commission argues that a permit condition that serves the same legitimate police power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house -- for example, a height limitation, a width restriction, or a ban on fences -- so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power, rather than a taking, it would be strange to conclude that providing the Page 483 U. S. 837 owner an alternative to that prohibition which accomplishes the same purpose is not. The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use, but "an out-and-out plan of extortion." J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A.2d 12, 14-15 (1981); see Brief for United States as Amicus Curiae 22, and n. 20. See also Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. at 458 U. S. 439 , n. 17. [ Footnote 5 ] Page 483 U. S. 838 III The Commission claims that it concedes as much, and that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commission's proposed test as to how close a "fit" between the condition and the burden is required, because we find that this case does not meet even the most untailored standards. The Commission's principal contention to the contrary essentially turns on a play on the word "access." The Nollans' new house, the Commission found, will interfere with "visual access" to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the Nollans' house to use the beach, thus creating a "psychological barrier" to "access." The Nollans' new house will also, by a process not altogether clear from the Commission's opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more "access." These burdens on "access" would be alleviated by a requirement that the Nollans provide "lateral access" to the beach. Rewriting the argument to eliminate the play on words makes clear that there is nothing to it. It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them Page 483 U. S. 839 caused by construction of the Nollans' new house. We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land use power for any of these purposes. [ Footnote 6 ] Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts. See Parks v. Watson, 716 F.2d 646, 651-653 (CA9 1983); Bethlehem Evangelical Lutheran Church v. Lakewood, 626 P.2d 668 , 671-674 (Colo.1981); Aunt Hack Ridge Estates, Inc. v. Planning Comm'n, 160 Conn.109, 117-120, 273 A.2d 880, 885 (1970); Longboat Key v. Lands End, Ltd., 433 So. 2d 574 (Fla.App.1983); Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375 , 380, 176 N.E.2d 799 , 802 (1961); Lampton v. Pinaire, 610 S.W.2d 915 , 918-919 (Ky.App.1980); Schwing v. Baton Rouge, 249 So. 2d 304 (La.App.), application denied, 259 La. 770, 252 So. 2d 667 (1971); Howard County v. JJM, Inc., 301 Md. 256, 280-282, 482 A.2d 908, 920-921 (1984); Collis v. Bloomington, 310 Minn. 5, 246 N.W.2d 19 (1976); State ex rel. Noland v. St. Louis County, 478 S.W.2d 363 (Mo.1972); Page 483 U. S. 840 Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P.2d 182 , 187-188 (1964); Simpson v. North Platte, 206 Neb. 240, 292 N.W.2d 297 (1980); Briar West, Inc. v. Lincoln, 206 Neb. 172, 291 N.W.2d 730 (1980); J. E. D. Associates v. Atkinson, 121 N. H. 581, 432 A.2d 12 (1981); Longridge Builders, Inc. v. Planning Bd. of Princeton, 52 N.J. 348, 350-351, 245 A.2d 336 , 337-338 (1968); Jenad, Inc. v. Scarsdale, 18 N.Y.2d 78, 218 N.E.2d 673 (1966); MacKall v. White, 85App.Div.2d 696, 445 N.Y.S.2d 486 (1981), appeal denied, 56 N.Y.2d 503, 435 N.E.2d 1100 (1982); Frank Ansuini, Inc. v. Cranston, 107 R.I. 63, 68-69, 71, 264 A.2d 910 , 913, 914 (1970); College Station v. Turtle Rock Corp., 680 S.W.2d 802 , 807 (Tex.1984); Call v. West Jordan, 614 P.2d 1257 , 1258-1259 (Utah 1980); Board of Supervisors of James City County v. Rowe, 216 Va. 128, 136-139, 216 S.E.2d 199 , 207-209 (1975); Jordan v. Menomonee Falls, 28 Wis.2d 608, 617-618, 137 N.W.2d 442, 447-449 (1965), appeal dism'd, 385 U. S. 4 (1966). See also Littlefield v. Afton, 785 F.2d 596, 607 (CA8 1986); Brief for National Association of Home Builders et al. as Amici Curiae 9-16. JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that, in its absence, a person looking toward the beach from the road will see a street of residential structures, including the Nollans' new home, and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post at 483 U. S. 849 -850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach, and that a person looking from the road would not be able to see it at all. App. 57-59. Even if the Commission had made the finding that JUSTICE BRENNAN proposes, however, it is not certain that it would Page 483 U. S. 841 suffice. We do not share JUSTICE BRENNAN's confidence that the Commission "should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access," post at 483 U. S. 862 , that will avoid the effect of today's decision. We view the Fifth Amendment's Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a " substantial advanc[ing]" of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police power objective. We are left, then, with the Commission's justification for the access requirement unrelated to land use regulation: "Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment." App. 68. That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for this "public purpose," Page 483 U. S. 842 see U.S.Const., Amdt. 5; but if it wants an easement across the Nollans' property, it must pay for it. Reversed. [ Footnote 1 ] The holding of PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), is not inconsistent with this analysis, since there the owner had already opened his property to the general public, and in addition permanent access was not required. The analysis of Kaiser Aetna v. United States, 444 U. S. 164 (1979), is not inconsistent, because it was affected by traditional doctrines regarding navigational servitudes. Of course neither of those cases involved, as this one does, a classic right-of-way easement. [ Footnote 2 ] JUSTICE BRENNAN also suggests that the Commission's public announcement of its intention to condition the rebuilding of houses on the transfer of easements of access caused the Nollans to have "no reasonable claim to any expectation of being able to exclude members of the public" from walking across their beach. Post at 483 U. S. 857 -860. He cites our opinion in Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984), as support for the peculiar proposition that a unilateral claim of entitlement by the government can alter property rights. In Monsanto, however, we found merely that the Takings Clause was not violated by giving effect to the Government's announcement that application for " the right to [the] valuable Government benefit, " id. at 467 U. S. 1007 (emphasis added), of obtaining registration of an insecticide would confer upon the Government a license to use and disclose the trade secrets contained in the application. Id. at 467 U. S. 1007 -1008. See also Bowen v. Gilliard, ante at 483 U. S. 605 . But the right to build on one's own property -- even though its exercise can be subjected to legitimate permitting requirements -- cannot remotely be described as a "governmental benefit." And thus the announcement that the application for (or granting of) the permit will entail the yielding of a property interest cannot be regarded as establishing the voluntary "exchange," 467 U.S. at 467 U. S. 1007 , that we found to have occurred in Monsanto. Nor are the Nollans' rights altered because they acquired the land well after the Commission had begun to implement its policy. So long as the Commission could not have deprived the prior owners of the easement without compensating them, the prior owners must be understood to have transferred their full property rights in conveying the lot. [ Footnote 3 ] Contrary to JUSTICE BRENNAN's claim, post at 483 U. S. 843 , our opinions do not establish that these standards are the same as those applied to due process or equal protection claims. To the contrary, our verbal formulations in the takings field have generally been quite different. We have required that the regulation "substantially advance" the "legitimate state interest" sought to be achieved, Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980), not that "the State could rationally have decided ' that the measure adopted might achieve the State's objective." Post at 483 U. S. 843 , quoting Minnesota v. Clover Leaf Creamery Co. , 449 U. S. 456 , 449 U. S. 466 (1981). JUSTICE BRENNAN relies principally on an equal protection case, Minnesota v. Clover Leaf Creamery Co., supra, and two substantive due process cases, Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483 , 348 U. S. 487 -488 (1955), and DayBrite Lighting, Inc. v. Missouri, 342 U. S. 421 , 342 U. S. 423 (1952), in support of the standards he would adopt. But there is no reason to believe (and the language of our cases gives some reason to disbelieve) that, so long as the regulation of property is at issue, the standards for takings challenges, due process challenges, and equal protection challenges are identical, any more than there is any reason to believe that, so long as the regulation of speech is at issue, the standards for due process challenges, equal protection challenges, and First Amendment challenges are identical. Goldblatt v. Hempstead, 369 U. S. 590 (1962), does appear to assume that the inquiries are the same, but that assumption is inconsistent with the formulations of our later cases. [ Footnote 4 ] If the Nollans were being singled out to bear the burden of California's attempt to remedy these problems, although they had not contributed to it more than other coastal landowners, the State's action, even if otherwise valid, might violate either the incorporated Takings Clause or the Equal Protection Clause. One of the principal purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40 , 364 U. S. 49 (1960); see also San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 656 (1981) (BRENNAN, J. dissenting); Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 123 (1978). But that is not the basis of the Nollans' challenge here. [ Footnote 5 ] One would expect that a regime in which this kind of leveraging of the police power is allowed would produce stringent land use regulation which the State then waives to accomplish other purposes, leading to lesser realization of the land use goals purportedly sought to be served than would result from more lenient (but nontradeable) development restrictions. Thus, the importance of the purpose underlying the prohibition not only does not justify the imposition of unrelated conditions for eliminating the prohibition, but positively militates against the practice. [ Footnote 6 ] As JUSTICE BRENNAN notes, the Commission also argued that the construction of the new house would " increase private use immediately adjacent to public tidelands,'" which in turn might result in more disputes between the Nollans and the public as to the location of the boundary. Post 483 U. S. 851 , quoting App. 62. That risk of boundary disputes, however, is inherent in the right to exclude others from one's property, and the construction here can no more justify mandatory dedication of a sort of "buffer zone" in order to avoid boundary disputes than can the construction of an addition to a single-family house near a public street. Moreover, a buffer zone has a boundary as well, and unless that zone is a "no-man's land" that is off-limits for both neighbors (which is, of course, not the case here) its creation achieves nothing except to shift the location of the boundary dispute further on to the private owner's land. It is true that, in the distinctive situation of the Nollans' property, the seawall could be established as a clear demarcation of the public easement. But since not all of the lands to which this land use condition applies have such a convenient reference point, the avoidance of boundary disputes is, even more obviously than the others, a made-up purpose of the regulation. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Appellants in this case sought to construct a new dwelling on their beach lot that would both diminish visual access to the beach and move private development closer to the public tidelands. The Commission reasonably concluded that such "buildout," both individually and cumulatively, threatens public access to the shore. It sought to offset this encroachment by obtaining assurance that the public may walk along the shoreline in order to gain access to the ocean. The Court finds this an illegitimate exercise of the police power, because it maintains that there is no reasonable relationship between the effect of the development and the condition imposed. The first problem with this conclusion is that the Court imposes a standard of precision for the exercise of a State's police power that has been discredited for the better part of this century. Furthermore, even under the Court's cramped standard, the permit condition imposed in this case directly responds to the specific type of burden on access created by appellants' development. Finally, a review of those factors deemed most significant in takings analysis makes clear that the Commission's action implicates none of the concerns underlying the Takings Clause. The Court has thus struck down the Commission's reasonable effort to respond to intensified development along the California coast, on behalf of landowners who can make no claim that their reasonable expectations have been disrupted. The Court has, in short, given appellants a windfall at the expense of the public. I The Court's conclusion that the permit condition imposed on appellants is unreasonable cannot withstand analysis. First, the Court demands a degree of exactitude that is inconsistent Page 483 U. S. 843 with our standard for reviewing the rationality of a State's exercise of its police power for the welfare of its citizens. Second, even if the nature of the public access condition imposed must be identical to the precise burden on access created by appellants, this requirement is plainly satisfied. A There can be no dispute that the police power of the States encompasses the authority to impose conditions on private development. See, e.g., Agins v. Tiburon, 447 U. S. 255 (1980); Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978); Gorieb v. Fox, 274 U. S. 603 (1927). It is also by now commonplace that this Court's review of the rationality of a State's exercise of its police power demands only that the State " could rationally have decided " that the measure adopted might achieve the State's objective. Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 449 U. S. 466 (1981) (emphasis in original). [ Footnote 2/1 ] In this case, California has Page 483 U. S. 844 employed its police power in order to condition development upon preservation of public access to the ocean and tidelands. The Coastal Commission, if it had so chosen, could have denied Page 483 U. S. 845 the Nollans' request for a development permit, since the property would have remained economically viable without the requested new development. [ Footnote 2/2 ] Instead, the State sought to accommodate the Nollans' desire for new development, on the condition that the development not diminish the overall amount of public access to the coastline. Appellants' proposed development would reduce public access by restricting visual access to the beach, by contributing to an increased need for community facilities, and by moving private development closer to public beach property. The Commission sought to offset this diminution in access, and thereby preserve the overall balance of access, by requesting a deed restriction that would ensure "lateral" access: the right of the public to pass and repass along the dry sand parallel to the shoreline in order to reach the tidelands and the ocean. In the expert opinion of the Coastal Commission, development conditioned on such a restriction would fairly attend to both public and private interests. The Court finds fault with this measure because it regards the condition as insufficiently tailored to address the precise Page 483 U. S. 846 type of reduction in access produced by the new development. The Nollans' development blocks visual access, the Court tells us, while the Commission seeks to preserve lateral access along the coastline. Thus, it concludes, the State acted irrationally. Such a narrow conception of rationality, however, has long since been discredited as a judicial arrogation of legislative authority. "To make scientific precision a criterion of constitutional power would be to subject the State to an intolerable supervision hostile to the basic principles of our Government." Sproles v. Binford, 286 U. S. 374 , 286 U. S. 388 (1932). Cf. Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 480 U. S. 491 , n. 21 (1987) ("The Takings Clause has never been read to require the States or the courts to calculate whether a specific individual has suffered burdens . . . in excess of the benefits received"). As this Court long ago declared with regard to various forms of restriction on the use of property: "Each interferes in the same way, if not to the same extent, with the owner's general right of dominion over his property. All rest for their justification upon the same reasons which have arisen in recent times as a result of the great increase and concentration of population in urban communities and the vast changes in the extent and complexity of the problems of modern city life. State legislatures and city councils, who deal with the situation from a practical standpoint, are better qualified than the courts to determine the necessity, character, and degree of regulation which these new and perplexing conditions require; and their conclusions should not be disturbed by the courts unless clearly arbitrary and unreasonable." Gorieb, 274 U.S. at 274 U. S. 608 (citations omitted). The Commission is charged by both the State Constitution and legislature to preserve overall public access to the California coastline. Furthermore, by virtue of its participation in the Coastal Zone Management Act (CZMA) program, the Page 483 U. S. 847 State must "exercise effectively [its] responsibilities in the coastal zone through the development and implementation of management programs to achieve wise use of the land and water resources of the coastal zone," 16 U.S.C. § 1452(2), so as to provide for, inter alia, "public access to the coas[t] for recreation purposes." § 1452(2)(D). The Commission has sought to discharge its responsibilities in a flexible manner. It has sought to balance private and public interests, and to accept tradeoffs: to permit development that reduces access in some ways as long as other means of access are enhanced. In this case, it has determined that the Nollans' burden on access would be offset by a deed restriction that formalizes the public's right to pass along the shore. In its informed judgment, such a tradeoff would preserve the net amount of public access to the coastline. The Court's insistence on a precise fit between the forms of burden and condition on each individual parcel along the California coast would penalize the Commission for its flexibility, hampering the ability to fulfill its public trust mandate. The Court's demand for this precise fit is based on the assumption that private landowners in this case possess a reasonable expectation regarding the use of their land that the public has attempted to disrupt. In fact, the situation is precisely the reverse: it is private landowners who are the interlopers. The public's expectation of access considerably antedates any private development on the coast. Article X, § 4, of the California Constitution, adopted in 1879, declares: "No individual, partnership, or corporation, claiming or possessing the frontage or tidal lands of a harbor, bay, inlet, estuary, or other navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose, nor to destroy or obstruct the free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so Page 483 U. S. 848 that access to the navigable waters of this State shall always be attainable for the people thereof." It is therefore private landowners who threaten the disruption of settled public expectations. Where a private landowner has had a reasonable expectation that his or her property will be used for exclusively private purposes, the disruption of this expectation dictates that the government pay if it wishes the property to be used for a public purpose. In this case, however, the State has sought to protect public expectations of access from disruption by private land use. The State's exercise of its police power for this purpose deserves no less deference than any other measure designed to further the welfare of state citizens. Congress expressly stated in passing the CZMA that, "[i]n light of competing demands and the urgent need to protect and to give high priority to natural systems in the coastal zone, present state and local institutional arrangements for planning and regulating land and water uses in such areas are inadequate." 16 U.S.C. § 1451(h). It is thus puzzling that the Court characterizes as a "non-land use justification," ante at 483 U. S. 841 , the exercise of the police power to " provide continuous public access along Faria Beach as the lots undergo development or redevelopment.'" Ibid. (quoting App. 68). The Commission's determination that certain types of development jeopardize public access to the ocean, and that such development should be conditioned on preservation of access, is the essence of responsible land use planning. The Court's use of an unreasonably demanding standard for determining the rationality of state regulation in this area thus could hamper innovative efforts to preserve an increasingly fragile national resource. [ Footnote 2/3 ] Page 483 U. S. 849 B Even if we accept the Court's unusual demand for a precise match between the condition imposed and the specific type of burden on access created by the appellants, the State's action easily satisfies this requirement. First, the lateral access condition serves to dissipate the impression that the beach that lies behind the wall of homes along the shore is for private use only. It requires no exceptional imaginative powers to find plausible the Commission's point that the average person passing along the road in front of a phalanx of imposing permanent residences, including the appellants' new home, is likely to conclude that this particular portion of the shore is not open to the public. If, however, that person can see that numerous people are passing and repassing along the dry sand, this conveys the message that the beach is in fact open for use by the public. Furthermore, those persons who go down to the public beach a quarter-mile away will be able to look down the coastline and see that persons have continuous access to the tidelands, and will observe signs that proclaim the public's right of access over the dry sand. The burden produced by the diminution in visual access -- the impression that the beach is not open to the public -- is thus directly alleviated by the provision for public access over the dry sand. The Court therefore has an Page 483 U. S. 850 unrealistically limited conception of what measures could reasonably be chosen to mitigate the burden produced by a diminution of visual access. The second flaw in the Court's analysis of the fit between burden and exaction is more fundamental. The Court assumes that the only burden with which the Coastal Commission was concerned was blockage of visual access to the beach. This is incorrect. [ Footnote 2/4 ] The Commission specifically stated in its report in support of the permit condition that "[t]he Commission finds that the applicants' proposed development would present an increase in view blockage, an increase in private use of the shorefront, and that this impact would burden the public's ability to traverse to and along the shorefront." App. 65-66 (emphasis added). It declared that the possibility that "the public may get the impression that the beachfront is no longer available for public use" would be "due to the encroaching nature of private use immediately adjacent to the public use, as well as the visual 'block' of increased residential build-out impacting the visual quality of the beachfront." Id. at 59 (emphasis added). The record prepared by the Commission is replete with references to the threat to public access along the coastline resulting from the seaward encroachment of private development along a beach whose mean high-tide line is constantly shifting. As the Commission observed in its report: "The Faria Beach shoreline fluctuates during the year depending on the seasons and accompanying storms, and the public is not always able to traverse the shoreline below the mean Page 483 U. S. 851 high tide line." Id. at 67. As a result, the boundary between publicly owned tidelands and privately owned beach is not a stable one, and "[t]he existing seawall is located very near to the mean high water line." Id. at 61. When the beach is at its largest, the seawall is about 10 feet from the mean high-tide mark; "[d]uring the period of the year when the beach suffers erosion, the mean high water line appears to be located either on or beyond the existing seawall." Ibid. Expansion of private development on appellants' lot toward the seawall would thus "increase private use immediately adjacent to public tidelands, which has the potential of causing adverse impacts on the public's ability to traverse the shoreline." Id. at 62. As the Commission explained: "The placement of more private use adjacent to public tidelands has the potential of creating use conflicts between the applicants and the public. The results of new private use encroachment into boundary/buffer areas between private and public property can create situations in which landowners intimidate the public and seek to prevent them from using public tidelands because of disputes between the two parties over where the exact boundary between private and public ownership is located. If the applicants' project would result in further seaward encroachment of private use into an area of clouded title, new private use in the subject encroachment area could result in use conflict between private and public entities on the subject shorefront." Id. at 61-62. The deed restriction on which permit approval was conditioned would directly address this threat to the public's access to the tidelands. It would provide a formal declaration of the public's right of access, thereby ensuring that the shifting character of the tidelands, and the presence of private development immediately adjacent to it, would not jeopardize Page 483 U. S. 852 enjoyment of that right. [ Footnote 2/5 ] The imposition of the permit condition was therefore directly related to the fact that appellants' development would be "located along a unique stretch of coast where lateral public access is inadequate due to the construction of private residential structures and shoreline protective devices along a fluctuating shoreline." Id. at 68. The deed restriction was crafted to deal with the particular character of the beach along which appellants sought to build, and with the specific problems created by expansion of development toward the public tidelands. In imposing the restriction, the State sought to ensure that such development would not disrupt the historical expectation of the public regarding access to the sea. [ Footnote 2/6 ] Page 483 U. S. 853 The Court is therefore simply wrong that there is no reasonable relationship between the permit condition and the specific type of burden on public access created by the appellants' proposed development. Even were the Court desirous of assuming the added responsibility of closely monitoring the regulation of development along the California coast, this record reveals rational public action by any conceivable standard. II The fact that the Commission's action is a legitimate exercise of the police power does not, of course, insulate it from a takings challenge, for when "regulation goes too far, it will be recognized as a taking." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 260 U. S. 415 (1922). Conventional takings analysis underscores the implausibility of the Court's holding, for it demonstrates that this exercise of California's police power implicates none of the concerns that underlie our takings jurisprudence. In reviewing a Takings Clause claim, we have regarded as particularly significant the nature of the governmental action and the economic impact of regulation, especially the extent to which regulation interferes with investment-backed expectations. Penn Central, 438 U.S. at 438 U. S. 124 . The character of the government action in this case is the imposition of a condition on permit approval, which allows the public to continue to have access to the coast. The physical intrusion permitted by the deed restriction is minimal. The public is permitted the right to pass and repass along the coast in an area from the seawall to the mean high-tide mark. App. 46. This area is, at its widest, 10 feet, id. at 61, which means that even without the permit condition, the public's right of access permits it to pass on average within a few feet of the seawall. Passage closer to the 8-foot-high rocky seawall will make the Page 483 U. S. 854 appellants even less visible to the public than passage along the high-tide area farther out on the beach. The intrusiveness of such passage is even less than the intrusion resulting from the required dedication of a sidewalk in front of private residences, exactions which are commonplace conditions on approval of development. [ Footnote 2/7 ] Furthermore, the high-tide line shifts throughout the year, moving up to and beyond the seawall, so that public passage for a portion of the year would either be impossible or would not occur on appellant's property. Finally, although the Commission had the authority to provide for either passive or active recreational use of the property, it chose the least intrusive alternative: a mere right to pass and repass. Id. at 370. [ Footnote 2/8 ] As this Court made Page 483 U. S. 855 clear in PruneYard Shopping Center v. Robins, 447 U. S. 74 , 447 U. S. 83 (1980), physical access to private property, in itself, creates no takings problem if it does not "unreasonably impair the value or use of [the] property." Appellants can make no tenable claim that either their enjoyment of their property or its value is diminished by the public's ability merely to pass and repass a few feet closer to the seawall beyond which appellants' house is located. PruneYard is also relevant in that we acknowledged in that case that public access rested upon a "state constitutional . . . provision that had been construed to create rights to the use of private property by strangers." Id. at 81. In this case, of course, the State is also acting to protect a state constitutional right. See supra at 483 U. S. 847 -848 (quoting Art. X, § 4, of California Constitution). The constitutional provision guaranteeing public access to the ocean states that "the Legislature shall enact such laws as will give the most liberal construction to this provision so that access to the navigable waters of this State shall be always attainable for the people thereof." Cal.Const., Art. X, § 4 (emphasis added). This provision is the explicit basis for the statutory directive to provide for public access along the coast in new development projects, Cal.Pub.Res.Code Ann. § 30212 (West 1986), and has been construed by the state judiciary to permit passage over private land where necessary to gain access to the tidelands. Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148 , 171-172, 212 Cal. Rptr. 578 , 592-593 (1985). The physical access to the perimeter of appellants' property at issue in this case thus results directly from the State's enforcement of the State Constitution. Finally, the character of the regulation in this case is not unilateral government action, but a condition on approval of a development request submitted by appellants. The State has not sought to interfere with any preexisting property interest, but has responded to appellants' proposal to intensify development on the coast. Appellants themselves chose to Page 483 U. S. 856 submit a new development application, and could claim no property interest in its approval. They were aware that approval of such development would be conditioned on preservation of adequate public access to the ocean. The State has initiated no action against appellants' property; had the Nollans' not proposed more intensive development in the coastal zone, they would never have been subject to the provision that they challenge. Examination of the economic impact of the Commission's action reinforces the conclusion that no taking has occurred. Allowing appellants to intensify development along the coast in exchange for ensuring public access to the ocean is a classic instance of government action that produces a "reciprocity of advantage." Pennsylvania Coal, 260 U.S. at 260 U. S. 415 . Appellants have been allowed to replace a one-story, 521-square-foot beach home with a two-story, 1,674-squarefoot residence and an attached two-car garage, resulting in development covering 2,464 square feet of the lot. Such development obviously significantly increases the value of appellants' property; appellants make no contention that this increase is offset by any diminution in value resulting from the deed restriction, much less that the restriction made the property less valuable than it would have been without the new construction. Furthermore, appellants gain an additional benefit from the Commission's permit condition program. They are able to walk along the beach beyond the confines of their own property only because the Commission has required deed restrictions as a condition of approving other new beach developments. [ Footnote 2/9 ] Thus, appellants benefit both as private landowners and as members of the public from the fact that new development permit requests are conditioned on preservation of public access. Page 483 U. S. 857 Ultimately, appellants' claim of economic injury is flawed because it rests on the assumption of entitlement to the full value of their new development. Appellants submitted a proposal for more intensive development of the coast, which the Commission was under no obligation to approve, and now argue that a regulation designed to ameliorate the impact of that development deprives them of the full value of their improvements. Even if this novel claim were somehow cognizable, it is not significant. "[T]he interest in anticipated gains has traditionally been viewed as less compelling than other property-related interests." Andrus v. Allard, 444 U. S. 51 , 444 U. S. 66 (1979). With respect to appellants' investment-backed expectations, appellants can make no reasonable claim to any expectation of being able to exclude members of the public from crossing the edge of their property to gain access to the ocean. It is axiomatic, of course, that state law is the source of those strands that constitute a property owner's bundle of property rights. "[A]s a general proposition[,] the law of real property is, under our Constitution, left to the individual States to develop and administer." Hughes v. Washington, 389 U. S. 290 , 389 U. S. 295 (1967) (Stewart, J., concurring). See also Borax Consolidated, Ltd. v. Los Angeles, 296 U. S. 10 , 296 U. S. 22 (1935) ("Rights and interests in the tideland, which is subject to the sovereignty of the State, are matters of local law"). In this case, the State Constitution explicitly states that no one possessing the "frontage" of any "navigable water in this State, shall be permitted to exclude the right of way to such water whenever it is required for any public purpose." Cal.Const., Art. X, § 4. The state Code expressly provides that, save for exceptions not relevant here, "[p]ublic access from the nearest public roadway to the shoreline and along the coast shall be provided in new development projects." Cal.Pub.Res.Code Ann. § 30212 (West 1986). The Coastal Commission Interpretative Guidelines make clear that fulfillment of the Commission's constitutional and statutory duty Page 483 U. S. 858 requires that approval of new coastline development be conditioned upon provisions ensuring lateral public access to the ocean. App. 362. At the time of appellants' permit request, the Commission had conditioned all 43 of the proposals for coastal new development in the Faria Family Beach Tract on the provision of deed restrictions ensuring lateral access along the shore. Id. at 48. Finally, the Faria family had leased the beach property since the early part of this century, and "the Faria family and their lessees [including the Nollans] had not interfered with public use of the beachfront within the Tract, so long as public use was limited to pass and repass lateral access along the shore." Ibid. California therefore has clearly established that the power of exclusion for which appellants seek compensation simply is not a strand in the bundle of appellants' property rights, and appellants have never acted as if it were. Given this state of affairs, appellants cannot claim that the deed restriction has deprived them of a reasonable expectation to exclude from their property persons desiring to gain access to the sea. Even were we somehow to concede a preexisting expectation of a right to exclude, appellants were clearly on notice when requesting a new development permit that a condition of approval would be a provision ensuring public lateral access to the shore. Thus, they surely could have had no expectation that they could obtain approval of their new development and exercise any right of exclusion afterward. In this respect, this case is quite similar to Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). In Monsanto, the respondent had submitted trade data to the Environmental Protection Agency (EPA) for the purpose of obtaining registration of certain pesticides. The company claimed that the agency's disclosure of certain data in accordance with the relevant regulatory statute constituted a taking. The Court conceded that the data in question constituted property under state law. It also found, however, that certain of the data had been submitted to the agency after Congress had Page 483 U. S. 859 made clear that only limited confidentiality would be given data submitted for registration purposes. The Court observed that the statute served to inform Monsanto of the various conditions under which data might be released, and stated: "If, despite the data-consideration and data-disclosure provisions in the statute, Monsanto chose to submit the requisite data in order to receive a registration, it can hardly argue that its reasonable investment-backed expectations are disturbed when EPA acts to use or disclose the data in a manner that was authorized by law at the time of the submission." Id. at 467 U. S. 1006 -1007. The Court rejected respondent's argument that the requirement that it relinquish some confidentiality imposed an unconstitutional condition on receipt of a Government benefit: "[A]s long as Monsanto is aware of the conditions under which the data are submitted, and the conditions are rationally related to a legitimate Government interest, a voluntary submission of data by an applicant in exchange for the economic advantages of a registration can hardly be called a taking." Id. at 467 U. S. 1007 . The similarity of this case to Monsanto is obvious. Appellants were aware that stringent regulation of development along the California coast had been in place at least since 1976. The specific deed restriction to which the Commission sought to subject them had been imposed since 1979 on all 43 shoreline new development projects in the Faria Family Beach Tract. App. 48. Such regulation to ensure public access to the ocean had been directly authorized by California citizens in 1972, and reflected their judgment that restrictions on coastal development represented " the advantage of living and doing business in a civilized community.'" Andrus v. Allard, supra, at 444 U. S. 67 , quoting Pennsylvania Coal Co. v. Mahon, 260 U.S. at 260 U. S. 422 (Brandeis, J., dissenting). The deed restriction was "authorized by law at the Page 483 U. S. 860 time of [appellants' permit] submission," Monsanto, supra, at 467 U. S. 1007 , and, as earlier analysis demonstrates, supra, at 483 U. S. 849 -853, was reasonably related to the objective of ensuring public access. Appellants thus were on notice that new developments would be approved only if provisions were made for lateral beach access. In requesting a new development permit from the Commission, they could have no reasonable expectation of, and had no entitlement to, approval of their permit application without any deed restriction ensuring public access to the ocean. As a result, analysis of appellants' investment-backed expectations reveals that "the force of this factor is so overwhelming . . . that it disposes of the taking question." Monsanto, supra, at 467 U. S. 1005 . [ Footnote 2/10 ] Standard Takings Clause analysis thus indicates that the Court employs its unduly restrictive standard of police power rationality to find a taking where neither the character of governmental action nor the nature of the private interest affected raise any takings concern. The result is that the Court invalidates regulation that represents a reasonable adjustment Page 483 U. S. 861 of the burdens and benefits of development along the California coast. III The foregoing analysis makes clear that the State has taken no property from appellants. Imposition of the permit condition in this case represents the State's reasonable exercise of its police power. The Coastal Commission has drawn on its expertise to preserve the balance between private development and public access by requiring that any project that intensifies development on the increasingly crowded California coast must be offset by gains in public access. Under the normal standard for review of the police power, this provision is eminently reasonable. Even accepting the Court's novel insistence on a precise quid pro quo of burdens and benefits, there is a reasonable relationship between the public benefit and the burden created by appellants' development. The movement of development closer to the ocean creates the prospect of encroachment on public tidelands, because of fluctuation in the mean high-tide line. The deed restriction ensures that disputes about the boundary between private and public property will not deter the public from exercising its right to have access to the sea. Furthermore, consideration of the Commission's action under traditional takings analysis underscores the absence of any viable takings claim. The deed restriction permits the public only to pass and repass along a narrow strip of beach, a few feet closer to a seawall at the periphery of appellants' property. Appellants almost surely have enjoyed an increase in the value of their property even with the restriction, because they have been allowed to build a significantly larger new home with garage on their lot. Finally, appellants can claim the disruption of no expectation interest, both because they have no right to exclude the public under state law and because, even if they did, they had full advance notice that new development along the coast is conditioned on provisions for continued public access to the ocean. Page 483 U. S. 862 Fortunately, the Court's decision regarding this application of the Commission's permit program will probably have little ultimate impact either on this parcel in particular or the Commission program in general. A preliminary study by a Senior Lands Agent in the State Attorney General's Office indicates that the portion of the beach at issue in this case likely belongs to the public. App. 85. [ Footnote 2/11 ] Since a full study had not been completed at the time of appellants' permit application, the deed restriction was requested "without regard to the possibility that the applicant is proposing development on public land." Id. at 45. Furthermore, analysis by the same Lands Agent also indicated that the public had obtained a prescriptive right to the use of Faria Beach from the seawall to the ocean. Id. at 86. [ Footnote 2/12 ] The Superior Court explicitly stated in its ruling against the Commission on the permit condition issue that "no part of this opinion is intended to foreclose the public's opportunity to adjudicate the possibility that public rights in [appellants'] beach have been acquired through prescriptive use." Id. at 420. With respect to the permit condition program in general, the Commission should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access produced by new development. Neither the Commission in its report nor the State in its briefs and at argument highlighted the particular threat to lateral access created by appellants' Page 483 U. S. 863 development project. In defending its action, the State emphasized the general point that overall access to the beach had been preserved, since the diminution of access created by the project had been offset by the gain in lateral access. This approach is understandable, given that the State relied on the reasonable assumption that its action was justified under the normal standard of review for determining legitimate exercises of a State's police power. In the future, alerted to the Court's apparently more demanding requirement, it need only make clear that a provision for public access directly responds to a particular type of burden on access created by a new development. Even if I did not believe that the record in this case satisfies this requirement, I would have to acknowledge that the record's documentation of the impact of coastal development indicates that the Commission should have little problem presenting its findings in a way that avoids a takings problem. Nonetheless, it is important to point out that the Court's insistence on a precise accounting system in this case is insensitive to the fact that increasing intensity of development in many areas calls for farsighted, comprehensive planning that takes into account both the interdependence of land uses and the cumulative impact of development. [ Footnote 2/13 ] As one scholar has noted: "Property does not exist in isolation. Particular parcels are tied to one another in complex ways, and property is Page 483 U. S. 864 more accurately described as being inextricably part of a network of relationships that is neither limited to, nor usefully defined by, the property boundaries with which the legal system is accustomed to dealing. Frequently, use of any given parcel of property is at the same time effectively a use of, or a demand upon, property beyond the border of the user." Sax, Takings, Private Property, and Public Rights, 81 Yale L.J. 149, 152 (1971) (footnote omitted). As Congress has declared: "The key to more effective protection and use of the land and water resources of the coastal zone [is for the states to] develo[p] land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance." 16 U.S.C. § 1451(i). This is clearly a call for a focus on the overall impact of development on coastal areas. State agencies therefore require considerable flexibility in responding to private desires for development in a way that guarantees the preservation of public access to the coast. They should be encouraged to regulate development in the context of the overall balance of competing uses of the shoreline. The Court today does precisely the opposite, overruling an eminently reasonable exercise of an expert state agency's judgment, substituting its own narrow view of how this balance should be struck. Its reasoning is hardly suited to the complex reality of natural resource protection in the 20th century. I can only hope that today's decision is an aberration, and that a broader vision ultimately prevails. [ Footnote 2/14 ] I dissent Page 483 U. S. 865 [ Footnote 2/1 ] See also Williamson v. Lee Optical of Oklahoma, Inc., 348 U. S. 483 , 348 U. S. 487 -488 (1955) ("[T]he law need not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it"); Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421 , 342 U. S. 423 (1952) ("Our recent decisions make it plain that we do not sit as a super-legislature to weigh the wisdom of legislation, nor to decide whether the policy which it expresses offends the public welfare. . . . [S]tate legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare"). Notwithstanding the suggestion otherwise, ante at 483 U. S. 834 -835, n. 3, our standard for reviewing the threshold question whether an exercise of the police power is legitimate is a uniform one. As we stated over 25 years ago in addressing a takings challenge to government regulation: "The term 'police power' connotes the time-tested conceptional limit of public encroachment upon private interests. Except for the substitution of the familiar standard of 'reasonableness,' this Court has generally refrained from announcing any specific criteria. The classic statement of the rule in Lawton v. Steele, 152 U. S. 133 , 152 U. S. 137 (1894), is still valid today: . . ." "[I]t must appear, first, that the interests of the public . . . require [government] interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals." "Even this rule is not applied with strict precision, for this Court has often said that 'debatable questions as to reasonableness are not for the courts, but for the legislature. . . .' E.g., Sproles v. Binford, 286 U. S. 374 , 286 U. S. 388 (1932)." Goldblatt v. Hempstead, 369 U. S. 590 , 369 U. S. 594 -595 (1962). See also id. at 369 U. S. 596 (upholding regulation from takings challenge with citation to, inter alia, United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 154 (1938), for proposition that exercise of police power will be upheld if "any state of facts, either known or which could be reasonably assumed, affords support for it"). In Connolly v. Pension Benefit Guaranty Corporation, 475 U. S. 211 (1986), for instance, we reviewed a takings challenge to statutory provisions that had been held to be a legitimate exercise of the police power under due process analysis in Pension Benefit Guaranty Corporation v. R. A. Gray & Co., 467 U. S. 717 (1984). Gray, in turn, had relied on Usery v. Turner Elkhorn Mining Co., 428 U. S. 1 (1976). In rejecting the takings argument that the provisions were not within Congress' regulatory power, the Court in Connolly stated: "Although both Gray and Turner Elkhorn were due process cases, it would be surprising indeed to discover now that, in both cases, Congress unconstitutionally had taken the assets of the employers there involved." 475 U.S. at 475 U. S. 223 . Our phraseology may differ slightly from case to case -- e.g., regulation must "substantially advance," Agins v. Tiburon, 447 U. S. 255 , 447 U. S. 260 (1980), or be "reasonably necessary to," Penn Central Transportation Co. v. New York City, 438 U. S. 104 , 438 U. S. 127 (1978), the government's end. These minor differences cannot, however, obscure the fact that the inquiry in each case is the same. Of course, government action may be a valid exercise of the police power and still violate specific provisions of the Constitution. JUSTICE SCALIA is certainly correct in observing that challenges founded upon these provisions are reviewed under different standards. Ante at 483 U. S. 834 -835, n. 3. Our consideration of factors such as those identified in Penn Central, supra, for instance, provides an analytical framework for protecting the values underlying the Takings Clause, and other distinctive approaches are utilized to give effect to other constitutional provisions. This is far different, however, from the use of different standards of review to address the threshold issue of the rationality of government action. [ Footnote 2/2 ] As this Court declared in United States v. Riverside Bayview Homes Inc., 474 U. S. 121 , 474 U. S. 127 (1985): "A requirement that a person obtain a permit before engaging in a certain use of his or her property does not itself 'take' the property in any sense: after all, the very existence of a permit system implies that permission may be granted, leaving the landowner free to use the property as desired. Moreover, even if the permit is denied, there may be other viable uses available to the owner. Only when a permit is denied and the effect of the denial is to prevent 'economically viable' use of the land in question can it be said that a taking has occurred." We also stated in Kaiser Aetna v. United States, 444 U. S. 164 , 444 U. S. 179 (1979), with respect to dredging to create a private marina: "We have not the slightest doubt that the Government could have refused to allow such dredging on the ground that it would have impaired navigation in the bay, or could have conditioned its approval of the dredging on petitioners' agreement to comply with various measures that it deemed appropriate for the promotion of navigation." [ Footnote 2/3 ] The list of cases cited by the Court as support for its approach, ante at 483 U. S. 839 -840, includes no instance in which the State sought to vindicate preexisting rights of access to navigable water, and consists principally of cases involving a requirement of the dedication of land as a condition of subdivision approval. Dedication, of course, requires the surrender of ownership of property, rather than, as in this case, a mere restriction on its use. The only case pertaining to beach access among those cited by the Court is MacKall v. White, 85 App.Div.2d 696, 445 N.Y.S.2d 486 (1981). In that case, the court found that a subdivision application could not be conditioned upon a declaration that the landowner would not hinder the public from using a trail that had been used to gain access to a bay. The trail had been used despite posted warnings prohibiting passage, and despite the owner's resistance to such use. In that case, unlike this one, neither the State Constitution, state statute, administrative practice, nor the conduct of the landowner operated to create any reasonable expectation of a right of public access. [ Footnote 2/4 ] This may be because the State, in its briefs and at argument, contended merely that the permit condition would serve to preserve overall public access by offsetting the diminution in access resulting from the project, such as, inter alia, blocking the public's view of the beach. The State's position no doubt reflected the reasonable assumption that the Court would evaluate the rationality of its exercise of the police power in accordance with the traditional standard of review, and that the Court would not attempt to substitute its judgment about the best way to preserve overall public access to the ocean at the Faria Family Beach Tract. [ Footnote 2/5 ] As the Commission's Public Access (Shoreline) Interpretative Guidelines state: "[T]he provision of lateral access recognizes the potential for conflicts between public and private use and creates a type of access that allows the public to move freely along all the tidelands in an area that can be clearly delineated and distinguished from private use areas. . . . Thus the 'need' determination set forth in P[ublic] R[esources] C[ode] 30212(a)(2) should be measured in terms of providing access that buffers public access to the tidelands from the burdens generated on access by private development." App. 358-359. [ Footnote 2/6 ] The Court suggests that the risk of boundary disputes "is inherent in the right to exclude others from one's property," and thus cannot serve as a purpose to support the permit condition. Ante at 483 U. S. 839 , n. 6. The Commission sought the deed restriction, however, not to address a generalized problem inherent in any system of property, but to address the particular problem created by the shifting high-tide line along Faria Beach. Unlike the typical area in which a boundary is delineated reasonably clearly, the very problem on Faria Beach is that the boundary is not constant. The area open to public use therefore is frequently in question, and, as the discussion supra demonstrates, the Commission clearly tailored its permit condition precisely to address this specific problem. The Court acknowledges that the Nollans' seawall could provide "a clear demarcation of the public easement," and thus avoid merely shifting "the location of the boundary dispute further on to the private owner's land." Ibid. It nonetheless faults the Commission because every property subject to regulation may not have this feature. This case, however, is a challenge to the permit condition as applied to the Nollans' property, so the presence or absence of seawalls on other property is irrelevant. [ Footnote 2/7 ] See, e.g., Bellefontaine Neighbors v. J. J. Kelley Realty & Bldg. Co., 460 S.W.2d 298 (Mo.Ct.App.1970); Allen v. Stockwell, 210 Mich. 488, 178 N.W. 27 (1920). See generally Shultz & Kelley, Subdivision Improvement Requirements and Guarantees: A Primer, 28 Wash.U.J.Urban and Contemp.L. 3 (1985). [ Footnote 2/8 ] The Commission acted in accordance with its Guidelines both in determining the width of the area of passage and in prohibiting any recreational use of the property. The Guidelines state that it may be necessary on occasion to provide for less than the normal 25-foot-wide accessway along the dry sand when this may be necessary to "protect the privacy rights of adjacent property owners." App. 363. They also provide this advice in selecting the type of public use that may be permitted: " Pass and Repass. Where topographic constraints of the site make use of the beach dangerous, where habitat values of the shoreline would be adversely impacted by public use of the shoreline or where the accessway may encroach closer than 20 feet to a residential structure, the accessway may be limited to the right of the public to pass and repass along the access area. For the purposes of these guidelines, pass and repass is defined as the right to walk and run along the shoreline. This would provide for public access along the shoreline but would not allow for any additional use of the accessway. Because this severely limits the public's ability to enjoy the adjacent state owned tidelands by restricting the potential use of the access areas, this form of access dedication should be used only where necessary to protect the habitat values of the site, where topographic constraints warrant the restriction, or where it is necessary to protect the privacy of the landowner." Id. at 370. [ Footnote 2/9 ] At the time of the Nollans' permit application, 43 of the permit requests for development along the Faria Beach had been conditioned on deed restrictions ensuring lateral public access along the shoreline. App. 48. [ Footnote 2/10 ] The Court suggests that Ruckelshaus v. Monsanto is distinguishable, because government regulation of property in that case was a condition on receipt of a "government benefit," while here regulation takes the form of a restriction on "the right to build on one's own property," which "cannot remotely be described as a government benefit.'" Ante at 483 U. S. 834 , n. 2. This proffered distinction is not persuasive. Both Monsanto and the Nollans hold property whose use is subject to regulation; Monsanto may not sell its property without obtaining government approval, and the Nollans may not build new development on their property without government approval. Obtaining such approval is as much a "government benefit" for the Nollans as it is for Monsanto. If the Court is somehow suggesting that "the right to build on one's own property" has some privileged natural rights status, the argument is a curious one. By any traditional labor theory of value justification for property rights, for instance, see, e.g., J. Locke, The Second Treatise of Civil Government 15-26 (E. Gough, ed.1947), Monsanto would have a superior claim, for the chemical formulae which constitute its property only came into being by virtue of Monsanto's efforts. [ Footnote 2/11 ] The Senior Lands Agent's report to the Commission states that, "based on my observations, presently, most, if not all of Faria Beach waterward of the existing seawalls [lies] below the Mean High Tide Level, and would fall in public domain or sovereign category of ownership." App. 85 (emphasis added). [ Footnote 2/12 ] The Senior Lands Agent's report stated: "Based on my past experience and my investigation to date of this property, it is my opinion that the area seaward of the revetment at 3822 Pacific Coast Highway, Faria Beach, as well as all the area seaward of the revetments built to protect the Faria Beach community, if not public owned, has been impliedly dedicated to the public for passive recreational use." Id. at 86. [ Footnote 2/13 ] As the California Court of Appeal noted in 1985: "Since 1972, permission has been granted to construct more than 42,000 building units within the land jurisdiction of the Coastal Commission. In addition, pressure for development along the coast is expected to increase, since approximately 85% of California's population lives within 30 miles of the coast." Grupe v. California Coastal Comm'n, 166 Cal. App. 3d 148 , 167, n. 12, 212 Cal. Rptr. 578 , 589, n. 12. See also Coastal Zone Management Act, 16 U.S.C. § 1451(c) (increasing demands on coastal zones "have resulted in the loss of living marine resources, wildlife, nutrient-rich areas, permanent and adverse changes to ecological systems, decreasing open space for public use, and shoreline erosion"). [ Footnote 2/14 ] I believe that States should be afforded considerable latitude in regulating private development, without fear that their regulatory efforts will often be found to constitute a taking. " if . . . regulation denies the private property owner the use and enjoyment of his land and is found to effect a taking,'" however, I believe that compensation is the appropriate remedy for this constitutional violation. San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 , 450 U. S. 656 (1981) (BRENNAN, J., dissenting) (emphasis added). I therefore see my dissent here as completely consistent with my position in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U. S. 304 (1987). JUSTICE BLACKMUN, dissenting. I do not understand the Court's opinion in this case to implicate in any way the public trust doctrine. The Court certainly had no reason to address the issue, for the Court of Appeal of California did not rest its decision on Art. X, § 4, of the California Constitution. Nor did the parties base their arguments before this Court on the doctrine. I disagree with the Court's rigid interpretation of the necessary correlation between a burden created by development and a condition imposed pursuant to the State's police power to mitigate that burden. The land use problems this country faces require creative solutions. These are not advanced by an "eye for an eye" mentality. The close nexus between benefits and burdens that the Court now imposes on permit conditions creates an anomaly in the ordinary requirement that a State's exercise of its police power need be no more than rationally based. See, e.g., Minnesota v. Clover Leaf Creamery Co., 449 U. S. 456 , 449 U. S. 466 (1981). In my view, the easement exacted from appellants and the problems their development created are adequately related to the governmental interest in providing public access to the beach. Coastal development, by its very, nature makes public access to the shore generally more difficult. Appellants' structure is part of that general development and, in particular, it diminishes the public's visual access to the ocean and decreases the public's sense that it may have physical access to the beach. These losses in access can be counteracted, at least in part, by the condition on appellants' construction permitting public passage that ensures access along the beach. Traditional takings analysis compels the conclusion that there is no taking here. The governmental action is a valid exercise of the police power, and, so far as the record reveals, Page 483 U. S. 866 has a nonexistent economic effect on the value of appellants' property. No investment-backed expectations were diminished. It is significant that the Nollans had notice of the easement before they purchased the property, and that public use of the beach had been permitted for decades. For these reasons, I respectfully dissent. JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. The debate between the Court and JUSTICE BRENNAN illustrates an extremely important point concerning government regulation of the use of privately owned real estate. Intelligent, well-informed public officials may in good faith disagree about the validity of specific types of land use regulation. Even the wisest lawyers would have to acknowledge great uncertainty about the scope of this Court's takings jurisprudence. Yet, because of the Court's remarkable ruling in First English Evangelical Lutheran Church of Glendale v. Los Angeles County, 482 U. S. 304 (1987), local governments and officials must pay the price for the necessarily vague standards in this area of the law. In his dissent in San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 (1981), JUSTICE BRENNAN proposed a brand new constitutional rule. * He argued that a mistake such as the one that a majority of the Court believes that the California Coastal Commission made in this case should automatically give rise to pecuniary liability for a "temporary taking." Id. at 450 U. S. 653 -661. Notwithstanding the unprecedented chilling effect that such a rule will obviously have on public officials charged with the responsibility for drafting and implementing regulations designed to protect the environment Page 483 U. S. 867 and the public welfare, six Members of the Court recently endorsed JUSTICE BRENNAN's novel proposal. See First English Evangelical Lutheran Church, supra. I write today to identify the severe tension between that dramatic development in the law and the view expressed by JUSTICE BRENNAN's dissent in this case that the public interest is served by encouraging state agencies to exercise considerable flexibility in responding to private desires for development in a way that threatens the preservation of public resources. See ante at 483 U. S. 846 -848. I like the hat that JUSTICE BRENNAN has donned today better than the one he wore in San Diego, and I am persuaded that he has the better of the legal arguments here. Even if his position prevailed in this case, however, it would be of little solace to land use planners who would still be left guessing about how the Court will react to the next case, and the one after that. As this case demonstrates, the rule of liability created by the Court in First English is a shortsighted one. Like JUSTICE BRENNAN, I hope that "a broader vision ultimately prevails." Ante at 483 U. S. 864 . I respectfully dissent. * "The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a 'taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the 'taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." 450 U.S. at 450 U. S. 658 .

The California Coastal Commission granted a permit to the Nollans to rebuild their house on the condition that they allow a public easement on their beach. The Court ruled that while an outright taking of an uncompensated easement would violate the Takings Clause, conditioning permits on concessions can be a lawful land use regulation if it furthers governmental purposes. However, in this case, the Commission's imposition of the access easement condition was not a valid land use regulation as it did not serve public purposes related to the permit requirement. The Court reversed the State Court of Appeal's decision, holding that the Commission's justification for the access requirement was simply an expression of the belief that a continuous strip of publicly accessible beach served the public interest, which could not compel coastal residents to contribute to.

Property Rights & Land Use

Dolan v. City of Tigard

https://supreme.justia.com/cases/federal/us/512/374/

OCTOBER TERM, 1993 Syllabus DOLAN v. CITY OF TIGARD CERTIORARI TO THE SUPREME COURT OF OREGON No. 93-518. Argued March 23, 1994-Decided June 24,1994 The City Planning Commission of respondent city conditioned approval of petitioner Dolan's application to expand her store and pave her parking lot upon her compliance with dedication ofland (1) for a public greenway along Fanno Creek to minimize flooding that would be exacerbated by the increases in impervious surfaces associated with her development and (2) for a pedestrian/bicycle pathway intended to relieve traffic congestion in the city's Central Business District. She appealed the commission's denial of her request for variances from these standards to the Land Use Board of Appeals (L UBA), alleging that the land dedication requirements were not related to the proposed development and therefore constituted an uncompensated taking of her property under the Fifth Amendment. LUBA found a reasonable relationship between (1) the development and the requirement to dedicate land for a greenway, since the larger building and paved lot would increase the impervious surfaces and thus the runoff into the creek, and (2) alleviating the impact of increased traffic from the development and facilitating the provision of a pathway as an alternative means of transportation. Both the Oregon Court of Appeals and the Oregon Supreme Court affirmed. Held: The city's dedication requirements constitute an uncompensated taking of property. Pp. 383-396. (a) Under the well-settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government where the property sought has little or no relationship to the benefit. In evaluating Dolan's claim, it must be determined whether an "essential nexus" exists between a legitimate state interest and the permit condition. Nollan v. California Coastal Comm'n, 483 U. S. 825 , 837. If one does, then it must be decided whether the degree of the exactions demanded by the permit conditions bears the required relationship to the projected impact of the proposed development. Id., at 834. Pp. 383-386. (b) Preventing flooding along Fanno Creek and reducing traffic congestion in the district are legitimate public purposes; and a nexus exists between the first purpose and limiting development within the creek's 375 floodplain and between the second purpose and providing for alternative means of transportation. Pp. 386-388. (c) In deciding the second question-whether the city's findings are constitutionally sufficient to justify the conditions imposed on Dolan's permit-the necessary connection required by the Fifth Amendment is "rough proportionality." No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the proposed development's impact. This is essentially the "reasonable relationship" test adopted by the majority of the state courts. Pp.388-391. (d) The findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and Dolan's proposed building. The Community Development Code already required that Dolan leave 15% of her property as open space, and the undeveloped floodplain would have nearly satisfied that requirement. However, the city has never said why a public, as opposed to a private, greenway is required in the interest of flood control. The difference to Dolan is the loss of her ability to exclude others from her property, yet the city has not attempted to make any individualized determination to support this part of its request. The city has also not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by Dolan's development reasonably relates to the city's requirement for a dedication of the pathway easement. The city must quantify its finding beyond a conclusory statement that the dedication could offset some of the traffic demand generated by the development. Pp. 392-396. 317 Ore. 110,854 P. 2d 437, reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and GINSBURG, JJ., joined, post, p. 396. SOUTER, J., filed a dissenting opinion, post, p. 411. David B. Smith argued the cause and filed briefs for petitioner. Timothy v: Ramis argued the cause for respondent. With him on the brief were James M. Coleman and Richard J. Lazarus. 376 Counsel Deputy Solicitor General Kneedler argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Days, Acting Assistant Attorney General Schiffer, James E. Brookshire, and Martin W Matzen. * *Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by James D. Holzhauer, Timothy S. Bishop, John J. Rademacher, and Richard L. Krause; for Defenders of Property Rights et al. by Nancie G. Marzulla; for the Georgia Public Policy Foundation et al. by G. Stephen Parker; for the Institute for Justice by William H. Mellor III, Clint Bolick, and Richard A. Epstein; for the National Association of Home Builders et al. by William H. Ethier, Mary DiCrescenzo, and Stephanie McEvily; for the National Association of Realtors et al. by Richard M. Stephens; for the Pacific Legal Foundation by Ronald A. Zumbrun, Robin L. Rivett, James S. Burling, Deborah J. La Fetra, and John M. Groen; for the Washington Legal Foundation et al. by Daniel J. Popeo and Paul D. Kamenar; for Jon A. Chandler, pro se; and for Terence Wellner et al. by Daniel G. Marsh. Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by Deborah T. Poritz, Attorney General of New Jersey, Jack M. Sabatino and Mary Carol Jacobson, Assistant Attorneys General, and Rachel J. Horowitz, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Grant Woods of Arizona, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Elizabeth Barrett-Anderson of Guam, Robert A. Marks of Hawaii, Michael E. Carpenter of Maine, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Tom Udall of New Mexico, G. Oliver Koppell of New York, Lee Fisher of Ohio, Jeffrey B. Pine of Rhode Island, Charles W Burson of Tennessee, Rosalie S. Ballentine of the Virgin Islands, and Joseph B. Meyer of Wyoming; for the State of Oregon by Theodore R. Kulongoski, Attorney General, Thomas A. Balmer, Deputy Attorney General, Virginia L. Linder, Solicitor General, and Michael D. Reynolds and John T. Bagg, Assistant Attorneys General; for Broward County by John J. Copelan, Jr., and Anthony C. Musto; for the City of New York by Paul A. Crotty, Leonard J. Koerner, and Linda H. Young; for the American Federation of Labor and Congress of Industrial Organizations by Robert M. Weinberg, Walter Kamiat, and Laurence Gold; for the Association of State Floodplan Managers by Michael J. Bean; for the Rails-to- Trails Conservancy et al. by Andrea C. Ferster, Daniel L. Rabinowitz, and Glenn P. Sugameli; for the National Association of Counties et al. by Richard Ruda, Lee Fennell, and Barbara E. Etkind; for the National Audubon 377 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner challenges the decision of the Oregon Supreme Court which held that the city of Tigard could condition the approval of her building permit on the dedication of a portion of her property for flood control and traffic improvements. 317 Ore. 110, 854 P. 2d 437 (1993). We granted certiorari to resolve a question left open by our decision in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), of what is the required degree of connection between the exactions imposed by the city and the projected impacts of the proposed development. I The State of Oregon enacted a comprehensive land use management program in 1973. Ore. Rev. Stat. §§ 197.005197.860 (1991). The program required all Oregon cities and counties to adopt new comprehensive land use plans that were consistent with the statewide planning goals. §§ 197.175(1), 197.250. The plans are implemented by land use regulations which are part of an integrated hierarchy of legally binding goals, plans, and regulations. §§ 197.175, 197.175(2)(b). Pursuant to the State's requirements, the city of Tigard, a community of some 30,000 residents on the southwest edge of Portland, developed a comprehensive plan and codified it in its Community Development Code (CDC). The CDC requires property owners in the area zoned Central Business District to comply with a 15% open space and landscaping requirement, which limits total site coverage, including all structures and paved parking, to 85% of the parcel. CDC, ch. 18.66, App. to Pet. for Cert. G-16 to G-17. After the completion of a transportation study that identified Society by John D. Echeverria; and for 1000 Friends of Oregon et al. by H. Bissell Carey III, Dwight H. Merriam, and Edward J. Sullivan. Briefs of amici curiae were filed for the Mountain States Legal Foundation et al. by William Perry Pendley; for the Northwest Legal Foundation by Jeanette R. Burrage; and for Thomas H. Nelson, pro se, et al. 378 congestion in the Central Business District as a particular problem, the city adopted a plan for a pedestrian/bicycle pathway intended to encourage alternatives to automobile transportation for short trips. The CDC requires that new development facilitate this plan by dedicating land for pedestrian pathways where provided for in the pedestrian/bicycle pathway plan.1 The city also adopted a Master Drainage Plan (Drainage Plan). The Drainage Plan noted that flooding occurred in several areas along Fanno Creek, including areas near petitioner's property. Record, Doc. No. F, ch. 2, pp. 2-5 to 2-8; 4-2 to 4-6; Figure 4-1. The Drainage Plan also established that the increase in impervious surfaces associated with continued urbanization would exacerbate these flooding problems. To combat these risks, the Drainage Plan suggested a series of improvements to the Fanno Creek Basin, including channel excavation in the area next to petitioner's property. App. to Pet. for Cert. G-13, G-38. Other recommendations included ensuring that the floodplain remains free of structures and that it be preserved as greenways to minimize flood damage to structures. Record, Doc. No. F, ch. 5, pp. 5-16 to 5-21. The Drainage Plan concluded that the cost of these improvements should be shared based on both direct and indirect benefits, with property owners along the waterways paying more due to the direct benefit that they would receive. Id., ch. 8, p. 8-11. CDC Chapters 18.84 and 18.86 1 CDC § 18.86.040.A.1.b provides: "The development shall facilitate pedestrian/bicycle circulation if the site is located on a street with designated bikepaths or adjacent to a designated greenway/open space/park. Specific items to be addressed [include]: (i) Provision of efficient, convenient and continuous pedestrian and bicycle transit circulation systems, linking developments by requiring dedication and construction of pedestrian and bikepaths identified in the comprehensive plan. If direct connections cannot be made, require that funds in the amount of the construction cost be deposited into an account for the purpose of constructing paths." App. to Brief for Respondent B-33 to B-34. 379 and CDC § 18.164.100 and the Tigard Park Plan carry out these recommendations. Petitioner Florence Dolan owns a plumbing and electric supply store located on Main Street in the Central Business District of the city. The store covers approximately 9,700 square feet on the eastern side of a 1.67-acre parcel, which includes a gravel parking lot. Fanno Creek flows through the southwestern corner of the lot and along its western boundary. The year-round flow of the creek renders the area within the creek's 100-year floodplain virtually unusable for commercial development. The city's comprehensive plan includes the Fanno Creek floodplain as part of the city's greenway system. Petitioner applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet and paving a 39-space parking lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction progressed on the new building. In the second phase of the project, petitioner proposed to build an additional structure on the northeast side of the site for complementary businesses and to provide more parking. The proposed expansion and intensified use are consistent with the city's zoning scheme in the Central Business District. CDC § 18.66.030, App. to Brief for Petitioner C-1 to C-3. The City Planning Commission (Commission) granted petitioner's permit application subject to conditions imposed by the city's CDC. The CDC establishes the following standard for site development review approval: "Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the 380 floodplain in accordance with the adopted pedestrian! bicycle plan." CDC § 18.120.180.A.8, App. to Brief for Respondent B-45 to B-46. Thus, the Commission required that petitioner dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian!bicycle pathway.2 The dedication required by that condition encompasses approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city's zoning scheme. App. to Pet. for Cert. G-28 to G-29. The city would bear the cost of maintaining a landscaped buffer between the dedicated area and the new store. Id., at G-44 to G-45. Petitioner requested variances from the CDC standards. Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause "an undue or unnecessary hardship" unless the variance is granted. CDC § 18.134.010, App. to Brief for Respondent B-47.3 Rather than posing alterna- 2 The city's decision includes the following relevant conditions: "1. The applicant shall dedicate to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] (i. e., all portions of the property below elevation 150.0) and all property 15 feet above (to the east of) the 150.0 foot floodplain boundary. The building shall be designed so as not to intrude into the greenway area." App. to Pet. for Cert. G-43. 3 CDC § 18.134.050 contains the following criteria whereby the decisionmaking authority can approve, approve with modifications, or deny a variance request: "(1) The proposed variance will not be materially detrimental to the purposes of this title, be in conflict with the policies of the comprehensive 381 tive mitigating measures to offset the expected impacts of her proposed development, as allowed under the CDC, petitioner simply argued that her proposed development would not conflict with the policies of the comprehensive plan. Id., at E-4. The Commission denied the request. The Commission made a series of findings concerning the relationship between the dedicated conditions and the projected impacts of petitioner's project. First, the Commission noted that "[i]t is reasonable to assume that customers and employees of the future uses of this site could utilize a pedestrian/bicycle pathway adjacent to this development for their transportation and recreational needs." City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-24. The Commission noted that the site plan has provided for bicycle parking in a rack in front of the proposed building and "[i]t is reasonable to expect that some of the users of the bicycle parking provided for by the site plan will use the pathway adjacent to Fanno Creek if it is constructed." Ibid. In addition, the Commission found that creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation "could plan, to any other applicable policies and standards, and to other properties in the same zoning district or vicinity; "(2) There are special circumstances that exist which are peculiar to the lot size or shape, topography or other circumstances over which the applicant has no control, and which are not applicable to other properties in the same zoning district; "(3) The use proposed will be the same as permitted under this title and City standards will be maintained to the greatest extent possible, while permitting some economic use of the land; "(4) Existing physical and natural systems, such as but not limited to traffic, drainage, dramatic land forms, or parks will not be adversely affected any more than would occur if the development were located as specified in the title; and "(5) The hardship is not self-imposed and the variance requested is the minimum variance which would alleviate the hardship." App. to Brieffor Respondent B-49 to B-50. 382 offset some of the traffic demand on [nearby] streets and lessen the increase in traffic congestion." Ibid. The Commission went on to note that the required floodplain dedication would be reasonably related to petitioner's request to intensify the use of the site given the increase in the impervious surface. The Commission stated that the "anticipated increased storm water flow from the subject property to an already strained creek and drainage basin can only add to the public need to manage the stream channel and floodplain for drainage purposes." Id., at G-37. Based on this anticipated increased storm water flow, the Commission concluded that "the requirement of dedication of the floodplain area on the site is related to the applicant's plan to intensify development on the site." Ibid. The Tigard City Council approved the Commission's final order, subject to one minor modification; the city council reassigned the responsibility for surveying and marking the floodplain area from petitioner to the city's engineering department. Id., at G-7. Petitioner appealed to the Land D se Board of Appeals (L DBA) on the ground that the city's dedication requirements were not related to the proposed development, and, therefore, those requirements constituted an uncompensated taking of her property under the Fifth Amendment. In evaluating the federal taking claim, L DBA assumed that the city's findings about the impacts of the proposed development were supported by substantial evidence. Dolan v. Ti gard, LDBA 91-161 (Jan. 7, 1992), reprinted at App. to Pet. for Cert. D-15, n. 9. Given the undisputed fact that the proposed larger building and paved parking area would increase the amount of impervious surfaces and the runoff into Fanno Creek, L DBA concluded that "there is a 'reasonable relationship' between the proposed development and the requirement to dedicate land along Fanno Creek for a greenway." Id., at D-16. With respect to the pedestrian/bicycle pathway, L DBA noted the Commission's finding that a signifi- 383 cantly larger retail sales building and parking lot would attract larger numbers of customers and employees and their vehicles. It again found a "reasonable relationship" between alleviating the impacts of increased traffic from the development and facilitating the provision of a pedestrian! bicycle pathway as an alternative means of transportation. Ibid. The Oregon Court of Appeals affirmed, rejecting petitioner's contention that in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), we had abandoned the "reasonable relationship" test in favor of a stricter "essential nexus" test. 113 Ore. App. 162, 832 P. 2d 853 (1992). The Oregon Supreme Court affirmed. 317 Ore. 110, 854 P. 2d 437 (1993). The court also disagreed with petitioner's contention that the Nollan Court abandoned the "reasonably related" test. 317 Ore., at 118, 854 P. 2d, at 442. Instead, the court read Nollan to mean that an "exaction is reasonably related to an impact if the exaction serves the same purpose that a denial of the permit would serve." 317 Ore., at 120, 854 P. 2d, at 443. The court decided that both the pedestrian!bicycle pathway condition and the storm drainage dedication had an essential nexus to the development of the proposed site. Id., at 121, 854 P. 2d, at 443. Therefore, the court found the conditions to be reasonably related to the impact of the expansion of petitioner's business. Ibid. 4 We granted certiorari, 510 U. S. 989 (1993), because of an alleged conflict between the Oregon Supreme Court's decision and our decision in Nollan, supra. II The Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chi- 4 The Supreme Court of Oregon did not address the consequences of petitioner's failure to provide alternative mitigation measures in her variance application and we take the case as it comes to us. Accordingly, we do not pass on the constitutionality of the city's variance provisions. 384 cago, 166 U. S. 226 , 239 (1897), provides: "[N]or shall private property be taken for public use, without just compensation." 5 One of the principal purposes of the Takings Clause is "to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40 , 49 (1960). Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Nollan, supra, at 831. Such public access would deprive petitioner of the right to exclude others, "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna v. United States, 444 U. S. 164 , 176 (1979). On the other side of the ledger, the authority of state and local governments to engage in land use planning has been sustained against constitutional challenge as long ago as our decision in Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). "Government hardly could go on if to some extent values incident to property could not be diminished 5 JUSTICE STEVENS' dissent suggests that this case is actually grounded in "substantive" due process, rather than in the view that the Takings Clause of the Fifth Amendment was made applicable to the States by the Fourteenth Amendment. But there is no doubt that later cases have held that the Fourteenth Amendment does make the Takings Clause of the Fifth Amendment applicable to the States, see Penn Central Transp. Co. v. New York City, 438 U. S. 104 , 122 (1978); Nollan v. California Coastal Comm'n, 483 U. S. 825 , 827 (1987). Nor is there any doubt that these cases have relied upon Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), to reach that result. See, e. g., Penn Central, supra, at 122 ("The issu[e] presented ... [is] whether the restrictions imposed by New York City's law upon appellants' exploitation of the Terminal site effect a 'taking' of appellants' property for a public use within the meaning of the Fifth Amendment, which of course is made applicable to the States through the Fourteenth Amendment, see Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 239 (1897)"). 385 without paying for every such change in the general law." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 413 (1922). A land use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land." Agins v. City of Tiburon, 447 U. S. 255 , 260 (1980).6 The sort of land use regulations discussed in the cases just cited, however, differ in two relevant particulars from the present case. First, they involved essentially legislative determinations classifying entire areas of the city, whereas here the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. Second, the conditions imposed were not simply a limitation on the use petitioner might make of her own parcel, but a requirement that she deed portions of the property to the city. In Nollan, supra, we held that governmental authority to exact such a condition was circumscribed by the Fifth and Fourteenth Amendments. Under the well-settled doctrine of "unconstitutional conditions," the government may not require a person to give up a constitutional righthere the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property. See Perry v. Sindermann, 408 U. S. 593 (1972); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 , 568 (1968). Petitioner contends that the city has forced her to choose between the building permit and her right under the Fifth 6 There can be no argument that the permit conditions would deprive petitioner of "economically beneficial us[e]" of her property as she currently operates a retail store on the lot. Petitioner assuredly is able to derive some economic use from her property. See, e. g., Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1019 (1992); Kaiser Aetna v. United States, 444 U. S. 164 , 175 (1979); Penn Central Transp. Co. v. New York City, supra, at 124. 386 Amendment to just compensation for the public easements. Petitioner does not quarrel with the city's authority to exact some forms of dedication as a condition for the grant of a building permit, but challenges the showing made by the city to justify these exactions. She argues that the city has identified "no special benefits" conferred on her, and has not identified any "special quantifiable burdens" created by her new store that would justify the particular dedications required from her which are not required from the public at large. III In evaluating petitioner's claim, we must first determine whether the "essential nexus" exists between the "legitimate state interest" and the permit condition exacted by the city. Nollan, 483 U. S., at 837. If we find that a nexus exists, we must then decide the required degree of connection between the exactions and the projected impact of the proposed development. We were not required to reach this question in Nollan, because we concluded that the connection did not meet even the loosest standard. Id., at 838. Here, however, we must decide this question. A We addressed the essential nexus question in Nollan. The California Coastal Commission demanded a lateral public easement across the N ollans' beachfront lot in exchange for a permit to demolish an existing bungalow and replace it with a three-bedroom house. Id., at 828. The public easement was designed to connect two public beaches that were separated by the Nollans' property. The Coastal Commission had asserted that the public easement condition was imposed to promote the legitimate state interest of diminishing the "blockage of the view of the ocean" caused by construction of the larger house. We agreed that the Coastal Commission's concern with protecting visual access to the ocean constituted a legitimate 387 public interest. Id., at 835. We also agreed that the permit condition would have been constitutional "even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere." Id., at 836. We resolved, however, that the Coastal Commission's regulatory authority was set completely adrift from its constitutional moorings when it claimed that a nexus existed between visual access to the ocean and a permit condition requiring lateral public access along the Nollans' beachfront lot. Id., at 837. How enhancing the public's ability to "traverse to and along the shorefront" served the same governmental purpose of "visual access to the ocean" from the roadway was beyond our ability to countenance. The absence of a nexus left the Coastal Commission in the position of simply trying to obtain an easement through gimmickry, which converted a valid regulation of land use into "'an out-and-out plan of extortion.''' Ibid., quoting J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 584, 432 A. 2d 12, 14-15 (1981). No such gimmicks are associated with the permit conditions imposed by the city in this case. Undoubtedly, the prevention of flooding along Fanno Creek and the reduction of traffic congestion in the Central Business District qualify as the type of legitimate public purposes we have upheld. Agins, 447 U. S., at 260-262. It seems equally obvious that a nexus exists between preventing flooding along Fanno Creek and limiting development within the creek's 100-year floodplain. Petitioner proposes to double the size of her retail store and to pave her now-gravel parking lot, thereby expanding the impervious surface on the property and increasing the amount of storm water runoff into Fanno Creek. The same may be said for the city's attempt to reduce traffic congestion by providing for alternative means oftransportation. In theory, a pedestrian/bicycle pathway provides a useful alternative means of transportation for workers and shoppers: "Pedestrians and bicyclists occupying dedicated 388 spaces for walking and/or bicycling ... remove potential vehicles from streets, resulting in an overall improvement in total transportation system flow." A. Nelson, Public Provision of Pedestrian and Bicycle Access Ways: Public Policy Rationale and the Nature of Private Benefits 11, Center for Planning Development, Georgia Institute of Technology, Working Paper Series (Jan. 1994). See also Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240, 105 Stat. 1914 (recognizing pedestrian and bicycle facilities as necessary components of any strategy to reduce traffic congestion). B The second part of our analysis requires us to determine whether the degree of the exactions demanded by the city's permit conditions bears the required relationship to the projected impact of petitioner's proposed development. Nollan, supra, at 834, quoting Penn Central Transp. Co. v. New York City, 438 U. S. 104 , 127 (1978) (" '[A] use restriction may constitute a "taking" if not reasonably necessary to the effectuation of a substantial government purpose' "). Here the Oregon Supreme Court deferred to what it termed the "city's unchallenged factual findings" supporting the dedication conditions and found them to be reasonably related to the impact of the expansion of petitioner's business. 317 Ore., at 120-121,854 P. 2d, at 443. The city required that petitioner dedicate "to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] ... and all property 15 feet above [the floodplain] boundary." Id., at 113, n. 3, 854 P. 2d, at 439, n. 3. In addition, the city demanded that the retail store be designed so as not to intrude into the greenway area. The city relies on the Commission's rather tentative findings that increased storm water flow from petitioner's property "can only add to the public need to manage the [floodplain] for drainage purposes" to support its conclusion that the "requirement of dedication of the floodplain area on 389 the site is related to the applicant's plan to intensify development on the site." City of Tigard Planning Commission Final Order No. 91-09 PC, App. to Pet. for Cert. G-37. The city made the following specific findings relevant to the pedestrian/bicycle pathway: "In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion." Id., at G-24. The question for us is whether these findings are constitutionally sufficient to justify the conditions imposed by the city on petitioner's building permit. Since state courts have been dealing with this question a good deal longer than we have, we turn to representative decisions made by them. In some States, very generalized statements as to the necessary connection between the required dedication and the proposed development seem to suffice. See, e. g., Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P. 2d 182 (1964); Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966). We think this standard is too lax to adequately protect petitioner's right to just compensation if her property is taken for a public purpose. Other state courts require a very exacting correspondence, described as the "specifi[c] and uniquely attributable" test. The Supreme Court of Illinois first developed this test in Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 380, 176 N. E. 2d 799, 802 (1961).7 Under this standard, 7 The "specifically and uniquely attributable" test has now been adopted by a minority of other courts. See, e. g., J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 585, 432 A. 2d 12, 15 (1981); Divan Builders, Inc. v. Planning Bd. of Twp. of Wayne, 66 N. J. 582, 600-601, 334 A. 2d 30, 40 390 if the local government cannot demonstrate that its exaction is directly proportional to the specifically created need, the exaction becomes "a veiled exercise of the power of eminent domain and a confiscation of private property behind the defense of police regulations." Id., at 381, 176 N. E. 2d, at 802. We do not think the Federal Constitution requires such exacting scrutiny, given the nature of the interests involved. A number of state courts have taken an intermediate position, requiring the municipality to show a "reasonable relationship" between the required dedication and the impact of the proposed development. Typical is the Supreme Court of Nebraska's opinion in Simpson v. North Platte, 206 Neb. 240, 245, 292 N. W. 2d 297, 301 (1980), where that court stated: "The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit." Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not "occasioned by the construction sought to be permitted." Id., at 248, 292 N. W. 2d, at 302. Some form of the reasonable relationship test has been adopted in many other jurisdictions. See, e. g., Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976) (requiring a showing of a reasonable relationship between (1975); McKain v. Toledo City Plan Comm'n, 26 Ohio App. 2d 171, 176, 270 N. E. 2d 370, 374 (1971); Frank Ansuini, Inc. v. Cranston, 107 R. I. 63, 69, 264 A. 2d 910, 913 (1970). 391 the planned subdivision and the municipality's need for land); College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 807 (Tex. 1984); Call v. West Jordan, 606 P. 2d 217, 220 (Utah 1979) (affirming use of the reasonable relation test). Despite any semantical differences, general agreement exists among the courts "that the dedication should have some reasonable relationship to the needs created by the [development]." Ibid. See generally Note, "'Take' My Beach Please!": Nollan v. California Coastal Commission and a RationalNexus Constitutional Analysis of Development Exactions, 69 B. U. L. Rev. 823 (1989); see also Parks v. Watson, 716 We think the "reasonable relationship" test adopted by a majority of the state courts is closer to the federal constitutional norm than either of those previously discussed. But we do not adopt it as such, partly because the term "reasonable relationship" seems confusingly similar to the term "rational basis" which describes the minimal level of scrutiny under the Equal Protection Clause of the Fourteenth Amendment. We think a term such as "rough proportionality" best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.8 8JUSTICE STEVENS' dissent takes us to task for placing the burden on the city to justify the required dedication. He is correct in arguing that in evaluating most generally applicable zoning regulations, the burden properly rests on the party challenging the regulation to prove that it constitutes an arbitrary regulation of property rights. See, e. g., Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). Here, by contrast, the city made an adjudicative decision to condition petitioner's application for a building permit on an individual parcel. In this situation, the burden properly rests on the city. See Nollan, 483 U. S., at 836. This conclusion is not, as he suggests, undermined by our decision in Moore v. East Cleveland, 431 U. S. 494 (1977), in which we struck down a housing ordinance 392 JUSTICE STEVENS' dissent relies upon a law review article for the proposition that the city's conditional demands for part of petitioner's property are "a species of business regulation that heretofore warranted a strong presumption of constitutional validity." Post, at 402. But simply denominating a governmental measure as a "business regulation" does not immunize it from constitutional challenge on the ground that it violates a provision of the Bill of Rights. In Marshall v. Barlow's, Inc., 436 U. S. 307 (1978), we held that a statute authorizing a warrantless search of business premises in order to detect OSHA violations violated the Fourth Amendment. See also Air Pollution Variance Bd. of Colo. v. Western Alfalfa Corp., 416 U. S. 861 (1974); New York v. Burger, 482 U. S. 691 (1987). And in Central Hudson Gas & Elec. Corp. v. Public Servo Comm'n of N. Y., 447 U. S. 557 (1980), we held that an order of the New York Public Service Commission, designed to cut down the use of electricity because of a fuel shortage, violated the First Amendment insofar as it prohibited advertising by a utility company to promote the use of electricity. We see no reason why the Takings Clause of the Fifth Amendment, as much a part of the Bill of Rights as the First Amendment or Fourth Amendment, should be relegated to the status of a poor relation in these comparable circumstances. We turn now to analysis of whether the findings relied upon by the city here, first with respect to the floodplain easement, and second with respect to the pedestrian/bicycle path, satisfied these requirements. It is axiomatic that increasing the amount of impervious surface will increase the quantity and rate of storm water flow from petitioner's property. Record, Doc. No. F, ch. 4, that limited occupancy of a dwelling unit to members of a single family as violating the Due Process Clause of the Fourteenth Amendment. The ordinance at issue in Moore intruded on choices concerning family living arrangements, an area in which the usual deference to the legislature was found to be inappropriate. Id., at 499. 393 p. 4-29. Therefore, keeping the floodplain open and free from development would likely confine the pressures on Fanno Creek created by petitioner's development. In fact, because petitioner's property lies within the Central Business District, the CDC already required that petitioner leave 15% of it as open space and the undeveloped floodplain would have nearly satisfied that requirement. App. to Pet. for Cert. G-16 to G-17. But the city demanded more-it not only wanted petitioner not to build in the floodplain, but it also wanted petitioner's property along Fanno Creek for its greenway system. The city has never said why a public greenway, as opposed to a private one, was required in the interest of flood control. The difference to petitioner, of course, is the loss of her ability to exclude others. As we have noted, this right to exclude others is "one of the most essential sticks in the bundle of rights that are commonly characterized as property." Kaiser Aetna, 444 U. S., at 176. It is difficult to see why recreational visitors trampling along petitioner's floodplain easement are sufficiently related to the city's legitimate interest in reducing flooding problems along Fanno Creek, and the city has not attempted to make any individualized determination to support this part of its request. The city contends that the recreational easement along the greenway is only ancillary to the city's chief purpose in controlling flood hazards. It further asserts that unlike the residential property at issue in Nollan, petitioner's property is commercial in character and, therefore, her right to exclude others is compromised. Brief for Respondent 41, quoting United States v. Orito, 413 U. S. 139 , 142 (1973) (" 'The Constitution extends special safeguards to the privacy of the home' "). The city maintains that "[t]here is nothing to suggest that preventing [petitioner] from prohibiting [the easements] will unreasonably impair the value of [her] property as a [retail store]." PruneYard Shopping Center v. Robins, 447 U. S. 74 ,83 (1980). 394 Admittedly, petitioner wants to build a bigger store to attract members of the public to her property. She also wants, however, to be able to control the time and manner in which they enter. The recreational easement on the greenway is different in character from the exercise of state-protected rights of free expression and petition that we permitted in PruneYard. In PruneYard, we held that a major private shopping center that attracted more than 25,000 daily patrons had to provide access to persons exercising their state constitutional rights to distribute pamphlets and ask passers-by to sign their petitions. Id., at 85. We based our decision, in part, on the fact that the shopping center "may restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions." Id., at 83. By contrast, the city wants to impose a permanent recreational easement upon petitioner's property that borders Fanno Creek. Petitioner would lose all rights to regulate the time in which the public entered onto the greenway, regardless of any interference it might pose with her retail store. Her right to exclude would not be regulated, it would be eviscerated. If petitioner's proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public either on her property or elsewhere. See Nollan, 483 U. S., at 836 ("Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end"). But that is not the case here. We conclude that the findings upon which the city re- 395 lies do not show the required reasonable relationship between the floodplain easement and the petitioner's proposed new building. With respect to the pedestrian/bicycle pathway, we have no doubt that the city was correct in finding that the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District. The city estimates that the proposed development would generate roughly 435 additional trips per day. 9 Dedications for streets, sidewalks, and other public ways are generally reasonable exactions to avoid excessive congestion from a proposed property use. But on the record before us, the city has not met its burden of demonstrating that the additional number of vehicle and bicycle trips generated by petitioner's development reasonably relate to the city's requirement for a dedication of the pedestrian/bicycle pathway easement. The city simply found that the creation of the pathway "could offset some of the traffic demand ... and lessen the increase in traffic congestion." 10 As Justice Peterson of the Supreme Court of Oregon explained in his dissenting opinion, however, "[t]he findings of fact that the bicycle pathway system 'could offset some of the traffic demand' is a far cry from a finding that the bicycle pathway system will, or is likely to, offset some of the traffic demand." 317 Ore., at 127, 854 P. 2d, at 447 (emphasis in original). No precise mathematical calculation is required, but the city must make some effort to quantify its findings in 9The city uses a weekday average trip rate of 53.21 trips per 1,000 square feet. Additional Trips Generated = 53.21 x (17,600 -9,720). App. to Pet. for Cert. G-15. 10 In rejecting petitioner's request for a variance from the pathway dedication condition, the city stated that omitting the planned section of the pathway across petitioner's property would conflict with its adopted policy of providing a continuous pathway system. But the Takings Clause requires the city to implement its policy by condemnation unless the required relationship between petitioner's development and added traffic is shown. 396 support of the dedication for the pedestrian/bicycle pathway beyond the conclusory statement that it could offset some of the traffic demand generated. IV Cities have long engaged in the commendable task of land use planning, made necessary by increasing urbanization, particularly in metropolitan areas such as Portland. The city's goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. "A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Pennsylvania Coal, 260 U. S., at 416. The judgment of the Supreme Court of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BLACKMUN and JUSTICE GINSBURG join, dissenting. The record does not tell us the dollar value of petitioner Florence Dolan's interest in excluding the public from the greenway adjacent to her hardware business. The mountain of briefs that the case has generated nevertheless makes it obvious that the pecuniary value of her victory is far less important than the rule of law that this case has been used to establish. It is unquestionably an important case. Certain propositions are not in dispute. The enlargement of the Tigard unit in Dolan's chain of hardware stores will have an adverse impact on the city's legitimate and substantial interests in controlling drainage in Fanno Creek and minimizing traffic congestion in Tigard's business district. That impact is sufficient to justify an outright denial of her application for approval of the expansion. The city has nev- 397 ertheless agreed to grant Dolan's application if she will comply with two conditions, each of which admittedly will mitigate the adverse effects of her proposed development. The disputed question is whether the city has violated the Fourteenth Amendment to the Federal Constitution by refusing to allow Dolan's planned construction to proceed unless those conditions are met. The Court is correct in concluding that the city may not attach arbitrary conditions to a building permit or to a variance even when it can rightfully deny the application outright. I also agree that state court decisions dealing with ordinances that govern municipal development plans provide useful guidance in a case of this kind. Yet the Court's description of the doctrinal underpinnings of its decision, the phrasing of its fledgling test of "rough proportionality," and the application of that test to this case run contrary to the traditional treatment of these cases and break considerable and unpropitious new ground. I Candidly acknowledging the lack of federal precedent for its exercise in rulemaking, the Court purports to find guidance in 12 "representative" state court decisions. To do so is certainly appropriate.1 The state cases the Court consults, however, either fail to support or decidedly undermine the Court's conclusions in key respects. First, although discussion of the state cases permeates the Court's analysis of the appropriate test to apply in this case, the test on which the Court settles is not naturally derived from those courts' decisions. The Court recognizes as an initial matter that the city's conditions satisfy the "essential nexus" requirement announced in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), because they serve the legitimate interests in minimizing floods and traffic con- 1 Cf. Moore v. East Cleveland, 431 U. S. 494 , 513-521 (1977) (STEVENS, J., concurring in judgment). 398 gestions. Ante, at 387-388.2 The Court goes on, however, to erect a new constitutional hurdle in the path of these conditions. In addition to showing a rational nexus to a public purpose that would justify an outright denial of the permit, the city must also demonstrate "rough proportionality" between the harm caused by the new land use and the benefit obtained by the condition. Ante, at 391. The Court also decides for the first time that the city has the burden of establishing the constitutionality of its conditions by making an "individualized determination" that the condition in question satisfies the proportionality requirement. See ibid. Not one of the state cases cited by the Court announces anything akin to a "rough proportionality" requirement. For the most part, moreover, those cases that invalidated municipal ordinances did so on state law or unspecified grounds roughly equivalent to Nollan's "essential nexus" requirement. See, e. g., Simpson v. North Platte, 206 Neb. 240, 245-248, 292 N. W. 2d 297, 301-302 (1980) (ordinance lacking "reasonable relationship" or "rational nexus" to property's use violated Nebraska Constitution); J. E. D. Associates, Inc. v. Atkinson, 121 N. H. 581, 583-585, 432 A. 2d 12, 14-15 (1981) (state constitutional grounds). One case pur- 2 In Nollan the Court recognized that a state agency may condition the grant of a land use permit on the dedication of a property interest if the dedication serves a legitimate police-power purpose that would justify a refusal to issue the permit. For the first time, however, it held that such a condition is unconstitutional if the condition "utterly fails" to further a goal that would justify the refusal. 483 U. S., at 837. In the Nollan Court's view, a condition would be constitutional even if it required the Nollans to provide a viewing spot for passers-by whose view of the ocean was obstructed by their new house. Id., at 836. "Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end." Ibid. 399 porting to apply the strict "specifically and uniquely attributable" test established by Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375,176 N. E. 2d 799 (1961), nevertheless found that test was satisfied because the legislature had decided that the subdivision at issue created the need for a park or parks. Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 33-36, 394 P. 2d 182, 187-188 (1964). In only one of the seven cases upholding a land use regulation did the losing property owner petition this Court for certiorari. See Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965), appeal dism'd, 385 U. S. 4 (1966) (want of substantial federal question). Although 4 of the 12 opinions mention the Federal Constitution-2 of those only in passing-it is quite obvious that neither the courts nor the litigants imagined they might be participating in the development of a new rule of federal law. Thus, although these state cases do lend support to the Court's reaffirmance of Nollan's reasonable nexus requirement, the role the Court accords them in the announcement of its newly minted second phase of the constitutional inquiry is remarkably inventive. In addition, the Court ignores the state courts' willingness to consider what the property owner gains from the exchange in question. The Supreme Court of Wisconsin, for example, found it significant that the village's approval of a proposed subdivision plat "enables the subdivider to profit financially by selling the subdivision lots as home-building sites and thus realizing a greater price than could have been obtained if he had sold his property as unplatted lands." Jordan v. Menomonee Falls, 28 Wis. 2d, at 619-620; 137 N. W. 2d, at 448. The required dedication as a condition of that approval was permissible "[i]n return for this benefit." Ibid. See also Collis v. Bloomington, 310 Minn. 5, 11-13, 246 N. W. 2d 19, 23-24 (1976) (citing Jordan); College Station v. Turtle Rock Corp., 680 S. W. 2d 802, 806 (Tex. 1984) (dedication requirement only triggered when developer chooses 400 to develop land). In this case, moreover, Dolan's acceptance of the permit, with its attached conditions, would provide her with benefits that may well go beyond any advantage she gets from expanding her business. As the United States pointed out at oral argument, the improvement that the city's drainage plan contemplates would widen the channel and reinforce the slopes to increase the carrying capacity during serious floods, "confer[ring] considerable benefits on the property owners immediately adjacent to the creek." Tr. of Oral Arg. 41-42. The state court decisions also are enlightening in the extent to which they required that the entire parcel be given controlling importance. All but one of the cases involve challenges to provisions in municipal ordinances requiring developers to dedicate either a percentage of the entire parcel (usually 7 or 10 percent of the platted subdivision) or an equivalent value in cash (usually a certain dollar amount per lot) to help finance the construction of roads, utilities, schools, parks, and playgrounds. In assessing the legality of the conditions, the courts gave no indication that the transfer of an interest in realty was any more objectionable than a cash payment. See, e. g., Jenad, Inc. v. Scarsdale, 18 N. Y. 2d 78, 218 N. E. 2d 673 (1966); Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965); Collis v. Bloomington, 310 Minn. 5, 246 N. W. 2d 19 (1976). None of the decisions identified the surrender of the fee owner's "power to exclude" as having any special significance. Instead, the courts uniformly examined the character of the entire economic transaction. II It is not merely state cases, but our own cases as well, that require the analysis to focus on the impact of the city's action on the entire parcel of private property. In Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), we stated that takings jurisprudence "does not divide a single parcel 401 into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated." Id., at 130-131. Instead, this Court focuses "both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole." Ibid. Andrus v. Allard, 444 U. S. 51 (1979), reaffirmed the nondivisibility principle outlined in Penn Central, stating that "[a]t least where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking, because the aggregate must be viewed in its entirety." 444 U. S., at 65-66.3 As recently as last Term, we approved the principle again. See Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602 , 644 (1993) (explaining that "a claimant's parcel of property [cannot] first be divided into what was taken and what was left" to demonstrate a compensable taking). Although limitation of the right to exclude others undoubtedly constitutes a significant infringement upon property ownership, Kaiser Aetna v. United States, 444 U. S. 164 , 179-180 (1979), restrictions on that right do not alone constitute a taking, and do not do so in any event unless they "unreasonably impair the value or use" of the property. Prune Yard Shopping Center v. Robins, 447 U. S. 74 ,82-84 (1980). The Court's narrow focus on one strand in the property owner's bundle of rights is particularly misguided in a case involving the development of commercial property. As Professor Johnston has noted: "The subdivider is a manufacturer, processer, and marketer of a product; land is but one of his raw materials. In subdivision control disputes, the developer is 3 Similarly, in Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470, 498-499 (1987), we concluded that "[t]he 27 million tons of coal do not constitute a separate segment of property for takings law purposes" and that "[t]here is no basis for treating the less than 2% of petitioners' coal as a separate parcel of property." 402 not defending hearth and home against the king's intrusion, but simply attempting to maximize his profits from the sale of a finished product. As applied to him, subdivision control exactions are actually business regulations." Johnston, Constitutionality of Subdivision Control Exactions: The Quest for A Rationale, 52 Cornell L. Q. 871, 923 (1967).4 The exactions associated with the development of a retail business are likewise a species of business regulation that heretofore warranted a strong presumption of constitutional validity. In Johnston's view, "if the municipality can demonstrate that its assessment of financial burdens against subdividers is rational, impartial, and conducive to fulfillment of authorized planning objectives, its action need be invalidated only in those extreme and presumably rare cases where the burden of compliance is sufficiently great to deter the owner from proceeding with his planned development." Id., at 917. The city of Tigard has demonstrated that its plan is rational and impartial and that the conditions at issue are "conducive to fulfillment of authorized planning objectives." Dolan, on the other hand, has offered no evidence that her burden of compliance has any impact at all on the value or profitability of her planned development. Following the teaching of the cases on which it purports to rely, the Court should not isolate the burden associated with the loss of the power to ex- 4 Johnston's article also sets forth a fair summary of the state cases from which the Court purports to derive its "rough proportionality" test. See 52 Cornell L. Q., at 917. Like the Court, Johnston observed that cases requiring a "rational nexus" between exactions and public needs created by the new subdivision-especially Jordan v. Menomonee Falls, 28 Wis. 2d 608, 137 N. W. 2d 442 (1965)-"stee[r] a moderate course" between the "judicial obstructionism" of Pioneer Trust & Savings Bank v. Mount Prospect, 22 Ill. 2d 375, 176 N. E. 2d 799 (1961), and the "excessive deference" of Billings Properties, Inc. v. Yellowstone County, 144 Mont. 25, 394 P. 2d 182 (1964). 52 Cornell L. Q., at 917. 403 elude from an evaluation of the benefit to be derived from the permit to enlarge the store and the parking lot. The Court's assurances that its "rough proportionality" test leaves ample room for cities to pursue the "commendable task of land use planning," ante, at 396-even twice avowing that "[n]o precise mathematical calculation is required," ante, at 391, 395-are wanting given the result that test compels here. Under the Court's approach, a city must not only "quantify its findings," ante, at 395, and make "individualized determination[s]" with respect to the nature and the extent of the relationship between the conditions and the impact, ante, at 391, 393, but also demonstrate "proportionality." The correct inquiry should instead concentrate on whether the required nexus is present and venture beyond considerations of a condition's nature or germaneness only if the developer establishes that a concededly germane condition is so grossly disproportionate to the proposed development's adverse effects that it manifests motives other than land use regulation on the part of the city. 5 The heightened requirement the Court imposes on cities is even more unjustified when all the tools needed to resolve the questions presented by this case can be garnered from our existing case law. III Applying its new standard, the Court finds two defects in the city's case. First, while the record would adequately support a requirement that Dolan maintain the portion of the floodplain on her property as undeveloped open space, it does not support the additional requirement that the floodplain be dedicated to the city. Ante, at 392-395. Second, 5 Dolan's attorney overstated the danger when he suggested at oral argument that without some requirement for proportionality, "[t]he City could have found that Mrs. Dolan's new store would have increased traffic by one additional vehicle trip per day [and] could have required her to dedicate 75, 95 percent of her land for a widening of Main Street." Tr. of Oral Arg. 52-53. 404 while the city adequately established the traffic increase that the proposed development would generate, it failed to quantify the offsetting decrease in automobile traffic that the bike path will produce. Ante, at 395-396. Even under the Court's new rule, both defects are, at most, nothing more than harmless error. In her objections to the floodplain condition, Dolan made no effort to demonstrate that the dedication of that portion of her property would be any more onerous than a simple prohibition against any development on that portion of her property. Given the commercial character of both the existing and the proposed use of the property as a retail store, it seems likely that potential customers "trampling along petitioner's floodplain," ante, at 393, are more valuable than a useless parcel of vacant land. Moreover, the duty to pay taxes and the responsibility for potential tort liability may well make ownership of the fee interest in useless land a liability rather than an asset. That may explain why Dolan never conceded that she could be prevented from building on the floodplain. The city attorney also pointed out that absent a dedication, property owners would be required to "build on their own land" and "with their own money" a storage facility for the water runoff. Tr. of Oral Arg. 30-31. Dolan apparently "did have that option," but chose not to seek it. Id., at 31. If Dolan might have been entitled to a variance confining the city's condition in a manner this Court would accept, her failure to seek that narrower form of relief at any stage of the state administrative and judicial proceedings clearly should preclude that relief in this Court now. The Court's rejection of the bike path condition amounts to nothing more than a play on words. Everyone agrees that the bike path "could" offset some of the increased traffic flow that the larger store will generate, but the findings do not unequivocally state that it will do so, or tell us just how many cyclists will replace motorists. Predictions on such matters are inherently nothing more than estimates. Cer- 405 tainly the assumption that there will be an offsetting benefit here is entirely reasonable and should suffice whether it amounts to 100 percent, 35 percent, or only 5 percent of the increase in automobile traffic that would otherwise occur. If the Court proposes to have the federal judiciary micromanage state decisions of this kind, it is indeed extending its welcome mat to a significant new class of litigants. Although there is no reason to believe that state courts have failed to rise to the task, property owners have surely found a new friend today. IV The Court has made a serious error by abandoning the traditional presumption of constitutionality and imposing a novel burden of proof on a city implementing an admittedly valid comprehensive land use plan. Even more consequential than its incorrect disposition of this case, however, is the Court's resurrection of a species of substantive due process analysis that it firmly rejected decades ago.6 The Court begins its constitutional analysis by citing Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 239 (1897), for the proposition that the Takings Clause of the Fifth Amendment is "applicable to the States through the Fourteenth Amendment." Ante, at 383. That opinion, however, contains no mention of either the Takings Clause or the Fifth Amendment; 7 it held that the protection afforded by the Due Process Clause of the Fourteenth Amendment extends to matters of substance as well as procedure,s and that the sub- 6 See, e. g., Ferguson v. Skrupa, 372 U. S. 726 (1963). 7 An earlier case deemed it "well settled" that the Takings Clause "is a limitation on the power of the Federal government, and not on the States." Pumpelly v. Green Bay Co., 13 Wall. 166, 177 (1872). 8 The Court held that a State "may not, by any of its agencies, disregard the prohibitions of the Fourteenth Amendment. Its judicial authorities may keep within the letter of the statute prescribing forms of procedure in the courts and give the parties interested the fullest opportunity to be heard, and yet it might be that its final action would be inconsistent with that amendment. In determining what is due process of law regard must 406 stance of "the due process of law enjoined by the Fourteenth Amendment requires compensation to be made or adequately secured to the owner of private property taken for public use under the authority of a State." 166 U. S., at 235, 236241. It applied the same kind of substantive due process analysis more frequently identified with a better known case that accorded similar substantive protection to a baker's liberty interest in working 60 hours a week and 10 hours a day. See Lochner v. New York, 198 U. S. 45 (1905).9 Later cases have interpreted the Fourteenth Amendment's substantive protection against uncompensated deprivations of private property by the States as though it incorporated the text of the Fifth Amendment's Takings Clause. See, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 481, n. 10 (1987). There was nothing problematic about that interpretation in cases enforcing the Fourteenth Amendment against state action that involved the actual physical invasion of private property. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 427433 (1982); Kaiser Aetna v. United States, 444 U. S., at 178-180. Justice Holmes charted a significant new course, however, when he opined that a state law making it "commercially impracticable to mine certain coal" had "very nearly the same effect for constitutional purposes as appropriating or destroying it." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 414 (1922). The so-called "regulatory be had to substance, not to form." Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 , 234-235 (1897). 9 The Lochner Court refused to presume that there was a reasonable connection between the regulation and the state interest in protecting the public health. 198 U. S., at 60-61. A similar refusal to identify a sufficient nexus between an enlarged building with a newly paved parking lot and the state interests in minimizing the risks of flooding and traffic congestion proves fatal to the city's permit conditions in this case under the Court's novel approach. 407 takings" doctrine that the Holmes dictum 10 kindled has an obvious kinship with the line of substantive due process cases that Lochner exemplified. Besides having similar ancestry, both doctrines are potentially open-ended sources of judicial power to invalidate state economic regulations that Members of this Court view as unwise or unfair. This case inaugurates an even more recent judicial innovation than the regulatory takings doctrine: the application of the "unconstitutional conditions" label to a mutually beneficial transaction between a property owner and a city. The Court tells us that the city's refusal to grant Dolan a discretionary benefit infringes her right to receive just compensation for the property interests that she has refused to dedicate to the city "where the property sought has little or no relationship to the benefit." 11 Although it is well settled that a government cannot deny a benefit on a basis that infringes constitutionally protected interests-"especially [one's] interest in freedom of speech," Perry v. Sindermann, 408 U. S. 593 , 597 (1972)-the "unconstitutional conditions" doctrine provides an inadequate framework in which to analyze this case.12 10 See Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at 484 (explaining why this portion of the opinion was merely "advisory"). 11 Ante, at 385. The Court's entire explanation reads: "Under the wellsettled doctrine of 'unconstitutional conditions,' the government may not require a person to give up a constitutional right-here the right to receive just compensation when property is taken for a public use-in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the property." 12 Although it has a long history, see Home Ins. Co. v. Morse, 20 Wall. 445, 451 (1874), the "unconstitutional conditions" doctrine has for just as long suffered from notoriously inconsistent application; it has never been an overarching principle of constitutional law that operates with equal force regardless of the nature of the rights and powers in question. See, e. g., Sunstein, Why the Unconstitutional Conditions Doctrine is an Anachronism, 70 B. U. L. Rev. 593, 620 (1990) (doctrine is "too crude and too general to provide help in contested cases"); Sullivan, Unconstitutional 408 Dolan has no right to be compensated for a taking unless the city acquires the property interests that she has refused to surrender. Since no taking has yet occurred, there has not been any infringement of her constitutional right to compensation. See Preseault v. ICC, 494 U. S. 1 , 11-17 (1990) (finding takings claim premature because property owner had not yet sought compensation under Tucker Act); Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264 , 294-295 (1981) (no taking where no one "identified any property ... that has allegedly been taken"). Even if Dolan should accept the city's conditions in exchange for the benefit that she seeks, it would not necessarily follow that she had been denied "just compensation" since it would be appropriate to consider the receipt of that benefit in any calculation of "just compensation." See Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415 (noting that an "average reciprocity of advantage" was deemed to justify many laws); Hodel v. Irving, 481 U. S. 704 , 715 (1987) (such" 'reciprocity of advantage'" weighed in favor of a statute's consti- Conditions, 102 Harv. L. Rev. 1415, 1416 (1989) (doctrine is "riven with inconsistencies"); Hale, Unconstitutional Conditions and Constitutional Rights, 35 Colum. L. Rev. 321,322 (1935) ("The Supreme Court has sustained many such exertions of power even after announcing the broad doctrine that would invalidate them"). As the majority's case citations suggest, ante, at 385, modern decisions invoking the doctrine have most frequently involved First Amendment liberties, see also, e. g., Connick v. Myers, 461 U. S. 138 , 143-144 (1983); Elrod v. Burns, 427 U. S. 347 , 361-363 (1976) (plurality opinion); Sherbert v. Verner, 374 U. S. 398 , 404 (1963); Speiser v. Randall, 357 U. S. 513 , 518-519 (1958). But see Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U. S. 328 , 345-346 (1986) ("[T]he greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling"). The necessary and traditional breadth of municipalities' power to regulate property development, together with the absence here of fragile and easily "chilled" constitutional rights such as that of free speech, make it quite clear that the Court is really writing on a clean slate rather than merely applying "well-settled" doctrine. Ante, at 385. 409 tutionality). Particularly in the absence of any evidence on the point, we should not presume that the discretionary benefit the city has offered is less valuable than the property interests that Dolan can retain or surrender at her option. But even if that discretionary benefit were so trifling that it could not be considered just compensation when it has "little or no relationship" to the property, the Court fails to explain why the same value would suffice when the required nexus is present. In this respect, the Court's reliance on the "unconstitutional conditions" doctrine is assuredly novel, and arguably incoherent. The city's conditions are by no means immune from constitutional scrutiny. The level of scrutiny, however, does not approximate the kind of review that would apply if the city had insisted on a surrender of Dolan's First Amendment rights in exchange for a building permit. One can only hope that the Court's reliance today on First Amendment cases, see ante, at 385 (citing Perry v. Sindermann, supra, and Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U. S. 563 , 568 (1968)), and its candid disavowal of the term "rational basis" to describe its new standard of review, see ante, at 391, do not signify a reassertion of the kind of superlegislative power the Court exercised during the Lochner era. The Court has decided to apply its heightened scrutiny to a single strand-the power to exclude-in the bundle of rights that enables a commercial enterprise to flourish in an urban environment. That intangible interest is undoubtedly worthy of constitutional protection-much like the grandmother's interest in deciding which of her relatives may share her home in Moore v. East Cleveland, 431 U. S. 494 (1977). Both interests are protected from arbitrary state action by the Due Process Clause of the Fourteenth Amendment. It is, however, a curious irony that Members of the majority in this case would impose an almost insurmountable burden of proof on the property owner in the Moore case 410 while saddling the city with a heightened burden in this case.13 In its application of what is essentially the doctrine of substantive due process, the Court confuses the past with the present. On November 13, 1922, the village of Euclid, Ohio, adopted a zoning ordinance that effectively confiscated 75 percent of the value of property owned by the Ambler Realty Company. Despite its recognition that such an ordinance "would have been rejected as arbitrary and oppressive" at an earlier date, the Court (over the dissent of Justices Van Devanter, McReynolds, and Butler) upheld the ordinance. Today's majority should heed the words of Justice Sutherland: "Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. And in this there is no inconsistency, for while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract 13 The author of today's opinion joined Justice Stewart's dissent in Moore v. East Cleveland, 431 U. S. 494 (1977). There the dissenters found it sufficient, in response to my argument that the zoning ordinance was an arbitrary regulation of property rights, that "if the ordinance is a rational attempt to promote 'the city's interest in preserving the character of its neighborhoods,' Young v. American Mini Theatres, [Inc.,] 427 U. S. 50 , 71 (opinion of STEVENS, J.), it is ... a permissible restriction on the use of private property under Euclid v. Ambler Realty Co., 272 U. S. 365 , and Nectow v. Cambridge, 277 U. S. 183 ." Id., at 540, n. 10. The dissent went on to state that my calling the city to task for failing to explain the need for enacting the ordinance "place[d] the burden on the wrong party." Ibid. (emphasis added). Recently, two other Members of today's majority severely criticized the holding in Moore. See United States v. Carlton, 512 U. S. 26 , 40-42 (1994) (SCALIA, J., concurring in judgment); see also id., at 39 (SCALIA, J., concurring in judgment) (calling the doctrine of substantive due process "an oxymoron"). 411 to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise." Village of Euclid v. Ambler Realty Co., 272 U. S. 365 , 387 (1926). In our changing world one thing is certain: uncertainty will characterize predictions about the impact of new urban developments on the risks of floods, earthquakes, traffic congestion, or environmental harms. When there is doubt concerning the magnitude of those impacts, the public interest in averting them must outweigh the private interest of the commercial entrepreneur. If the government can demonstrate that the conditions it has imposed in a land use permit are rational, impartial and conducive to fulfilling the aims of a valid land use plan, a strong presumption of validity should attach to those conditions. The burden of demonstrating that those conditions have unreasonably impaired the economic value of the proposed improvement belongs squarely on the shoulders of the party challenging the state action's constitutionality. That allocation of burdens has served us well in the past. The Court has stumbled badly today by reversing it. I respectfully dissent. JUSTICE SOUTER, dissenting. This case, like Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), invites the Court to examine the relationship between conditions imposed by development permits, requiring landowners to dedicate portions of their land for use by the public, and governmental interests in mitigating the adverse effects of such development. Nollan declared the need for a nexus between the nature of an exaction of an interest in land (a beach easement) and the nature of governmental interests. The Court treats this case as raising a further question, not about the nature, but about the degree, of connection required between such an exaction and the 412 adverse effects of development. The Court's OpInIOn announces a test to address this question, but as I read the opinion, the Court does not apply that test to these facts, which do not raise the question the Court addresses. First, as to the floodplain and greenway, the Court acknowledges that an easement of this land for open space (and presumably including the five feet required for needed creek channel improvements) is reasonably related to flood control, see ante, at 387, 392-393, but argues that the "permanent recreational easement" for the public on the greenway is not so related, see ante, at 393-395. If that is so, it is not because of any lack of proportionality between permit condition and adverse effect, but because of a lack of any rational connection at all between exaction of a public recreational area and the governmental interest in providing for the effect of increased water runoff. That is merely an application of Nol lan's nexus analysis. As the Court notes, "[i]f petitioner's proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public." Ante, at 394. But that, of course, was not the fact, and the city of Tigard never sought to justify the public access portion of the dedication as related to flood control. It merely argued that whatever recreational uses were made of the bicycle path and the i-foot edge on either side were incidental to the permit condition requiring dedication of the i5-foot easement for an 8-foot-wide bicycle path and for flood control, including open space requirements and relocation of the bank of the river by some 5 feet. It seems to me such incidental recreational use can stand or fall with the bicycle path, which the city justified by reference to traffic congestion. As to the relationship the Court examines, between the recreational easement and a purpose never put forth as a justification by the city, the Court unsurprisingly finds a recreation area to be unrelated to flood control. 413 Second, as to the bicycle path, the Court again acknowledges the "theor[etically]" reasonable relationship between "the city's attempt to reduce traffic congestion by providing [a bicycle path] for alternative means of transportation," ante, at 387, and the "correct" finding of the city that "the larger retail sales facility proposed by petitioner will increase traffic on the streets of the Central Business District," ante, at 395. The Court only faults the city for saying that the bicycle path "could" rather than "would" offset the increased traffic from the store, ante, at 396. That again, as far as I can tell, is an application of Nollan, for the Court holds that the stated connection ("could offset") between traffic congestion and bicycle paths is too tenuous; only if the bicycle path "would" offset the increased traffic by some amount could the bicycle path be said to be related to the city's legitimate interest in reducing traffic congestion. I cannot agree that the application of Nollan is a sound one here, since it appears that the Court has placed the burden of producing evidence of relationship on the city, despite the usual rule in cases involving the police power that the government is presumed to have acted constitutionally. * Having thus assigned the burden, the Court concludes that the city loses based on one word ("could" instead of "would"), and despite the fact that this record shows the connection the Court looks for. Dolan has put forward no evidence that *See, e. g., Goldblatt v. Hempstead, 369 U. S. 590 , 594-596 (1962); United States v. Sperry Corp., 493 U. S. 52 , 60 (1989). The majority characterizes this case as involving an "adjudicative decision" to impose permit conditions, ante, at 391, n. 8, but the permit conditions were imposed pursuant to Tigard's Community Development Code. See, e. g., § 18.84.040, App. to Brief for Respondent B-26. The adjudication here was of Dolan's requested variance from the permit conditions otherwise required to be imposed by the Code. This case raises no question about discriminatory, or "reverse spot," zoning, which "singles out a particular parcel for different, less favorable treatment than the neighboring ones." Penn Central Transp. Co. v. New York City, 438 U. S. 104 , 132 (1978). 414 the burden of granting a dedication for the bicycle path is unrelated in kind to the anticipated increase in traffic congestion, nor, if there exists a requirement that the relationship be related in degree, has Dolan shown that the exaction fails any such test. The city, by contrast, calculated the increased traffic flow that would result from Dolan's proposed development to be 435 trips per day, and its Comprehensive Plan, applied here, relied on studies showing the link between alternative modes of transportation, including bicycle paths, and reduced street traffic congestion. See, e. g., App. to Brief for Respondent A-5, quoting City of Tigard's Comprehensive Plan (" 'Bicycle and pedestrian pathway systems will result in some reduction of automobile trips within the community"'). Nollan, therefore, is satisfied, and on that assumption the city's conditions should not be held to fail a further rough proportionality test or any other that might be devised to give meaning to the constitutional limits. As Members of this Court have said before, "the common zoning regulations requiring subdividers to ... dedicate certain areas to public streets, are in accord with our constitutional traditions because the proposed property use would otherwise be the cause of excessive congestion." Pennell v. San Jose, 485 U. S. 1 , 20 (1988) (SCALIA, J., concurring in part and dissenting in part). The bicycle path permit condition is fundamentally no different from these. In any event, on my reading, the Court's conclusions about the city's vulnerability carry the Court no further than Nollan has gone already, and I do not view this case as a suitable vehicle for taking the law beyond that point. The right case for the enunciation of takings doctrine seems hard to spot. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1076 (1992) (statement of SOUTER, J.).

The Supreme Court ruled that the city's dedication requirements for a public greenway and a pedestrian/bicycle pathway constituted an uncompensated taking of the petitioner's property, as they were not roughly proportional to the projected impact of the proposed development.

Property Rights & Land Use

Palazzolo v. Rhode Island

https://supreme.justia.com/cases/federal/us/533/606/

OCTOBER TERM, 2000 Syllabus PALAZZOLO v. RHODE ISLAND ET AL. CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND No. 99-2047. Argued February 26, 200l-Decided June 28, 2001 In order to acquire the waterfront parcel of Rhode Island land that is here at issue, petitioner and associates formed Shore Gardens, Inc. (SGI), in 1959. After SGI purchased the property petitioner bought out his associates and became the sole shareholder. Most of the property was then, and is now, salt marsh subject to tidal flooding. The wet ground and permeable soil would require considerable fill before significant structures could be built. Over the years, SGI's intermittent applications to develop the property were rejected by various government agencies. After 1966, no further applications were made for over a decade. Two intervening events, however, become important to the issues presented. First, in 1971, the State created respondent Rhode Island Coastal Resources Management Council (Council) and charged it with protecting the State's coastal properties. The Council's regulations, known as the Rhode Island Coastal Resources Management Program (CRMP), designated salt marshes like those on SGI's property as protected "coastal wetlands" on which development is greatly limited. Second, in 1978, SGI's corporate charter was revoked, and title to the property passed to petitioner as the corporation's sole shareholder. In 1983, petitioner applied to the Council for permission to construct a wooden bulkhead and fill his entire marshland area. The Council rejected the application, concluding, inter alia, that it would conflict with the CRMP. In 1985, petitioner filed a new application with the Council, seeking permission to fill 11 of the property's 18 wetland acres in order to build a private beach club. The Council rejected this application as well, ruling that the proposal did not satisfy the standards for obtaining a "special exception" to fill salt marsh, whereby the proposed activity must serve a compelling public purpose. Subsequently, petitioner filed an inverse condemnation action in Rhode Island Superior Court, asserting that the State's wetlands regulations, as applied by the Council to his parcel, had taken the property without compensation in violation of the Fifth and Fourteenth Amendments. The suit alleged the Council's action deprived him of "all economically beneficial use" of his property, resulting in a total taking requiring compensation under Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , and sought $3,150,000 in damages, a figure derived from an appraiser's estimate as to the value of a 74-lot residential subdivision on the property. The court ruled against 607 petitioner, and the State Supreme Court affirmed, holding that (1) petitioner's takings claim was not ripe; (2) he had no right to challenge regulations predating 1978, when he succeeded to legal ownership of the property; (3) he could not assert a takings claim based on the denial of all economic use of his property in light of undisputed evidence that he had $200,000 in development value remaining on an upland parcel of the property; and (4) because the regulation at issue predated his acquisition of title, he could have had no reasonable investment-backed expectation that he could develop his property, and, therefore, he could not recover under Penn Central Transp. Co. v. New York City, 438 U. S. 104 , 124. Held: (a) A takings claim challenging application of land-use regulations is not ripe unless the agency charged with implementing the regulations has reached a final decision regarding their application to the property at issue. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 , 186. A final decision does not occur until the responsible agency determines the extent of permitted development on the land. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 351. Petitioner obtained such a final decision when the Council denied his 1983 and 1985 applications. The State Supreme Court erred in ruling that, notwithstanding those denials, doubt remained as to the extent of development the Council would allow on petitioner's parcel due to his failure to explore other uses for the property that would involve filling substantially less wetlands. This is belied by the unequivocal nature of the wetland regulations at issue and by the Council's application of the regulations to the subject property. The CRMP permits the Council to grant a special exception to engage in a prohibited use only where a "compelling public purpose" is served. The proposal to fill the entire property was not accepted under Council regulations and did not qualify for the special exception. The Council determined the use proposed in the second application (the beach club) did not satisfy the "compelling public purpose" standard. There is no indication the Council would have accepted the application had the proposed club occupied a smaller surface area. To the contrary, it ruled that the proposed activity was not a "compelling public purpose." Although a landowner may not establish a taking before the land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation, e. g., MacDonald, supra, at 342, once it becomes clear that the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. Here, the Council's decisions make plain that 608 Syllabus it interpreted its regulations to bar petitioner from engaging in any filling or development on the wetlands. Further permit applications were not necessary to establish this point. Pp. 618-621. (b) Contrary to the State Supreme Court's ruling, petitioner's claim is not unripe by virtue of his failure to seek permission for a use of the property that would involve development only of its upland portion. It is true that there was uncontested testimony that an upland site would have an estimated value of $200,000 if developed. And, while the CRMP requires Council approval to develop upland property lying within 200 feet of protected waters, the strict "compelling public purpose" test does not govern proposed land uses on property in this classification. Council officials testified at trial, moreover, that they would have allowed petitioner to build a residence on the upland parcel. Nevertheless, this Court's ripeness jurisprudence requires petitioner to explore development opportunities on his upland parcel only if there is uncertainty as to the land's permitted use. The State's assertion that the uplands' value is in doubt comes too late for the litigation before this Court. It was stated in the certiorari petition that the uplands were worth an estimated $200,000. The figure not only was uncontested but also was cited as fact in the State's brief in opposition. In this circumstance ripeness cannot be contested by saying that the value of the nonwetland parcels is unknown. See Lucas, supra, at 1020, and n. 9. Nor is there genuine ambiguity in the record as to the extent of permitted development on petitioner's property, either on the wetlands or the uplands. Pp.621-624. (c) Nor is petitioner's takings claim rendered unripe, as the State Supreme Court held, by his failure to apply for permission to develop the 74-lot subdivision that was the basis for the damages sought in his inverse condemnation suit. It is difficult to see how this concern is relevant to the inquiry at issue here. The Council informed petitioner that he could not fill the wetlands; it follows of necessity that he could not fill and then build 74 single-family dwellings there. Petitioner's submission of this proposal would not have clarified the extent of development permitted by the wetlands regulations, which is the inquiry required under the Court's ripeness decisions. pp. 624-626. 2. Petitioner's acquisition of title after the regulations' effective date did not bar his takings claims. This Court rejects the State Supreme Court's sweeping rule that a purchaser or a successive title holder like petitioner is deemed to have notice of an earlier-enacted restriction and is barred from claiming that it effects a taking. Were the Court to accept that rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be 609 the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land. The State's notice justification does not take into account the effect on owners at the time of enactment, who are prejudiced as well. Should an owner attempt to challenge a new regulation, but not survive the process of ripening his or her claim (which, as this case demonstrates, will often take years), under the State's rule the right to compensation may not be asserted by an heir or successor, and so may not be asserted at all. The State's rule also would work a critical alteration to the nature of property, as the newly regulated landowner is stripped of the ability to transfer the interest which was possessed prior to the regulation. The State may not by this means secure a windfall for itself. See, e. g., Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 164. The rule is, furthermore, capricious in effect. The young owner contrasted with the older owner, the owner with the resources to hold contrasted with the owner with the need to sell, would be in different positions. The Takings Clause is not so quixotic. A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken. Nollan v. California Coastal Comm'n, 483 U. S. 825 , 834, n. 2, is controlling precedent for the Court's conclusion. Lucas, 505 U. S., at 1029, did not overrule Nollan, which is based on essential Takings Clause principles. On remand the state court must address the merits of petitioner's Penn Central claim, which is not barred by the mere fact that his title was acquired after the effective date of the state-imposed restriction. Pp. 626-630. 3. The State Supreme Court did not err in finding that petitioner failed to establish a deprivation of all economic use, for it is undisputed that his parcel retains significant development value. Petitioner is correct that, assuming a taking is otherwise established, a State may not evade the duty to compensate on the premise that the landowner is left with a token interest. This is not the situation in this case, however. A regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property "economically idle." Lucas, supra, at 1019. Petitioner attempts to revive this part of his claim by arguing, for the first time, that the upland parcel is distinct from the wetlands portions, so he should be permitted to assert a deprivation limited to the latter. The Court will not explore the point here. Petitioner did not press the argument in the state courts, and the issue was not presented in his certiorari petition. The case comes to the Court on the premise that petitioner's entire parcel serves as the basis for his takings claim, and, so framed, the total deprivation argument fails. Pp. 630-632. 610 Syllabus 4. Because petitioner's claims under the Penn Central analysis were not examined below, the case is remanded. Pp. 616, 632. 746 A. 2d 707, affirmed in part, reversed in part, and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O'CONNOR, SCALIA, and THOMAS, JJ., joined, and in which STEVENS, J., joined as to Part II -A. O'CONNOR, J., post, p. 632, and SCALIA, J., post, p. 636, filed concurring opinions. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 637. GINSBURG, J., filed a dissenting opinion, in which SOUTER and BREYER, JJ., joined, post, p. 645. BREYER, J., filed a dissenting opinion, post, p. 654. James S. Burling argued the cause for petitioner. With him on the briefs was Eric Grant. Sheldon Whitehouse, Attorney General of Rhode Island, argued the cause for respondents. With him on the brief were Michael Rubin, Assistant Attorney General, Brian A. Goldman and Richard J. Lazarus. Malcolm L. Stewart argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were former Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, William B. Lazarus, and R. Justin Smith.* *Briefs of amici curiae urging reversal were filed for the American Farm Bureau Federation et al. by Timothy S. Bishop, Jeffrey W Sarles, Steffen N. Johnson, John J. Rademacher, and John J. Kupa; for the California Coastal Property Owners Association by Carter G. Phillips, Mark E. Haddad, and Catherine Valerio Barrad; for Defenders of Property Rights by Nancie G. Marzulla; for the Institute for Justice by William H. Mellor, Clint Bolick, Scott G. Bullock, and Richard A. Epstein; for the Washington Legal Foundation et al. by Daniel J. Popeo and R. Shawn Gunnarson; and for W. Frederick Williams III et al. by Michael E. Malamut. Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, J. Matthew Rodriquez, Senior Assistant Attorney General, and Joseph Barbieri, Deputy Attorney General, Robert R. Rigsby, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Ken Salazar of Colorado, Richard 611 JUSTICE KENNEDY delivered the opinion of the Court. Petitioner Anthony Palazzolo owns a waterfront parcel of land in the town of Westerly, Rhode Island. Almost all of the property is designated as coastal wetlands under Rhode Island law. After petitioner's development proposals were rejected by respondent Rhode Island Coastal Resources Management Council (Council), he sued in state court, asserting the Council's application of its wetlands regulations took the property without compensation in violation of the Takings Clause of the Fifth Amendment, binding upon the State through the Due Process Clause of the Fourteenth Amendment. Petitioner sought review in this Court, contending the Supreme Court of Rhode Island erred in rejecting his takings claim. We granted certiorari. 531 U. S. 923 (2000). I The town of Westerly is on an edge of the Rhode Island coastline. The town's western border is the Pawcatuck River, which at that point is the boundary between Rhode Blumenthal of Connecticut, Thurbert E. Baker of Georgia, Earl I. Anzai of Hawaii, Andrew Ketterer of Maine, Thomas F. Reilly of Massachusetts, Mike McGrath of Montana, Frankie Sue Del Papa of Nevada, Phillip T. McLaughlin of New Hampshire, John J. Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Betty D. Montgomery of Ohio, W A. Drew Edmondson of Oklahoma, Mark W Barnett of South Dakota, William H. Sorrell of Vermont, Iver A. Stridiron of the Virgin Islands, and Christine O. Gregoire of Washington; for the County of Santa Barbara by Stephen Shane Stark and Alan L. Seltzer; for the American Planning Association et al. by Timothy J. Dowling and James E. Ryan; for the Board of County Commissioners of the County of La Plata, Colorado, by Michael A. Goldman and Jeffery P. Robbins; for the National Conference of State Legislatures et al. by Richard Ruda and James I. Crowley; for the National Wildlife Federation et al. by Vicki L. Been and Glenn P. Sugameli; for Save the Bay-People for Narragansett Bay by Deming E. Sherman and Kendra Beaver; and for Daniel W. Bromley et al. by John D. Echeverria. Briefs of amici curiae were filed for the National Association of Home Builders by Christopher G. Senior; and for Dr. John M. Teal et al. by Patrick A. Parenteau and Tim Eichenberg. 612 Island and Connecticut. Situated on land purchased from the Narragansett Indian Tribe, the town was incorporated in 1669 and had a precarious, though colorful, early history. Both Connecticut and Massachusetts contested the boundaries-and indeed the validity-of Rhode Island's royal charter; and Westerly's proximity to Connecticut invited encroachments during these jurisdictional squabbles. See M. Best, The Town that Saved a State-Westerly 60-83 (1943); see also W. McLoughlin, Rhode Island: A Bicentennial History 39-57 (1978). When the borders of the Rhode Island Colony were settled by compact in 1728, the town's development was more orderly, and with some historical distinction. For instance, Watch Hill Point, the peninsula at the southwestern tip of the town, was of strategic importance in the Revolutionary War and the War of 1812. See Best, supra, at 190; F. Denison, Westerly and its Witnesses 118-119 (1878). In later times Westerly's coastal location had a new significance: It became a popular vacation and seaside destination. One of the town's historians gave this happy account: "After the Civil War the rapid growth of manufacture and expansion of trade had created a spending class on pleasure bent, and Westerly had superior attractions to offer, surf bathing on ocean beaches, quieter bathing in salt and fresh water ponds, fishing, annual sail and later motor boat races. The broad beaches of clean white sand dip gently toward the sea; there are no odorous marshes at low tide, no railroad belches smoke, and the climate is unrivalled on the coast, that of Newport only excepted. In the phenomenal heat wave of 1881 ocean resorts from northern New England to southern New Jersey sweltered as the thermometer climbed to 95 and 104 degrees, while Watch Hill enjoyed a comfortable 80. When Providence to the north runs a temperature of 90, the mercury in this favored spot remains at 77." Best, supra, at 192. 613 Westerly today has about 20,000 year-round residents, and thousands of summer visitors come to enjoy its beaches and coastal advantages. One of the more popular attractions is Misquamicut State Beach, a lengthy expanse of coastline facing Block Island Sound and beyond to the Atlantic Ocean. The primary point of access to the beach is Atlantic Avenue, a well-traveled 3-mile stretch of road running along the coastline within the town's limits. At its western end, Atlantic Avenue is something of a commercial strip, with restaurants, hotels, arcades, and other typical seashore businesses. The pattern of development becomes more residential as the road winds eastward onto a narrow spine of land bordered to the south by the beach and the ocean, and to the north by Winnapaug Pond, an intertidal inlet often used by residents for boating, fishing, and shellfishing. In 1959 petitioner, a lifelong Westerly resident, decided to invest in three undeveloped, adjoining parcels along this eastern stretch of Atlantic Avenue. To the north, the property faces, and borders upon, Winnapaug Pond; the south of the property faces Atlantic Avenue and the beachfront homes abutting it on the other side, and beyond that the dunes and the beach. To purchase and hold the property, petitioner and associates formed Shore Gardens, Inc. (SGI). After SGI purchased the property petitioner bought out his associates and became the sole shareholder. In the first decade of SGI's ownership of the property the corporation submitted a plat to the town subdividing the property into 80 lots; and it engaged in various transactions that left it with 74 lots, which together encompassed about 20 acres. During the same period SGI also made initial attempts to develop the property and submitted intermittent applications to state agencies to fill substantial portions of the parcel. Most of the property was then, as it is now, salt marsh subject to tidal flooding. The wet ground and permeable soil would require considerable fill-as much as six feet in some 614 places-before significant structures could be built. SGI's proposal, submitted in 1962 to the Rhode Island Division of Harbors and Rivers (DHR), sought to dredge from Winnapaug Pond and fill the entire property. The application was denied for lack of essential information. A second, similar proposal followed a year later. A third application, submitted in 1966 while the second application was pending, proposed more limited filling of the land for use as a private beach club. These latter two applications were referred to the Rhode Island Department of Natural Resources, which indicated initial assent. The agency later withdrew approval, however, citing adverse environmental impacts. SG I did not contest the ruling. No further attempts to develop the property were made for over a decade. Two intervening events, however, become important to the issues presented. First, in 1971, Rhode Island enacted legislation creating the Council, an agency charged with the duty of protecting the State's coastal properties. 1971 R. 1. Pub. Laws, ch. 279, § 1 et seq. Regulations promulgated by the Council designated salt marshes like those on SGI's property as protected "coastal wetlands," Rhode Island Coastal Resources Management Program (CRMP) § 210.3 (as amended, June 28, 1983) (lodged with the Clerk of this Court), on which development is limited to a great extent. Second, in 1978, SGI's corporate charter was revoked for failure to pay corporate income taxes; and title to the property passed, by operation of state law, to petitioner as the corporation's sole shareholder. In 1983, petitioner, now the owner, renewed the efforts to develop the property. An application to the Council, resembling the 1962 submission, requested permission to construct a wooden bulkhead along the shore of Winnapaug Pond and to fill the entire marshland area. The Council rejected the application, noting it was "vague and inadequate for a project of this size and nature." App. 16. The agency also found that "the proposed activities will have significant im- 615 pacts upon the waters and wetlands of Winnapaug Pond," and concluded that "the proposed alteration ... will conflict with the Coastal Resources Management Plan presently in effect." Id., at 17. Petitioner did not appeal the agency's determination. Petitioner went back to the drawing board, this time hiring counsel and preparing a more specific and limited proposal for use of the property. The new application, submitted to the Council in 1985, echoed the 1966 request to build a private beach club. The details do not tend to inspire the reader with an idyllic coastal image, for the proposal was to fill 11 acres of the property with gravel to accommodate "50 cars with boat trailers, a dumpster, port-a-johns, picnic tables, barbecue pits of concrete, and other trash receptacles." Id., at 25. The application fared no better with the Council than previous ones. Under the agency's regulations, a landowner wishing to fill salt marsh on Winnapaug Pond needed a "special exception" from the Council. CRMP § 130. In a short opinion the Council said the beach club proposal conflicted with the regulatory standard for a special exception. See App. 27. To secure a special exception the proposed activity must serve "a compelling public purpose which provides benefits to the public as a whole as opposed to individual or private interests." CRMP § 130A(1). This time petitioner appealed the decision to the Rhode Island courts, challenging the Council's conclusion as contrary to principles of state administrative law. The Council's decision was affirmed. See App.31-42. Petitioner filed an inverse condemnation action in Rhode Island Superior Court, asserting that the State's wetlands regulations, as applied by the Council to his parcel, had taken the property without compensation in violation of the Fifth and Fourteenth Amendments. See id., at 45. The suit alleged the Council's action deprived him of "economically, beneficial use" of his property, ibid., resulting in a total tak- 616 ing requiring compensation under Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). He sought damages in the amount of $3,150,000, a figure derived from an appraiser's estimate as to the value of a 74-lot residential subdivision. The State countered with a host of defenses. After a bench trial, a justice of the Superior Court ruled against petitioner, accepting some of the State's theories. App. to Pet. for Cert. B-1 to B-13. The Rhode Island Supreme Court affirmed. 746 A. 2d 707 (2000). Like the Superior Court, the State Supreme Court recited multiple grounds for rejecting petitioner's suit. The court held, first, that petitioner's takings claim was not ripe, id., at 712-715; second, that petitioner had no right to challenge regulations predating 1978, when he succeeded to legal ownership of the property from SGI, id., at 716; and third, that the claim of deprivation of all economically beneficial use was contradicted by undisputed evidence that he had $200,000 in development value remaining on an upland parcel of the property, id., at 715. In addition to holding petitioner could not assert a takings claim based on the denial of all economic use, the court concluded he could not recover under the more general test of Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978). On this claim, too, the date of acquisition of the parcel was found determinative, and the court held he could have had "no reasonable investmentbacked expectations that were affected by this regulation" because it predated his ownership, 746 A. 2d, at 717; see also Penn Central, supra, at 124. We disagree with the Supreme Court of Rhode Island as to the first two of these conclusions; and, we hold, the court was correct to conclude that the owner is not deprived of all economic use of his property because the value of upland portions is substantial. We remand for further consideration of the claim under the principles set forth in Penn Central. 617 II The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226 (1897), prohibits the government from taking private property for public use without just compensation. The clearest sort of taking occurs when the government encroaches upon or occupies private land for its own proposed use. Our cases establish that even a minimal "permanent physical occupation of real property" requires compensation under the Clause. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 , 427 (1982). In Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), the Court recognized that there will be instances when government actions do not encroach upon or occupy the property yet still affect and limit its use to such an extent that a taking occurs. In Justice Holmes' well-known, if less than self-defining, formulation, "while property may be regulated to a certain extent, if a regulation goes too far it will be recognized as a taking." Id., at 415. Since Mahon, we have given some, but not too specific, guidance to courts confronted with deciding whether a particular government action goes too far and effects a regulatory taking. First, we have observed, with certain qualifications, see infra, at 629-630, that a regulation which "denies all economically beneficial or productive use of land" will require compensation under the Takings Clause. Lucas, 505 U. S., at 1015; see also id., at 1035 (KENNEDY, J., concurring); Agins v. City of Tiburon, 447 U. S. 255 , 261 (1980). Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action. Penn Central, supra, at 124. These inquiries are informed by the purpose of the 618 Takings Clause, which is to prevent the government from "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40 , 49 (1960). Petitioner seeks compensation under these principles. At the outset, however, we face the two threshold considerations invoked by the state court to bar the claim: ripeness, and acquisition which postdates the regulation. A In Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 (1985), the Court explained the requirement that a takings claim must be ripe. The Court held that a takings claim challenging the application of land-use regulations is not ripe unless "the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue." Id., at 186. A final decision by the responsible state agency informs the constitutional determination whether a regulation has deprived a landowner of "all economically beneficial use" of the property, see Lucas, supra, at 1015, or defeated the reasonable investment-backed expectations of the landowner to the extent that a taking has occurred, see Penn Central, supra, at 124. These matters cannot be resolved in definitive terms until a court knows "the extent of permitted development" on the land in question. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 351 (1986). Drawing on these principles, the Rhode Island Supreme Court held that petitioner had not taken the necessary steps to ripen his takings claim. The central question in resolving the ripeness issue, under Williamson County and other relevant decisions, is whether petitioner obtained a final decision from the Council determining the permitted use for the land. As we have noted, SGI's early applications to fill had been granted at one point, 619 though that assent was later revoked. Petitioner then submitted two proposals: the 1983 proposal to fill the entire parcel, and the 1985 proposal to fill 11 of the property's 18 wetland acres for construction of the beach club. The court reasoned that, notwithstanding the Council's denials of the applications, doubt remained as to the extent of development the Council would allow on petitioner's parcel. We cannot agree. The court based its holding in part upon petitioner's failure to explore "any other use for the property that would involve filling substantially less wetlands." 746 A. 2d, at 714. It relied upon this Court's observations that the final decision requirement is not satisfied when a developer submits, and a land-use authority denies, a grandiose development proposal, leaving open the possibility that lesser uses of the property might be permitted. See MacDonald, supra, at 353, n. 9. The suggestion is that while the Council rejected petitioner's effort to fill all of the wetlands, and then rejected his proposal to fill 11 of the wetland acres, perhaps an application to fill (for instance) 5 acres would have been approved. Thus, the reasoning goes, we cannot know for sure the extent of permitted development on petitioner's wetlands. This is belied by the unequivocal nature of the wetland regulations at issue and by the Council's application of the regulations to the subject property. Winnapaug Pond is classified under the CRMP as a Type 2 body of water. See CRMP § 200.2. A landowner, as a general rule, is prohibited from filling or building residential structures on wetlands adjacent to Type 2 waters, see id., Table 1, p. 22, and § 210.3(C)(4), but may seek a special exception from the Council to engage in a prohibited use, see id., § 130. The Council is permitted to allow the exception, however, only where a "compelling public purpose" is served. Id., § 130A(2). The proposal to fill the entire property was not accepted under Council regulations and did not qualify for the special exception. The Council determined the use pro- 620 posed in the second application (the beach club) did not satisfy the "compelling public purpose" standard. There is no indication the Council would have accepted the application had petitioner's proposed beach club occupied a smaller surface area. To the contrary, it ruled that the proposed activity was not a "compelling public purpose." App. 27; cf. id., at 17 (1983 application to fill wetlands proposed an "activity" conflicting with the CRMP). Williamson County's final decision requirement "responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer." Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725 , 738 (1997). While a landowner must give a land-use authority an opportunity to exercise its discretion, once it becomes clear that the agency lacks the discretion to permit any development, or the permissible uses of the property are known to a reasonable degree of certainty, a takings claim is likely to have ripened. The case is quite unlike those upon which respondents place principal reliance, which arose when an owner challenged a land-use authority's denial of a substantial project, leaving doubt whether a more modest submission or an application for a variance would be accepted. See MacDonald, supra, at 342 (denial of 159-home residential subdivision); Williamson County, supra, at 182 (476-unit subdivision); cf. Agins v. City of Tiburon, 447 U. S. 255 (1980) (case not ripe because no plan to develop was submitted). These cases stand for the important principle that a landowner may not establish a taking before a land-use authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable and necessary steps to allow regulatory agencies to exercise their full discretion in considering development 621 plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. See Suitum, supra, at 736, and n. 10 (noting difficulty of demonstrating that "mere enactment" of regulations restricting land use effects a taking). Government authorities, of course, may not burden property by imposition of repetitive or unfair land-use procedures in order to avoid a final decision. Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687 , 698 (1999). With respect to the wetlands on petitioner's property, the Council's decisions make plain that the agency interpreted its regulations to bar petitioner from engaging in any filling or development activity on the wetlands, a fact reinforced by the Attorney General's forthright responses to our questioning during oral argument in this case. See Tr. of Oral Arg. 26, 31. The rulings of the Council interpreting the regulations at issue, and the briefs, arguments, and candid statements by counsel for both sides, leave no doubt on this point: On the wetlands there can be no fill for any ordinary land use. There can be no fill for its own sake; no fill for a beach club, either rustic or upscale; no fill for a subdivision; no fill for any likely or foreseeable use. And with no fill there can be no structures and no development on the wetlands. Further permit applications were not necessary to establish this point. As noted above, however, not all of petitioner's parcel constitutes protected wetlands. The trial court accepted uncontested testimony that an upland site located at the eastern end of the property would have an estimated value of $200,000 if developed. App. to Pet. for Cert. B-5. While Council approval is required to develop upland property which lies within 200 feet of protected waters, see CRMP § 100.1(A), the strict "compelling public purpose" test does not govern proposed land uses on property in this classifica- 622 tion, see id., § 110, Table lA, § 120. Council officials testified at trial, moreover, that they would have allowed petitioner to build a residence on the upland parcel. App. to Pet. for Cert. B-5. The State Supreme Court found petitioner's claim unripe for the further reason that he "has not sought permission for any ... use of the property that would involve ... development only of the upland portion of the parcel." 746 A. 2d, at 714. In assessing the significance of petitioner's failure to submit applications to develop the upland area it is important to bear in mind the purpose that the final decision requirement serves. Our ripeness jurisprudence imposes obligations on landowners because "[a] court cannot determine whether a regulation goes 'too far' unless it knows how far the regulation goes." MacDonald, 477 U. S., at 348. Ripeness doctrine does not require a landowner to submit applications for their own sake. Petitioner is required to explore development opportunities on his upland parcel only if there is uncertainty as to the land's permitted use. The State asserts the value of the uplands is in doubt. It relies in part on a comment in the opinion of the Rhode Island Supreme Court that "it would be possible to build at least one single-family home on the upland portion of the parcel." 746 A. 2d, at 714. It argues that the qualification "at least" indicates that additional development beyond the single dwelling was possible. The attempt to interject ambiguity as to the value or use of the uplands, however, comes too late in the day for purposes of litigation before this Court. It was stated in the petition for certiorari that the uplands on petitioner's property had an estimated worth of $200,000. See Pet. for Cert. 21. The figure not only was uncontested but also was cited as fact in the State's brief in opposition. See Brief in Opposition 4, 19. In this circumstance ripeness cannot be contested by saying that the value of the nonwetland parcels is unknown. See Lucas, 505 U. S., at 1020, and n. 9. 623 The State's prior willingness to accept the $200,000 figure, furthermore, is well founded. The only reference to upland property in the trial court's opinion is to a single parcel worth an estimated $200,000. See App. to Pet. for Cert. B-5. There was, it must be acknowledged, testimony at trial suggesting the existence of an additional upland parcel elsewhere on the property. See Tr. 190-191, 199-120 (testimony of Dr. Grover Fugate, Council Executive Director); see also id., at 610 (testimony of Steven Clarke). The testimony indicated, however, that the potential, second upland parcel was on an "island" which required construction of a road across wetlands, id., at 610, 623-624 (testimony of Mr. Clarke)-and, as discussed above, the filling of wetlands for such a purpose would not justify a special exception under Council regulations. See supra, at 619-621; see also Brief for Respondents 10 ("Residential construction is not the basis of such a 'special exception' "). Perhaps for this reason, the State did not maintain in the trial court that additional uplands could have been developed. To the contrary, its post-trial memorandum identified only the single parcel that petitioner concedes retains a development value of $200,000. See State's Post-Trial Memorandum in No. 88-0297 (Super. Ct. R. 1.), pp. 25, 81. The trial court accepted the figure. So there is no genuine ambiguity in the record as to the extent of permitted development on petitioner's property, either on the wetlands or the uplands. Nonetheless, there is some suggestion that the use permitted on the uplands is not known, because the State accepted the $200,000 value for the upland parcel on the premise that only a Lucas claim was raised in the pleadings in the state trial court. See Brief for Respondents 29-30. Since a Penn Central argument was not pressed at trial, it is argued, the State had no reason to assert with vigor that more than a single-family residence might be placed on the uplands. We disagree; the State was aware of the applicability of Penn Central. The issue whether the Council's decisions 624 amounted to a taking under Penn Central was discussed in the trial court, App. to Pet. for Cert. B-7, the State Supreme Court, 746 A. 2d, at 717, and the State's own post-trial submissions, see State's Post-Trial Supplemental Memorandum 7-10. The state-court opinions cannot be read as indicating that a Penn Central claim was not properly presented from the outset of this litigation. A final ripeness issue remains. In concluding that Williamson County's final decision requirement was not satisfied, the State Supreme Court placed emphasis on petitioner's failure to "appl[y] for permission to develop [the] seventy-four-Iot subdivision" that was the basis for the damages sought in his inverse condemnation suit. 746 A. 2d, at 714. The court did not explain why it thought this fact significant, but respondents and amici defend the ruling. The Council's practice, they assert, is to consider a proposal only if the applicant has satisfied all other regulatory preconditions for the use envisioned in the application. The subdivision proposal that was the basis for petitioner's takings claim, they add, could not have proceeded before the Council without, at minimum, zoning approval from the town of Westerly and a permit from the Rhode Island Department of Environmental Management allowing the installation of individual sewage disposal systems on the property. Petitioner is accused of employing a hide the ball strategy of submitting applications for more modest uses to the Council, only to assert later a takings action predicated on the purported inability to build a much larger project. Brief for the National Wildlife Federation et al. as Amici Curiae 9. It is difficult to see how this concern is relevant to the inquiry at issue here. Petitioner was informed by the Council that he could not fill the wetlands; it follows of necessity that he could not fill and then build 74 single-family dwellings upon it. Petitioner's submission of this proposal would not have clarified the extent of development permitted by the wetlands regulations, which is the inquiry required 625 under our ripeness decisions. The State's concern may be that landowners could demand damages for a taking based on a project that could not have been constructed under other, valid zoning restrictions quite apart from the regulation being challenged. This, of course, is a valid concern in inverse condemnation cases alleging injury from wrongful refusal to permit development. The instant case does not require us to pass upon the authority of a State to insist in such cases that landowners follow normal planning procedures or to enact rules to control damages awards based on hypothetical uses that should have been reviewed in the normal course, and we do not intend to cast doubt upon such rules here. The mere allegation of entitlement to the value of an intensive use will not avail the landowner if the project would not have been allowed under other existing, legitimate land-use limitations. When a taking has occurred, under accepted condemnation principles the owner's damages will be based upon the property's fair market value, see, e. g., Olson v. United States, 292 U. S. 246 , 255 (1934); 4 J. Sackman, Nichols on Eminent Domain § 12.01 (rev. 3d ed. 2000)-an inquiry which will turn, in part, on restrictions on use imposed by legitimate zoning or other regulatory limitations, see id., § 12C.03[1]. The state court, however, did not rely upon state-law ripeness or exhaustion principles in holding that petitioner's takings claim was barred by virtue of his failure to apply for a 74-10t subdivision; it relied on Williamson County. As we have explained, Williamson County and our other ripeness decisions do not impose further obligations on petitioner, for the limitations the wetland regulations imposed were clear from the Council's denial of his applications, and there is no indication that any use involving any substantial structures or improvements would have been allowed. Where the state agency charged with enforcing a challenged land-use regulation entertains an application from an owner and its denial of the application makes clear the extent of develop- 626 ment permitted, and neither the agency nor a reviewing state court has cited noncompliance with reasonable statelaw exhaustion or pre-permit processes, see Felder v. Casey, 487 U. S. 131 , 150-151 (1988), federal ripeness rules do not require the submission of further and futile applications with other agencies. B We turn to the second asserted basis for declining to address petitioner's takings claim on the merits. When the Council promulgated its wetlands regulations, the disputed parcel was owned not by petitioner but by the corporation of which he was sole shareholder. When title was transferred to petitioner by operation of law, the wetlands regulations were in force. The state court held the postregulation acquisition of title was fatal to the claim for deprivation of all economic use, 746 A. 2d, at 716, and to the Penn Central claim, 746 A. 2d, at 717. While the first holding was couched in terms of background principles of state property law, see Lucas, 505 U. S., at 1015, and the second in terms of petitioner's reasonable investment-backed expectations, see Penn Central, 438 U. S., at 124, the two holdings together amount to a single, sweeping, rule: A purchaser or a successive title holder like petitioner is deemed to have notice of an earlierenacted restriction and is barred from claiming that it effects a taking. The theory underlying the argument that postenactment purchasers cannot challenge a regulation under the Takings Clause seems to run on these lines: Property rights are created by the State. See, e. g., Phillips v. Washington Legal Foundation, 524 U. S. 156 , 163 (1998). So, the argument goes, by prospective legislation the State can shape and define property rights and reasonable investment-backed expectations, and subsequent owners cannot claim any injury from lost value. After all, they purchased or took title with notice of the limitation. 627 The State may not put so potent a Hobbesian stick into the Lockean bundle. The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions. See Pennsylvania Coal Co., 260 U. S., at 413 ("Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law"). The Takings Clause, however, in certain circumstances allows a landowner to assert that a particular exercise of the State's regulatory power is so unreasonable or onerous as to compel compensation. Just as a prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned, other enactments are unreasonable and do not become less so through passage of time or title. Were we to accept the State's rule, the postenactment transfer of title would absolve the State of its obligation to defend any action restricting land use, no matter how extreme or unreasonable. A State would be allowed, in effect, to put an expiration date on the Takings Clause. This ought not to be the rule. Future generations, too, have a right to challenge unreasonable limitations on the use and value of land. Nor does the justification of notice take into account the effect on owners at the time of enactment, who are prejudiced as well. Should an owner attempt to challenge a new regulation, but not survive the process of ripening his or her claim (which, as this case demonstrates, will often take years), under the proposed rule the right to compensation may not be asserted by an heir or successor, and so may not be asserted at all. The State's rule would work a critical alteration to the nature of property, as the newly regulated landowner is stripped of the ability to transfer the interest which was possessed prior to the regulation. The State may not by this means secure a windfall for itself. See Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 628 155, 164 (1980) ("[A] State, by ipse dixit, may not transform private property into public property without compensation"); cf. Ellickson, Property in Land, 102 Yale L. J. 1315, 1368-1369 (1993) (right to transfer interest in land is a defining characteristic of the fee simple estate). The proposed rule is, furthermore, capricious in effect. The young owner contrasted with the older owner, the owner with the resources to hold contrasted with the owner with the need to sell, would be in different positions. The Takings Clause is not so quixotic. A blanket rule that purchasers with notice have no compensation right when a claim becomes ripe is too blunt an instrument to accord with the duty to compensate for what is taken. Direct condemnation, by invocation of the State's power of eminent domain, presents different considerations from cases alleging a taking based on a burdensome regulation. In a direct condemnation action, or when a State has physically invaded the property without filing suit, the fact and extent of the taking are known. In such an instance, it is a general rule of the law of eminent domain that any award goes to the owner at the time of the taking, and that the right to compensation is not passed to a subsequent purchaser. See Danforth v. United States, 308 U. S. 271 , 284 (1939); 2 Sackman, Eminent Domain, at § 5.01[5][d][i] ("It is well settled that when there is a taking of property by eminent domain in compliance with the law, it is the owner of the property at the time of the taking who is entitled to compensation"). A challenge to the application of a land-use regulation, by contrast, does not mature until ripeness requirements have been satisfied, under principles we have discussed; until this point an inverse condemnation claim alleging a regulatory taking cannot be maintained. It would be illogical, and unfair, to bar a regulatory takings claim because of the postenactment transfer of ownership where the steps necessary to make the claim ripe were not taken, or could not have been taken, by a previous owner. 629 There is controlling precedent for our conclusion. Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), presented the question whether it was consistent with the Takings Clause for a state regulatory agency to require oceanfront landowners to provide lateral beach access to the public as the condition for a development permit. The principal dissenting opinion observed it was a policy of the California Coastal Commission to require the condition, and that the Nollans, who purchased their home after the policy went into effect, were "on notice that new developments would be approved only if provisions were made for lateral beach access." Id., at 860 (Brennan, J., dissenting). A majority of the Court rejected the proposition. "So long as the Commission could not have deprived the prior owners of the easement without compensating them," the Court reasoned, "the prior owners must be understood to have transferred their full property rights in conveying the lot." Id., at 834, n.2. It is argued that Nollan's holding was limited by the later decision in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). In Lucas the Court observed that a landowner's ability to recover for a government deprivation of all economically beneficial use of property is not absolute but instead is confined by limitations on the use of land which "inhere in the title itself." Id., at 1029. This is so, the Court reasoned, because the landowner is constrained by those "restrictions that background principles of the State's law of property and nuisance already place upon land ownership." Ibid. It is asserted here that Lucas stands for the proposition that any new regulation, once enacted, becomes a background principle of property law which cannot be challenged by those who acquire title after the enactment. We have no occasion to consider the precise circumstances when a legislative enactment can be deemed a background principle of state law or whether those circumstances are present here. It suffices to say that a regulation that other- 630 wise would be unconstitutional absent compensation is not transformed into a background principle of the State's law by mere virtue of the passage of title. This relative standard would be incompatible with our description of the concept in Lucas, which is explained in terms of those common, shared understandings of permissible limitations derived from a State's legal tradition, see id., at 1029-1030. A regulation or common-law rule cannot be a background principle for some owners but not for others. The determination whether an existing, general law can limit all economic use of property must turn on objective factors, such as the nature of the land use proscribed. See id., at 1030 ("The 'total taking' inquiry we require today will ordinarily entail ... analysis of, among other things, the degree of harm to public lands and resources, or adjacent private property, posed by the claimant's proposed activities"). A law does not become a background principle for subsequent owners by enactment itself. Lucas did not overrule our holding in Nollan, which, as we have noted, is based on essential Takings Clause principles. For reasons we discuss next, the state court will not find it necessary to explore these matters on remand in connection with the claim that all economic use was deprived; it must address, however, the merits of petitioner's claim under Penn Central. That claim is not barred by the mere fact that title was acquired after the effective date of the stateimposed restriction. III As the case is ripe, and as the date of transfer of title does not bar petitioner's takings claim, we have before us the alternative ground relied upon by the Rhode Island Supreme Court in ruling upon the merits of the takings claims. It held that all economically beneficial use was not deprived because the uplands portion of the property can still be improved. On this point, we agree with the court's decision. Petitioner accepts the Council's contention and the state trial 631 court's finding that his parcel retains $200,000 in development value under the State's wetlands regulations. He asserts, nonetheless, that he has suffered a total taking and contends the Council cannot sidestep the holding in Lucas "by the simple expedient of leaving a landowner a few crumbs of value." Brief for Petitioner 37. Assuming a taking is otherwise established, a State may not evade the duty to compensate on the premise that the landowner is left with a token interest. This is not the situation of the landowner in this case, however. A regulation permitting a landowner to build a substantial residence on an 18-acre parcel does not leave the property "economically idle." Lucas, supra, at 1019. In his brief submitted to us petitioner attempts to revive this part of his claim by reframing it. He argues, for the first time, that the upland parcel is distinct from the wetlands portions, so he should be permitted to assert a deprivation limited to the latter. This contention asks us to examine the difficult, persisting question of what is the proper denominator in the takings fraction. See Michelman, Property, Utility, and Fairness: Comments on the Ethical Foundations of "Just Compensation Law," 80 Harv. L. Rev. 1165, 1192 (1967). Some of our cases indicate that the extent of deprivation effected by a regulatory action is measured against the value of the parcel as a whole, see, e. g., Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 497 (1987); but we have at times expressed discomfort with the logic of this rule, see Lucas, supra, at 1016-1017, n. 7, a sentiment echoed by some commentators, see, e. g., Epstein, Takings: Descent and Resurrection, 1987 S. Ct. Rev. 1, 16-17 (1987); Fee, Unearthing the Denominator in Regulatory Takings Claims, 61 U. Chi. L. Rev. 1535 (1994). Whatever the merits of these criticisms, we will not explore the point here. Petitioner did not press the argument in the state courts, and the issue was not presented in the petition for certiorari. The case comes to us on the premise that petitioner's entire 632 parcel serves as the basis for his takings claim, and, so framed, the total deprivation argument fails. *** For the reasons we have discussed, the State Supreme Court erred in finding petitioner's claims were unripe and in ruling that acquisition of title after the effective date of the regulations barred the takings claims. The court did not err in finding that petitioner failed to establish a deprivation of all economic value, for it is undisputed that the parcel retains significant worth for construction of a residence. The claims under the Penn Central analysis were not examined, and for this purpose the case should be remanded. The judgment of the Rhode Island Supreme Court is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE O'CONNOR, concurring. I join the opinion of the Court but with my understanding of how the issues discussed in Part II-B of the opinion must be considered on remand. Part II-B of the Court's opinion addresses the circumstance, present in this case, where a takings claimant has acquired title to the regulated property after the enactment of the regulation at issue. As the Court holds, the Rhode Island Supreme Court erred in effectively adopting the sweeping rule that the preacquisition enactment of the use restriction ipso facto defeats any takings claim based on that use restriction. Accordingly, the Court holds that petitioner's claim under Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), "is not barred by the mere fact that title was acquired after the effective date of the state-imposed restriction." Ante, at 630. The more difficult question is what role the temporal relationship between regulatory enactment and title acquisition 633 plays in a proper Penn Central analysis. Today's holding does not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investmentbacked expectations is one of a number of factors that a court must examine. Further, the regulatory regime in place at the time the claimant acquires the property at issue helps to shape the reasonableness of those expectations. The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is "'designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.' " Penn Central, supra, at 123-124 (quoting Armstrong v. United States, 364 U. S. 40 , 49 (1960)). The concepts of "fairness and justice" that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed "any 'set formula' for determining when 'justice and fairness' require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons." Penn Central, supra, at 124 (quoting Goldblatt v. Hempstead, 369 U. S. 590 , 594 (1962)). The outcome instead "depends largely 'upon the particular circumstances [in that] case.'" Penn Central, supra, at 124 (quoting United States We have "identified several factors that have particular significance" in these "essentially ad hoc, factual inquiries." Penn Central, 438 U. S., at 124. Two such factors are "[t]he economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered 634 with distinct investment-backed expectations." Ibid. Another is "the character of the governmental action." Ibid. The purposes served, as well as the effects produced, by a particular regulation inform the takings analysis. Id., at 127 ("[A] use restriction on real property may constitute a 'taking' if not reasonably necessary to the effectuation of a substantial public purpose, [citations omitted], or perhaps if it has an unduly harsh impact upon the owner's use of the property"); see also Yee v. Escondido, 503 U. S. 519 , 523 (1992) (Regulatory takings cases "necessarily entai[l] complex factual assessments of the purposes and economic effects of government actions"). Penn Central does not supply mathematically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required. The Rhode Island Supreme Court concluded that, because the wetlands regulations predated petitioner's acquisition of the property at issue, petitioner lacked reasonable investment-backed expectations and hence lacked a viable takings claim. 746 A. 2d 707, 717 (2000). The court erred in elevating what it believed to be "[petitioner's] lack of reasonable investment-backed expectations" to "dispositive" status. Ibid. Investment-backed expectations, though important, are not talismanic under Penn Central. Evaluation of the degree of interference with investment-backed expectations instead is one factor that points toward the answer to the question whether the application of a particular regulation to particular property "goes too far." Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 415 (1922). Further, the state of regulatory affairs at the time of acquisition is not the only factor that may determine the extent of investment-backed expectations. For example, the nature and extent of permitted development under the regulatory regime vis-a-vis the development sought by the claimant may also shape legitimate expectations without vesting any kind of development right in the property owner. We 635 also have never held that a takings claim is defeated simply on account of the lack of a personal financial investment by a postenactment acquirer of property, such as a donee, heir, or devisee. Cf. Hodel v. Irving, 481 U. S. 704 , 714-718 (1987). Courts instead must attend to those circumstances which are probative of what fairness requires in a given case. If investment-backed expectations are given exclusive significance in the Penn Central analysis and existing regulations dictate the reasonableness of those expectations in every instance, then the State wields far too much power to redefine property rights upon passage of title. On the other hand, if existing regulations do nothing to inform the analysis, then some property owners may reap windfalls and an important indicium of fairness is lost. * As I understand it, our decision today does not remove the regulatory backdrop against which an owner takes title to property from the purview of the Penn Central inquiry. It simply restores balance to that inquiry. Courts properly consider the effect of existing regulations under the rubric of investment-backed expectations in determining whether a compensable taking *JUSTICE SCALIA'S inapt "government-as-thief" simile is symptomatic of the larger failing of his opinion, which is that he appears to conflate two questions. The first question is whether the enactment or application of a regulation constitutes a valid exercise of the police power. The second question is whether the State must compensate a property owner for a diminution in value effected by the State's exercise of its police power. We have held that "[t]he 'public use' requirement [of the Takings Clause] is ... coterminous with the scope of a sovereign's police powers." Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 240 (1984). The relative timing of regulatory enactment and title acquisition, of course, does not affect the analysis of whether a State has acted within the scope of these powers in the first place. That issue appears to be the one on which JUSTICE SCALIA focuses, but it is not the matter at hand. The relevant question instead is the second question described above. It is to this inquiry that "investment-backed expectations" and the state of regulatory affairs upon acquisition of title are relevant under Penn Central. JUSTICE SCALIA'S approach therefore would seem to require a revision of the Penn Central analysis that this Court has not undertaken. 636 has occurred. As before, the salience of these facts cannot be reduced to any "set formula." Penn Central, 438 U. S., at 124 (internal quotation marks omitted). The temptation to adopt what amount to per se rules in either direction must be resisted. The Takings Clause requires careful examination and weighing of all the relevant circumstances in this context. The court below therefore must consider on remand the array of relevant factors under Penn Central before deciding whether any compensation is due. JUSTICE SCALIA, concurring. I write separately to make clear that my understanding of how the issues discussed in Part II-B of the Court's opinion must be considered on remand is not JUSTICE O'CONNOR'S. The principle that underlies her separate concurrence is that it may in some (unspecified) circumstances be "[un]fai[r]," and produce unacceptable "windfalls," to allow a subsequent purchaser to nullify an unconstitutional partial taking (though, inexplicably, not an unconstitutional total taking) by the government. Ante, at 635. The polar horrible, presumably, is the situation in which a sharp real estate developer, realizing (or indeed, simply gambling on) the unconstitutional excessiveness of a development restriction that a naIve landowner assumes to be valid, purchases property at what it would be worth subject to the restriction, and then develops it to its full value (or resells it at its full value) after getting the unconstitutional restriction invalidated. This can, I suppose, be called a windfall-though it is not much different from the windfalls that occur every day at stock exchanges or antique auctions, where the knowledgeable (or the venturesome) profit at the expense of the ignorant (or the risk averse). There is something to be said (though in my view not much) for pursuing abstract "fairness" by requiring part or all of that windfall to be returned to the naIve original owner, who presumably is the "rightful" owner of it. But there is nothing to be said for giving 637 it instead to the government-which not only did not lose something it owned, but is both the cause of the miscarriage of "fairness" and the only one of the three parties involved in the miscarriage (government, naIve original owner, and sharp real estate developer) which acted unlawfully-indeed unconstitutionally. JUSTICE O'CONNOR would eliminate the windfall by giving the malefactor the benefit of its malefaction. It is rather like eliminating the windfall that accrued to a purchaser who bought property at a bargain rate from a thief clothed with the indicia of title, by making him turn over the "unjust" profit to the thief* In my view, the fact that a restriction existed at the time the purchaser took title (other than a restriction forming part of the "background principles of the State's law of property and nuisance," Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1029 (1992)) should have no bearing upon the determination of whether the restriction is so substantial as to constitute a taking. The "investment-backed expectations" that the law will take into account do not include the assumed validity of a restriction that in fact deprives property of so much of its value as to be unconstitutional. Which is to say that a Penn Central taking, see Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), no less than a total taking, is not absolved by the transfer of title. JUSTICE STEVENS, concurring in part and dissenting in part. In an admirable effort to frame its inquiries in broadly significant terms, the majority offers five pages of commentary on the issue of whether an owner of property can chal- *Contrary to JUSTICE O'CONNOR'S assertion, ante, at 635, n., my contention of governmental wrongdoing does not assume that the government exceeded its police powers by ignoring the "public use" requirement of the Takings Clause, see Hawaii Housing Authority v. Midkiff, 467 U. S. 229 , 240 (1984). It is wrong for the government to take property, even for public use, without tendering just compensation. 638 Opinion of STEVENS, J. lenge regulations adopted prior to her acquisition of that property without ever discussing the particular facts or legal claims at issue in this case. See ante, at 626-630. While I agree with some of what the Court has to say on this issue, an examination of the issue in the context of the facts of this case convinces me that the Court has oversimplified a complex calculus and conflated two separate questions. Therefore, while I join Part II -A of the opinion, I dissent from the judgment and, in particular, from Part II-B. I Though States and local governments have broad power to adopt regulations limiting land usage, those powers are constrained by the Constitution and by other provisions of state law. In adopting land-use restrictions, local authorities must follow legally valid and constitutionally sufficient procedures and must adhere to whatever substantive requirements are imposed by the Constitution and supervening law. If a regulating body fails to adhere to its procedural or substantive obligations in developing land-use restrictions, anyone adversely impacted by the restrictions may challenge their validity in an injunctive action. If the application of such restriction to a property owner would cause her a "direct and substantial injury," e. g., Chicago v. Atchison, T. & S. F. R. Co., 357 U. S. 77 , 83 (1958), I have no doubt that she has standing to challenge the restriction's validity whether she acquired title to the property before or after the regulation was adopted. For, as the Court correctly observes, even future generations "have a right to challenge unreasonable limitations on the use and value of land." Ante, at 627. It by no means follows, however, that, as the Court assumes, a succeeding owner may obtain compensation for a taking of property from her predecessor in interest. A taking is a discrete event, a governmental acquisition of private property for which the State is required to provide just compensation. Like other transfers of property, it occurs at a 639 particular time, that time being the moment when the relevant property interest is alienated from its owner.1 Precise specification of the moment a taking occurred and of the nature of the property interest taken is necessary in order to determine an appropriately compensatory remedy. For example, the amount of the award is measured by the value of the property at the time of taking, not the value at some later date. Similarly, interest on the award runs from that date. Most importantly for our purposes today, it is the person who owned the property at the time of the taking that is entitled to the recovery. See, e. g., Danforth v. United States, 308 U. S. 271 , 284 (1939) ("For the reason that compensation is due at the time of taking, the owner at that time, not the owner at an earlier or later date, receives the payment"). The rationale behind that rule is true whether the transfer of ownership is the result of an arm's-length negotiation, an inheritance, or the dissolution of a bankrupt debtor. Cf. United States v. Dow, 357 U. S. 17 , 20-21 (1958).2 1 A regulation that goes so "far" that it violates the Takings Clause may give rise to an award of compensation or it may simply be invalidated as it would be if it violated any other constitutional principle (with the consequence that the State must choose between adopting a new regulatory scheme that provides compensation or forgoing regulation). While some recent Court opinions have focused on the former remedy, Justice Holmes appears to have had a regime focusing on the latter in mind in the opinion that began the modern preoccupation with "regulatory takings." See Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 414 (1922) (because the statute in question takes private property without just compensation "the act cannot be sustained"). 2 The Court argues, ante, at 628, that a regulatory taking is different from a direct state appropriation of property and that the rules this Court has developed for identifying the time of the latter do not apply to the former. This is something of an odd conclusion, in that the entire rationale for allowing compensation for regulations in the first place is the somewhat dubious proposition that some regulations go so "far" as to become the functional equivalent of a direct taking. Ultimately, the Court's regulations-are-different principle rests on the confusion of two dates: the time an injury occurs and the time a claim for compensation for that injury becomes cognizable in a judicial proceeding. That we require plaintiffs making the claim that a regulation is the equivalent of a taking to go 640 Opinion of STEVENS, J. II Much of the difficulty of this case stems from genuine confusion as to when the taking Palazzolo alleges actually occurred. According to Palazzolo's theory of the case, the owners of his Westerly, Rhode Island, property possessed the right to fill the wetland portion of the property at some point in the not-too-distant past.3 In 1971, the State of Rhode Island passed a statute creating the Rhode Island Coastal Resources Management Council (Council) and delegating the Council the authority to promulgate regulations restricting the usage of coastal land. See 1971 R. 1. Pub. through certain prelitigation procedures to clarify the scope of the allegedly infringing regulation does not mean that the injury did not occur before those procedures were completed. To the contrary, whenever the relevant local bodies construe their regulations, their construction is assumed to reflect "what the [regulation] meant before as well as after the decision giving rise to that construction." Rivers v. Roadway Express, Inc., 511 U. S. 298 , 312-313 (1994). 3 This point is the subject of significant dispute, as the State of Rhode Island has presented substantial evidence that limitations on coastal development have always precluded or limited schemes such as Palazzolo's. See Brief for Respondents 11-12, 41-46. Nonetheless, we must assume that it is true for the purposes of deciding this question. Likewise, we must assume for the purposes of deciding the discrete threshold questions before us that petitioner's complaint states a potentially valid regulatory takings claim. Nonetheless, for the sake of clarity it is worth emphasizing that, on my view, even a newly adopted regulation that diminishes the value of property does not produce a significant Takings Clause issue if it (1) is generally applicable and (2) is directed at preventing a substantial public harm. Cf. Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1029 (1992) (owner of a powerplant astride an earthquake fault does not state a valid takings claim for regulation requiring closure of plant); id., at 1035 (KENNEDY, J., concurring in judgment) (explaining that the government's power to regulate against harmful uses of property without paying compensation is not limited by the common law of nuisance because that doctrine is "too narrow a confine for the exercise of regulatory power in a complex and interdependent society"). It is quite likely that a regulation prohibiting the filling of wetlands meets those criteria. 641 Laws, ch. 279, § 1 et seq. The Council promptly adopted regulations that, inter alia, effectively foreclosed petitioner from filling his wetlands. See ante, at 614; cf. App. to Brief for Respondents 11-22 (current version of regulations). As the regulations nonetheless provided for a process through which petitioner might seek permission to fill the wetlands, he filed two applications for such permission during the 1980's, both of which were denied. See ante, at 614-615. The most natural reading of petitioner's complaint is that the regulations in and of themselves precluded him from filling the wetlands, and that their adoption therefore constituted the alleged taking. This reading is consistent with the Court's analysis in Part II-A of its opinion (which I join) in which the Court explains that petitioner's takings claims are ripe for decision because respondents' wetlands regulations unequivocally provide that there can be "no fill for any likely or foreseeable use." Ante, at 621.4 If it is the regulations themselves of which petitioner complains, and if they did, in fact, diminish the value of his property, they did so when they were adopted. To the extent that the adoption of the regulations constitute the challenged taking, petitioner is simply the wrong party to be bringing this action. If the regulations imposed a compensable injury on anyone, it was on the owner of the property at the moment the regulations were adopted. Given the trial court's finding that petitioner did not own the property at that time,5 in my judgment it is pellucidly clear 4 At oral argument, petitioner's counsel stated: "I think the key here is understanding that no filling of any wetland would be allowed for any reason that was lawful under the local zoning code. No structures of any kind would be permitted by Mr. Palazzolo to construct. So we know that he cannot use his wetland." Tr. of Oral Arg. 14. 5 See App. to Pet. for Cert. A-13 ("[T]he trial justice found that Palazzolo could not have become the owner of the property before 1978, at which time the regulations limiting his ability to fill the wetlands were already in place. The trial justice thus determined that the right to fill the wetlands was not part of Palazzolo's estate to begin with, and that he 642 Opinion of STEVENS, J. that he has no standing to claim that the promulgation of the regulations constituted a taking of any part of the property that he subsequently acquired. His lack of standing does not depend, as the Court seems to assume, on whether or not petitioner "is deemed to have notice of an earlier-enacted restriction," ante, at 626. If those early regulations changed the character of the owner's title to the property, thereby diminishing its value, petitioner acquired only the net value that remained after that diminishment occurred. Of course, if, as respondents contend, see n. 3, supra, even the prior owner never had any right to fill wetlands, there never was a basis for the alleged takings claim in the first place. But accepting petitioner's theory of the case, he has no standing to complain that preacquisition events may have reduced the value of the property that he acquired. If the regulations are invalid, either because improper procedures were followed when they were adopted, or because they have somehow gone "too far," Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 415 (1922), petitioner may seek to enjoin their enforcement, but he has no right to recover compensation for the value of property taken from someone else. A new owner may maintain an ejectment action against a trespasser who has lodged himself in the owner's orchard but surely could not recover damages for fruit a trespasser spirited from the orchard before he acquired the property. The Court's holding in Nollan v. California Coastal Comm'n, 483 U. S. 825 (1987), is fully consistent with this analysis. In that case the taking occurred when the state agency compelled the petitioners to provide an easement of public access to the beach as a condition for a development permit. That event-a compelled transfer of an interest in property-occurred after the petitioners had become the owner of the property and unquestionably diminished the was therefore not owed any compensation for the deprivation of that right"). 643 value of petitioners' property. Even though they had notice when they bought the property that such a taking might occur, they never contended that any action taken by the State before their purchase gave rise to any right to compensation. The matter of standing to assert a claim for just compensation is determined by the impact of the event that is alleged to have amounted to a taking rather than the sort of notice that a purchaser mayor may not have received when the property was transferred. Petitioners in Nollan owned the property at the time of the triggering event. Therefore, they and they alone could claim a right to compensation for the injury.6 Their successors in interest, like petitioner in this case, have no standing to bring such a claim. III At oral argument, petitioner contended that the taking in question occurred in 1986, when the Council denied his final application to fill the land. Tr. of Oral Arg. 16. Though this theory, to the extent that it was embraced within petitioner's actual complaint, complicates the issue, it does not alter my conclusion that the prohibition on filling the wetlands does not take from Palazzolo any property right he ever possessed. The title Palazzolo took by operation of law in 1978 was limited by the regulations then in place to the extent that such regulations represented a valid exercise of the police power. For the reasons expressed above, I think the regulations barred petitioner from filling the wetlands on his property. At the very least, however, they established a rule that such lands could not be filled unless the Council 6 In cases such as Nollan-in which landowners have notice of a regulation when they purchase a piece of property but the regulatory event constituting the taking does not occur until after they take title to the property-I would treat the owners' notice as relevant to the evaluation of whether the regulation goes "too far," but not necessarily dispositive. See ante, at 632-636 (O'CONNOR, J., concurring). 644 Opinion of STEVENS, J. exercised its authority to make exceptions to that rule under certain circumstances. Cf. App. to Brief for Respondents A-13 (laying out narrow circumstances under which the Council retains the discretion to grant a "special exception"). Under the reading of the regulations most favorable to Palazzolo, he acquired no more than the right to a discretionary determination by the Council as to whether to permit him to fill the wetlands. As his two hearings before that body attest, he was given the opportunity to make a presentation and receive such a determination. Thus, the Council properly respected whatever limited rights he may have retained with regard to filling the wetlands. Cf. Lujan v. G & G Fire Sprinklers, Inc., 532 U. S. 189 (2001) (holding, in a different context, that, if a party's only relevant property interest is a claim of entitlement to bring an action, the provision of a forum for hearing that action is all that is required to vindicate that property interest); Lopez v. Davis, 531 U. S. 230 (2001) (involving a federal statute that created an entitlement to a discretionary hearing without creating any entitlement to relief).7 Though the majority leaves open the possibility that the scope of to day's holding may prove limited, see ante, at 629630 (discussing limitations implicit in "background principles" exception); see also ante, at 632-636 (O'CONNOR, J., concurring) (discussing importance of the timing of regula- 7 This is not to suggest that a regulatory body can insulate all of its land-use decisions from the Takings Clause simply by referencing longstanding statutory provisions. If the determination by the regulators to reject the project involves such an unforseeable interpretation or extension of the regulation as to amount to a change in the law, then it is appropriate to consider the decision of that body, rather than the adoption of the regulation, as the discrete event that deprived the owner of a pre-existing interest in property. But, if that is petitioner's theory, his claim is not ripe for the reasons stated by JUSTICE GINSBURG in her dissenting opinion, post, p. 645. As I read petitioner's complaint and the Court's disposition of the ripeness issue, it is the regulations themselves that allegedly deprived the owner of the parcel of the right to fill the wetlands. 645 tions for the evaluation of the merits of a takings claim); post, at 654-655 (BREYER, J., dissenting) (same), the extension of the right to compensation to individuals other than the direct victim of an illegal taking admits of no obvious limiting principle. If the existence of valid land-use regulations does not limit the title that the first postenactment purchaser of the property inherits, then there is no reason why such regulations should limit the rights of the second, the third, or the thirtieth purchaser. Perhaps my concern is unwarranted, but today's decision does raise the spectre of a tremendousand tremendously capricious-one-time transfer of wealth from society at large to those individuals who happen to hold title to large tracts of land at the moment this legal question is permanently resolved. IV In the final analysis, the property interest at stake in this litigation is the right to fill the wetlands on the tract that petitioner owns. Whether either he or his predecessors in title ever owned such an interest, and if so, when it was acquired by the State, are questions of state law. If it is clear-as I think it is and as I think the Court's disposition of the ripeness issue assumes-that any such taking occurred before he became the owner of the property, he has no standing to seek compensation for that taking. On the other hand, if the only viable takings claim has a different predicate that arose later, that claim is not ripe and the discussion in Part II-B of the Court's opinion is superfluous dictum. In either event, the judgment of the Rhode Island Supreme Court should be affirmed in its entirety. JUSTICE GINSBURG, with whom JUSTICE SOUTER and JUSTICE BREYER join, dissenting. A regulatory takings claim is not ripe for adjudication, this Court has held, until the agency administering the regulations at issue, proceeding in good faith, "has arrived at a final, definitive position regarding how it will apply [those 646 regulations] to the particular land in question." Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U. S. 172 , 191 (1985). Absent such a final decision, a court cannot "kno[w] the nature and extent of permitted development" under the regulations, and therefore cannot say "how far the regulation[s] g[o]," as regulatory takings law requires. MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 348, 351 (1986). Therefore, even when a landowner seeks and is denied permission to develop property, if the denial does not demonstrate the effective impact of the regulations on the land, the denial does not represent the "final decision" requisite to generate a ripe dispute. Williamson County, 473 U. S., at 190. MacDonald illustrates how a highly ambitious application may not ripen a takings claim. The landowner in that case proposed a 159-home subdivision. 477 U. S., at 342. When that large proposal was denied, the owner complained that the State had appropriated "all beneficial use of its property." Id., at 352, n. 8; see also id., at 344. This Court concluded, however, that the landowner's claim was not ripe, for the denial of the massive development left "open the possibility that some development [would] be permitted." Id., at 352. "Rejection of exceedingly grandiose development plans," the Court observed, "does not logically imply that less ambitious plans will receive similarly unfavorable reviews." Id., at 353, n. 9. As presented to the Rhode Island Supreme Court, Anthony Palazzolo's case was a close analogue to MacDonald. Palazzolo's land has two components. Approximately 18 acres are wetlands that sustain a rich but delicate ecosystem. See 746 A. 2d 707, 710, and n. 1 (R. 1. 2000). Additional acres are less environmentally sensitive "uplands." (The number of upland acres remains in doubt, see ibid., because Palazzolo has never submitted "an accurate or detailed survey" of his property, see Tr. 190 (June 18-19, 1997).) Rhode Island's administrative agency with ultimate permitting au- 647 thority over the wetlands, the Coastal Resources Management Council (CRMC), bars residential development of the wetlands, but not the uplands. Although Palazzolo submitted several applications to develop his property, those applications uniformly sought permission to fill most or all of the wetlands portion of the property. None aimed to develop only the uplands.1 Upon denial of the last of Palazzolo's applications, Palazzolo filed suit claiming that Rhode Island had taken his property by refusing "to allow any development." App. 45 (Complaint ~ 17). As the Rhode Island Supreme Court saw the case, Palazzolo's claim was not ripe for several reasons, among them, that Palazzolo had not sought permission for "development only of the upland portion of the parcel." 746 A. 2d, at 714. The Rhode Island court emphasized the "undisputed evidence in the record that it would be possible to build at least one single-family home on the existing upland area, with no need for additional fill." Ibid. Today, the Court rejects the Rhode Island court's determination that the case is unripe, finding no "uncertainty as to 1 Moreover, none proposed the 74-lot subdivision Palazzolo advances as the basis for the compensation he seeks. Palazzolo's first application sought to fill all 18 acres of wetlands for no stated purpose whatever. See App. 11 (Palazzolo's sworn 1983 answer to the question why he sought to fill uplands) ("Because it's my right to do if I want to to look at it it is my business."). Palazzolo's second application proposed a most disagreeable "beach club." See ante, at 615 ("trash bins" and "port-a-johns" sought); Tr. 650 (June 25-26, 1997) (testimony of engineer Steven M. Clarke) (to get to the club's water, i. e., Winnapaug Pond rather than the nearby Atlantic Ocean, "you'd have to walk across the gravel fill, but then work your way through approximately 70, 75 feet of marsh land or conservation grasses"). Neither of the CRMC applications supplied a clear map of the proposed development. See App. 7, 16 (1983 application); Tr. 190 (June 18-19, 1997) (1985 application). The Rhode Island Supreme Court ultimately concluded that the 74-lot development would have been barred by zoning requirements, apart from CRMC regulations, requirements Palazzolo never explored. See 746 A. 2d 707, 715, n. 7 (2000). 648 the [uplands'] permitted use." Ante, at 622. The Court's conclusion is, in my view, both inaccurate and inequitable. It is inaccurate because the record is ambiguous. And it is inequitable because, given the claim asserted by Palazzolo in the Rhode Island courts, the State had no cause to pursue further inquiry into potential upland development. But Palazzolo presses other claims here, and at his behest, the Court not only entertains them, but also turns the State's legitimate defense against the claim Palazzolo originally stated into a weapon against the State. I would reject Palazzolo's bait-and-switch ploy and affirm the judgment of the Rhode Island Supreme Court. *** Where physical occupation of land is not at issue, the Court's cases identify two basic forms of regulatory taking. Ante, at 617. In Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), the Court held that, subject to "certain qualifications," ante, at 617, 629, denial of "all economically beneficial or productive use of land" constitutes a taking. 505 U. S., at 1015 (emphasis added). However, if a regulation does not leave the property "economically idle," id., at 1019, to establish the alleged taking the landowner may pursue the multifactor inquiry set out in Penn Central Transp. Co. v. New York City, 438 U. S. 104 , 123-125 (1978). Like the landowner in MacDonald, Palazzolo sought federal constitutional relief only under a straightforward application of Lucas. See ante, at 615-616; App. 45 (Complaint ~ 17) ("As a direct and proximate result of the Defendants' refusal to allow any development of the property, there has been a taking" (emphasis added)); Plaintiff's Post Trial Memorandum in No. 88-0297 (Super. Ct., R. 1.), p. 6 ("[T]his Court need not look beyond the Lucas case as its very lucid and precise standards will determine whether a taking has occurred."); id., at 9-10 ("[T]here is NO USE for the property whatsoever .... Not one scintilla of evidence was proffered 649 by the State to prove, intimate or even suggest a theoretical possibility of any use for this property-never mind a beneficial use. Not once did the State claim that there is, in fact, some use available for the Palazzolo parcel."); Brief of Appellant in No. 98-0333, pp. 5, 7, 9-10 (hereinafter Brief of Appellant) (restating, verbatim, assertions of Post Trial Memorandum quoted above). Responding to Palazzolo's Lucas claim, the State urged as a sufficient defense this now uncontested point: CRMC "would [have been] happy to have [Palazzolo] situate a home" on the uplands, "thus allowing [him] to realize 200,000 dollars." State's Post-Trial Memorandum in No. 88-0297 (Super. Ct., R. 1.), p. 81; see also Brief of Appellees in No. 98-0333A, p. 25 (hereinafter Brief of Appellees) (Palazzolo "never even applied for the realistic alternative of using the entire parcel as a single unitary home-site"). The State did present some evidence at trial that more than one lot could be developed. See infra, at 653-654. And, in a supplemental post-trial memorandum addressing a then new Rhode Island Supreme Court decision, the State briefly urged that Palazzolo's claims would fail even under Penn Central. See ante, at 624. The evidence of additional uses and the post-trial argument directed to Penn Central, however, were underdeveloped and unnecessary, for Palazzolo himself, in his pleadings and at trial, pressed only a Lucas based claim that he had been denied all economically viable use of his property. Once the State demonstrated that an "economically beneficial" development was genuinely plausible, Lucas, 505 U. S., at 1015, the State had established the analogy to MacDonald: The record now showed "valuable use might still be made of the land." 477 U. S., at 352, n. 8; see Brief of Appellees 24-25 (relying on MacDonald). The prospect of real development shown by the State warranted a ripeness dismissal of Palazzolo's complaint. Addressing the State's Lucas defense in Lucas terms, Palazzolo insisted that his land had "no use ... as a result of 650 CRMC's application of its regulations." Brief of Appellant 11. The Rhode Island Supreme Court rejected Palazzolo's argument, identifying in the record evidence that Palazzolo could build at least one home on the uplands. 746 A. 2d, at 714. The court therefore concluded that Palazzolo's failure to seek permission for "development only of the upland portion of the parcel" meant that Palazzolo could not "maintain a claim that the CRMC ha[d] deprived him of all beneficial use of the property." Ibid. It is true that the Rhode Island courts, in the course of ruling for the State, briefly touched base with Penn Central. Cf. ante, at 624. The critical point, however, underplayed by the Court, is that Palazzolo never raised or argued the Penn Central issue in the state system: not in his complaint; not in his trial court submissions; not-even after the trial court touched on the Penn Central issue-in his briefing on appeal. The state high court decision, raising and quickly disposing of the matter, unquestionably permits us to consider the Penn Central issue. See Raley v. Ohio, 360 U. S. 423 , 436-437 (1959). But the ruling below does not change the reality essential here: Palazzolo litigated his takings claim, and it was incumbent on the State to defend against that claim, only under Lucas. If Palazzolo's arguments in this Court had tracked his arguments in the state courts, his petition for certiorari would have argued simply that the Rhode Island courts got it wrong in failing to see that his land had "no use" at all because of CRMC's rules. Brief of Appellant 11. This Court likely would not have granted certiorari to review the application of MacDonald and Lucas to the facts of Palazzolo's case. However, aided by new counsel, Palazzolo soughtand in the exercise of this Court's discretion obtained-review of two contentions he did not advance below. The first assertion is that the state regulations take the property under Penn Central. See Pet. for Cert. 20; Brief for Petitioner 47-50. The second argument is that the regulations 651 amount to a taking under an expanded rendition of Lucas covering cases in which a landowner is left with property retaining only a "few crumbs of value." Ante, at 631 (quoting Brief for Petitioner 37); Pet. for Cert. 20-22. Again, it bears repetition, Palazzolo never claimed in the courts below that, if the State were correct that his land could be used for a residence, a taking nonetheless occurred.2 In support of his new claims, Palazzolo has conceded the very point on which the State properly relied to resist the simple Lucas claim presented below: that Palazzolo can obtain approval for one house of substantial economic value. Palazzolo does not merely accept the argument that the State advanced below. He now contends that the evidence proffered by the State in the Rhode Island courts supports the claims he presents here, by demonstrating that only one house would be approved. See Brief for Petitioner 13 ("[T]he uncontradicted evidence was that CRMC ... would not deny [Palazzolo] permission to build one single-family home on the small upland portion of his property." (emphasis deleted)); Pet. for Cert. 15 (the extent of development permitted on the land is "perfectly clear: one single-family home and nothing more"). As a logical matter, Palazzolo's argument does not stand up. The State's submissions in the Rhode Island courts hardly establish that Palazzolo could obtain approval for only one house of value. By showing that Palazzolo could have obtained approval for a $200,000 house (rather than, say, two houses worth $400,000), the State's submissions established only a floor, not a ceiling, on the value of permissi- 2 After this Court granted certiorari, in his briefing on the merits, Palazzolo presented still another takings theory. That theory, in tension with numerous holdings of this Court, see, e. g., Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602, 643-644 (1993), was predicated on treatment of his wetlands as a property separate from the uplands. The Court properly declines to reach this claim. Ante, at 631. 652 ble development. For a floor value was all the State needed to defeat Palazzolo's simple Lucas claim. Furthermore, Palazzolo's argument is unfair: The argument transforms the State's legitimate defense to the only claim Palazzolo stated below into offensive support for other claims he states for the first time here. Casting away fairness (and fairness to a State, no less), the Court indulges Palazzolo's bait-and-switch maneuver. The Court concludes that "there is no genuine ambiguity in the record as to the extent of permitted development on ... the uplands." Ante, at 623. Two theories are offered to support this conclusion. First, the Court asserts, it is "too late in the day" for the State to contend the uplands give the property more than $200,000 in value; Palazzolo "stated" in his petition for certiorari that the property has "an estimated worth of $200,000," and the State cited that contention "as fact" in its Brief in Opposition. Ante, at 622. But in the cited pages of its Brief in Opposition, the State simply said it "would" approve a "single home" worth $200,000. Brief in Opposition 4, 19. That statement does not foreclose the possibility that the State would also approve another home, adding further value to the property. To be sure, the Brief in Opposition did overlook Palazzolo's change in his theory of the case, a change that, had it been asserted earlier, could have rendered insufficient the evidence the State intelligently emphasized below. But the State's failure to appreciate that Palazzolo had moved the pea to a different shell hardly merits the Court's waiver finding. The only precedent cited for the waiver, a footnote in Lucas, is not remotely on point. Ante, at 622. The landowner in Lucas had invoked a "finding" of fact by the state court, and this Court deemed the State's challenge to that finding waived because the challenge was not timely raised. 505 U. S., at 1020-1022, n. 9. There is nothing extraordinary about this Court's deciding a case on the findings made by a 653 state court. Here, however, the "fact" this Court has stopped the State from contesting-that the property has value of only $200,000-was never found by any court. That valuation was simply asserted, inaccurately, see infra this page and 654, in Palazzolo's petition for certiorari. This Court's waiver ruling thus amounts to an unsavory invitation to unscrupulous litigants: Change your theory and misrepresent the record in your petition for certiorari; if the respondent fails to note your machinations, you have created a different record on which this Court will review the case. The Court bolsters its waiver finding by asserting that the $200,000 figure is "well founded" in the record. Ante, at 623. But, as earlier observed, an absence of multiple valuation possibilities in the record cannot be held against the State, for proof of more than the $200,000 development was unnecessary to defend against the Lucas claim singularly pleaded below. And in any event, the record does not warrant the Court's conclusion. The Court acknowledges "testimony at trial suggesting the existence of an additional upland parcel elsewhere on the property" on which a second house might be built. Ante, at 623. The Court discounts that prospect, however, on the ground that development of the additional parcel would require a new road forbidden under CRMC's regulations. Ibid. Yet the one witness on whose testimony the Court relies, Steven M. Clarke, himself concluded that it would be "realistic to apply for" development at more than one location. Tr. 612 (June 25-26, 1997). Clarke added that a state official, Russell Chateauneuf, "gave [Clarke] supporting information saying that [multiple applications] made sense." Ibid. The conclusions of Clarke and Chateauneuf are confirmed by the testimony of CRMC's executive director, Grover Fugate, who agreed with Palazzolo's counsel during cross-examination that Palazzolo might be able to build "on two, perhaps three, perhaps four of the lots." Id., at 211 (June 20-23, 1997); see also Tr. of Oral Arg. 27 ("[T]here 654 is ... uncertainty as to what additional upland there is and how many other houses can be built."). The ambiguities in the record thus are substantial. They persist in part because their resolution was not required to address the claim Palazzolo presented below, and in part because Palazzolo failed ever to submit an accurate survey of his property. Under the circumstances, I would not step into the role of supreme topographical factfinder to resolve ambiguities in Palazzolo's favor. Instead, I would look to, and rely on, the opinion of the state court whose decision we now review. That opinion states: "There was undisputed evidence in the record that it would be possible to build at least one single-family home on the existing upland area." 746 A. 2d, at 714 (emphasis added). This Court cites nothing to warrant amendment of that finding.3 *** In sum, as I see this case, we still do not know "the nature and extent of permitted development" under the regulation in question, MacDonald, 477 U. S., at 351. I would therefore affirm the Rhode Island Supreme Court's judgment. JUSTICE BREYER, dissenting. I agree with JUSTICE GINSBURG that Palazzolo's takings claim is not ripe for adjudication, and I join her opinion in full. Ordinarily I would go no further. But because the Court holds the takings claim to be ripe and goes on to address some important issues of substantive takings law, I add that, given this Court's precedents, I would agree with JusTICE O'CONNOR that the simple fact that a piece of property has changed hands (for example, by inheritance) does not 3 If Palazzolo's claim were ripe and the merits properly presented, I would, at a minimum, agree with JUSTICE O'CONNOR, post, at 632-636 (concurring opinion), JUSTICE STEVENS, ante, at 643 (opinion concurring in part and dissenting in part), and JUSTICE BREYER, post this page and 655 (dissenting opinion), that transfer of title can impair a takings claim. 655 always and automatically bar a takings claim. Here, for example, without in any way suggesting that Palazzolo has any valid takings claim, I believe his postregulatory acquisition of the property (through automatic operation of law) by itself should not prove dispositive. As JUSTICE O'CONNOR explains, under Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), much depends upon whether, or how, the timing and circumstances of a change of ownership affect whatever reasonable investment-backed expectations might otherwise exist. Ordinarily, such expectations will diminish in force and significance-rapidly and dramatically-as property continues to change hands over time. I believe that such factors can adequately be taken into account within the Penn Central framework. Several amici have warned that to allow complete regulatory takings claims, see Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), to survive changes in land ownership could allow property owners to manufacture such claims by strategically transferring property until only a nonusable portion remains. See, e. g., Brief for Daniel W. Bromley et al. as Amici Curiae 7-8. But I do not see how a constitutional provision concerned with "'fairness and justice,'" Penn Central, supra, at 123-124 (quoting Armstrong v. United States, 364 U. S. 40 , 49 (1960)), could reward any such strategic behavior.

The Supreme Court ruled that a landowner's regulatory takings claim was not ripe for review and that the landowner could not challenge regulations predating his acquisition of the property. The Court also held that a change in property ownership can impair a takings claim, depending on the timing and circumstances of the change.

Property Rights & Land Use

Koontz v. St. Johns River Water Management District

https://supreme.justia.com/cases/federal/us/570/595/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–1447 _________________ COY A. KOONTZ, Jr., PETITIONER v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT on writ of certiorari to the supreme court of florida [June 25, 2013]      Justice Alito delivered the opinion of the Court.      Our decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987) , and Dolan v. City of Tigard, 512 U. S. 374 (1994) , provide important protection against the misuse of the power of land-use regulation. In those cases, we held that a unit of government may not condition the approval of a land-use permit on the owner’s relinquishment of a portion of his property unless there is a “nexus” and “rough proportionality” between the government’s demand and the effects of the proposed land use. In this case, the St. Johns River Water Management District (District) believes that it circumvented Nollan and Dolan because of the way in which it structured its handling of a permit application submitted by Coy Koontz, Sr., whose estate is represented in this Court by Coy Koontz, Jr. [ 1 ] The District did not approve his application on the condition that he surrender an interest in his land. Instead, the District, after suggesting that he could obtain approval by signing over such an interest, denied his application because he refused to yield. The Florida Supreme Court blessed this maneuver and thus effectively interred those important decisions. Because we conclude that Nollan and Dolan cannot be evaded in this way, the Florida Supreme Court’s decision must be reversed. I A      In 1972, petitioner purchased an undeveloped 14.9-acre tract of land on the south side of Florida State Road 50, a divided four-lane highway east of Orlando. The property is located less than 1,000 feet from that road’s intersection with Florida State Road 408, a tolled expressway that is one of Orlando’s major thoroughfares.      A drainage ditch runs along the property’s western edge, and high-voltage power lines bisect it into northern and southern sections. The combined effect of the ditch, a 100foot wide area kept clear for the power lines, the highways, and other construction on nearby parcels is to isolate the northern section of petitioner’s property from any other undeveloped land. Although largely classified as wetlands by the State, the northern section drains well; the most significant standing water forms in ruts in an unpaved road used to access the power lines. The natural topography of the property’s southern section is somewhat more diverse, with a small creek, forested uplands, and wetlands that sometimes have water as much as a foot deep. A wildlife survey found evidence of animals that often frequent developed areas: raccoons, rabbits, several species of bird, and a turtle. The record also indicates that the land may be a suitable habitat for opossums.      The same year that petitioner purchased his property, Florida enacted the Water Resources Act, which divided the State into five water management districts and authorized each district to regulate “construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state.” 1972 Fla. Laws ch. 72–299, pt. IV, §1(5), pp. 1115, 1116 (codified as amended at Fla. Stat. §373.403(5) (2010)). Under the Act, a landowner wishing to undertake such construction must obtain from the relevant district a Management and Storage of Surface Water (MSSW) permit, which may impose “such reasonable conditions” on the permit as are “necessary to assure” that construction will “not be harmful to the water resources of the district.” 1972 Fla. Laws §4(1), at 1118 (codified as amended at Fla. Stat. §373.413(1)).      In 1984, in an effort to protect the State’s rapidly diminishing wetlands, the Florida Legislature passed the Warren S. Henderson Wetlands Protection Act, which made it illegal for anyone to “dredge or fill in, on, or over sur- face waters” without a Wetlands Resource Management (WRM) permit. 1984 Fla. Laws ch. 84–79, pt. VIII, §403.905(1), pp. 204–205. Under the Henderson Act, permit applicants are required to provide “reasonable assurance” that proposed construction on wetlands is “not contrary to the public interest,” as defined by an enumerated list of criteria. See Fla. Stat. §373.414(1). Consistent with the Henderson Act, the St. Johns River Water Management District, the district with jurisdiction over petitioner’s land, requires that permit applicants wishing to build on wetlands offset the resulting environmental damage by creating, enhancing, or preserving wetlands elsewhere.      Petitioner decided to develop the 3.7-acre northern section of his property, and in 1994 he applied to the District for MSSW and WRM permits. Under his proposal, petitioner would have raised the elevation of the northernmost section of his land to make it suitable for a building, graded the land from the southern edge of the building site down to the elevation of the high-voltage electrical lines, and installed a dry-bed pond for retaining and gradually releasing stormwater runoff from the building and its parking lot. To mitigate the environmental effects of his proposal, petitioner offered to foreclose any possible future development of the approximately 11acre southern section of his land by deeding to the District a conservation easement on that portion of his property.      The District considered the 11acre conservation easement to be inadequate, and it informed petitioner that it would approve construction only if he agreed to one of two concessions. First, the District proposed that petitioner reduce the size of his development to 1 acre and deed to the District a conservation easement on the remaining 13.9 acres. To reduce the development area, the District suggested that petitioner could eliminate the dry-bed pond from his proposal and instead install a more costly subsurface stormwater management system beneath the building site. The District also suggested that petitioner install retaining walls rather than gradually sloping the land from the building site down to the elevation of the rest of his property to the south.      In the alternative, the District told petitioner that he could proceed with the development as proposed, build- ing on 3.7 acres and deeding a conservation easement to the government on the remainder of the property, if he also agreed to hire contractors to make improvements to District-owned land several miles away. Specifically, peti- tioner could pay to replace culverts on one parcel or fill in ditches on another. Either of those projects would have enhanced approximately 50 acres of District-owned wetlands. When the District asks permit applicants to fund offsite mitigation work, its policy is never to require any particular offsite project, and it did not do so here. Instead, the District said that it “would also favorably consider” alternatives to its suggested offsite mitigation projects if petitioner proposed something “equivalent.” App. 75.      Believing the District’s demands for mitigation to be excessive in light of the environmental effects that his building proposal would have caused, petitioner filed suit in state court. Among other claims, he argued that he was entitled to relief under Fla. Stat. §373.617(2), which allows owners to recover “monetary damages” if a state agency’s action is “an unreasonable exercise of the state’s police power constituting a taking without just compensation.” B      The Florida Circuit Court granted the District’s mo- tion to dismiss on the ground that petitioner had not ade- quately exhausted his state-administrative remedies, but the Florida District Court of Appeal for the Fifth Circuit re- versed. On remand, the State Circuit Court held a 2-day bench trial. After considering testimony from several ex- perts who examined petitioner’s property, the trial court found that the property’s northern section had already been “seriously degraded” by extensive construction on the surrounding parcels. App. to Pet. for Cert. D–3. In light of this finding and petitioner’s offer to dedicate nearly three-quarters of his land to the District, the trial court concluded that any further mitigation in the form of payment for offsite improvements to District property lacked both a nexus and rough proportionality to the environmental impact of the proposed construction. Id., at D–11. It accordingly held the District’s actions unlawful under our decisions in Nollan and Dolan.      The Florida District Court affirmed, 5 So. 3d 8 (2009), but the State Supreme Court reversed, 77 So. 3d 1220 (2011). A majority of that court distinguished Nollan and Dolan on two grounds. First, the majority thought it significant that in this case, unlike Nollan or Dolan, the District did not approve petitioner’s application on the condition that he accede to the District’s demands; in- stead, the District denied his application because he refused to make concessions. 77 So. 3d, at 1230. Second, the majority drew a distinction between a demand for an interest in real property (what happened in Nollan and Dolan) and a demand for money. 77 So. 3d, at 1229– 1230. The majority acknowledged a division of authority over whether a demand for money can give rise to a claim under Nollan and Dolan, and sided with those courts that have said it cannot. 77 So. 3d, at 1229–1230. Compare, e.g., McClung v. Sumner, 548 F. 3d 1219, 1228 (CA9 2008), with Ehrlich v. Culver City, 12 Cal. 4th 854, 876, 911 P. 2d 429, 444 (1996); Flower Mound v. Stafford Estates Ltd. Partnership, 135 S. W. 3d 620, 640–641 (Tex. 2004). Two justices concurred in the result, arguing that petitioner had failed to exhaust his administrative remedies as re- quired by state law before bringing an inverse condem- nation suit that challenges the propriety of an agency action. 77 So. 3d, at 1231–1232; see Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So. 2d 153, 159 (Fla. 1982).      Recognizing that the majority opinion rested on a question of federal constitutional law on which the lower courts are divided, we granted the petition for a writ of certiorari, 568 U. S. ___ (2012), and now reverse. II A      We have said in a variety of contexts that “the government may not deny a benefit to a person because he ex- ercises a constitutional right.” Regan v. Taxation With Representation of Wash., 461 U. S. 540, 545 (1983) . See also, e.g., Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U. S. 47 –60 (2006); Rutan v. Republican Party of Ill., 497 U. S. 62, 78 (1990) . In Perry v. Sindermann, 408 U. S. 593 (1972) , for example, we held that a public college would violate a professor’s freedom of speech if it declined to renew his contract because he was an outspoken critic of the college’s administration. And in Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974) , we concluded that a county impermissibly burdened the right to travel by extending healthcare benefits only to those indigent sick who had been residents of the county for at least one year. Those cases reflect an overarching principle, known as the unconstitutional condi- tions doctrine, that vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.      Nollan and Dolan “involve a special application” of this doctrine that protects the Fifth Amendment right to just compensation for property the government takes when owners apply for land-use permits. Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 547 (2005) ; Dolan, 512 U. S., at 385 (invoking “the well-settled doctrine of ‘unconstitutional conditions’ ”). Our decisions in those cases reflect two realities of the permitting process. The first is that land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take. By conditioning a building permit on the owner’s deeding over a public right-of- way, for example, the government can pressure an owner into voluntarily giving up property for which the Fifth Amendment would otherwise require just compensation. See id., at 384; Nollan, 483 U. S., at 831. So long as the building permit is more valuable than any just compensation the owner could hope to receive for the right-of-way, the owner is likely to accede to the government’s demand, no matter how unreasonable. Extortionate demands of this sort frustrate the Fifth Amendment right to just compensation, and the unconstitutional conditions doctrine prohibits them.      A second reality of the permitting process is that many proposed land uses threaten to impose costs on the public that dedications of property can offset. Where a building proposal would substantially increase traffic congestion, for example, officials might condition permit approval on the owner’s agreement to deed over the land needed to widen a public road. Respondent argues that a similar rationale justifies the exaction at issue here: petitioner’s proposed construction project, it submits, would destroy wetlands on his property, and in order to compensate for this loss, respondent demands that he enhance wet- lands elsewhere. Insisting that landowners internalize the negative externalities of their conduct is a hallmark of responsible land-use policy, and we have long sustained such regulations against constitutional attack. See Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926) .      Nollan and Dolan accommodate both realities by allowing the government to condition approval of a permit on the dedication of property to the public so long as there is a “nexus” and “rough proportionality” between the prop- erty that the government demands and the social costs of the applicant’s proposal. Dolan, supra, at 391; Nollan, 483 U. S., at 837. Our precedents thus enable permitting authorities to insist that applicants bear the full costs of their proposals while still forbidding the government from engaging in “out-and-out . . . extortion” that would thwart the Fifth Amendment right to just compensation. Ibid. (internal quotation marks omitted). Under Nollan and Dolan the government may choose whether and how a per- mit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts. B      The principles that undergird our decisions in Nollan and Dolan do not change depending on whether the government approves a permit on the condition that the applicant turn over property or denies a permit because the applicant refuses to do so. We have often concluded that denials of governmental benefits were impermissible under the unconstitutional conditions doctrine. See, e.g., Perry, 408 U. S., at 597 (explaining that the government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests” (emphasis added)); Memorial Hospital, 415 U. S. 250 (finding unconstitutional condition where government denied healthcare benefits). In so holding, we have recognized that regardless of whether the government ultimately succeeds in pressuring someone into forfeiting a constitutional right, the unconstitutional conditions doctrine forbids burdening the Constitution’s enumerated rights by coercively withholding benefits from those who exercise them.      A contrary rule would be especially untenable in this case because it would enable the government to evade the limitations of Nollan and Dolan simply by phrasing its demands for property as conditions precedent to permit approval. Under the Florida Supreme Court’s approach, a government order stating that a permit is “approved if” the owner turns over property would be subject to Nollan and Dolan, but an identical order that uses the words “denied until” would not. Our unconstitutional condi- tions cases have long refused to attach significance to the distinction between conditions precedent and conditions subsequent. See Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U. S. 583 –593 (1926) (invalidating regulation that required the petitioner to give up a constitutional right “as a condition precedent to the enjoyment of a privilege”); Southern Pacific Co. v. Denton, 146 U. S. 202, 207 (1892) (invalidating statute “requiring the corporation, as a condition precedent to obtaining a per- mit to do business within the State, to surrender a right and privilege secured to it by the Constitution”). See also Flower Mound, 135 S. W. 3d, at 639 (“The government cannot sidestep constitutional protections merely by rephrasing its decision from ‘only if’ to ‘not unless’ ”). To do so here would effectively render Nollan and Dolan a dead letter.      The Florida Supreme Court puzzled over how the government’s demand for property can violate the Takings Clause even though “ ‘no property of any kind was ever taken,’ ” 77 So. 3d, at 1225 (quoting 5 So. 3d, at 20 (Griffin, J., dissenting)); see also 77 So. 3d, at 1229–1230, but the unconstitutional conditions doctrine provides a ready answer. Extortionate demands for property in the land-use permitting context run afoul of the Takings Clause not because they take property but because they impermis- sibly burden the right not to have property taken without just compensation. As in other unconstitutional condi- tions cases in which someone refuses to cede a constitutional right in the face of coercive pressure, the impermissible denial of a governmental benefit is a constitutionally cog- nizable injury.      Nor does it make a difference, as respondent suggests, that the government might have been able to deny petitioner’s application outright without giving him the option of securing a permit by agreeing to spend money to improve public lands. See Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978) . Virtually all of our unconstitutional conditions cases involve a gratuitous governmental benefit of some kind. See, e.g., Regan, 461 U. S. 540 (tax benefits); Memorial Hospital, 415 U. S. 250 (healthcare); Perry, 408 U. S. 593 (public employment); United States v. Butler, 297 U. S. 1, 71 (1936) (crop payments); Frost, supra (business license). Yet we have repeatedly rejected the argument that if the government need not confer a benefit at all, it can withhold the benefit because someone refuses to give up constitutional rights. E.g., United States v. American Library Assn., Inc., 539 U. S. 194, 210 (2003) (“[T]he government may not deny a benefit to a person on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit” (emphasis added and inter- nal quotation marks omitted)); Wieman v. Updegraff, 344 U. S. 183, 191 (1952) (explaining in unconstitutional conditions case that to focus on “the facile generalization that there is no constitutionally protected right to public employment is to obscure the issue”). Even if respondent would have been entirely within its rights in denying the permit for some other reason, that greater authority does not imply a lesser power to condition permit approval on petitioner’s forfeiture of his constitutional rights. See Nollan, 483 U. S., at 836–837 (explaining that “[t]he evident constitutional propriety” of prohibiting a land use “disappears . . . if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition”).      That is not to say, however, that there is no relevant difference between a consummated taking and the denial of a permit based on an unconstitutionally extortionate demand. Where the permit is denied and the condition is never imposed, nothing has been taken. While the un- constitutional conditions doctrine recognizes that this burdens a constitutional right, the Fifth Amendment man- dates a particular remedy—just compensation—only for takings. In cases where there is an excessive demand but no taking, whether money damages are available is not a question of federal constitutional law but of the cause of action—whether state or federal—on which the landowner relies. Because petitioner brought his claim pursuant to a state law cause of action, the Court has no occasion to discuss what remedies might be available for a Nollan/Dolan unconstitutional conditions violation either here or in other cases. C      At oral argument, respondent conceded that the denial of a permit could give rise to a valid claim under Nollan and Dolan, Tr. of Oral Arg. 33–34, but it urged that we should not review the particular denial at issue here because petitioner sued in the wrong court, for the wrong remedy, and at the wrong time. Most of respondent’s objections to the posture of this case raise questions of Florida procedure that are not ours to decide. See Mullaney v. Wilbur, 421 U. S. 684, 691 (1975) ; Murdock v. Memphis, 20 Wall. 590, 626 (1875). But to the extent that respondent suggests that the posture of this case creates some federal obstacle to adjudicating petitioner’s unconstitutional conditions claim, we remand for the Florida courts to consider that argument in the first instance.      Respondent argues that we should affirm because, rather than suing for damages in the Florida trial court as authorized by Fla. Stat. §373.617, petitioner should have first sought judicial review of the denial of his permit in the Florida appellate court under the State’s Administrative Procedure Act, see §§120.68(1), (2) (2010). The Flor-ida Supreme Court has said that the appellate court is the “proper forum to resolve” a “claim that an agency has applied a . . . statute or rule in such a way that the aggrieved party’s constitutional rights have been violated,” Key Haven Associated Enterprises, 427 So. 2d, at 158, and respondent has argued throughout this litigation that petitioner brought his unconstitutional conditions claim in the wrong forum. Two members of the Florida Supreme Court credited respondent’s argument, 77 So. 3d, at 1231–1232, but four others refused to address it. We decline respondent’s invitation to second-guess a State Supreme Court’s treatment of its own procedural law.      Respondent also contends that we should affirm because petitioner sued for damages but is at most entitled to an injunction ordering that his permit issue without any conditions. But we need not decide whether federal law authorizes plaintiffs to recover damages for unconstitutional conditions claims predicated on the Takings Clause because petitioner brought his claim under state law. Florida law allows property owners to sue for “damages” whenever a state agency’s action is “an unreasonable ex- ercise of the state’s police power constituting a taking without just compensation.” Fla. Stat. Ann. §373.617. Whether that provision covers an unconstitutional conditions claim like the one at issue here is a question of state law that the Florida Supreme Court did not address and on which we will not opine.      For similar reasons, we decline to reach respondent’s argument that its demands for property were too indefinite to give rise to liability under Nollan and Dolan. The Florida Supreme Court did not reach the question whether respondent issued a demand of sufficient concreteness to trigger the special protections of Nollan and Dolan. It relied instead on the Florida District Court of Appeals’ characterization of respondent’s behavior as a demand for Nollan/Dolan purposes. See 77 So. 3d, at 1224 (quoting 5 So. 3d, at 10). Whether that characterization is correct is beyond the scope of the questions the Court agreed to take up for review. If preserved, the issue remains open on remand for the Florida Supreme Court to address. This Court therefore has no occasion to consider how concrete and specific a demand must be to give rise to liability un- der Nollan and Dolan.      Finally, respondent argues that we need not decide whether its demand for offsite improvements satisfied Nollan and Dolan because it gave petitioner another avenue for obtaining permit approval. Specifically, respondent said that it would have approved a revised permit application that reduced the footprint of petitioner’s proposed construction site from 3.7 acres to 1 acre and placed a conservation easement on the remaining 13.9 acres of petitioner’s land. Respondent argues that regardless of whether its demands for offsite mitigation satisfied Nollan and Dolan, we must separately consider each of petitioner’s options, one of which did not require any of the offsite work the trial court found objectionable.      Respondent’s argument is flawed because the option to which it points—developing only 1 acre of the site and granting a conservation easement on the rest—involves the same issue as the option to build on 3.7 acres and perform offsite mitigation. We agree with respondent that, so long as a permitting authority offers the landowner at least one alternative that would satisfy Nollan and Dolan, the landowner has not been subjected to an unconstitutional condition. But respondent’s suggestion that we should treat its offer to let petitioner build on 1 acre as an alternative to offsite mitigation misapprehends the gov- ernmental benefit that petitioner was denied. Petitioner sought to develop 3.7 acres, but respondent in effect told petitioner that it would not allow him to build on 2.7 of those acres unless he agreed to spend money improving public lands. Petitioner claims that he was wrongfully denied a permit to build on those 2.7 acres. For that reason, respondent’s offer to approve a less ambitious building project does not obviate the need to determine whether the demand for offsite mitigation satisfied Nollan and Dolan. III      We turn to the Florida Supreme Court’s alternative holding that petitioner’s claim fails because respondent asked him to spend money rather than give up an easement on his land. A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing. See Rumsfeld, 547 U. S., at 59–60. For that reason, we began our analysis in both Nollan and Dolan by observing that if the government had directly seized the easements it sought to obtain through the permitting process, it would have committed a per se taking. See Dolan, 512 U. S., at 384; Nollan, 483 U. S., at 831. The Florida Su- preme Court held that petitioner’s claim fails at this first step because the subject of the exaction at issue here was money rather than a more tangible interest in real prop- erty. 77 So. 3d, at 1230. Respondent and the dissent take the same position, citing the concurring and dissenting opinions in Eastern Enterprises v. Apfel, 524 U. S. 498 (1998) , for the proposition that an obligation to spend money can never provide the basis for a takings claim. See post, at 5–8 (opinion of Kagan, J.).      We note as an initial matter that if we accepted this argument it would be very easy for land-use permitting officials to evade the limitations of Nollan and Dolan. Because the government need only provide a permit applicant with one alternative that satisfies the nexus and rough proportionality standards, a permitting authority wishing to exact an easement could simply give the owner a choice of either surrendering an easement or making a payment equal to the easement’s value. Such so-called “in lieu of” fees are utterly commonplace, Rosenberg, The Changing Culture of American Land Use Regulation: Paying for Growth with Impact Fees, 59 S. M. U. L. Rev. 177, 202–203 (2006), and they are functionally equivalent to other types of land use exactions. For that reason and those that follow, we reject respondent’s argument and hold that so-called “monetary exactions” must satisfy the nexus and rough proportionality requirements of Nollan and Dolan. A      In Eastern Enterprises, supra, the United States retroactively imposed on a former mining company an obligation to pay for the medical benefits of retired miners and their families. A four-Justice plurality concluded that the statute’s imposition of retroactive financial liability was so arbitrary that it violated the Takings Clause. Id., at 529–537. Although Justice Kennedy concurred in the result on due process grounds, he joined four other Justices in dissent in arguing that the Takings Clause does not apply to government-imposed financial obligations that “d[o] not operate upon or alter an identified property interest.” Id., at 540 (opinion concurring in judgment and dissenting in part); see id., at 554–556 (Breyer, J., dissenting) (“The ‘private property’ upon which the [Takings] Clause traditionally has focused is a specific interest in physical or intellectual property”). Relying on the concurrence and dissent in Eastern Enterprises, respondent argues that a requirement that petitioner spend money improving public lands could not give rise to a taking.      Respondent’s argument rests on a mistaken premise. Unlike the financial obligation in Eastern Enterprises, the demand for money at issue here did “operate upon . . . an identified property interest” by directing the owner of a particular piece of property to make a monetary payment. Id., at 540 (opinion of Kennedy, J.). In this case, unlike Eastern Enterprises, the monetary obligation burdened petitioner’s ownership of a specific parcel of land. In that sense, this case bears resemblance to our cases holding that the government must pay just compensation when it takes a lien—a right to receive money that is secured by a particular piece of property. See Armstrong v. United States, 364 U. S. 40 –49 (1960); Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555 –602 (1935); United States v. Security Industrial Bank, 459 U. S. 70 –78 (1982); see also Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379, 383–384 (1999) (the right to receive income from land is an interest in real property under Florida law). The fulcrum this case turns on is the direct link between the government’s demand and a spe- cific parcel of real property. [ 2 ] Because of that direct link, this case implicates the central concern of Nollan and Dolan: the risk that the government may use its substantial power and discretion in land-use permitting to pursue governmental ends that lack an essential nexus and rough proportionality to the effects of the proposed new use of the specific property at issue, thereby diminishing without justification the value of the property.           In this case, moreover, petitioner does not ask us to hold that the government can commit a regulatory taking by directing someone to spend money. As a result, we need not apply Penn Central’s “essentially ad hoc, factual inquir[y],” 438 U. S., at 124, at all, much less extend that “already difficult and uncertain rule” to the “vast category of cases” in which someone believes that a regulation is too costly. Eastern Enterprises, 524 U. S., at 542 (opinion of Kennedy, J.). Instead, petitioner’s claim rests on the more limited proposition that when the government commands the relinquishment of funds linked to a specific, identifiable property interest such as a bank account or parcel of real property, a “per se [takings] approach” is the proper mode of analysis under the Court’s precedent. Brown v. Legal Foundation of Wash., 538 U. S. 216, 235 (2003) .      Finally, it bears emphasis that petitioner’s claim does not implicate “normative considerations about the wisdom of government decisions.” Eastern Enterprises, 524 U. S., at 545 (opinion of Kennedy, J.). We are not here concerned with whether it would be “arbitrary or unfair” for respondent to order a landowner to make improvements to public lands that are nearby. Id., at 554 (Breyer, J., dissenting). Whatever the wisdom of such a policy, it would transfer an interest in property from the landowner to the government. For that reason, any such demand would amount to a per se taking similar to the taking of an easement or a lien. Cf. Dolan, 512 U. S., at 384; Nollan, 483 U. S., at 831. B      Respondent and the dissent argue that if monetary exactions are made subject to scrutiny under Nollan and Dolan, then there will be no principled way of distinguishing impermissible land-use exactions from property taxes. See post, at 9–10. We think they exaggerate both the extent to which that problem is unique to the land-use permitting context and the practical difficulty of distinguishing between the power to tax and the power to take by eminent domain.      It is beyond dispute that “[t]axes and user fees . . . are not ‘takings.’ ” Brown, supra, at 243, n. 2 (Scalia, J., dissenting). We said as much in County of Mobile v. Kimball, 102 U. S. 691, 703 (1881) , and our cases have been clear on that point ever since. United States v. Sperry Corp., 493 U. S. 52 , n. 9 (1989); see A. Magnano Co. v. Hamilton, 292 U. S. 40, 44 (1934) ; Dane v. Jackson, 256 U. S. 589, 599 (1921) ; Henderson Bridge Co. v. Henderson City, 173 U. S. 592 –615 (1899). This case therefore does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners.      At the same time, we have repeatedly found takings where the government, by confiscating financial obligations, achieved a result that could have been obtained by imposing a tax. Most recently, in Brown, supra, at 232, we were unanimous in concluding that a State Supreme Court’s seizure of the interest on client funds held in escrow was a taking despite the unquestionable constitutional propriety of a tax that would have raised exactly the same revenue. Our holding in Brown followed from Phillips v. Washington Legal Foundation, 524 U. S. 156 (1998) , and Webb’s Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 (1980) , two earlier cases in which we treated confiscations of money as takings despite their functional similarity to a tax. Perhaps most closely analogous to the present case, we have repeatedly held that the government takes property when it seizes liens, and in so ruling we have never considered whether the government could have achieved an economically equivalent result through taxation. Armstrong, 364 U. S. 40 ; Louisville Joint Stock Land Bank, 295 U. S. 555 .      Two facts emerge from those cases. The first is that the need to distinguish taxes from takings is not a creature of our holding today that monetary exactions are subject to scrutiny under Nollan and Dolan. Rather, the problem is inherent in this Court’s long-settled view that property the government could constitutionally demand through its taxing power can also be taken by eminent domain.      Second, our cases show that teasing out the difference between taxes and takings is more difficult in theory than in practice. Brown is illustrative. Similar to respondent in this case, the respondents in Brown argued that extending the protections of the Takings Clause to a bank account would open a Pandora’s Box of constitutional chal- lenges to taxes. Brief for Respondents Washington Legal Foundation et al. 32 and Brief for Respondent Justices of the Washington Supreme Court 22, in Brown v. Legal Foundation of Wash., O. T. 2002, No. 01–1325. But also like respondent here, the Brown respondents never claimed that they were exercising their power to levy taxes when they took the petitioners’ property. Any such argument would have been implausible under state law; in Washington, taxes are levied by the legislature, not the courts. See 538 U. S., at 242, n. 2 (Scalia, J., dissenting).      The same dynamic is at work in this case because Flor- ida law greatly circumscribes respondent’s power to tax. See Fla. Stat. Ann. §373.503 (authorizing respondent to impose ad valorem tax on properties within its jurisdiction); §373.109 (authorizing respondent to charge permit application fees but providing that such fees “shall not exceed the cost . . . for processing, monitoring, and inspecting for compliance with the permit”). If respondent had argued that its demand for money was a tax, it would have effectively conceded that its denial of petitioner’s permit was improper under Florida law. Far from making that concession, respondent has maintained throughout this litigation that it considered petitioner’s money to be a substitute for his deeding to the public a conservation easement on a larger parcel of undeveloped land. [ 3 ]      This case does not require us to say more. We need not decide at precisely what point a land-use permitting charge denominated by the government as a “tax” becomes “so arbitrary . . . that it was not the exertion of taxation but a confiscation of property.” Brushaber v. Union Pacific R. Co., 240 U. S. 1 –25 (1916). For present purposes, it suffices to say that despite having long recognized that “the power of taxation should not be confused with the power of eminent domain,” Houck v. Little River Drainage Dist., 239 U. S. 254, 264 (1915) , we have had little trouble distinguishing between the two. C      Finally, we disagree with the dissent’s forecast that our decision will work a revolution in land use law by depriving local governments of the ability to charge reasonable permitting fees. Post, at 8. Numerous courts—including courts in many of our Nation’s most populous States—have confronted constitutional challenges to monetary exactions over the last two decades and applied the standard from Nollan and Dolan or something like it. See, e.g., Northern Ill. Home Builders Assn. v. County of Du Page, 165 Ill. 2d. 25, 31–32, 649 N. E. 2d 384, 388–389 (1995); Home Builders Assn. v. Beavercreek, 89 Ohio St. 3d 121, 128, 729 N. E. 2d 349, 356 (2000); Flower Mound, 135 S. W. 3d, at 640–641. Yet the “significant practical harm” the dissent predicts has not come to pass. Post, at 8. That is hardly surprising, for the dissent is correct that state law normally provides an independent check on excessive land use permitting fees. Post, at 11.      The dissent criticizes the notion that the Federal Constitution places any meaningful limits on “whether one town is overcharging for sewage, or another is setting the price to sell liquor too high.” Post, at 9. But only two pages later, it identifies three constraints on land use permitting fees that it says the Federal Constitution imposes and suggests that the additional protections of Nollan and Dolan are not needed. Post, at 11. In any event, the dissent’s argument that land use permit applicants need no further protection when the government demands money is really an argument for overruling Nollan and Dolan. After all, the Due Process Clause protected the Nollans from an unfair allocation of public burdens, and they too could have argued that the government’s demand for property amounted to a taking under the Penn Central framework. See Nollan, 483 U. S., at 838. We have repeatedly rejected the dissent’s contention that other constitutional doctrines leave no room for the nexus and rough proportionality requirements of Nollan and Dolan. Mindful of the special vulnerability of land use permit applicants to extortionate demands for money, we do so again today. *  *  *      We hold that the government’s demand for property from a land-use permit applicant must satisfy the requirements of Nollan and Dolan even when the government denies the permit and even when its demand is for money. The Court expresses no view on the merits of petitioner’s claim that respondent’s actions here failed to comply with the principles set forth in this opinion and those two cases. The Florida Supreme Court’s judgment is reversed, and this case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 For ease of reference, this opinion refers to both men as “petitioner.” 2 Thus, because the proposed offsite mitigation obligation in this case was tied to a particular parcel of land, this case does not implicate the question whether monetary exactions must be tied to a particular parcel of land in order to constitute a taking. That is so even whenthe demand is considered “outside the permitting process.” Post, at 8 (Kagan, J., dissenting). The unconstitutional conditions analysis requires us to set aside petitioner’s permit application, not his ownership of a particular parcel of real property. 3 Citing cases in which state courts have treated similar governmental demands for money differently, the dissent predicts that courts will “struggle to draw a coherent boundary” between taxes and excessive demands for money that violate Nollan and Dolan. Post, at 9–10. But the cases the dissent cites illustrate how the frequent need to decide whether a particular demand for money qualifies as a tax under state law, and the resulting state statutes and judicial precedents on point, greatly reduce the practical difficulty of resolving the same issue in federal constitutional cases like this one. SUPREME COURT OF THE UNITED STATES _________________ No. 11–1447 _________________ COY A. KOONTZ, Jr., PETITIONER v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT on writ of certiorari to the supreme court of florida [June 25, 2013]      Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting.      In the paradigmatic case triggering review under Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987) , and Dolan v. City of Tigard, 512 U. S. 374 (1994) , the government approves a building permit on the condition that the landowner relinquish an interest in real property, like an easement. The significant legal questions that the Court resolves today are whether Nollan and Dolan also apply when that case is varied in two ways. First, what if the government does not approve the permit, but instead demands that the condition be fulfilled before it will do so? Second, what if the condition entails not transferring real property, but simply paying money? This case also raises other, more fact-specific issues I will address: whether the government here imposed any condition at all, and whether petitioner Coy Koontz suffered any compensable injury.      I think the Court gets the first question it addresses right. The Nollan-Dolan standard applies not only when the government approves a development permit conditioned on the owner’s conveyance of a property interest (i.e., imposes a condition subsequent), but also when the government denies a permit until the owner meets the condition (i.e., imposes a condition precedent). That means an owner may challenge the denial of a permit on the ground that the government’s condition lacks the “nexus” and “rough proportionality” to the development’s social costs that Nollan and Dolan require. Still, the condition-subsequent and condition-precedent situations differ in an important way. When the government grants a permit subject to the relinquishment of real property, and that condition does not satisfy Nollan and Dolan, then the government has taken the property and must pay just compensation under the Fifth Amendment. But when the government denies a permit because an owner has refused to accede to that same demand, nothing has actually been taken. The owner is entitled to have the improper condition removed; and he may be entitled to a monetary remedy created by state law for imposing such a condition; but he cannot be entitled to constitutional compensation for a taking of property. So far, we all agree.      Our core disagreement concerns the second question the Court addresses. The majority extends Nollan and Dolan to cases in which the government conditions a permit not on the transfer of real property, but instead on the payment or expenditure of money. That runs roughshod over Eastern Enterprises v. Apfel, 524 U. S. 498 (1998) , which held that the government may impose ordinary financial obligations without triggering the Takings Clause’s protections. The boundaries of the majority’s new rule are uncertain. But it threatens to subject a vast array of land-use regulations, applied daily in States and localities throughout the country, to heightened constitutional scrutiny. I would not embark on so unwise an adventure, and would affirm the Florida Supreme Court’s decision.      I also would affirm for two independent reasons establishing that Koontz cannot get the money damages he seeks. First, respondent St. Johns River Water Management District (District) never demanded anything (including money) in exchange for a permit; the Nollan-Dolan standard therefore does not come into play (even assuming that test applies to demands for money). Second, no taking occurred in this case because Koontz never acceded to a demand (even had there been one), and so no property changed hands; as just noted, Koontz therefore cannot claim just compensation under the Fifth Amendment. The majority does not take issue with my first conclusion, and affirmatively agrees with my second. But the majority thinks Koontz might still be entitled to money damages, and remands to the Florida Supreme Court on that question. I do not see how, and expect that court will so rule. I      Claims that government regulations violate the Takings Clause by unduly restricting the use of property are generally “governed by the standards set forth in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978) .” Lingle v. Chevron U. S. A. Inc., 544 U. S. 528, 538 (2005) . Under Penn Central, courts examine a regulation’s “character” and “economic impact,” asking whether the action goes beyond “adjusting the benefits and burdens of economic life to promote the common good” and whether it “interfere[s] with distinct investment-backed expectations.” Penn Central, 438 U. S., at 124. That multi-factor test balances the government’s manifest need to pass laws and regulations “adversely affect[ing]. . . economic values,” ibid., with our longstanding recognition that some regulation “goes too far,” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922) .      Our decisions in Nollan and Dolan are different: They provide an independent layer of protection in “the special context of land-use exactions.” Lingle, 544 U. S., at 538. In that situation, the “government demands that a landowner dedicate an easement” or surrender a piece of real property “as a condition of obtaining a development permit.” Id., at 546. If the government appropriated such a property interest outside the permitting process, its action would constitute a taking, necessitating just compensation. Id., at 547. Nollan and Dolan prevent the government from exploiting the landowner’s permit application to evade the constitutional obligation to pay for the property. They do so, as the majority explains, by subjecting the government’s demand to heightened scrutiny: The government may condition a land-use permit on the relinquishment of real property only if it shows a “nexus” and “rough proportionality” between the demand made and “the impact of the proposed development.” Dolan, 512 U. S., at 386, 391; see ante, at 8. Nollan and Dolan thus serve not to address excessive regulatory burdens on land use (the function of Penn Central), but instead to stop the government from imposing an “unconstitutional condition”—a requirement that a person give up his constitutional right to receive just compensation “in exchange for a discretionary benefit” having “little or no relationship” to the property taken. Lingle, 544 U. S., at 547.      Accordingly, the Nollan-Dolan test applies only when the property the government demands during the permitting process is the kind it otherwise would have to pay for—or, put differently, when the appropriation of that property, outside the permitting process, would constitute a taking. That is why Nollan began by stating that “[h]ad California simply required the Nollans to make an easement across their beachfront available to the public . . . , rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking” requiring just compensation. 483 U. S., at 831. And it is why Dolan started by maintaining that “had the city simply required petitioner to dedicate a strip of land . . . for public use, rather than conditioning the grant of her permit to [d]evelop her property on such a dedication, a taking would have occurred.” 512 U. S., at 384. Even the majority acknowledges this basic point about Nollan and Dolan: It too notes that those cases rest on the premise that “if the government had directly seized the easements it sought to obtain through the permitting process, it would have committed a per se taking.” Ante, at 14–15. Only if that is true could the government’s demand for the property force a landowner to relinquish his constitutional right to just compensation.      Here, Koontz claims that the District demanded that he spend money to improve public wetlands, not that he hand over a real property interest. I assume for now that the District made that demand (although I think it did not, see infra, at 12–16.) The key question then is: Independent of the permitting process, does requiring a person to pay money to the government, or spend money on its behalf, constitute a taking requiring just compensation? Only if the answer is yes does the Nollan-Dolan test apply.      But we have already answered that question no. Eastern Enterprises v. Apfel, 524 U. S. 498 , as the Court describes, involved a federal statute requiring a former mining company to pay a large sum of money for the health benefits of retired employees. Five Members of the Court determined that the law did not effect a taking, distinguishing between the appropriation of a specific property interest and the imposition of an order to pay money. Justice Kennedy acknowledged in his controlling opinion that the statute “impose[d] a staggering financial burden” (which influenced his conclusion that it violated due process). Id., at 540 (opinion concurring in judgment and dissenting in part). Still, Justice Kennedy explained, the law did not effect a taking because it did not “operate upon or alter” a “specific and identified propert[y] or property right[ ].” Id., at 540–541. Instead, “[t]he law simply imposes an obligation to perform an act, the payment of benefits. The statute is indifferent as to how the regulated entity elects to comply or the property it uses to do so.” Id., at 540. Justice Breyer, writing for four more Justices, agreed. He stated that the Takings Clause applies only when the government appropriates a “specific interest in physical or intellectual property” or “a specific, separately identifiable fund of money”; by contrast, the Clause has no bearing when the government imposes “an ordinary liability to pay money.” Id., at 554–555 (dissenting opinion).      Thus, a requirement that a person pay money to repair public wetlands is not a taking. Such an order does not affect a “specific and identified propert[y] or property right[ ]”; it simply “imposes an obligation to perform an act” (the improvement of wetlands) that costs money. Id., at 540–541 (opinion of Kennedy, J.). To be sure, when a person spends money on the government’s behalf, or pays money directly to the government, it “will reduce [his] net worth”—but that “can be said of any law which has an adverse economic effect” on someone. Id., at 543. Because the government is merely imposing a “general liability” to pay money, id., at 555 (Breyer, J., dissenting)—and therefore is “indifferent as to how the regulated entity elects to comply or the property it uses to do so,” id., at 540 (opinion of Kennedy, J.)—the order to repair wetlands, viewed independent of the permitting process, does not constitute a taking. And that means the order does not trigger the Nollan-Dolan test, because it does not force Koontz to relinquish a constitutional right.      The majority tries to distinguish Apfel by asserting that the District’s demand here was “closely analogous” (and “bears resemblance”) to the seizure of a lien on property or an income stream from a parcel of land. Ante, at 16, 19. The majority thus seeks support from decisions like Armstrong v. United States, 364 U. S. 40 (1960) , where this Court held that the government effected a taking when it extinguished a lien on several ships, and Palm Beach Cty. v. Cove Club Investors Ltd., 734 So. 2d 379 (1999), where the Florida Supreme Court held that the government committed a taking when it terminated a covenant entit-ling the beneficiary to an income stream from a piece of land.      But the majority’s citations succeed only in showing what this case is not. When the government dissolves a lien, or appropriates a determinate income stream from a piece of property—or, for that matter, seizes a particular “bank account or [the] accrued interest” on it—the government indeed takes a “specific” and “identified prop- erty interest.” Apfel, 524 U. S., at 540–541 (opinion of Kennedy, J.). But nothing like that occurred here. The District did not demand any particular lien, or bank account, or income stream from property. It just ordered Koontz to spend or pay money (again, assuming it ordered anything at all). Koontz’s liability would have been the same whether his property produced income or not—e.g., even if all he wanted to build was a family home. And similarly, Koontz could meet that obligation from what-ever source he chose—a checking account, shares of stock, a wealthy uncle; the District was “indifferent as to how [he] elect[ed] to [pay] or the property [he] use[d] to do so.” Id., at 540. No more than in Apfel, then, was the (supposed) demand here for a “specific and identified” piece of property, which the government could not take without paying for it. Id., at 541.      The majority thus falls back on the sole way the District’s alleged demand related to a property interest: The demand arose out of the permitting process for Koontz’s land. See ante, at 16–17. But under the analytic framework that Nollan and Dolan established, that connection alone is insufficient to trigger heightened scrutiny. As I have described, the heightened standard of Nollan and Dolan is not a freestanding protection for land-use permit applicants; rather, it is “a special application of the doctrine of unconstitutional conditions, which provides that the government may not require a person to give up a constitutional right—here the right to receive just compensation when property is taken”—in exchange for a land-use permit. Lingle, 544 U. S., at 547 (internal quotation marks omitted); see supra, at 3–5. As such, Nollan and Dolan apply only if the demand at issue would have violated the Constitution independent of that proposed exchange. Or put otherwise, those cases apply only if the demand would have constituted a taking when executed outside the permitting process. And here, under Apfel, it would not. [ 1 ]      The majority’s approach, on top of its analytic flaws, threatens significant practical harm. By applying Nollan and Dolan to permit conditions requiring monetary payments—with no express limitation except as to taxes—the majority extends the Takings Clause, with its notoriously “difficult” and “perplexing” standards, into the very heart of local land-use regulation and service delivery. 524 U. S., at 541. Cities and towns across the nation impose many kinds of permitting fees every day. Some enable a government to mitigate a new development’s impact on the community, like increased traffic or pollution—or destruction of wetlands. See, e.g., Olympia v. Drebick, 156 Wash. 2d 289, 305, 126 P. 3d 802, 809 (2006). Others cover the direct costs of providing services like sewage or water to the development. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19 P. 3d 687, 691 (Colo. 2001). Still others are meant to limit the number of landowners who engage in a certain activity, as fees for liquor licenses do. See, e.g., Phillips v. Mobile, 208 U. S. 472, 479 (1908) ; BHA Investments, Inc. v. Idaho, 138 Idaho 348, 63 P. 3d 474 (2003). All now must meet Nollan and Dolan’s nexus and proportionality tests. The Federal Constitution thus will decide whether one town is overcharging for sewage, or another is setting the price to sell liquor too high. And the flexibility of state and local governments to take the most routine actions to enhance their communities will diminish accordingly.      That problem becomes still worse because the majority’s distinction between monetary “exactions” and taxes is so hard to apply. Ante, at 18. The majority acknowledges, as it must, that taxes are not takings. See ibid. (This case “does not affect the ability of governments to impose property taxes, user fees, and similar laws and regulations that may impose financial burdens on property owners”). But once the majority decides that a simple demand to pay money—the sort of thing often viewed as a tax—can count as an impermissible “exaction,” how is anyone to tell the two apart? The question, as Justice Breyer’s opinion in Apfel noted, “bristles with conceptual difficulties.” 524 U. S., at 556. And practical ones, too: How to separate orders to pay money from . . . well, orders to pay money, so that a locality knows what it can (and cannot) do. State courts sometimes must confront the same question, as they enforce restrictions on localities’ taxing power. And their decisions—contrary to the majority’s blithe assertion, see ante, at 20–21—struggle to draw a coherent boundary. Because “[t]here is no set rule” by which to determine “in which category a particular” action belongs, Eastern Diversified Properties, Inc. v. Montgomery Cty., 319 Md. 45, 53, 570 A. 2d 850, 854 (1990), courts often reach opposite conclusions about classifying nearly identical fees. Compare, e.g., Coulter v. Rawlins, 662 P. 2d 888, 901–904 (Wyo. 1983) (holding that a fee to enhance parks, imposed as a permit condition, was a regulatory exaction), with Home Builders Assn. v. West Des Moines, 644 N. W. 2d 339, 350 (Iowa 2002) (rejecting Coulter and holding that a nearly identical fee was a tax). [ 2 ] Nor does the majority’s opinion provide any help with that issue: Perhaps its most striking feature is its refusal to say even a word about how to make the distinction that will now determine whether a given fee is subject to heightened scrutiny.      Perhaps the Court means in the future to curb the intrusion into local affairs that its holding will accomplish; the Court claims, after all, that its opinion is intended to have only limited impact on localities’ land-use authority. See ante, at 8, 21. The majority might, for example, approve the rule, adopted in several States, that Nollan and Dolan apply only to permitting fees that are imposed ad hoc, and not to fees that are generally applicable. See, e.g., Ehrlich v. Culver City, 12 Cal. 4th 854, 911 P. 2d 429 (1996). Dolan itself suggested that limitation by underscoring that there “the city made an adjudicative decision to condition petitioner’s application for a building permit on an individual parcel,” instead of imposing an “essen-tially legislative determination[ ] classifying entire areas of the city.” 512 U. S., at 385. Maybe today’s majority accepts that distinction; or then again, maybe not. At the least, the majority’s refusal “to say more” about the scope of its new rule now casts a cloud on every decision by every local government to require a person seeking a permit to pay or spend money. Ante, at 20.      At bottom, the majority’s analysis seems to grow out of a yen for a prophylactic rule: Unless Nollan and Dolan apply to monetary demands, the majority worries, “land-use permitting officials” could easily “evade the limitations” on exaction of real property interests that those decisions impose. Ante, at 15. But that is a prophylaxis in search of a problem. No one has presented evidence that in the many States declining to apply heightened scrutiny to permitting fees, local officials routinely short-circuit Nollan and Dolan to extort the surrender of real property interests having no relation to a development’s costs. See, e.g., Krupp v. Breckenridge Sanitation Dist., 19 P. 3d, at 697; Home Builders Assn. of Central Arizona v. Scottsdale, 187 Ariz. 479, 486, 930 P. 2d 993, 1000 (1997); McCarthy v. Leawood, 257 Kan. 566, 579, 894 P. 2d 836, 845 (1995). And if officials were to impose a fee as a contrivance to take an easement (or other real property right), then a court could indeed apply Nollan and Dolan. See, e.g., Norwood v. Baker, 172 U. S. 269 (1898) (preventing circumvention of the Takings Clause by prohibiting the government from imposing a special assessment for the full value of a property in advance of condemning it). That situation does not call for a rule extending, as the majority’s does, to all monetary exactions. Finally, a court can use the Penn Central framework, the Due Process Clause, and (in many places) state law to protect against monetary demands, whether or not imposed to evade Nollan and Dolan, that simply “go[ ] too far.” Mahon, 260 U. S., at 415; see supra, at 3. [ 3 ]      In sum, Nollan and Dolan restrain governments from using the permitting process to do what the Takings Clause would otherwise prevent—i.e., take a specific property interest without just compensation. Those cases have no application when governments impose a general financial obligation as part of the permitting process, because under Apfel such an action does not otherwise trigger the Takings Clause’s protections. By extending Nollan and Dolan’s heightened scrutiny to a simple payment demand, the majority threatens the heartland of local land-use regulation and service delivery, at a bare minimum depriving state and local governments of “necessary predictability.” Apfel, 524 U. S., at 542 (opinion of Kennedy, J.). That decision is unwarranted—and deeply unwise. I would keep Nollan and Dolan in their intended sphere and affirm the Florida Supreme Court. II      I also would affirm the judgment below for two independent reasons, even assuming that a demand for money can trigger Nollan and Dolan. First, the District never demanded that Koontz give up anything (including money) as a condition for granting him a permit. [ 4 ] And second, because (as everyone agrees) no actual taking occurred, Koontz cannot claim just compensation even had the District made a demand. The majority nonetheless remands this case on the theory that Koontz might still be entitled to money damages. I cannot see how, and so would spare the Florida courts. A      Nollan and Dolan apply only when the government makes a “demand[ ]” that a landowner turn over property in exchange for a permit. Lingle, 544 U. S., at 546. I understand the majority to agree with that proposition: After all, the entire unconstitutional conditions doctrine, as the majority notes, rests on the fear that the government may use its control over benefits (like permits) to “coerc[e]” a person into giving up a constitutional right. Ante, at 7; see ante, at 13. A Nollan-Dolan claim therefore depends on a showing of government coercion, not relevant in an ordinary challenge to a permit denial. See Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 703 (1999) (Nollan and Dolan were “not designed to address, and [are] not readily applicable to,” a claim based on the mere “denial of [a] development” permit). Before applying Nollan and Dolan, a court must find that the permit denial occurred because the government made a demand of the landowner, which he rebuffed.      And unless Nollan and Dolan are to wreck land-use permitting throughout the country—to the detriment of both communities and property owners—that demand must be unequivocal. If a local government risked a lawsuit every time it made a suggestion to an applicant about how to meet permitting criteria, it would cease to do so; indeed, the government might desist altogether from communicating with applicants. That hazard is to some extent baked into Nollan and Dolan; observers have wondered whether those decisions have inclined some local governments to deny permit applications outright, rather than negotiate agreements that could work to both sides’ advantage. See W. Fischel, Regulatory Takings 346 (1995). But that danger would rise exponentially if something less than a clear condition—if each idea or proposal offered in the back-and-forth of reconciling diverse interests—triggered Nollan-Dolan scrutiny. At that point, no local government official with a decent lawyer would have a conversation with a developer. Hence the need to reserve Nollan and Dolan, as we always have, for reviewing only what an official demands, not all he says in negotiations.      With that as backdrop, consider how this case arose. To arrest the loss of the State’s rapidly diminishing wetlands, Florida law prevents landowners from filling or draining any such property without two permits. See ante, at 2–3. Koontz’s property qualifies as a wetland, and he therefore needed the permits to embark on development. His applications, however, failed the District’s preliminary review: The District found that they did not preserve wetlands or protect fish and wildlife to the extent Florida law required. See App. Exh. 19–20, 47. At that point, the District could simply have denied the applications; had it done so, the Penn Central test—not Nollan and Dolan—would have governed any takings claim Koontz might have brought. See Del Monte Dunes, 526 U. S., at 702–703.      Rather than reject the applications, however, the District suggested to Koontz ways he could modify them to meet legal requirements. The District proposed reducing the development’s size or modifying its design to lessen the impact on wetlands. See App. Exh. 87–88, 91–92. Alternatively, the District raised several options for “off-site mitigation” that Koontz could undertake in a nearby nature preserve, thus compensating for the loss of wetlands his project would cause. Id., at 90–91. The District never made any particular demand respecting an off-site project (or anything else); as Koontz testified at trial, that possibility was presented only in broad strokes, “[n]ot in any great detail.” App. 103. And the District made clear that it welcomed additional proposals from Koontz to mitigate his project’s damage to wetlands. See id., at 75. Even at the final hearing on his applications, the District asked Koontz if he would “be willing to go back with the staff over the next month and renegotiate this thing and try to come up with” a solution. Id., at 37. But Koontz refused, saying (through his lawyer) that the proposal he submitted was “as good as it can get.” Id., at 41. The District therefore denied the applications, consistent with its original view that they failed to satisfy Florida law.      In short, the District never made a demand or set a condition—not to cede an identifiable property interest, not to undertake a particular mitigation project, not even to write a check to the government. Instead, the District suggested to Koontz several non-exclusive ways to make his applications conform to state law. The District’s only hard-and-fast requirement was that Koontz do something—anything—to satisfy the relevant permitting criteria. Koontz’s failure to obtain the permits therefore did not result from his refusal to accede to an allegedly extortionate demand or condition; rather, it arose from the legal deficien-cies of his applications, combined with his unwillingness to correct them by any means. Nollan and Dolan were never meant to address such a run-of-the-mill denial of a land-use permit. As applications of the unconstitutional conditions doctrine, those decisions require a condition; and here, there was none.      Indeed, this case well illustrates the danger of extending Nollan and Dolan beyond their proper compass. Consider the matter from the standpoint of the District’s lawyer. The District, she learns, has found that Koontz’s permit applications do not satisfy legal requirements. It can deny the permits on that basis; or it can suggest ways for Koontz to bring his applications into compliance. If every suggestion could become the subject of a lawsuit under Nollan and Dolan, the lawyer can give but one recommendation: Deny the permits, without giving Koontz any advice—even if he asks for guidance. As the Florida Supreme Court observed of this case: Were Nollan and Dolan to apply, the District would “opt to simply deny permits outright without discussion or negotiation rather than risk the crushing costs of litigation”; and property owners like Koontz then would “have no opportunity to amend their applications or discuss mitigation options.” 77 So. 3d 1220, 1231 (2011). Nothing in the Takings Clause requires that folly. I would therefore hold that the District did not impose an unconstitutional condition—because it did not impose a condition at all. B      And finally, a third difficulty: Even if (1) money counted as “specific and identified propert[y]” under Apfel (though it doesn’t), and (2) the District made a demand for it (though it didn’t), (3) Koontz never paid a cent, so the District took nothing from him. As I have explained, that third point does not prevent Koontz from suing to invalidate the purported demand as an unconstitutional condition. See supra, at 1–2. But it does mean, as the majority agrees, that Koontz is not entitled to just compensation under the Takings Clause. See ante, at 11. He may obtain monetary relief under the Florida statute he invoked only if it authorizes damages beyond just compensation for a taking.      The majority remands that question to the Florida Supreme Court, and given how it disposes of the other issues here, I can understand why. As the majority indicates, a State could decide to create a damages remedy not only for a taking, but also for an unconstitutional conditions claim predicated on the Takings Clause. And that question is one of state law, which we usually do well to leave to state courts.      But as I look to the Florida statute here, I cannot help but see yet another reason why the Florida Supreme Court got this case right. That statute authorizes damages only for “an unreasonable exercise of the state’s police power constituting a taking without just compensation.” Fla. Stat. §373.617 (2010); see ante, at 12. In what legal universe could a law authorizing damages only for a “taking” also provide damages when (as all agree) no taking has occurred? I doubt that inside-out, upside-down universe is the State of Florida. Certainly, none of the Florida courts in this case suggested that the majority’s hypothesized remedy actually exists; rather, the trial and appellate courts imposed a damages remedy on the mistaken theory that there had been a taking (although of exactly what neither was clear). See App. to Pet. for Cert. C–2; 5 So. 3d 8, 8 (2009). So I would, once more, affirm the Florida Supreme Court, not make it say again what it has already said—that Koontz is not entitled to money damages. III      Nollan and Dolan are important decisions, designed to curb governments from using their power over land-use permitting to extract for free what the Takings Clause would otherwise require them to pay for. But for no fewer than three independent reasons, this case does not present that problem. First and foremost, the government commits a taking only when it appropriates a specific property interest, not when it requires a person to pay or spend money. Here, the District never took or threatened such an interest; it tried to extract from Koontz solely a commitment to spend money to repair public wetlands. Second, Nollan and Dolan can operate only when the government makes a demand of the permit applicant; the decisions’ prerequisite, in other words, is a condition. Here, the District never made such a demand: It informed Koontz that his applications did not meet legal requirements; it offered suggestions for bringing those applications into compliance; and it solicited further proposals from Koontz to achieve the same end. That is not the stuff of which an unconstitutional condition is made. And third, the Florida statute at issue here does not, in any event, offer a damages remedy for imposing such a condition. It provides relief only for a consummated taking, which did not occur here.      The majority’s errors here are consequential. The majority turns a broad array of local land-use regulations into federal constitutional questions. It deprives state and local governments of the flexibility they need to enhance their communities—to ensure environmentally sound and economically productive development. It places courts smack in the middle of the most everyday local government activity. As those consequences play out across the country, I believe the Court will rue today’s decision. I respectfully dissent. Notes 1 The majority’s sole response is that “the unconstitutional conditions analysis requires us to set aside petitioner’s permit application, not his ownership of a particular parcel of real property.” Ante, at 17, n. 1. That mysterious sentence fails to make the majority’s opinion cohere with the unconstitutional conditions doctrine, as anyone has ever known it. That doctrine applies only if imposing a condition directly—i.e., independent of an exchange for a government benefit—would violate the Constitution. Here, Apfel makes clear that the District’s condition would not do so: The government may (separate and apart from permitting) require a person—whether Koontz or anyone else—to pay or spend money without effecting a taking. The majority offers no theory to the contrary: It does not explain, as it must, why the District’s condition was “unconstitutional.” 2 The majority argues that existing state-court precedent will “greatly reduce the practical difficulty” of developing a uniform standard for distinguishing taxes from monetary exactions in federal constitutional cases. Ante, at 20, n.2. But how are those decisions to perform that feat if they themselves are all over the map? 3 Our Penn Central test protects against regulations that unduly burden an owner’s use of his property: Unlike the Nollan-Dolan standard, that framework fits to a T a complaint (like Koontz’s) that a permitting condition makes it inordinately expensive to develop land. And the Due Process Clause provides an additional backstop against excessive permitting fees by preventing a government from conditioning a land-use permit on a monetary requirement that is “basically arbitrary.” Eastern Enterprises v. Apfel, –558 (1998) (Breyer, J., dissenting). My point is not, as the majority suggests, that these constraints do the same thing as Nollan and Dolan, and so make those decisions unnecessary. See ante, at 21. To the contrary, Nollan and Dolan provide developers with enhanced protection (and localities with correspondingly reduced flexibility). See supra, at 8. The question here has to do not with “overruling” those cases, but with extending them. Ante, at 21. My argument is that our prior caselaw struck the right balance: heightened scrutiny when the government uses the permitting process to demand property that the Takings Clause protects, and lesser scrutiny, but a continuing safeguard against abuse, when the government’s demand is for something falling outside that Clause’s scope. 4 The Court declines to consider whether the District demanded anything from Koontz because the Florida Supreme Court did not reach the issue. See ante, at 13. But because the District raised this issue in its brief opposing certiorari, Brief in Opposition 14–18, both parties briefed and argued it on the merits, see Brief for Respondent 37–43; Reply Brief 7–8, Tr. of Oral Arg. 7–12, 27–28, 52–53, and it provides yet another ground to affirm the judgment below, I address the question.

The Supreme Court ruled that the government cannot deny a land-use permit because the owner refused to relinquish a portion of their property, as it violates the "nexus" and "rough proportionality" principles established in Nollan v. California Coastal Comm'n and Dolan v. City of Tigard. The St. Johns River Water Management District's attempt to circumvent these decisions by structuring the permit application process in a certain way was deemed unconstitutional.

Property Rights & Land Use

Arkansas Game & Fish Commission v. U.S.

https://supreme.justia.com/cases/federal/us/568/23/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 11–597 _________________ ARKANSAS GAME AND FISH COMMISSION, PETITIONER v. UNITED STATES on writ of certiorari to the united states court of appeals for the federal circuit [December 4, 2012] Justice Ginsburg delivered the opinion of the Court. Periodically from 1993 until 2000, the U. S. Army Corps of Engineers (Corps) authorized flooding that extended into the peak growing season for timber on forest land owned and managed by petitioner, Arkansas Game and Fish Commission (Commission). Cumulative in effect, the repeated flooding damaged or destroyed more than 18 million board feet of timber and disrupted the ordinary use and enjoyment of the Commission’s property. The Commission sought compensation from the United States pursuant to the Fifth Amendment’s instruction: “[N]or shall private property be taken for public use, without just compensation.” The question presented is whether a taking may occur, within the meaning of the Takings Clause, when government-induced flood invasions, al- though repetitive, are temporary. Ordinarily, this Court’s decisions confirm, if government action would qualify as a taking when permanently continued, temporary actions of the same character may also qualify as a taking. In the instant case, the parties and the courts below divided on the appropriate classification of temporary flooding. Reversing the judgment of the Court of Federal Claims, which awarded compensation to the Commission, the Federal Circuit held, 2 to 1, that compensation may be sought only when flooding is “a per- manent or inevitably recurring condition, rather than an inherently temporary situation.” 637 F.3d 1366, 1378 (2011). We disagree and conclude that recurrent floodings, even if of finite duration, are not categorically exempt from Takings Clause liability. I A The Commission owns the Dave Donaldson Black River Wildlife Management Area (Management Area or Area), which comprises 23,000 acres along both banks of the Black River in northeast Arkansas. The Management Area is forested with multiple hardwood timber species that support a variety of wildlife habitats. The Commission operates the Management Area as a wildlife and hunting preserve, and also uses it as a timber resource, conducting regular harvests of timber as part of its forest-management efforts. Three types of hardwood oak species—nuttall, overcup, and willow—account for 80 percent of the trees in the Management Area. The presence of these hardwood oaks is essential to the Area’s character as a habitat for migratory birds and as a venue for recreation and hunting. The Clearwater Dam (Dam) is located 115 miles upstream from the Management Area. The Corps constructed the Dam in 1948, and shortly thereafter adopted a plan known as the Water Control Manual (Manual) to determine the rates at which water would be released from the Dam. The Manual sets seasonally varying release rates, but permits planned deviations from the prescribed rates for agricultural, recreational, and other purposes. In 1993, the Corps approved a planned deviation in response to requests from farmers. From September to December 1993, the Corps released water from the Dam at a slower rate than usual, providing downstream farmers with a longer harvest time. As a result, more water than usual accumulated in Clearwater Lake behind the Dam. To reduce the accumulation, the Corps extended the pe- riod in which a high amount of water would be released. The Commission maintained this extension yielded downstream flooding in the Management Area, above historical norms, during the tree-growing season, which runs from April to October. If the Corps had released the water more rapidly in the fall of 1993, in accordance with the Manual and with past practice, there would have been short-term waves of flooding which would have receded quickly. The lower rate of release in the fall, however, extended the period of flooding well into the following spring and summer. While the deviation benefited farmers, it interfered with the Management Area’s tree-growing season. The Corps adopted similar deviations each year from 1994 through 2000. The record indicates that the decision to deviate from the Manual was made independently in each year and that the amount of deviation varied over the span of years. Nevertheless, the result was an unbroken string of annual deviations from the Manual. Each deviation lowered the rate at which water was released during the fall, which necessitated extension of the release period into the following spring and summer. During this span of years the Corps proposed Manual revisions that would have made its temporary deviations part of the permanent water-release plan. On multiple occasions between 1993 and 2000, the Commission objected to the temporary deviations and opposed any permanent revision to the Manual, on the ground that the departures from the traditional water-release plan adversely impacted the Management Area. Ultimately, the Corps tested the effect of the deviations on the Management Area. It thereupon abandoned the proposal to permanently revise the Manual and, in 2001, ceased its temporary deviations. B In 2005, the Commission filed the instant lawsuit against the United States, claiming that the temporary deviations from the Manual constituted a taking of property that entitled the Commission to compensation. The Commission maintained that the deviations caused sustained flooding of its land during the tree-growing season. The cumulative impact of this flooding over a six-year period between 1993 and 1999, the Commission alleged, resulted in the destruction of timber in the Management Area and a substantial change in the character of the terrain, which necessitated costly reclamation measures. Following a trial, the Court of Federal Claims ruled in favor of the Commission and issued an opinion and order containing detailed findings of fact. 87 Fed. Cl. 594 (2009). The Court of Federal Claims found that the forests in the Management Area were healthy and flourishing before the flooding that occurred in the 1990’s, and that the forests had been sustainably managed for decades under the water-release plan contained in the Manual. Id., at 631. It further found that the Commission repeatedly objected to the deviations from the Manual and alerted the Corps to the detrimental effect the longer period of flooding would have on the hardwood timber in the Management Area. Id., at 604. As found by the Court of Federal Claims, the flooding caused by the deviations contrasted markedly with historical flooding patterns. Between 1949 and 1992, the river level near the Management Area reached six feet an average of 64.7 days per year during the growing season; the number of such days had been even lower on average before the Clearwater Dam was built. Between 1993 and 1999, however, the river reached the same level an average of 91.14 days per year, an increase of more than 40 percent over the historic average. Although the Management Area lies in a floodplain, in no previously recorded time span did comparable flooding patterns occur. Id., at 607–608. Evidence at trial indicated that half of the nuttall oaks in the Management Area were saturated with water when the river level was at six feet, id., at 608; the evidence further indicated that the saturation of the soil around the trees’ root systems could persist for weeks even after the flooding had receded. Id., at 627. The court concluded that the Corps’ deviations caused six consecutive years of substantially increased flooding, which constituted an appropriation of the Commission’s property, albeit a temporary rather than a permanent one. Important to this conclusion, the court emphasized the deviations’ cumulative effect. The trees were subject to prolonged periods of flooding year after year, which reduced the oxygen level in the soil and considerably weak- ened the trees’ root systems. The repeated annual flooding for six years altered the character of the property to a much greater extent than would have been shown if the harm caused by one year of flooding were simply multi- plied by six. When a moderate drought occurred in 1999 and 2000, the trees did not have the root systems necessary to sustain themselves; the result, in the court’s words, was “catastrophic mortality.” Id., at 632. More than 18 million board feet of timber were destroyed or degraded. Id., at 638–640. This damage altered the character of the Management Area. The destruction of the trees led to the invasion of undesirable plant species, making natural regeneration of the forests improbable in the absence of reclamation efforts. Id., at 643. To determine the measure of just compensation, the Court of Federal Claims calculated the value of the lost timber and the projected cost of the reclamation and awarded the Commission $5.7 million. The Federal Circuit reversed. It acknowledged that in general, temporary government action may give rise to a takings claim if permanent action of the same character would constitute a taking. But it held that “cases involving flooding and [flowage] easements are different.” 637 F. 3d, at 1374. Government-induced flooding can give rise to a taking claim, the Federal Circuit concluded, only if the flooding is “permanent or inevitably recurring.” Id., at 1378. The Court of Appeals understood this conclusion to be dictated by this Court’s decisions in Sanguinetti v. United States , 264 U.S. 146 , 150 (1924), and United States v. Cress , 243 U.S. 316 , 328 (1917). We granted certiorari to resolve the question whether government actions that cause repeated floodings must be permanent or inevitably recurring to constitute a taking of property. 566 U. S. ___ (2012). II The Takings Clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States , 364 U.S. 40 , 49 (1960). See also First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U.S. 304 , 318–319 (1987); Penn Central Transp. Co. v. New York City , 438 U.S. 104 , 123–125 (1978). And “[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.” Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302 , 322 (2002) (citing United States v. Pewee Coal Co. , 341 U.S. 114 , 115 (1951)). These guides are fundamental in our Takings Clause jurisprudence. We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area. True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419 , 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council , 505 U.S. 1003 , 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central , 438 U. S., at 124. With this in mind, we turn to the question presented here—whether temporary flooding can ever give rise to a takings claim. The Court first ruled that government-induced flooding can constitute a taking in Pumpelly v. Green Bay Co. , 13 Wall. 166 (1872). The Wisconsin Legislature had authorized the defendant to build a dam which led to the creation of a lake, permanently submerging the plaintiff’s land. The defendant argued that the land had not been taken because the government did not exercise the right of eminent domain to acquire title to the affected property. Moreover, the defendant urged, the damage was merely “a consequential result” of the dam’s construction near the plaintiff’s property. Id., at 177. Rejecting that crabbed reading of the Takings Clause, the Court held that “where real estate is actually invaded by superinduced additions of water, earth, sand, or other material . . . so as to effectually destroy or impair its usefulness, it is a taking, within the meaning of the Constitution.” Id., at 181. Following Pumpelly , the Court recognized that season- ally recurring flooding could constitute a taking. United States v. Cress , 243 U.S. 316 (1917), involved the Government’s construction of a lock and dam, which subjected the plaintiff’s land to “intermittent but inevitably recurring overflows.” Id., at 328. The Court held that the regularly recurring flooding gave rise to a takings claim no less valid than the claim of an owner whose land was continuously kept under water. Id., at 328–329. Furthermore, our decisions confirm that takings tem- porary in duration can be compensable. This principle was solidly established in the World War II era, when “[c]ondemnation for indefinite periods of occupancy [took hold as] a practical response to the uncertainties of the Government’s needs in wartime.” United States v. Westinghouse Elec. & Mfg. Co. , 339 U.S. 261 , 267 (1950). In support of the war effort, the Government took temporary possession of many properties. These exercises of government authority, the Court recognized, qualified as compensable temporary takings. See Pewee Coal Co. , 341 U.S. 114 ; Kimball Laundry Co. v. United States , 338 U.S. 1 (1949); United States v. General Motors Corp. , 323 U.S. 373 (1945). Notably in relation to the question before us, the takings claims approved in these cases were not confined to instances in which the Government took outright physical possession of the property involved. A temporary takings claim could be maintained as well when government action occurring outside the property gave rise to “a direct and immediate interference with the enjoyment and use of the land.” United States v. Causby , 328 U.S. 256 , 266 (1946) (frequent overflights from a nearby airport resulted in a taking, for the flights deprived the property owner of the customary use of his property as a chicken farm); cf. United States v. Dickinson , 331 U.S. 745 , 751 (1947) (flooding of claimant’s land was a taking even though claimant successfully “reclaimed most of his land which the Government originally took by flooding”). Ever since, we have rejected the argument that government action must be permanent to qualify as a taking. Once the government’s actions have worked a taking of property, “no subsequent action by the government can re- lieve it of the duty to provide compensation for the pe- riod during which the taking was effective.” First English , 482 U. S., at 321. See also Tahoe-Sierra , 535 U. S., at 337 (“[W]e do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other.”). Because government-induced flooding can constitute a taking of property, and because a taking need not be permanent to be compensable, our precedent indicates that government-induced flooding of limited duration may be compensable. No decision of this Court authorizes a blanket temporary-flooding exception to our Takings Clause jurisprudence, and we decline to create such an exception in this case. III In advocating a temporary-flooding exception, the Government relies primarily on Sanguinetti , 264 U.S. 146 . That case involved a canal constructed by the Government connecting a slough and a river. The claimant’s land was positioned between the slough and the river above the canal. The year after the canal’s construction, a “flood of unprecedented severity” caused the canal to overflow onto the claimant’s land; less severe flooding and overflow occurred in later years. Id., at 147. The Court held there was no taking on these facts. This outcome rested on settled principles of foreseeability and causation. The Court emphasized that the Government did not intend to flood the land or have “any reason to expect that such [a] result would follow” from construction of the canal. Id. , at 148. Moreover, the property was subject to seasonal flooding prior to the construction of the canal, and the landowner failed to show a causal connection between the canal and the increased flooding, which may well have been occasioned by changes in weather patterns. See id., at 149 (characterizing the causal relationship asserted by the landowner as “purely conjec- tural”). These case-specific features were more than sufficient to dispose of the property owner’s claim. In the course of the Sanguinetti decision, however, the Court summarized prior flooding cases as standing for the proposition that “in order to create an enforceable liability against the Government, it is, at least, necessary that the overflow be the direct result of the structure, and constitute an actual, permanent invasion of the land.” Ibid . The Government would have us extract from this statement a definitive rule that there can be no temporary taking caused by floods. We do not read so much into the word “permanent” as it appears in a nondispositive sentence in Sanguinetti . That case, we note, was decided in 1924, well before the World War II-era cases and First English , in which the Court first homed in on the matter of compensation for temporary takings. That time factor, we think, renders understandable the Court’s passing reference to permanence. If the Court indeed meant to express a general limitation on the Takings Clause, that limitation has been superseded by subsequent developments in our jurisprudence. There is certainly no suggestion in Sanguinetti that flooding cases should be set apart from the mine run of takings claims. The sentence in question was composed to summarize the flooding cases the Court had encountered up to that point, which had unexceptionally involved permanent, rather than temporary, government-induced flooding. 264 U. S., at 149 . See Cress , 243 U. S., at 328; United States v. Lynah , 188 U.S. 445 , 469 (1903). But as just explained, no distinction between permanent and temporary flooding was material to the result in Sanguinetti . We resist reading a single sentence unnecessary to the decision as having done so much work. In this re- gard, we recall Chief Justice Marshall’s sage observation that “general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.” Cohens v. Virginia , 6 Wheat. 264, 399 (1821). The Government also asserts that the Court in Loretto interpreted Sanguinetti the same way the Federal Circuit did in this case. That assertion bears careful inspection. A section of the Court’s opinion in Loretto discussing permanent physical occupations parenthetically quotes Sanguinetti ’s statement that flooding is a taking if it constitutes an “actual, permanent invasion of the land.” 458 U. S., at 428. But the first rule of case law as well as statutory interpretation is: Read on. Later in the Loretto opinion, the Court clarified that it scarcely intended to adopt a “flooding-is-different” rule by the obscure means of quoting parenthetically a fragment from a 1924 opinion. The Court distinguished permanent physical occupations from temporary invasions of property, expressly including flooding cases, and said that “temporary limitations are subject to a more complex balancing process to determine whether they are a taking.” Id., at 435, n. 12. There is thus no solid grounding in precedent for set- ting flooding apart from all other government intrusions on property. And the Government has presented no other persuasive reason to do so. Its primary argument is of the in for a penny, in for a pound genre: reversing the decision below, the Government worries, risks disruption of pub- lic works dedicated to flood control. “[E]very passing flood attributable to the government’s operation of a flood-control project, no matter how brief,” the Government hypothesizes, might qualify as a compensable taking. Brief for United States 29. To reject a categorical bar to temporary-flooding takings claims, however, is scarcely to credit all, or even many, such claims. It is of course in- cumbent on courts to weigh carefully the relevant factors and circumstances in each case, as instructed by our decisions. See infra , at 14. The slippery slope argument, we note, is hardly novel or unique to flooding cases. Time and again in Takings Clause cases, the Court has heard the prophecy that recognizing a just compensation claim would unduly impede the government’s ability to act in the public interest. Causby , 328 U. S., at 275 (Black, J., dissenting); Loretto , 458 U. S., at 455 (Blackmun, J., dissenting). We have rejected this argument when deployed to urge blanket exemptions from the Fifth Amendment’s instruction. While we recognize the importance of the public interests the Government advances in this case, we do not see them as categorically different from the interests at stake in myriad other Takings Clause cases. The sky did not fall after Causby , and today’s modest decision augurs no deluge of takings liability. Tellingly, the Government qualifies its defense of the Federal Circuit’s exclusion of flood invasions from temporary takings analysis. It sensibly acknowledges that a taking might be found where there is a “sufficiently prolonged series of nominally temporary but substantively identical deviations.” Brief for United States 21. This concession is in some tension with the categorical rule adopted by the Court of Appeals. Indeed, once it is recognized that at least some repeated nonpermanent flooding can amount to a taking of property, the question presented to us has been essentially answered. Flooding cases, like other takings cases, should be assessed with reference to the “particular circumstances of each case,” and not by resorting to blanket exclusionary rules. United States v. Central Eureka Mining Co. , 357 U.S. 155 , 168 (1958) (citing Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 , 416 (1922)). See Penn Central , 438 U. S., at 124. At oral argument, the Government tendered a different justification for the Federal Circuit’s judgment, one not aired in the courts below, and barely hinted at in the brief the Government filed in this Court: Whether the damage is permanent or temporary, damage to downstream property, however foreseeable, is collateral or incidental; it is not aimed at any particular landowner and therefore does not qualify as an occupation compensable under the Takings Clause. Tr. of Oral Arg. 30–39; Brief for United States 26–27. “[M]indful that we are a court of review, not of first view,” Cutter v. Wilkinson , 544 U.S. 709 , 718, n. 7 (2005), we express no opinion on the proposed upstream/downstream distinction and confine our opinion to the issue explored and decided by the Federal Circuit. For the same reason, we are not equipped to address the bearing, if any, of Arkansas water-rights law on this case.[ 1 ] The determination whether a taking has occurred includes consideration of the property owner’s distinct investment-backed expectations, a matter often informed by the law in force in the State in which the property is located. Lucas , 505 U. S., at 1027–1029; Phillips v. Washington Legal Foundation , 524 U.S. 156 , 164 (1998). But Arkansas law was not examined by the Federal Circuit, and therefore is not properly pursued in this Court. Whether arguments for an upstream/downstream distinction and on the relevance of Arkansas law have been preserved and, if so, whether they have merit, are questions appropriately addressed to the Court of Appeals on remand. See Glover v. United States , 531 U.S. 198 , 205 (2001). IV We rule today, simply and only, that government-induced flooding temporary in duration gains no auto- matic exemption from Takings Clause inspection. When regulation or temporary physical invasion by government interferes with private property, our decisions recognize, time is indeed a factor in determining the existence vel non of a compensable taking. See Loretto , 458 U. S., at 435, n. 12 (temporary physical invasions should be as- sessed by case-specific factual inquiry); Tahoe-Sierra , 535 U. S., at 342 (duration of regulatory restriction is a factor for court to consider); National Bd. of YMCA v. United States , 395 U.S. 85 , 93 (1969) (“temporary, unplanned occupation” of building by troops under exigent circumstances is not a taking). Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. See supra, at 9; John Horstmann Co. v. United States , 257 U.S. 138 , 146 (1921) (no takings liability when damage caused by government action could not have been foreseen). See also Ridge Line, Inc. v. United States , 346 F.3d 1346 , 1355–1356 (CA Fed. 2003); In re Chicago, Milwaukee, St. Paul & Pacific R. Co. , 799 F.2d 317, 325–326 (CA7 1986). So, too, are the character of the land at issue and the owner’s “reasonable investment-backed expectations” regarding the land’s use. Palazzolo v. Rhode Island , 533 U.S. 606 , 618 (2001). For example, the Management Area lies in a floodplain below a dam, and had experienced flooding in the past. But the trial court found the Area had not been exposed to flooding comparable to the 1990’s accumulations in any other time span either prior to or after the construction of the Dam. See supra, at 4–5. Severity of the interference figures in the calculus as well. See Penn Central , 438 U. S., at 130–131; Portsmouth Harbor Land & Hotel Co. v. United States , 260 U.S. 327 , 329–330 (1922) (“[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [a taking]. Every successive trespass adds to the force of the evidence.”). The Court of Federal Claims found that the flooding the Commission assails was foreseeable. In this regard, the court noted the Commission’s repeated complaints to the Corps about the destructive impact of the successive planned deviations from the Water Control Manual. Further, the court determined that the interference with the Commission’s property was severe: The Commission had been deprived of the customary use of the Management Area as a forest and wildlife preserve, as the bottomland hardwood forest turned, over time, into a “headwater swamp.” 87 Fed. Cl., at 610 (internal quotation marks omitted); see supra, at 5.[ 2 ] The Government, however, challenged several of the trial court’s factfindings, including those relating to causation, foreseeability, substantiality, and the amount of damages. Because the Federal Circuit rested its decision entirely on the temporary duration of the flooding, it did not address those challenges. As earlier noted, see supra, at 13, preserved issues remain open for consideration on remand. *  *  * For the reasons stated, the judgment of the Court of Appeals for the Federal Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Kagan took no part in the consideration or decision of this case. Notes 1 Arkansas water law is barely discussed in the parties’ briefs, see Brief for United States 43, but has been urged at length in a brief amicus curiae filed by Professors of Law Teaching in the Property Law and Water Rights Fields. 2 The Commission is endeavoring to reclaim the land through a restoration program. The prospect of reclamation, however, does not disqualify a landowner from receipt of just compensation for a taking. United States v. Dickinson , 331 U.S. 745 , 751 (1947).

The Arkansas Game and Fish Commission sued the US government for compensation after the US Army Corps of Engineers repeatedly flooded the Commission's forest land, damaging timber and disrupting its use. The Court of Federal Claims awarded compensation, but the Federal Circuit reversed this decision, arguing that temporary flooding was not eligible for compensation. The Supreme Court disagreed, concluding that recurrent, temporary floodings could indeed qualify as a taking under the Fifth Amendment's Takings Clause, and that the flooding's temporary nature did not exempt the government from liability. The case was remanded for further proceedings, with issues like causation, foreseeability, and damage amount still to be addressed.

Property Rights & Land Use

Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection

https://supreme.justia.com/cases/federal/us/560/702/

OPINION OF THE COURT STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF ENVIRONMENTAL PROTECTION 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1151 STOP THE BEACH RENOURISHMENT, INC., PETITIONER v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. on writ of certiorari to the supreme court of florida [June 17, 2010]    Justice Scalia announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, IV, and V, and an opinion with respect to Parts II and III, in which The Chief Justice, Justice Thomas, and Justice Alito join.    We consider a claim that the decision of a State’s court of last resort took property without just compensation in violation of the Takings Clause of the Fifth Amendment, as applied against the States through the Fourteenth, see Dolan v. City of Tigard , 512 U. S. 374 , 383–384 (1994). I A    Generally speaking, state law defines property interests, Phillips v. Washington Legal Foundation , 524 U. S. 156 , 164 (1998), including property rights in navigable waters and the lands underneath them, see United States v. Cress , 243 U. S. 316 , 319–320 (1917); St. Anthony Falls Water Power Co. v. St. Paul Water Comm’rs , 168 U. S. 349 , 358–359 (1897). In Florida, the State owns in trust for the public the land permanently submerged beneath navigable waters and the foreshore (the land between the low-tide line and the mean high-water line). Fla. Const., Art. X, §11; Broward v. Mabry , 58 Fla. 398, 407–409, 50 So. 826, 829–830 (1909). Thus, the mean high-water line (the average reach of high tide over the preceding 19 years) is the ordinary boundary between private beachfront, or littoral[ Footnote 1 ] property, and state-owned land. See Miller v. Bay-To-Gulf , Inc. , 141 Fla. 452, 458–460, 193 So. 425, 427–428 (1940) (per curiam); Fla. Stat. §§177.27(14)–(15), 177.28(1) (2007).    Littoral owners have, in addition to the rights of the public, certain “special rights” with regard to the water and the foreshore, Broward , 58 Fla., at 410, 50 So., at 830, rights which Florida considers to be property, generally akin to easements, see ibid.; Thiesen v. Gulf, Florida & Alabama R. Co., 75 Fla. 28, 57, 78, 78 So. 491, 500, 507 (1918) (on rehearing). These include the right of access to the water, the right to use the water for certain purposes, the right to an unobstructed view of the water, and the right to receive accretions and relictions to the littoral property. Id., at 58–59, 78 So., at 501; Board of Trustees of Internal Improvement Trust Fund v. Sand Key Assoc., Ltd. , 512 So. 2d 934, 936 (Fla. 1987). This is generally in accord with well-established common law, although the precise property rights vary among jurisdictions. Compare Broward , supra , at 409–410, 50 So., at 830, with 1 J. Lewis, Law of Eminent Domain §100 (3d ed. 1909); 1 H. Farnham, Law of Waters and Water Rights §62, pp. 278–280 (1904) (hereinafter Farnham).    At the center of this case is the right to accretions and relictions. Accretions are additions of alluvion (sand, sediment, or other deposits) to waterfront land; relictions are lands once covered by water that become dry when the water recedes. F. Maloney, S. Plager, & F. Baldwin, Water Law and Administration: The Florida Experience §126, pp. 385–386 (1968) (hereinafter Maloney); 1 Farnham §69, at 320. (For simplicity’s sake, we shall refer to accretions and relictions collectively as accretions, and the process whereby they occur as accretion.) In order for an addition to dry land to qualify as an accretion, it must have occurred gradually and imperceptibly—that is, so slowly that one could not see the change occurring, though over time the difference became apparent. Sand Key , supra , at 936; County of St. Clair v. Lovingston , 23 Wall. 46, 66–67 (1874). When, on the other hand, there is a “sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream,” the change is called an avulsion. Sand Key , supra , at 936; see also 1 Farnham §69, at 320.    In Florida, as at common law, the littoral owner automatically takes title to dry land added to his property by accretion; but formerly submerged land that has become dry land by avulsion continues to belong to the owner of the seabed (usually the State). See, e.g., Sand Key , supra , at 937; Maloney §126.6, at 392; 2 W. Blackstone, Commentaries on the Laws of England 261–262 (1766) (hereinafter Blackstone). Thus, regardless of whether an avulsive event exposes land previously submerged or submerges land previously exposed, the boundary between littoral property and sovereign land does not change; it remains (ordinarily) what was the mean high-water line before the event. See Bryant v. Peppe , 238 So. 2d 836, 838–839 (Fla. 1970); J. Gould, Law of Waters §158, p. 290 (1883). It follows from this that, when a new strip of land has been added to the shore by avulsion, the littoral owner has no right to subsequent accretions. Those accretions no longer add to his property, since the property abutting the water belongs not to him but to the State. See Maloney §126.6, at 393; 1 Farnham §71a, at 328. B    In 1961, Florida’s Legislature passed the Beach and Shore Preservation Act, 1961 Fla. Laws ch. 61–246, as amended, Fla. Stat. §§161.011–161.45 (2007). The Act establishes procedures for “beach restoration and nourishment projects,” §161.088, designed to deposit sand on eroded beaches (restoration) and to maintain the deposited sand (nourishment). §§161.021(3), (4). A local government may apply to the Department of Environmental Protection for the funds and the necessary permits to restore a beach, see §§161.101(1), 161.041(1). When the project involves placing fill on the State’s submerged lands, authorization is required from the Board of Trustees of the Internal Improvement Trust Fund, see §253.77(1), which holds title to those lands, §253.12(1).    Once a beach restoration “is determined to be undertaken,” the Board sets what is called “an erosion control line.” §§161.161(3)–(5). It must be set by reference to the existing mean high-water line, though in theory it can be located seaward or landward of that.[ Footnote 2 ] See §161.161(5). Much of the project work occurs seaward of the erosion-control line, as sand is dumped on what was once submerged land. See App. 87–88. The fixed erosion-control line replaces the fluctuating mean high-water line as the boundary between privately owned littoral property and state property. §161.191(1). Once the erosion-control line is recorded, the common law ceases to increase upland property by accretion (or decrease it by erosion). §161.191(2). Thus, when accretion to the shore moves the mean high-water line seaward, the property of beachfront landowners is not extended to that line (as the prior law provided), but remains bounded by the permanent erosion-control line. Those landowners “continue to be entitled,” however, “to all common-law riparian rights” other than the right to accretions. §161.201. If the beach erodes back landward of the erosion-control line over a substantial portion of the shoreline covered by the project, the Board may, on its own initiative, or must, if asked by the owners or lessees of a majority of the property affected, direct the agency responsible for maintaining the beach to return the beach to the condition contemplated by the project. If that is not done within a year, the project is canceled and the erosion-control line is null and void. §161.211(2), (3). Finally, by regulation, if the use of submerged land would “unreasonably infringe on riparian rights,” the project cannot proceed unless the local governments show that they own or have a property interest in the upland property adjacent to the project site. Fla. Admin. Code Rule 18–21.004(3)(b) (2009). C    In 2003, the city of Destin and Walton County applied for the necessary permits to restore 6.9 miles of beach within their jurisdictions that had been eroded by several hurricanes. The project envisioned depositing along that shore sand dredged from further out. See Walton Cty. v. Stop the Beach Renourishment, Inc. , 998 So. 2d 1102, 1106 (Fla. 2008). It would add about 75 feet of dry sand seaward of the mean high-water line (to be denominated the erosion-control line). The Department issued a notice of intent to award the permits, App. 27–41, and the Board approved the erosion-control line, id. , at 49–50.    The petitioner here, Stop the Beach Renourishment, Inc., is a nonprofit corporation formed by people who own beachfront property bordering the project area (we shall refer to them as the Members). It brought an administrative challenge to the proposed project, see id. , at 10–26, which was unsuccessful; the Department approved the permits. Petitioner then challenged that action in state court under the Florida Administrative Procedure Act, Fla. Stat. §120.68 (2007). The District Court of Appeal for the First District concluded that, contrary to the Act’s preservation of “all common-law riparian rights,” the order had eliminated two of the Members’ littoral rights: (1) the right to receive accretions to their property; and (2) the right to have the contact of their property with the water remain intact. Save Our Beaches , Inc. v. Florida Dept. of Environmental Protection , 27 So. 3d 48, 57 (2006). This, it believed, would be an unconstitutional taking, which would “unreasonably infringe on riparian rights,” and therefore require the showing under Fla. Admin. Code Rule 18–21.004(3)(b) that the local governments owned or had a property interest in the upland property. It set aside the Department’s final order approving the permits and remanded for that showing to be made. 27 So. 3d, at 60. It also certified to the Florida Supreme Court the following question (as rephrased by the latter court):    “On its face, does the Beach and Shore Preservation Act unconstitutionally deprive upland owners of littoral rights without just compensation?”[ Footnote 3 ] 998 So. 2d, at 1105 (footnotes omitted).    The Florida Supreme Court answered the certified question in the negative, and quashed the First District’s remand. Id. , at 1121. It faulted the Court of Appeal for not considering the doctrine of avulsion, which it concluded permitted the State to reclaim the restored beach on behalf of the public. Id., at 1116–1118. It described the right to accretions as a future contingent interest, not a vested property right, and held that there is no littoral right to contact with the water independent of the littoral right of access, which the Act does not infringe. Id., at 1112, 1119–1120. Petitioner sought rehearing on the ground that the Florida Supreme Court’s decision itself effected a taking of the Members’ littoral rights contrary to the Fifth and Fourteenth Amendments to the Federal Constitution.[ Footnote 4 ] The request for rehearing was denied. We granted certiorari, 557 U. S. ___ (2009). II A    Before coming to the parties’ arguments in the present case, we discuss some general principles of our takings jurisprudence. The Takings Clause—“nor shall private property be taken for public use, without just compensation,” U. S. Const., Amdt. 5—applies as fully to the taking of a landowner’s riparian rights as it does to the taking of an estate in land.[ Footnote 5 ] See Yates v. Milwaukee , 10 Wall. 497, 504 (1871). Moreover, though the classic taking is a transfer of property to the State or to another private party by eminent domain, the Takings Clause applies to other state actions that achieve the same thing. Thus, when the government uses its own property in such a way that it destroys private property, it has taken that property. See United States v. Causby , 328 U. S. 256 , 261–262 (1946); Pumpelly v. Green Bay Co. , 13 Wall. 166, 177–178 (1872). Similarly, our doctrine of regulatory takings “aims to identify regulatory actions that are functionally equivalent to the classic taking.” Lingle v. Chevron U. S. A. Inc. , 544 U. S. 528 , 539 (2005). Thus, it is a taking when a state regulation forces a property owner to submit to a permanent physical occupation, Loretto v. Teleprompter Manhattan CATV Corp. , 458 U. S. 419 , 425–426 (1982), or deprives him of all economically beneficial use of his property, Lucas v. South Carolina Coastal Council , 505 U. S. 1003 , 1019 (1992). Finally (and here we approach the situation before us), States effect a taking if they recharacterize as public property what was previously private property. See Webb’s Fabulous Pharmacies, Inc. v. Beckwith , 449 U. S. 155 , 163–165 (1980).    The Takings Clause (unlike, for instance, the Ex Post Facto Clauses, see Art. I, §9, cl. 3; §10, cl. 1) is not addressed to the action of a specific branch or branches. It is concerned simply with the act, and not with the governmental actor (“nor shall private property be taken ” (emphasis added)). There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the Takings Clause forbids it to do by legislative fiat. See Stevens v. Cannon Beach , 510 U. S. 1207 , 1211–1212 (1994) (Scalia, J., dissenting from denial of certiorari).    Our precedents provide no support for the proposition that takings effected by the judicial branch are entitled to special treatment, and in fact suggest the contrary. PruneYard Shopping Center v. Robins, 447 U. S. 74 (1980), involved a decision of the California Supreme Court overruling one of its prior decisions which had held that the California Constitution’s guarantees of freedom of speech and of the press, and of the right to petition the government, did not require the owner of private property to accord those rights on his premises. The appellants, owners of a shopping center, contended that their private property rights could not “be denied by invocation of a state constitutional provision or by judicial reconstruction of a State’s laws of private property ,” id ., at 79 (emphasis added). We held that there had been no taking, citing cases involving legislative and executive takings, and applying standard Takings Clause analysis. See id., at 82–84. We treated the California Supreme Court’s application of the constitutional provisions as a regulation of the use of private property, and evaluated whether that regulation violated the property owners’ “right to exclude others,” id., at 80 (internal quotation marks omitted). Our opinion addressed only the claimed taking by the constitutional provision. Its failure to speak separately to the claimed taking by “judicial reconstruction of a State’s laws of private property” certainly does not suggest that a taking by judicial action cannot occur, and arguably suggests that the same analysis applicable to taking by constitutional provision would apply. Webb’s Fabulous Pharmacies , supra , is even closer in point. There the purchaser of an insolvent corporation had interpleaded the corporation’s creditors, placing the purchase price in an interest-bearing account in the registry of the Circuit Court of Seminole County, to be distributed in satisfaction of claims approved by a receiver. The Florida Supreme Court construed an applicable statute to mean that the interest on the account belonged to the county, because the account was “considered ‘public money,’ ” Beckwith v. Webb’s Fabulous Pharmacies , 374 So. 2d 951, 952–953 (1979) (per curiam) . We held this to be a taking. We noted that “[t]he usual and general rule is that any interest on an interpleaded and deposited fund follows the principal and is to be allocated to those who are ultimately to be the owners of that principal,” 449 U. S., at 162. “Neither the Florida Legislature by statute, nor the Florida courts by judicial decree,” we said, “may accomplish the result the county seeks simply by recharacterizing the principal as ‘public money.’ ” Id., at 164.    In sum, the Takings Clause bars the State from taking private property without paying for it, no matter which branch is the instrument of the taking. To be sure, the manner of state action may matter: Condemnation by eminent domain, for example, is always a taking, while a legislative, executive, or judicial restriction of property use may or may not be, depending on its nature and extent. But the particular state actor is irrelevant. If a legislature or a court declares that what was once an established right of private property no longer exists, it has taken that property, no less than if the State had physically appropriated it or destroyed its value by regulation. “[A] State, by ipse dixit , may not transform private property into public property without compensation.” Ibid. B Justice Breyer’s concurrence says that we need neither (1) to decide whether the judiciary can ever effect a taking, nor (2) to establish the standard for determining whether it has done so. See post , at 1–2 (opinion concurring in part and concurring in judgment). The second part of this is surely incompatible with Justice Breyer’s conclusion that the “Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’ ” Post , at 3. One cannot know whether a takings claim is invalid without knowing what standard it has failed to meet.[ Footnote 6 ] Which means that Justice Breyer must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.    It is not true that deciding the constitutional question in this case contradicts our settled practice. To the contrary, we have often recognized the existence of a constitutional right, or established the test for violation of such a right (or both), and then gone on to find that the claim at issue fails. See, e.g., New Jersey v. T. L. O. , 469 U. S. 325 , 333, 341–343 (1985) (holding that the Fourth Amendment applies to searches and seizures conducted by public-school officials, establishing the standard for finding a violation, but concluding that the claim at issue failed); Strickland v. Washington , 466 U. S. 668 , 687, 698–700 (1984) (recognizing a constitutional right to effective assistance of counsel, establishing the test for its violation, but holding that the claim at issue failed); Hill v. Lockhart , 474 U. S. 52 , 58–60 (1985) (holding that a Strickland claim can be brought to challenge a guilty plea, but rejecting the claim at issue); Jackson v. Virginia , 443 U. S. 307 , 313–320, 326 (1979) (recognizing a due process claim based on insufficiency of evidence, establishing the governing test, but concluding that the claim at issue failed); Village of Euclid v. Ambler Realty Co. , 272 U. S. 365 , 390, 395–397 (1926) (recognizing that block zoning ordinances could constitute a taking, but holding that the challenged ordinance did not do so); Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 241, 255–257 (1897) (holding that the Due Process Clause of the Fourteenth Amendment prohibits uncompensated takings, but concluding that the court below made no errors of law in assessing just compensation). In constitutional-tort suits against public officials, we have found the defendants entitled to immunity only after holding that their action violated the Constitution. See, e.g., Wilson v. Layne , 526 U. S. 603 , 605–606 (1999). Indeed, up until last Term, we required federal courts to address the constitutional question before the immunity question. See Saucier v. Katz , 533 U. S. 194 , 201 (2001), overruled by Pearson v. Callahan , 555 U. S. ___, ___ (2009) (slip op., at 10).    “Assuming without deciding” would be less appropriate here than it was in many of those earlier cases, which established constitutional rights quite separate from any that had previously been acknowledged. Compared to Strickland ’s proclamation of a right to effective assistance of counsel, for example, proclaiming that a taking can occur through judicial action addresses a point of relative detail.    In sum, Justice Breyer cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of. His agreement with Part IV of our opinion necessarily implies agreement with the test for a judicial taking (elaborated in Part II–A) which Part IV applies: whether the state court has “declare[d] that what was once an established right of private property no longer exists,” supra , at 10. Justice Breyer must either agree with that standard or craft one of his own. And agreeing to or crafting a hypothetical standard for a hypothetical constitutional right is sufficiently unappealing (we have eschewed that course many times in the past) that Justice Breyer might as well acknowledge the right as well. Or he could avoid the need to agree with or craft a hypothetical standard by denying the right. But embracing a standard while being coy about the right is, well, odd; and deciding this case while addressing neither the standard nor the right is quite impossible.    Justice Breyer responds that he simply advocates resolving this case without establishing “ the precise standard under which a party wins or loses.” Post , at 3 (emphasis added). But he relies upon no standard at all, precise or imprecise. He simply pronounces that this is not a judicial taking if there is such a thing as a judicial taking. The cases he cites to support this Queen-of-Hearts approach provide no precedent. In each of them the existence of the right in question was settled,[ Footnote 7 ] and we faced a choice between competing standards that had been applied by the courts.[ Footnote 8 ] We simply held that the right in question had not been infringed under any of them. There is no established right here, and no competing standards. C    Like Justice Breyer’s concurrence, Justice Kennedy’s concludes that the Florida Supreme Court’s action here does not meet the standard for a judicial taking, while purporting not to determine what is the standard for a judicial taking, or indeed whether such a thing as a judicial taking even exists. That approach is invalid for the reasons we have discussed.    Justice Kennedy says that we need not take what he considers the bold and risky step of holding that the Takings Clause applies to judicial action, because the Due Process Clause “would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post , at 4–5 (opinion concurring in part and concurring in judgment) (internal quotation marks omitted). He invokes the Due Process Clause “in both its substantive and procedural aspects,” post, at 3, not specifying which of his arguments relates to which.    The first respect in which Justice Kennedy thinks the Due Process Clause can do the job seems to sound in Procedural Due Process. Because, he says, “[c]ourts, unlike the executive or legislature, are not designed to make policy decisions” about expropriation, “[t]he Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights” violates the Due Process Clause. Post , at 4. Let us be clear what is being proposed here. This Court has held that the separation-of-powers principles that the Constitution imposes upon the Federal Government do not apply against the States. See Dreyer v. Illinois , 187 U. S. 71 , 83–84 (1902). But in order to avoid the bold and risky step of saying that the Takings Clause applies to all government takings, Justice Kennedy would have us use Procedural Due Process to impose judicially crafted separation-of-powers limitations upon the States: courts cannot be used to perform the governmental function of expropriation. The asserted reasons for the due-process limitation are that the legislative and executive branches “are accountable in their political capacity” for takings, post , at 2, and “[c]ourts . . . are not designed to make policy decisions” about takings, post, at 4. These reasons may have a lot to do with sound separation-of-powers principles that ought to govern a democratic society, but they have nothing whatever to do with the protection of individual rights that is the object of the Due Process Clause.    Of course even taking those reasons at face value, it is strange to proclaim a democracy deficit and lack of special competence for the judicial taking of an individual property right, when this Court has had no trouble deciding matters of much greater moment, contrary to congressional desire or the legislated desires of most of the States, with no special competence except the authority we possess to enforce the Constitution. In any case, our opinion does not trust judges with the relatively small power Justice Kennedy now objects to. It is we who propose setting aside judicial decisions that take private property; it is he who insists that judges cannot be so limited. Under his regime, the citizen whose property has been judicially redefined to belong to the State would presumably be given the Orwellian explanation: “The court did not take your property. Because it is neither politically accountable nor competent to make such a decision, it cannot take property.”    Justice Kennedy’s injection of separation-of-powers principles into the Due Process Clause would also have the ironic effect of preventing the assignment of the expropriation function to the branch of government whose procedures are, by far, the most protective of individual rights. So perhaps even this first respect in which Justice Kennedy would have the Due Process Clause do the work of the Takings Clause pertains to Substantive, rather than Procedural, Due Process. His other arguments undoubtedly pertain to that, as evidenced by his assertion that “[i]t is … natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights,” post , at 3, his endorsement of the proposition that the Due Process Clause imposes “limits on government’s ability to diminish property values by regulation,” ibid. , and his contention that “the Due Process Clause would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post, at 4 (internal quotation marks omitted).    The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done. “Where a particular Amendment ‘provides an explicit textual source of constitutional protection’ against a particular sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims.’ ” Albright v. Oliver , 510 U. S. 266 , 273 (1994) (four-Justice plurality opinion) (quoting Graham v. Connor , 490 U. S. 386 , 395 (1989)); see also 510 U. S., at 281 (Kennedy, J., concurring in judgment) (“I agree with the plurality that an allegation of arrest without probable cause must be analyzed under the Fourth Amendment without reference to more general considerations of due process”). The second problem is that we have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liberties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co. , 335 U. S. 525 , 536 (1949). Justice Kennedy’s language (“If a judicial decision … eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law,” post , at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York , 198 U. S.45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action. And the third and last problem with using Substantive Due Process is that either (1) it will not do all that the Takings Clause does, or (2) if it does all that the Takings Clause does, it will encounter the same supposed difficulties that Justice Kennedy finds troublesome.    We do not grasp the relevance of Justice Kennedy’s speculation, post , at 6, that the Framers did not envision the Takings Clause would apply to judicial action. They doubtless did not, since the Constitution was adopted in an era when courts had no power to “change” the common law. See 1 Blackstone 69–70 (1765); Rogers v. Tennessee , 532 U. S. 451 , 472–478 (2001) (Scalia, J., dissenting). Where the text they adopted is clear, however (“nor shall private property be taken for public use”), what counts is not what they envisioned but what they wrote. Of course even after courts, in the 19th century, did assume the power to change the common law, it is not true that the new “common-law tradition . . . allows for incremental modifications to property law,” post , at 4, so that “owners may reasonably expect or anticipate courts to make certain changes in property law,” post, at 6. In the only sense in which this could be relevant to what we are discussing, that is an astounding statement. We are talking here about judicial elimination of established private property rights. If that is indeed a “common-law tradition,” Justice Kennedy ought to be able to provide a more solid example for it than the only one he cites, post , at 5, a state-court change (from “noxious” to “harmful”) of the test for determining whether a neighbor’s vegetation is a tortious nuisance. Fancher v. Fagella , 274 Va. 549, 555–556, 650 S. E. 2d 519, 522 (2007). But perhaps he does not really mean that it is a common-law tradition to eliminate property rights, since he immediately follows his statement that “owners may reasonably expect or anticipate courts to make certain changes in property law” with the contradictory statement that “courts cannot abandon settled principles,” post, at 6. If no “settled principl[e]” has been abandoned, it is hard to see how property law could have been “change[d],” rather than merely clarified.    Justice Kennedy has added “two additional practical considerations that the Court would need to address before recognizing judicial takings,” post , at 7. One of them is simple and simply answered: the assertion that “it is unclear what remedy a reviewing court could enter after finding a judicial taking,” post, at 8. Justice Kennedy worries that we may only be able to mandate compensation. That remedy is even rare for a legislative or executive taking, and we see no reason why it would be the exclusive remedy for a judicial taking. If we were to hold that the Florida Supreme Court had effected an uncompensated taking in the present case, we would simply reverse the Florida Supreme Court’s judgment that the Beach and Shore Preservation Act can be applied to the property in question. Justice Kennedy’s other point, post, at 7–8—that we will have to decide when the claim of a judicial taking must be asserted—hardly presents an awe-inspiring prospect. These, and all the other “difficulties,” post, at 1, “difficult questions,” post, at 5, and “practical considerations” post, at 7, that Justice Kennedy worries may perhaps stand in the way of recognizing a judicial taking, are either nonexistent or insignificant.    Finally, we cannot avoid comment upon Justice Kennedy’s donning of the mantle of judicial restraint—his assertion that it is we, and not he, who would empower the courts and encourage their expropriation of private property. He warns that if judges know that their action is covered by the Takings Clause, they will issue “sweeping new rule[s] to adjust the rights of property owners,” comfortable in the knowledge that their innovations will be preserved upon payment by the State. Post , at 6. That is quite impossible. As we have said, if we were to hold that the Florida Supreme Court had effected an uncompensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judgment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has always resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compensation or acquiesce in the invalidity of the offending features of the Act. Cf. Davis v. Michigan Dept. of Treasury , 489 U. S. 803 , 817–818 (1989). The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.    Justice Kennedy, however, while dismissive of the Takings Clause, places no other constraints on judicial action. He puts forward some extremely vague applications of Substantive Due Process, and does not even say that they (whatever they are) will for sure apply. (“It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights,” post , at 3; “courts … may not have the power to eliminate established property rights by judicial decision,” post , at 4; “the Due Process Clause would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post , at 4–5 (internal quotation marks omitted); we must defer applying the Takings Clause until “[i]f and when future cases show that the usual principles, including constitutional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners,” post , at 10.)    Moreover, and more importantly, Justice Kennedy places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas , 539 U. S. 558 , 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendent dimensions”), even a firm commitment to apply it would be a firm commitment to nothing in particular. Justice Kennedy’s desire to substitute Substantive Due Process for the Takings Clause suggests, and the rest of what he writes confirms, that what holds him back from giving the Takings Clause its natural meaning is not the intrusiveness of applying it to judicial action, but the definiteness of doing so; not a concern to preserve the powers of the States’ political branches, but a concern to preserve this Court’s discretion to say that property may be taken, or may not be taken, as in the Court’s view the circumstances suggest. We must not say that we are bound by the Constitution never to sanction judicial elimination of clearly established property rights. Where the power of this Court is concerned, one must never say never. See, e.g. , Vieth v. Jubelirer , 541 U. S. 267 , 302–305 (2004) (plurality opinion); Sosa v. Alvarez-Machain , 542 U. S. 692 , 750–751 (2004) (Scalia, J., concurring in part and concurring in judgment). The great attraction of Substantive Due Process as a substitute for more specific constitutional guarantees is that it never means never—because it never means anything precise. III    Respondents put forward a number of arguments which contradict, to a greater or lesser degree, the principle discussed above, that the existence of a taking does not depend upon the branch of government that effects it. First, in a case claiming a judicial taking they would add to our normal takings inquiry a requirement that the court’s decision have no “fair and substantial basis.” This is taken from our jurisprudence dealing with the question whether a state-court decision rests upon adequate and independent state grounds, placing it beyond our jurisdiction to review. See E. Gressman, K. Geller, S. Shapiro, T. Bishop, & E. Hartnett, Supreme Court Practice, ch. 3.26, p. 222 (9th ed. 2007). To assure that there is no “evasion” of our authority to review federal questions, we insist that the nonfederal ground of decision have “fair support.” Broad River Power Co. v. South Carolina ex rel. Daniel , 281 U. S. 537 , 540 (1930); see also Ward v. Board of Comm’rs of Love Cty ., 253 U. S. 17 , 22–23 (1920). A test designed to determine whether there has been an evasion is not obviously appropriate for determining whether there has been a taking of property. But if it is to be extended there it must mean (in the present context) that there is a “fair and substantial basis” for believing that petitioner’s Members did not have a property right to future accretions which the Act would take away. This is no different, we think, from our requirement that petitioners’ Members must prove the elimination of an established property right.[ Footnote 9 ]    Next, respondents argue that federal courts lack the knowledge of state law required to decide whether a judicial decision that purports merely to clarify property rights has instead taken them. But federal courts must often decide what state property rights exist in nontakings contexts, see, e.g., Board of Regents of State Colleges v. Roth , 408 U. S. 564 , 577–578 (1972) (Due Process Clause). And indeed they must decide it to resolve claims that legislative or executive action has effected a taking. For example, a regulation that deprives a property owner of all economically beneficial use of his property is not a taking if the restriction “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” Lucas , 505 U. S., at 1029. A constitutional provision that forbids the uncompensated taking of property is quite simply insusceptible of enforcement by federal courts unless they have the power to decide what property rights exist under state law.    Respondents also warn us against depriving common-law judging of needed flexibility. That argument has little appeal when directed against the enforcement of a constitutional guarantee adopted in an era when, as we said supra , at 17, courts had no power to “change” the common law. But in any case, courts have no peculiar need of flexibility. It is no more essential that judges be free to overrule prior cases that establish property entitlements than that state legislators be free to revise pre-existing statutes that confer property entitlements, or agency-heads pre-existing regulations that do so. And insofar as courts merely clarify and elaborate property entitlements that were previously unclear, they cannot be said to have taken an established property right.    Finally, the city and county argue that applying the Takings Clause to judicial decisions would force lower federal courts to review final state-court judgments, in violation of the so-called Rooker - Feldman doctrine. See Rooker v. Fidelity Trust Co. , 263 U. S. 413 , 415–416 (1923); District of Columbia Court of Appeals v. Feldman , 460 U. S. 462 , 476 (1983). That does not necessarily follow. The finality principles that we regularly apply to takings claims, see Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U. S. 172 , 186–194 (1985), would require the claimant to appeal a claimed taking by a lower court to the state supreme court, whence certiorari would come to this Court. If certiorari were denied, the claimant would no more be able to launch a lower-court federal suit against the taking effected by the state supreme-court opinion than he would be able to launch such a suit against a legislative or executive taking approved by the state supreme-court opinion; the matter would be res judicata. And where the claimant was not a party to the original suit, he would be able to challenge in federal court the taking effected by the state supreme-court opinion to the same extent that he would be able to challenge in federal court a legislative or executive taking previously approved by a state supreme-court opinion.    For its part, petitioner proposes an unpredictability test. Quoting Justice Stewart’s concurrence in Hughes v. Washington , 389 U. S. 290 , 296 (1967), petitioner argues that a judicial taking consists of a decision that “ ‘constitutes a sudden change in state law, unpredictable in terms of relevant precedents.’ ” See Brief for Petitioner 17, 34–50. The focus of petitioner’s test is misdirected. What counts is not whether there is precedent for the allegedly confiscatory decision, but whether the property right allegedly taken was established. A “predictability of change” test would cover both too much and too little. Too much, because a judicial property decision need not be predictable, so long as it does not declare that what had been private property under established law no longer is. A decision that clarifies property entitlements (or the lack thereof) that were previously unclear might be difficult to predict, but it does not eliminate established property rights. And the predictability test covers too little, because a judicial elimination of established private-property rights that is foreshadowed by dicta or even by holdings years in advance is nonetheless a taking. If, for example, a state court held in one case, to which the complaining property owner was not a party, that it had the power to limit the acreage of privately owned real estate to 100 acres, and then, in a second case, applied that principle to declare the complainant’s 101st acre to be public property, the State would have taken an acre from the complainant even though the decision was predictable. IV    We come at last to petitioner’s takings attack on the decision below. At the outset, respondents raise two preliminary points which need not detain us long. The city and the county argue that petitioner cannot state a cause of action for a taking because, though the Members own private property, petitioner itself does not; and that the claim is unripe because petitioner has not sought just compensation. Neither objection appeared in the briefs in opposition to the petition for writ of certiorari, and since neither is jurisdictional,[ Footnote 10 ] we deem both waived. See this Court’s Rule 15.2; cf. Oklahoma City v. Tuttle , 471 U. S. 808 , 815–816 (1985).    Petitioner argues that the Florida Supreme Court took two of the property rights of the Members by declaring that those rights did not exist: the right to accretions, and the right to have littoral property touch the water (which petitioner distinguishes from the mere right of access to the water).[ Footnote 11 ] Under petitioner’s theory, because no prior Florida decision had said that the State’s filling of submerged tidal lands could have the effect of depriving a littoral owner of contact with the water and denying him future accretions, the Florida Supreme Court’s judgment in the present case abolished those two easements to which littoral property owners had been entitled. This puts the burden on the wrong party. There is no taking unless petitioner can show that, before the Florida Supreme Court’s decision, littoral-property owners had rights to future accretions and contact with the water superior to the State’s right to fill in its submerged land. Though some may think the question close, in our view the showing cannot be made.    Two core principles of Florida property law intersect in this case. First, the State as owner of the submerged land adjacent to littoral property has the right to fill that land, so long as it does not interfere with the rights of the public and the rights of littoral landowners. See Hayes v. Bowman , 91 So. 2d 795, 799–800 (Fla. 1957) (right to fill conveyed by State to private party); State ex rel. Buford v. Tampa , 88 Fla. 196, 210–211, 102 So. 336, 341 (1924) (same). Second, as we described supra , at 3–4, if an avulsion exposes land seaward of littoral property that had previously been submerged, that land belongs to the State even if it interrupts the littoral owner’s contact with the water. See Bryant , 238 So. 2d, at 837, 838–839. The issue here is whether there is an exception to this rule when the State is the cause of the avulsion. Prior law suggests there is not. In Martin v. Busch , 93 Fla. 535, 112 So. 274 (1927), the Florida Supreme Court held that when the State drained water from a lakebed belonging to the State, causing land that was formerly below the mean high-water line to become dry land, that land continued to belong to the State. Id ., at 574, 112 So., at 287; see also Bryant , supra , at 838–839 (analogizing the situation in Martin to an avulsion). “ ‘The riparian rights doctrine of accretion and reliction,’ ” the Florida Supreme Court later explained, “ ‘does not apply to such lands.’ ” Bryant , supra , at 839 (quoting Martin , supra , at 578, 112 So., at 288 (Brown, J., concurring)). This is not surprising, as there can be no accretions to land that no longer abuts the water.    Thus, Florida law as it stood before the decision below allowed the State to fill in its own seabed, and the resulting sudden exposure of previously submerged land was treated like an avulsion for purposes of ownership. The right to accretions was therefore subordinate to the State’s right to fill. Thiesen v. Gulf, Florida & Alabama R. Co. suggests the same result. That case involved a claim by a riparian landowner that a railroad’s state-authorized filling of submerged land and construction of tracks upon it interfered with the riparian landowners’ rights to access and to wharf out to a shipping channel. The Florida Supreme Court determined that the claimed right to wharf out did not exist in Florida, and that therefore only the right of access was compensable. 75 Fla., at 58–65, 78 So. , at 501–503. Significantly, although the court recognized that the riparian-property owners had rights to accretion, see id., at 64–65, 78 So., at 502–503, the only rights it even suggested would be infringed by the railroad were the right of access (which the plaintiff had claimed) and the rights of view and use of the water (which it seems the plaintiff had not claimed), see id., at 58–59, 78, 78 So., at 501, 507.    The Florida Supreme Court decision before us is consistent with these background principles of state property law. Cf. Lucas , 505 U. S., at 1028–1029; Scranton v. Wheeler , 179 U. S. 141 , 163 (1900). It did not abolish the Members’ right to future accretions, but merely held that the right was not implicated by the beach-restoration project, because the doctrine of avulsion applied. See 998 So. 2d, at 1117, 1120–1121. The Florida Supreme Court’s opinion describes beach restoration as the reclamation by the State of the public’s land, just as Martin had described the lake drainage in that case. Although the opinion does not cite Martin and is not always clear on this point, it suffices that its characterization of the littoral right to accretion is consistent with Martin and the other relevant principles of Florida law we have discussed.    What we have said shows that the rule of Sand Key, which petitioner repeatedly invokes, is inapposite. There the Florida Supreme Court held that an artificial accretion does not change the right of a littoral-property owner to claim the accreted land as his own (as long as the owner did not cause the accretion himself). 512 So. 2d, at 937–938. The reason Martin did not apply, Sand Key explained, is that the drainage that had occurred in Martin did not lower the water level by “ ‘imperceptible degrees,’ ” and so did not qualify as an accretion. 512 So. 2d, at 940–941.    The result under Florida law may seem counter-intuitive. After all, the Members’ property has been deprived of its character (and value) as oceanfront property by the State’s artificial creation of an avulsion. Perhaps state-created avulsions ought to be treated differently from other avulsions insofar as the property right to accretion is concerned. But nothing in prior Florida law makes such a distinction, and Martin suggests, if it does not indeed hold, the contrary. Even if there might be different interpretations of Martin and other Florida property-law cases that would prevent this arguably odd result, we are not free to adopt them. The Takings Clause only protects property rights as they are established under state law, not as they might have been established or ought to have been established. We cannot say that the Florida Supreme Court’s decision eliminated a right of accretion established under Florida law.    Petitioner also contends that the State took the Members’ littoral right to have their property continually maintain contact with the water. To be clear, petitioner does not allege that the State relocated the property line, as would have happened if the erosion-control line were landward of the old mean high-water line (instead of identical to it). Petitioner argues instead that the Members have a separate right for the boundary of their property to be always the mean high-water line. Petitioner points to dicta in Sand Key that refers to “the right to have the property’s contact with the water remain intact,” 512 So. 2d, at 936. Even there, the right was included in the definition of the right to access, ibid. , which is consistent with the Florida Supreme Court’s later description that “there is no independent right of contact with the water” but it “exists to preserve the upland owner’s core littoral right of access to the water,” 998 So. 2d, at 1119. Petitioner’s expansive interpretation of the dictum in Sand Key would cause it to contradict the clear Florida law governing avulsion. One cannot say that the Florida Supreme Court contravened established property law by rejecting it.[ Footnote 12 ] V Because the Florida Supreme Court’s decision did not contravene the established property rights of petitioner’s Members, Florida has not violated the Fifth and Fourteenth Amendments. The judgment of the Florida Supreme Court is therefore affirmed. It is so ordered. Justice Stevens took no part in the decision of this case. Footnote 1 Many cases and statutes use “riparian” to mean abutting any body of water. The Florida Supreme Court, however, has adopted a more precise usage whereby “riparian” means abutting a river or stream and “littoral” means abutting an ocean, sea, or lake. Walton Cty. v. Stop the Beach Renourishment, Inc. , 998 So. 2d 1102, 1105, n. 3 (2008). When speaking of the Florida law applicable to this case, we follow the Florida Supreme Court’s terminology. Footnote 2 We assume, as the parties agree we should, that in this case the erosion-control line is the pre-existing mean high-water line. Tr. of Oral Arg. 11–12. Respondents concede that, if the erosion-control line were established landward of that, the State would have taken property. Brief for Respondent Department et al. 15; Brief for Respondent Walton County et al. 6. Footnote 3 The Florida Supreme Court seemingly took the question to refer to constitutionality under the Florida Constitution, which contains a clause similar to the Takings Clause of the Federal Constitution. Compare Fla. Const., Art. X, §6, cl. (a), with U. S. Const., Amdt. 5. Footnote 4 We ordinarily do not consider an issue first presented to a state court in a petition for rehearing if the state court did not address it. See Adams v. Robertson , 520 U. S. 83 , 89, n. 3 (1997) (per curiam) . But where the state-court decision itself is claimed to constitute a violation of federal law, the state court’s refusal to address that claim put forward in a petition for rehearing will not bar our review. See Brinkerhoff-Faris Trust & Sav. Co. v. Hill , 281 U. S. 673 , 677–678 (1930). Footnote 5 We thus need not resolve whether the right of accretion is an easement, as petitioner claims, or, as Florida claims, a contingent future interest. Footnote 6 Thus, the landmark case of Penn Central Trans. Co. v. New York, 438 U. S. 104 , 124–128, 138 (1978), held that there was no taking only after setting forth a multi-factor test for determining whether a regulation restricting the use of property effects a taking. Footnote 7 See Smith v. Spisak , 558 U. S. ___, ___ (2010) (slip op., at 9–16) (ineffective assistance of counsel); Quilloin v. Walcott , 434 U. S. 246 , 255 (1978) (equal protection); Mercer v. Theriot , 377 U. S. 152 , 155 (1964) (per curiam) (right to judgment notwithstanding the verdict where evidence is lacking). Footnote 8 See Spisak, supra , at ___ (slip op., at 16). Quilloin ’s cryptic rejection of the claim “[u]nder any standard of review,” 434 U. S., at 256, could only refer to the various levels of scrutiny—such as “strict” or “rational basis”—that we had applied to equal-protection claims, see Loving v. Virginia , 388 U. S. 1 , 8–9 (1967). And in Mercer , which found the evidence “sufficient under any standard which might be appropriate—state or federal,” 377 U. S., at 156, one of the parties had argued for an established standard under Louisiana law, and the other for an established federal standard. Compare Brief for Petitioner in Mercer v. Theriot , O. T. 1963, No. 336, pp. 18–22, with Brief for Respondent in Mercer v. Theriot , p. 5. Footnote 9 Justice Breyer complains that we do not set forth “procedural limitations or canons of deference” to restrict federal-court review of state-court property decisions. See post , at 2. (1) To the extent this is true it is unsurprising, but (2) fundamentally, it is false: (1) It is true that we make our own determination, without deference to state judges, whether the challenged decision deprives the claimant of an established property right. That is unsurprising because it is what this Court does when determining state-court compliance with all constitutional imperatives. We do not defer to the judgment of state judges in determining whether, for example, a state-court decision has deprived a defendant of due process or subjected him to double jeopardy. (2) The test we have adopted, however (deprivation of an established property right), contains within itself a considerable degree of deference to state courts. A property right is not established if there is doubt about its existence; and when there is doubt we do not make our own assessment but accept the determination of the state court. Footnote 10 Petitioner meets the two requirements necessary for an association to assert the Article III standing of its Members. See Food and Commercial Workers v. Brown Group, Inc. , 517 U. S. 544 , 555–557 (1996). And the claim here is ripe insofar as Article III standing is concerned, since (accepting petitioner’s version of Florida law as true) petitioner has been deprived of property. Footnote 11 Petitioner raises two other claims that we do not directly address. First, petitioner tries to revive its challenge to the beach restoration project, contending that it (rather than the Florida Supreme Court’s opinion) constitutes a taking. Petitioner’s arguments on this score are simply versions of two arguments it makes against the Florida Supreme Court’s opinion: that the Department has replaced the Members’ littoral property rights with versions that are inferior because statutory; and that the Members previously had the right to have their property contact the water. We reject both, infra , at 28–29, and n. 12. Second, petitioner attempts to raise a challenge to the Act as a deprivation of property without due process. Petitioner did not raise this challenge before the Florida Supreme Court, and only obliquely raised it in the petition for certiorari. We therefore do not reach it. See Adams , 520 U. S., at 86–87. Footnote 12 Petitioner also argues that the Members’ other littoral rights have been infringed because the Act replaces their common-law rights with inferior statutory versions. Petitioner has not established that the statutory versions are inferior; and whether the source of a property right is the common law or a statute makes no difference, so long as the property owner continues to have what he previously had. OPINION OF KENNEDY, J. STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF ENVIRONMENTAL PROTECTION 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1151 STOP THE BEACH RENOURISHMENT, INC., PETITIONER v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. on writ of certiorari to the supreme court of florida [June 17, 2010]    Justice Kennedy, with whom Justice Sotomayor joins, concurring in part and concurring in the judgment.    The Court’s analysis of the principles that control ownership of the land in question, and of the rights of petitioner’s members as adjacent owners, is correct in my view, leading to my joining Parts I, IV, and V of the Court’s opinion. As Justice Breyer observes, however, this case does not require the Court to determine whether, or when, a judicial decision determining the rights of property owners can violate the Takings Clause of the Fifth Amendment of the United States Constitution. This separate opinion notes certain difficulties that should be considered before accepting the theory that a judicial decision that eliminates an “established property right,” ante , at 21, constitutes a violation of the Takings Clause.    The Takings Clause is an essential part of the constitutional structure, for it protects private property from expropriation without just compensation; and the right to own and hold property is necessary to the exercise and preservation of freedom. The right to retain property without the fact or even the threat of that sort of expropriation is, of course, applicable to the States under the Due Process Clause of the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 , 239 (1897).    The right of the property owner is subject, however, to the rule that the government does have power to take property for a public use, provided that it pays just compensation. See First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U. S. 304 , 314–315 (1987). This is a vast governmental power. And typically, legislative bodies grant substantial discretion to executive officers to decide what property can be taken for authorized projects and uses. As a result, if an authorized executive agency or official decides that Blackacre is the right place for a fire station or Greenacre is the best spot for a freeway interchange, then the weight and authority of the State are used to take the property, even against the wishes of the owner, who must be satisfied with just compensation.    In the exercise of their duty to protect the fisc, both the legislative and executive branches monitor, or should monitor, the exercise of this substantial power. Those branches are accountable in their political capacity for the proper discharge of this obligation.    To enable officials to better exercise this great power in a responsible way, some States allow their officials to take a second look after property has been condemned and a jury returns a verdict setting the amount of just compensation. See, e.g., Cal. Civ. Proc. Code Ann. §1268.510 (2007). If the condemning authority, usually acting through the executive, deems the compensation too high to pay for the project, it can decide not to take the property at all. The landowner is reimbursed for certain costs and expenses of litigation and the property remains in his or her hands. See, e.g., §1268.610(a).    This is just one aspect of the exercise of the power to select what property to condemn and the responsibility to ensure that the taking makes financial sense from the State’s point of view. And, as a matter of custom and practice, these are matters for the political branches—the legislature and the executive—not the courts. See First English , supra , at 321 (“[T]he decision to exercise the power of eminent domain is a legislative function”).    If a judicial decision, as opposed to an act of the executive or the legislature, eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law. The Due Process Clause, in both its substantive and procedural aspects, is a central limitation upon the exercise of judicial power. And this Court has long recognized that property regulations can be invalidated under the Due Process Clause. See, e.g., Lingle v. Chevron U. S. A. Inc. , 544 U. S. 528 , 542 (2005); Goldblatt v. Hempstead , 369 U. S. 590 , 591, 592–593 (1962); Demorest v. City Bank Farmers Trust Co. , 321 U. S. 36 , 42–43 (1944); Broad River Power Co. v. South Carolina ex rel. Daniel , 281 U. S. 537 , 539, 540–541 (1930); Washington ex rel. Seattle Title Trust Co. v. Roberge , 278 U. S. 116 , 121 (1928); Nectow v. Cambridge , 277 U. S. 183 , 188 (1928); Village of Euclid v. Ambler Realty Co. , 272 U. S. 365 , 395 (1926); see also Pennsylvania Coal Co. v. Mahon , 260 U. S. 393 , 413 (1922) (there must be limits on government’s ability to diminish property values by regulation “or the contract and due process clauses are gone”). It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights.    The Takings Clause also protects property rights, and it “operates as a conditional limitation, permitting the government to do what it wants so long as it pays the charge.” Eastern Enterprises v. Apfel , 524 U. S. 498 , 545 (1998) (Kennedy, J., concurring in judgment and dissenting in part). Unlike the Due Process Clause, therefore, the Takings Clause implicitly recognizes a governmental power while placing limits upon that power. Thus, if the Court were to hold that a judicial taking exists, it would presuppose that a judicial decision eliminating established property rights is “otherwise constitutional” so long as the State compensates the aggrieved property owners. Ibid. There is no clear authority for this proposition.    When courts act without direction from the executive or legislature, they may not have the power to eliminate established property rights by judicial decision. “Given that the constitutionality” of a judicial decision altering property rights “appears to turn on the legitimacy” of whether the court’s judgment eliminates or changes established property rights “rather than on the availability of compensation, … the more appropriate constitutional analysis arises under general due process principles rather than under the Takings Clause.” Ibid. Courts, unlike the executive or legislature, are not designed to make policy decisions about “the need for, and likely effectiveness of, regulatory actions.” Lingle , supra , at 545. State courts generally operate under a common-law tradition that allows for incremental modifications to property law, but “this tradition cannot justify a carte blanch judicial authority to change property definitions wholly free of constitutional limitations.” Walston, The Constitution and Property: Due Process, Regulatory Takings, and Judicial Takings, 2001 Utah L. Rev. 379, 435.    The Court would be on strong footing in ruling that a judicial decision that eliminates or substantially changes established property rights, which are a legitimate expectation of the owner, is “arbitrary or irrational” under the Due Process Clause. Lingle , 544 U. S., at 542; see id. , at 548–549 (Kennedy, J., concurring); see also Perry v. Sindermann , 408 U. S. 593 , 601 (1972) (“ ‘[P]roperty’ ” interests protected by the Due Process Clauses are those “that are secured by ‘existing rules or understandings’ ” (quoting Board of Regents of State Colleges v. Roth , 408 U. S. 564 , 577 (1972))). Thus, without a judicial takings doctrine, the Due Process Clause would likely prevent a State from doing “by judicial decree what the Takings Clause forbids it to do by legislative fiat.” Ante, at 8. The objection that a due process claim might involve close questions concerning whether a judicial decree extends beyond what owners might have expected is not a sound argument; for the same close questions would arise with respect to whether a judicial decision is a taking. See Apfel , supra , at 541 (opinion of Kennedy, J.) (“Cases attempting to decide when a regulation becomes a taking are among the most litigated and perplexing in current law”); Penn Central Transp. Co. v. New York City , 438 U. S. 104 , 123 (1978) (“The question of what constitutes a ‘taking’ for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty”).    To announce that courts too can effect a taking when they decide cases involving property rights, would raise certain difficult questions. Since this case does not require those questions to be addressed, in my respectful view, the Court should not reach beyond the necessities of the case to announce a sweeping rule that court decisions can be takings, as that phrase is used in the Takings Clause. The evident reason for recognizing a judicial takings doctrine would be to constrain the power of the judicial branch. Of course, the judiciary must respect private ownership. But were this Court to say that judicial decisions become takings when they overreach, this might give more power to courts, not less.    Consider the instance of litigation between two property owners to determine which one bears the liability and costs when a tree that stands on one property extends its roots in a way that damages adjacent property. See, e.g., Fancher v. Fagella, 274 Va. 549, 650 S. E. 2d 519 (2007). If a court deems that, in light of increasing urbanization, the former rule for allocation of these costs should be changed, thus shifting the rights of the owners, it may well increase the value of one property and decrease the value of the other. This might be the type of incremental modification under state common law that does not violate due process, as owners may reasonably expect or anticipate courts to make certain changes in property law. The usual due process constraint is that courts cannot abandon settled principles. See, e.g., Rogers v. Tennessee , 532 U. S. 451 , 457 (2001) (citing Bouie v. City of Columbia , 378 U. S. 347 , 354 (1964)); Apfel , 524 U. S., at 548–549 (opinion of Kennedy, J.); see also Perry , supra , at 601; Roth , supra , at 577.    But if the state court were deemed to be exercising the power to take property, that constraint would be removed. Because the State would be bound to pay owners for takings caused by a judicial decision, it is conceivable that some judges might decide that enacting a sweeping new rule to adjust the rights of property owners in the context of changing social needs is a good idea. Knowing that the resulting ruling would be a taking, the courts could go ahead with their project, free from constraints that would otherwise confine their power. The resulting judgment as between the property owners likely could not be set aside by some later enactment. See Plaut v. Spendthrift Farm, Inc. , 514 U. S. 211 , 217 (1995) (leaving open whether legislation reopening final judgments violates Due Process Clause). And if the litigation were a class action to decide, for instance, whether there are public rights of access that diminish the rights of private ownership, a State might find itself obligated to pay a substantial judgment for the judicial ruling. Even if the legislature were to subsequently rescind the judicial decision by statute, the State would still have to pay just compensation for the temporary taking that occurred from the time of the judicial decision to the time of the statutory fix. See First English , 482 U. S., at 321.    The idea, then, that a judicial takings doctrine would constrain judges might just well have the opposite effect. It would give judges new power and new assurance that changes in property rights that are beneficial, or thought to be so, are fair and proper because just compensation will be paid. The judiciary historically has not had the right or responsibility to say what property should or should not be taken.    Indeed, it is unclear whether the Takings Clause was understood, as a historical matter, to apply to judicial decisions. The Framers most likely viewed this Clause as applying only to physical appropriation pursuant to the power of eminent domain. See Lucas v. South Carolina Coastal Council , 505 U. S. 1003 , 1028, n. 15 (1992). And it appears these physical appropriations were traditionally made by legislatures. See 3 J. Story, Commentaries on the Constitution of the United States §1784, p. 661 (1833). Courts, on the other hand, lacked the power of eminent domain. See 1 W. Blackstone, Commentaries 135 (W. Lewis ed. 1897). The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding, as it now applies to certain regulations that are not physical appropriations. See Lucas , supra , at 1014 (citing Mahon , 260 U. S. 393 ). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.    There are two additional practical considerations that the Court would need to address before recognizing judicial takings. First, it may be unclear in certain situations how a party should properly raise a judicial takings claim. “[I]t is important to separate out two judicial actions—the decision to change current property rules in a way that would constitute a taking, and the decision to require compensation.” Thompson, Judicial Takings, 76 Va. L. Rev. 1449, 1515 (1990). In some contexts, these issues could arise separately. For instance, assume that a state-court opinion explicitly holds that it is changing state property law, or that it asserts that is not changing the law but there is no “fair or substantial basis” for this statement. Broad River , 281 U. S., at 540. (Most of these cases may arise in the latter posture, like inverse condemnation claims where the State says it is not taking property and pays no compensation.) Call this Case A. The only issue in Case A was determining the substance of state property law. It is doubtful that parties would raise a judicial takings claim on appeal, or in a petition for a writ of certiorari, in Case A, as the issue would not have been litigated below. Rather, the party may file a separate lawsuit—Case B—arguing that a taking occurred in light of the change in property law made by Case A. After all, until the state court in Case A changes the law, the party will not know if his or her property rights will have been eliminated. So res judicata probably would not bar the party from litigating the takings issue in Case B.    Second, it is unclear what remedy a reviewing court could enter after finding a judicial taking. It appears under our precedents that a party who suffers a taking is only entitled to damages, not equitable relief: The Court has said that “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use … when a suit for compensation can be brought against the sovereign subsequent to the taking,” Ruckelshaus v. Monsanto Co. , 467 U. S. 986 , 1016 (1984), and the Court subsequently held that the Takings Clause requires the availability of a suit for compensation against the States, First English , supra , at 321–322. It makes perfect sense that the remedy for a Takings Clause violation is only damages, as the Clause “does not proscribe the taking of property; it proscribes taking without just compensation.” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City , 473 U. S. 172 , 194 (1985).    It is thus questionable whether reviewing courts could invalidate judicial decisions deemed to be judicial takings; they may only be able to order just compensation. In the posture discussed above where Case A changes the law and Case B addresses whether that change is a taking, it is not clear how the Court, in Case B, could invalidate the holding of Case A. If a single case were to properly address both a state court’s change in the law and whether the change was a taking, the Court might be able to give the state court a choice on how to proceed if there were a judicial taking. The Court might be able to remand and let the state court determine whether it wants to insist on changing its property law and paying just compensation or to rescind its holding that changed the law. Cf. First English , 482 U. S., at 321 (“Once a court determines that a taking has occurred, the government retains the whole range of options already available—amendment of the regulation, withdrawal of the invalidated regulation, or exercise of eminent domain”). But that decision would rest with the state court, not this Court; so the state court could still force the State to pay just compensation. And even if the state court decided to rescind its decision that changed the law, a temporary taking would have occurred in the interim. See ibid. These difficult issues are some of the reasons why the Court should not reach beyond the necessities of the case to recognize a judicial takings doctrine. It is not wise, from an institutional standpoint, to reach out and decide questions that have not been discussed at much length by courts and commentators. This Court’s dicta in Williamson County , supra , at 194–197, regarding when regulatory takings claims become ripe, explains why federal courts have not been able to provide much analysis on the issue of judicial takings. See San Remo Hotel, L. P. v. City and County of San Francisco , 545 U. S. 323 , 351 (2005) (Rehnquist, C. J., concurring in judgment) (“ Williamson County ’s state-litigation rule has created some real anomalies, justifying our revisiting the issue”). Until Williamson County is reconsidered, litigants will have to press most of their judicial takings claims before state courts, which are “presumptively competent … to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt , 493 U. S. 455 , 458 (1990). If and when future cases show that the usual principles, including constitutional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented. In the meantime, it seems appropriate to recognize that the substantial power to decide whose property to take and when to take it should be conceived of as a power vested in the political branches and subject to political control. OPINION OF BREYER, J. STOP THE BEACH RENOURISHMENT, INC. V. FLOR-IDA DEPT. OF ENVIRONMENTAL PROTECTION 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1151 STOP THE BEACH RENOURISHMENT, INC., PETITIONER v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION et al. on writ of certiorari to the supreme court of florida [June 17, 2010]    Justice Breyer, with whom Justice Ginsburg joins, concurring in part and concurring in the judgment.    I agree that no unconstitutional taking of property occurred in this case, and I therefore join Parts I, IV, and V of today’s opinion. I cannot join Parts II and III, however, for in those Parts the plurality unnecessarily addresses questions of constitutional law that are better left for another day.    In Part II of its opinion, see ante, at 7–10, the plurality concludes that courts, including federal courts, may review the private property law decisions of state courts to determine whether the decisions unconstitutionally take “private property” for “public use without just compensation.” U. S. Const., Amdt. 5. And in doing so it finds “irrelevant” that the “particular state actor ” that takes private property (or unconstitutionally redefines state property law) is the judicial branch, rather than the executive or legislative branch. Ante , at 10; cf. Hughes v. Washington , 389 U. S. 290 , 296–298 (1967) (Stewart, J., concurring).    In Part III, the plurality determines that it is “not obviously appropriate” to apply this Court’s “ ‘fair and substantial basis’ ” test, familiar from our adequate and independent state ground jurisprudence, when evaluating whether a state-court property decision enacts an unconstitutional taking. Ante , at 21. The plurality further concludes that a state-court decision violates the Takings Clause not when the decision is “unpredictab[le]” on the basis of prior law, but rather when the decision takes private property rights that are “established.” Ante, at 23–24. And finally, it concludes that all those affected by a state-court property law decision can raise a takings claim in federal court, but for the losing party in the initial state-court proceeding, who can only raise her claim (possibly for the first time) in a petition for a writ of certiorari here. Ante, at 23.     I do not claim that all of these conclusions are unsound. I do not know. But I do know that, if we were to express our views on these questions, we would invite a host of federal takings claims without the mature consideration of potential procedural or substantive legal principles that might limit federal interference in matters that are primarily the subject of state law. Property owners litigate many thousands of cases involving state property law in state courts each year. Each state-court property decision may further affect numerous nonparty property owners as well. Losing parties in many state-court cases may well believe that erroneous judicial decisions have deprived them of property rights they previously held and may consequently bring federal takings claims. And a glance at Part IV makes clear that such cases can involve state property law issues of considerable complexity. Hence, the approach the plurality would take today threatens to open the federal court doors to constitutional review of many, perhaps large numbers of, state-law cases in an area of law familiar to state, but not federal, judges. And the failure of that approach to set forth procedural limitations or canons of deference would create the distinct possibility that federal judges would play a major role in the shaping of a matter of significant state interest—state property law.    The plurality criticizes me for my cautious approach, and states that I “cannot decide that petitioner’s claim fails without first deciding what a valid claim would consist of.” Ante, at 12. But, of course, courts frequently find it possible to resolve cases—even those raising constitutional questions—without specifying the precise standard under which a party wins or loses. See, e.g., Smith v. Spisak , 558 U. S. ___, ___ (2010) (slip op., at 16) (“With or without such deference, our conclusion is the same”); Quilloin v. Walcott , 434 U. S. 246 , 256 (1978) (rejecting an equal protection claim “[u]nder any standard of review”); Mercer v. Theriot , 377 U. S. 152 , 156 (1964) (per curiam) (finding evidence sufficient to support a verdict “under any standard”). That is simply what I would do here.    In the past, Members of this Court have warned us that, when faced with difficult constitutional questions, we should “confine ourselves to deciding only what is necessary to the disposition of the immediate case.” Whitehouse v. Illinois Central R. Co. , 349 U. S. 366 , 373 (1955); see also Lyng v. Northwest Indian Cemetery Protective Assn. , 485 U. S. 439 , 445 (1988) (“A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them”); Ashwander v. TVA , 297 U. S. 288 , 346–347 (1936) (Brandeis, J., concurring) (“The Court will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case” (citations and internal quotation marks omitted)). I heed this advice here. There is no need now to decide more than what the Court decides in Parts IV and V, namely, that the Florida Supreme Court’s decision in this case did not amount to a “judicial taking.”

The case, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, revolves around a claim that the Florida Supreme Court's decision took property without just compensation, violating the Takings Clause of the Fifth Amendment. The case centers around property rights in navigable waters and the land beneath them, with littoral owners having special rights such as access to the water and the right to an unobstructed view. Justice Scalia's opinion emphasizes the importance of state law in defining property interests and highlights the potential consequences of federal judges shaping state property law. He concludes that there is no need to decide more than the Court decides in Parts IV and V, which state that the Florida Supreme Court's decision did not constitute a "judicial taking."

Property Rights & Land Use

Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency

https://supreme.justia.com/cases/federal/us/535/302/

OCTOBER TERM, 2001 Syllabus TAHOE-SIERRA PRESERVATION COUNCIL, INC., ET AL. v. TAHOE REGIONAL PLANNING AGENCY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 00-1167. Argued January 7, 2002-Decided April 23, 2002 Respondent Tahoe Regional Planning Agency (TRPA) imposed two moratoria, totaling 32 months, on development in the Lake Tahoe Basin while formulating a comprehensive land-use plan for the area. Petitioners, real estate owners affected by the moratoria and an association representing such owners, filed parallel suits, later consolidated, claiming that TRPA's actions constituted a taking of their property without just compensation. The District Court found that TRPA had not effected a "partial taking" under the analysis set out in Penn Central Transp. Co. v. New York City, 438 U. S. 104 ; however, it concluded that the moratoria did constitute a taking under the categorical rule announced in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , because TRPA temporarily deprived petitioners of all economically viable use of their land. On appeal, TRPA successfully challenged the District Court's takings determination. Finding that the only question in this facial challenge was whether Lucas' rule applied, the Ninth Circuit held that because the regulations had only a temporary impact on petitioners' fee interest, no categorical taking had occurred; that Lucas applied to the relatively rare case in which a regulation permanently denies all productive use of an entire parcel, whereas the moratoria involved only a temporal slice of the fee interest; and that First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , concerned the question whether compensation is an appropriate remedy for a temporary taking, not whether or when such a taking has occurred. The court also concluded that Penn Central's ad hoc balancing approach was the proper framework for analyzing whether a taking had occurred, but that petitioners had not challenged the District Court's conclusion that they could not make out a claim under Penn Central's factors. Held: The moratoria ordered by TRPA are not per se takings of property requiring compensation under the Takings Clause. Pp. 321-343. (a) Although this Court's physical takings jurisprudence, for the most part, involves the straightforward application of per se rules, its regulatory takings jurisprudence is characterized by "essentially ad hoc, 303 factual inquiries," Penn Central, 438 U. S., at 124, designed to allow "careful examination and weighing of all the relevant circumstances," Palazzolo v. Rhode Island, 533 U. S. 606 , 636 (O'CONNOR, J., concurring). The longstanding distinction between physical and regulatory takings makes it inappropriate to treat precedent from one as controlling on the other. Petitioners rely on First English and Lucas-both regulatory takings cases-to argue for a categorical rule that whenever the government imposes a deprivation of all economically viable use of property, no matter how brief, it effects a taking. In First English, 482 U. S., at 315, 318, 321, the Court addressed the separate remedial question of how compensation is measured once a regulatory taking is established, but not the different and prior question whether the temporary regulation was in fact a taking. To the extent that the Court referenced that antecedent question, it recognized that a regulation temporarily denying an owner all use of her property might not constitute a taking if the denial was part of the State's authority to enact safety regulations, or if it were one of the normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like. Thus, First English did not approve, and implicitly rejected, petitioners' categorical approach. Nor is Lucas dispositive of the question presented. Its categorical rule-requiring compensation when a regulation permanently deprives an owner of "all economically beneficial uses" of his land, 505 U. S., at 1019-does not answer the question whether a regulation prohibiting any economic use of land for 32 months must be compensated. Petitioners attempt to bring this case under the rule in Lucas by focusing exclusively on the property during the moratoria is unavailing. This Court has consistently rejected such an approach to the "denominator" question. See, e. g., Key stone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 497. To sever a 32-month segment from the remainder of each fee simple estate and then ask whether that segment has been taken in its entirety would ignore Penn Central's admonition to focus on "the parcel as a whole," 438 U. S., at 130-131. Both dimensions of a real property interest-the metes and bounds describing its geographic dimensions and the term of years describing its temporal aspect-must be considered when viewing the interest in its entirety. A permanent deprivation of all use is a taking of the parcel as a whole, but a temporary restriction causing a diminution in value is not, for the property will recover value when the prohibition is lifted. Lucas was carved out for the "extraordinary case" in which a regulation permanently deprives property of all use; the default rule remains that a fact specific inquiry is required in the regulatory taking context. Nevertheless, the Court will consider petitioners' argument that the interest in protecting property owners 304 Syllabus from bearing public burdens "which, in all fairness and justice, should be borne by the public as a whole," Armstrong v. United States, 364 (b) "Fairness and justice" will not be better served by a categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking. That rule would apply to numerous normal delays in obtaining, e. g., building permits, and would require changes in practices that have long been considered permissible exercises of the police power. Such an important change in the law should be the product of legislative rulemaking, not adjudication. More importantly, for the reasons set out in JUSTICE O'CONNOR'S concurring opinion in Palazzolo, 533 U. S., at 636, the better approach to a temporary regulatory taking claim requires careful examination and weighing of all the relevant circumstances-only one of which is the length of the delay. A narrower rule excluding normal delays in processing permits, or covering only delays of more than a year, would have a less severe impact on prevailing practices, but would still impose serious constraints on the planning process. Moratoria are an essential tool of successful development. The interest in informed decisionmaking counsels against adopting a per se rule that would treat such interim measures as takings regardless of the planners' good faith, the landowners' reasonable expectations, or the moratorium's actual impact on property values. The financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or abandon the practice altogether. And the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. Here, TRPA obtained the benefit of comments and criticisms from interested parties during its deliberations, but a categorical rule tied to the deliberations' length would likely create added pressure on decisionmakers to quickly resolve land-use questions, disadvantaging landowners and interest groups less organized or familiar with the planning process. Moreover, with a temporary development ban, there is less risk that individual landowners will be singled out to bear a special burden that should be shared by the public as a whole. n may be true that a moratorium lasting more than one year should be viewed with special skepticism, but the District Court found that the instant delay was not unreasonable. The restriction's duration is one factor for a court to consider in appraising regulatory takings claims, but with respect to that factor, the temptation to adopt per se rules in either direction must be resisted. Pp. 333-342. 216 F.3d 764 , affirmed. 305 STEVENS, J., delivered the opinion of the Court, in which O'CONNOR, KENNEDY, SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined, post, p. 343. THOMAS, J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 355. Michael M. Berger argued the cause for petitioners. With him on the briefs were Gideon Kanner and Lawrence John G. Roberts, Jr., argued the cause for respondents. With him on the brief were Frankie Sue Del Papa, Attorney General of Nevada, and William J. Frey, Deputy Attorney General, Bill Lockyer, Attorney General of California, Richard M. Frank, Chief Assistant Attorney General, Matthew Rodriquez, Senior Assistant Attorney General, and Daniel L. Siegel, Supervising Deputy Attorney General, E. Clement Shute, Jr., Fran M. Layton, Ellison Folk, John L. Marshall, and Richard J. Lazarus. Solicitor General Olson argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Assistant Attorney General Cruden, Deputy Solicitor General Kneedler, and Malcolm L. Stewart. * *Briefs of amici curiae urging reversal were filed for the American Association of Small Property Owners et al. by Martin S. Kaufman; for the American Farm Bureau Federation et al. by John J. Rademacher and Nancy McDonough; for the Institute for Justice by William H. Mellor, Clint Bolick, Scott Bullock, and Richard A. Epstein; for the National Association of Home Builders by Christopher G. Senior and David Crump; for the Pacific Legal Foundation et al. by R. S. Radford, June Babiracki Barlow, and Sonia M. Younglove; and for the Washington Legal Foundation by Daniel J. Popeo, Richard A. Samp, and Douglas B. Levene. Briefs of amici curiae urging affirmance were filed for the State of Vermont et al. by William H. Sorrell, Attorney General of Vermont, and Bridget Asay, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Bruce M. Botelho of Alaska, Janet Napolitano of Arizona, Richard Blumenthal of Connecticut, Robert A. Butterworth of Florida, Earl I. Anzai of Hawaii, Thomas J. Miller of Iowa, Richard P. Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, 306 JUSTICE STEVENS delivered the opinion of the Court. The question presented is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United States Constitution.1 This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24, 1981, until August 26, 1983, whereas the second more restrictive Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all development on a substantial portion of the property subject to TRPA's jurisdiction was prohibited for a period of 32 months. Although the question we decide relates only to that 32-month period, a brief description of the events leading up to the moratoria and a comment on the two per- Thomas F. Reilly of Massachusetts, Mike McGrath of Montana, John J. Farmer, Jr., of New Jersey, Eliot Spitzer of New York, Roy Cooper of North Carolina, W A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Anabelle Rodriguez of Puerto Rico, Sheldon Whitehouse of Rhode Island, Mark Barnett of South Dakota, Paul G. Summers of Tennessee, John Cornyn of Texas, and Christine O. Gregoire of Washington; for the American Planning Association et al. by Robert H. Freilich; for the Council of State Governments et al. by Richard Ruda and Timothy J. Dowling; for the National Audubon Society et al. by John D. Echeverria; and for Thomas Dunne et al. by Karl M. Manheim. Nancie G. Marzulla filed a brief for Defenders of Property Rights as amicus curiae. 1 Often referred to as the "Just Compensation Clause," the final Clause of the Fifth Amendment provides: " ... nor shall private property be taken for public use without just compensation." It applies to the States as well as the Federal Government. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 239, 241 (1897); Webb's Fabulous Pharmacies, Inc. v. Beckwith, 449 U. S. 155 , 160 (1980). 307 manent plans that TRP A adopted thereafter will clarify the narrow scope of our holding. I The relevant facts are undisputed. The Court of Appeals, while reversing the District Court on a question of law, accepted all of its findings of fact, and no party challenges those findings. All agree that Lake Tahoe is "uniquely beautiful," 34 F. Supp. 2d 1226, 1230 (Nev. 1999), that President Clinton was right to call it a "'national treasure that must be protected and preserved,'" ibid., and that Mark Twain aptly described the clarity of its waters as "'not merely transparent, but dazzlingly, brilliantly so,'" ibid. (emphasis added) (quoting M. Twain, Roughing It 174-175 (1872)). Lake Tahoe's exceptional clarity is attributed to the absence of algae that obscures the waters of most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of algae, has ensured the transparency of its waters.2 Unfortunately, the lake's pristine state has deteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin (Basin) has threatened the "'noble sheet of blue water'" beloved by Twain and countless others. 34 F. Supp. 2d, at 1230. As the District Court found, "[d]ramatic decreases in clarity first began to be noted in the late 1950's/early 1960's, shortly after development at the lake began in earnest." Id., at 1231. The lake's unsurpassed beauty, it seems, is the wellspring of its undoing. 2 According to a Senate Report: "Only two other sizable lakes in the world are of comparable quality-Crater Lake in Oregon, which is protected as part of the Crater Lake National Park, and Lake Baikal in the [former] Soviet Union. Only Lake Tahoe, however, is so readily accessible from large metropolitan centers and is so adaptable to urban development." S. Rep. No. 91-510, pp. 3-4 (1969). 308 The upsurge of development in the area has caused "increased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin resulting from that development." Ibid. "Impervious coverage-such as asphalt, concrete, buildings, and even packed dirt-prevents precipitation from being absorbed by the soil. Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed area-especially one covered with indigenous vegetation, which softens the impact of the raindrops themselves." Ibid. Given this trend, the District Court predicted that "unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity." 3 Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered "high hazard" lands. Moreover, certain areas near streams or wetlands known as "Stream Environment Zones" (SEZs) are especially vulnerable to the impact of development because, in their natural state, they act as filters for much of the debris that runoff carries. Because "[t]he most obvious response to this problem ... is to restrict development around the lake-especially in SEZ lands, as well as in areas already naturally prone to runoff," id., at 1232, conservation efforts have focused on controlling growth in these high hazard areas. In the 1960's, when the problems associated with the burgeoning development began to receive significant atten- 3 The District Court added: "Or at least, for a very, very long time. Estimates are that, should the lake turn green, it could take over 700 years for it to return to its natural state, if that were ever possible at all." 34 F. Supp. 2d, at 1231. 309 tion, jurisdiction over the Basin, which occupies 501 square miles, was shared by the States of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. In 1968, the legislatures of the two States adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats. no. 998, p. 1900, § 1; 1968 Nev. Stats. p. 4, which Congress approved in 1969, Pub. L. 91-148, 83 Stat. 360. The compact set goals for the protection and preservation of the lake and created TRP A as the agency assigned "to coordinate and regulate development in the Basin and to conserve its natural resources." Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U. S. 391 , 394 (1979). Pursuant to the compact, in 1972 TRP A adopted a Land Use Ordinance that divided the land in the Basin into seven "land capability districts," based largely on steepness but also taking into consideration other factors affecting runoff. Each district was assigned a "land coverage coefficient-a recommended limit on the percentage of such land that could be covered by impervious surface." Those limits ranged from 1% for districts 1 and 2 to 30% for districts 6 and 7. Land in districts 1,2, and 3 is characterized as "high hazard" or "sensitive," while land in districts 4, 5, 6, and 7 is "low hazard" or "non-sensitive." The SEZ lands, though often treated as a separate category, were actually a subcategory of district 1. 34 F. Supp. 2d, at 1232. Unfortunately, the 1972 ordinance allowed numerous exceptions and did not significantly limit the construction of new residential housing. California became so dissatisfied with TRP A that it withdrew its financial support and unilaterally imposed stricter regulations on the part of the Basin located in California. Eventually the two States, with the approval of Congress and the President, adopted an extensive amendment to the compact that became effective on December 19, 1980. Pub. L. 96-551, 94 Stat. 3233; Cal. 310 Govt. Code Ann. § 66801 (West Supp. 2002); Nev. Rev. Stat. § 277.200 (1980). The 1980 Tahoe Regional Planning Compact (Compact) redefined the structure, functions, and voting procedures of TRPA, App. 37, 94 Stat. 3235-3238; 34 F. Supp. 2d, at 1233, and directed it to develop regional "environmental threshold carrying capacities"-a term that embraced "standards for air quality, water quality, soil conservation, vegetation preservation and noise." 94 Stat. 3235, 3239. The Compact provided that TRP A "shall adopt" those standards within 18 months, and that "[w]ithin 1 year after" their adoption (i. e., by June 19, 1983), it "shall" adopt an amended regional plan that achieves and maintains those carrying capacities. Id., at 3240. The Compact also contained a finding by the legislatures of California and Nevada "that in order to make effective the regional plan as revised by [TRP A], it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan." Id., at 3243. Accordingly, for the period prior to the adoption of the final plan ("or until May 1, 1983, whichever is earlier"), the Compact itself prohibited the development of new subdivisions, condominiums, and apartment buildings, and also prohibited each city and county in the Basin from granting any more permits in 1981, 1982, or 1983 than had been granted in 1978.4 During this period TRP A was also working on the development of a regional water quality plan to comply with the Clean Water Act, 33 U. S. C. § 1288 (1994 ed.). Despite 4 App. 104-107. This moratorium did not apply to rights that had vested before the effective date of the 1980 Compact. Id., at 107-108. Two months after the 1980 Compact became effective, TRPA adopted its Ordinance 81-1 broadly defining the term "project" to include the construction of any new residence and requiring owners of land in districts 1,2, or 3, to get a permit from TRPA before beginning construction of homes on their property. 34 F. Supp. 2d 1226, 1233 (Nev. 1999). 311 the fact that TRP A performed these obligations in "good faith and to the best of its ability," 34 F. Supp. 2d, at 1233, after a few months it concluded that it could not meet the deadlines in the Compact. On June 25, 1981, it therefore enacted Ordinance 81-5 imposing the first of the two moratoria on development that petitioners challenge in this proceeding. The ordinance provided that it would become effective on August 24, 1981, and remain in effect pending the adoption of the permanent plan required by the Compact. App. 159, 191. The District Court made a detailed analysis of the ordinance, noting that it might even prohibit hiking or picnicking on SEZ lands, but construed it as essentially banning any construction or other activity that involved the removal of vegetation or the creation of land coverage on all SEZ lands, as well as on class 1,2, and 3 lands in California. 34 F. Supp. 2d, at 1233-1235. Some permits could be obtained for such construction in Nevada if certain findings were made. Id., at 1235. It is undisputed, however, that Ordinance 81-5 prohibited the construction of any new residences on SEZ lands in either State and on class 1, 2, and 3 lands in California. Given the complexity of the task of defining "environmental threshold carrying capacities" and the division of opinion within TRP A's governing board, the District Court found that it was "unsurprising" that TRP A failed to adopt those thresholds until August 26, 1982, roughly two months after the Compact deadline. Ibid. Under a liberal reading of the Compact, TRP A then had until August 26, 1983, to adopt a new regional plan. 94 Stat. 3240. "Unfortunately, but again not surprisingly, no regional plan was in place as of that date." 34 F. Supp. 2d, at 1235. TRPA therefore adopted Resolution 83-21, "which completely suspended all project reviews and approvals, including the acceptance of new proposals," and which remained in effect until a new regional plan was adopted on April 26, 1984. Thus, Resolu- 312 tion 83-21 imposed an 8-month moratorium prohibiting all construction on high hazard lands in either State. In combination, Ordinance 81-5 and Resolution 83-21 effectively prohibited all construction on sensitive lands in California and on all SEZ lands in the entire Basin for 32 months, and on sensitive lands in Nevada (other than SEZ lands) for eight months. It is these two moratoria that are at issue in this case. On the same day that the 1984 plan was adopted, the State of California filed an action seeking to enjoin its implementation on the ground that it failed to establish land-use controls sufficiently stringent to protect the Basin. Id., at 1236. The District Court entered an injunction that was upheld by the Court of Appeals and remained in effect until a completely revised plan was adopted in 1987. Both the 1984 injunction and the 1987 plan contained provisions that prohibited new construction on sensitive lands in the Basin. As the case comes to us, however, we have no occasion to consider the validity of those provisions. II Approximately two months after the adoption of the 1984 plan, petitioners filed parallel actions against TRP A and other defendants in federal courts in Nevada and California that were ultimately consolidated for trial in the District of Nevada. The petitioners include the Tahoe-Sierra Preservation Council, Inc., a nonprofit membership corporation representing about 2,000 owners of both improved and unimproved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3. Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing "at a time of their choosing" a single-family home "to serve as a permanent, retirement or 313 vacation residence," id., at 36. When they made those purchases, they did so with the understanding that such construction was authorized provided that "they complied with all reasonable requirements for building." Ibid. 5 Petitioners' complaints gave rise to protracted litigation that has produced four opinions by the Court of Appeals for the Ninth Circuit and several published District Court opinions.6 For present purposes, however, we need only describe those courts' disposition of the claim that three actions taken by TRPA-Ordinance 81-5, Resolution 83-21, and the 1984 regional plan-constituted takings of petitioners' property without just compensation.7 Indeed, the challenge to the 1984 plan is not before us because both the District Court and the Court of Appeals held that it was the federal injunction against implementing that plan, rather than the plan itself, that caused the post-1984 injuries that petitioners allegedly suffered, and those rulings are not encompassed within our limited grant of certiorari. 8 Thus, 5 As explained, supra, at 309, the petitioners who purchased land after the 1972 compact did so amidst a heavily regulated zoning scheme. Their property was already classified as part of land capability districts 1, 2, and 3, or SEZ land. And each land classification was subject to regulations as to the degree of artificial disturbance the land could safely sustain. 6911 F.2d 1331 (1990); 938 F.2d 153 (1991); 34 F.3d 753 (1994); 216 F.3d 764 (2000); 611 F. Supp. 110 (1985); 808 F. Supp. 1474 (1992); 808 F. Supp. 1484 (1992). 7 In 1991, petitioners amended their complaint to allege that the adoption of the 1987 plan also constituted an unconstitutional taking. Ultimately both the District Court and the Court of Appeals held that this claim was barred by California's I-year statute of limitations and Nevada's 2-year statute of limitations. See 216 F. 3d, at 785-789. Although the validity of the 1987 plan is not before us, we note that other litigants have challenged certain applications of that plan. See Suitum v. Tahoe Regional Planning Agency, 520 U. S. 725 (1997). 8 In his dissent, THE CHIEF JUSTICE contends that the 1984 plan is before us because the 1980 Compact is a proximate cause of petitioners' 314 we limit our discussion to the lower courts' disposition of the claims based on the 2-year moratorium (Ordinance 81-5) and the ensuing 8-month moratorium (Resolution 83-21). The District Court began its constitutional analysis by identifying the distinction between a direct government appropriation of property without just compensation and a government regulation that imposes such a severe restriction on the owner's use of her property that it produces "nearly the same result as a direct appropriation." 34 F. Supp. 2d, at 1238. The court noted that all of the claims in this case "are of the 'regulatory takings' variety." Id., at 1239. Citing our decision in Agins v. City of Tiburon, 447 U. S. 255 (1980), it then stated that a "regulation will constitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land." 34 F. Supp. 2d, at 1239. The District Court rejected the first alternative based on its finding that "further development on high hazard lands such as [petitioners'] would lead to significant additional damage to the lake." Id., at 1240.9 With respect injuries, post, at 343-345. Petitioners, however, do not challenge the Court of Appeals' holding on causation in their briefs on the merits, presumably because they understood when we granted certiorari on the question "[w]hether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution," 533 U. S. 948 (2001), we were only interested in the narrow question decided today. Throughout the District Court and Court of Appeals decisions the phrase "temporary moratorium" refers to two things and two things only: Ordinance 81-5 and Resolution 83-21. The dissent's novel theory of causation was not briefed, nor was it discussed during oral argument. 9 As the District Court explained: "There is a direct connection between the potential development of plaintiffs' lands and the harm the lake would suffer as a result thereof. Further, there has been no suggestion by the plaintiffs that any less severe response would have adequately addressed the problems the lake was facing. Thus it is difficult to see 315 to the second alternative, the court first considered whether the analysis adopted in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), would lead to the conclusion that TRPA had effected a "partial taking," and then whether those actions had effected a "total taking." 10 Emphasizing the temporary nature of the regulations, the testimony that the "average holding time of a lot in the Tahoe area between lot purchase and home construction is twenty-five years," and the failure of petitioners to offer specific evidence of harm, the District Court concluded that "consideration of the Penn Central factors clearly leads to the conclusion that there was no taking." 34 F. Supp. 2d, at 1240. In the absence of evidence regarding any of the individual plaintiffs, the court evaluated the "average" purchasers' intent and found that such purchasers "did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit." Id., at 1241.11 how a more proportional response could have been adopted. Given that TRPA's actions had widespread application, and were not aimed at an individual landowner, the plaintiffs would appear to bear the burden of proof on this point. They have not met this burden-nor have they really attempted to do so. Although unwilling to stipulate to the fact that TRPA's actions substantially advanced a legitimate state interest, the plaintiffs did not seriously contest the matter at trial." 34 F. Supp. 2d, at 1240 (citation omitted). 10 The Penn Central analysis involves "a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action." Palazzolo v. Rhode Island, 533 U. S. 606 , 617 (2001). 11 The court stated that petitioners "had plenty of time to build before the restrictions went into effect-and almost everyone in the Tahoe Basin knew in the late 1970s that a crackdown on development was in the works." In addition, the court found "the fact that no evidence was introduced regarding the specific diminution in value of any of the plaintiffs' individual properties clearly weighs against a finding that there was a partial taking of the plaintiffs' property." 34 F. Supp. 2d, at 1241. 316 The District Court had more difficulty with the "total taking" issue. Although it was satisfied that petitioners' property did retain some value during the moratoria,12 it found that they had been temporarily deprived of "all economically viable use of their land." Id., at 1245. The court concluded that those actions therefore constituted "categorical" takings under our decision in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). It rejected TRPA's response that Ordinance 81-5 and Resolution 8321 were "reasonable temporary planning moratoria" that should be excluded from Lucas' categorical approach. The court thought it "fairly clear" that such interim actions would not have been viewed as takings prior to our decisions in Lucas and First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987), because "[z]oning boards, cities, counties and other agencies used them all the time to 'maintain the status quo pending study and governmental decision making.'" 34 F. Supp. 2d, at 1248-1249 (quoting Williams v. Central, 907 P. 2d 701, 706 (Colo. App. 1995)). After expressing uncertainty as to whether those cases required a holding that moratoria on development automatically effect takings, the court concluded that TRP A's actions did so, partly because neither the ordinance nor the resolution, even though intended to be temporary from the beginning, contained an 12 The pretrial order describes purchases by the United States Forest Service of private lots in environmentally sensitive areas during the periods when the two moratoria were in effect. During the 2-year period ending on August 26, 1983, it purchased 215 parcels in California at an average price of over $19,000 and 45 parcels in Nevada at an average price of over $39,000; during the ensuing 8-month period, it purchased 167 California parcels at an average price of over $29,000 and 27 Nevada parcels at an average price of over $41,000. App. 76-77. Moreover, during those periods some owners sold sewer and building allocations to owners of higher capability lots "for between $15,000 and $30,000." Id., at 77. 317 express termination date. 34 F. Supp. 2d, at 1250-1251.13 Accordingly, it ordered TRPA to pay damages to most petitioners for the 32-month period from August 24, 1981, to April 25, 1984, and to those owning class 1, 2, or 3 property in Nevada for the 8-month period from August 27, 1983, to April 25, 1984. Id., at 1255. Both parties appealed. TRP A successfully challenged the District Court's takings determination, and petitioners unsuccessfully challenged the dismissal of their claims based on the 1984 and 1987 plans. Petitioners did not, however, challenge the District Court's findings or conclusions concerning its application of Penn Central. With respect to the two moratoria, the Ninth Circuit noted that petitioners had expressly disavowed an argument "that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central" and that they did not "dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact." 14 Accordingly, the only question before the court was "whether the rule set forth in Lucas applies-that is, whether a cate- 13 Ordinance 81-5 specified that it would terminate when the regional plan became finalized. And Resolution 83-21 was limited to 90 days, but was renewed for an additional term. Nevertheless, the District Court distinguished these measures from true "temporary" moratoria because there was no fixed date for when they would terminate. 34 F. Supp. 2d, at 1250-1251. 14216 F. 3d, at 773. "Below, the district court ruled that the regulations did not constitute a taking under Penn Central's ad hoc approach, but that they did constitute a categorical taking under Lucas [v. South Carolina Coastal Council, 505 U. S. 1003 (1992)]. See Tahoe-Sierra Preservation Council, 34 F. Supp. 2d at 1238-45. The defendants appealed the district court's latter holding, but the plaintiffs did not appeal the former. And even if arguments regarding the Penn Central test were fairly encompassed by the defendants' appeal, the plaintiffs have stated explicitly on this appeal that they do not argue that the regulations constitute a taking under the ad hoc balancing approach described in Penn Central." Ibid. 318 gorical taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs 'all economically beneficial or productive use of land.'" 216 F.3d 764 , 773 (2000). Moreover, because petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking. Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners' fee interest in the properties, no categorical taking had occurred. It reasoned: "Property interests may have many different dimensions. For example, the dimensions of a property interest may include a physical dimension (which describes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (which describes the duration of the property interest). At base, the plaintiffs' argument is that we should conceptually sever each plaintiff's fee interest into discrete segments in at least one of these dimensions-the temporal oneand treat each of those segments as separate and distinct property interests for purposes of takings analysis. Under this theory, they argue that there was a categorical taking of one of those temporal segments." Id., at 774. Putting to one side "cases of physical invasion or occupation," ibid., the court read our cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole. In its view a "planning regulation that prevents the development of a parcel for a temporary period of time is conceptually no different than a land-use restriction that permanently denies all use on a discrete portion of property, or that permanently restricts a type 319 of use across all of the parcel." Id., at 776. In each situation, a regulation that affects only a portion of the parcelwhether limited by time, use, or space-does not deprive the owner of all economically beneficial use.15 The Court of Appeals distinguished Lucas as applying to the" 'relatively rare'" case in which a regulation denies all productive use of an entire parcel, whereas the moratoria involve only a "temporal 'slice'" of the fee interest and a form of regulation that is widespread and well established. 216 F. 3d, at 773-774. It also rejected petitioners' argument that our decision in First English was controlling. According to the Court of Appeals, First English concerned the question whether compensation is an appropriate remedy for a temporary taking and not whether or when such a taking has occurred. 216 F. 3d, at 778. Faced squarely with the question whether a taking had occurred, the court held that Penn Central was the appropriate framework for analysis. Petitioners, however, had failed to challenge the District 15 The Court of Appeals added: "Each of these three types of regulation will have an impact on the parcel's value, because each will affect an aspect of the owner's 'use' of the property-by restricting when the 'use' may occur, where the 'use' may occur, or how the 'use' may occur. Prior to Agins [v. City of Tiburon, 447 U. S. 255 (1980)], the Court had already rejected takings challenges to regulations eliminating all 'use' on a portion of the property, and to regulations restricting the type of 'use' across the breadth of the property. See Penn Central, 438 U. S. at 130-31 ... ; Keystone Bituminous Coal Ass'n, 480 U. S. at 498-99 ... ; Village of Euclid v. Ambler Realty Co., 272 U. S. 365 , 384, 397 ... (1926) (75% diminution in value caused by zoning law); see also William C. Haas & Co. v. City & County of San Francisco, 605 F.2d 1117 , 1120 (9th Cir. 1979) (value reduced from $2,000,000 to $100,000). In those cases, the Court 'uniformly reject[ed] the proposition that diminution in property value, standing alone, can establish a "taking.'" Penn Central, 438 U. S. at 131 ... ; see also Concrete Pipe and Products, Inc. v. Construction Laborers Pension Trust, 508 U. S. 602 , 645 ... (1993). There is no plausible basis on which to distinguish a similar diminution in value that results from a temporary suspension of development." Id., at 776-777. 320 Court's conclusion that they could not make out a taking claim under the Penn Central factors. Over the dissent of five judges, the Ninth Circuit denied a petition for rehearing en bane. 228 F.3d 998 (2000). In the dissenters' opinion, the panel's holding was not faithful to this Court's decisions in First English and Lucas, nor to Justice Holmes admonition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 416 (1922), that "'a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.'" 228 F. 3d, at 1003. Because of the importance of the case, we granted certiorari limited to the question stated at the beginning of this opinion. 533 U. S. 948 (2001). We now affirm. III Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21. They contend that the mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that period. Hence, they "face an uphill battle," Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 , 495 (1987), that is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners' investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivationno matter how brief-of all economically viable use to trigger a per se rule that a taking has occurred. Petitioners assert that our opinions in First English and Lucas have 321 already endorsed their view, and that it is a logical application of the principle that the Takings Clause was "designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public as a whole." Armstrong v. United States, 364 U. S. 40, 49 (1960). We shall first explain why our cases do not support their proposed categorical rule-indeed, fairly read, they implicitly reject it. Next, we shall explain why the Armstrong principle requires rejection of that rule as well as the less extreme position advanced by petitioners at oral argument. In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither "yes, always" nor "no, never"; the answer depends upon the particular circumstances of the case.16 Resisting "[t]he temptation to adopt what amount to per se rules in either direction," Palazzolo v. Rhode Island, 533 U. S. 606 , 636 (2001) (O'CONNOR, J., concurring), we conclude that the circumstances in this case are best analyzed within the Penn Central framework. IV The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from 16 Despite our clear refusal to hold that a moratorium never effects a taking, THE CHIEF JUSTICE accuses us of "allow[ing] the government to ' ... take private property without paying for it,'" post, at 349. It may be true that under a Penn Central analysis petitioners' land was taken and compensation would be due. But petitioners failed to challenge the District Court's conclusion that there was no taking under Penn Central. Supra, at 317, and n. 14. 322 making certain uses of her private propertyP Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by "essentially ad hoc, factual inquiries," Penn Central, 438 U. S., at 124, designed to allow "careful examination and weighing of all the relevant circumstances." Palazzolo, 533 U. S., at 636 (O'CONNOR, J., concurring). When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United States v. Pewee Coal Co., 341 U. S. 114 , 115 (1951), regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United States v. General Motors Corp., 323 U. S. 373 (1945); United States v. Petty Motor Co., 327 U. S. 372 (1946). Similarly, when the government appropriates part of a rooftop in order to provide cable TV access for apartment tenants, Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982); or when its planes use private airspace to approach a government airport, United States v. Causby, 328 U. S. 256 (1946), it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting 17 In determining whether government action affecting property is an unconstitutional deprivation of ownership rights under the Just Compensation Clause, a court must interpret the word "taken." When the government condemns or physically appropriates the property, the fact of a taking is typically obvious and undisputed. When, however, the owner contends a taking has occurred because a law or regulation imposes restrictions so severe that they are tantamount to a condemnation or appropriation, the predicate of a taking is not self-evident, and the analysis is more complex. 323 tenants unwilling to pay a higher rent, Block v. Hirsh, 256 U. S. 135 (1921); that bans certain private uses of a portion of an owner's property, Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926); Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S. 470 (1987); or that forbids the private use of certain airspace, Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), does not constitute a categorical taking. "The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions." Yee v. Escondido, 503 U. S. 519 , 523 (1992). See also Loretto, 458 U. S., at 440; Keystone, 480 U. S., at 489, n. 18. This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a "regulatory taking," 18 and vice versa. For the same reason that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings con- 18 To illustrate the importance of the distinction, the Court in Loretto, 458 U. S., at 430, compared two wartime takings cases, United States v. Pewee Coal Co., 341 U. S. 114 , 116 (1951), in which there had been an "actual taking of possession and control" of a coal mine, and United States v. Central Eureka Mining Co., 357 U. S. 155 (1958), in which, "by contrast, the Court found no taking where the Government had issued a wartime order requiring nonessential gold mines to cease operations .... " 458 U. S., at 431. Loretto then relied on this distinction in dismissing the argument that our discussion of the physical taking at issue in the case would affect landlord-tenant laws. "So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity." Id., at 440 (citing Penn Central). 324 text to regulatory takings claims. Land-use regulations are ubiquitous and most of them impact property values in some tangential way-often in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights.19 "This case does not present the 'classi[c] taking' in which the government directly appropriates private property for its own use," Eastern Enterprises v. Apfel, 524 U. S. 498 , 522 (1998); instead the interference with property rights "arises from some public program adjusting the benefits and burdens of eco- 19 According to THE CHIEF JUSTICE'S dissent, even a temporary, useprohibiting regulation should be governed by our physical takings cases because, under Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1017 (1992), "from the landowner's point of view," the moratorium is the functional equivalent of a forced leasehold, post, at 348. Of course, from both the landowner's and the government's standpoint there are critical differences between a leasehold and a moratorium. Condemnation of a leasehold gives the government possession of the property, the right to admit and exclude others, and the right to use it for a public purpose. A regulatory taking, by contrast, does not give the government any right to use the property, nor does it dispossess the owner or affect her right to exclude others. THE CHIEF JUSTICE stretches Lucas' "equivalence" language too far. For even a regulation that constitutes only a minor infringement on property may, from the landowner's perspective, be the functional equivalent of an appropriation. Lucas carved out a narrow exception to the rules governing regulatory takings for the "extraordinary circumstance" of a permanent deprivation of all beneficial use. The exception was only partially justified based on the "equivalence" theory cited by THE CHIEF JUSTICE'S dissent. It was also justified on the theory that, in the "relatively rare situations where the government has deprived a landowner of all economically beneficial uses," it is less realistic to assume that the regulation will secure an "average reciprocity of advantage," or that government could not go on if required to pay for every such restriction. 505 U. S., at 1017-1018. But as we explain, infra, at 339-341, these assumptions hold true in the context of a moratorium. 325 nomic life to promote the common good," Penn Central, 438 U. S., at 124. Perhaps recognizing this fundamental distinction, petitioners wisely do not place all their emphasis on analogies to physical takings cases. Instead, they rely principally on our decision in Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992)-a regulatory takings case that, nevertheless, applied a categorical rule-to argue that the Penn Central framework is inapplicable here. A brief review of some of the cases that led to our decision in Lucas, however, will help to explain why the holding in that case does not answer the question presented here. As we noted in Lucas, it was Justice Holmes' opinion in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922),20 that gave birth to our regulatory takings jurisprudence.21 20 The case involved "a bill in equity brought by the defendants in error to prevent the Pennsylvania Coal Company from mining under their property in such way as to remove the supports and cause a subsidence of the surface and of their house." Mahon, 260 U. S., at 412. Mahon sought to prevent Pennsylvania Coal from mining under his property by relying on a state statute, which prohibited any mining that could undermine the foundation of a home. The company challenged the statute as a taking of its interest in the coal without compensation. 21 In Lucas, we explained: "Prior to Justice Holmes's exposition in Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 (1922), it was generally thought that the Takings Clause reached only a 'direct appropriation' of property, Legal Tender Cases, 12 Wall. 457, 551 (1871), or the functional equivalent of a 'practical ouster of [the owner's] possession,' Transportation Co. v. Chicago, 99 U. S. 635 , 642 (1879) .... Justice Holmes recognized in Mahon, however, that if the protection against physical appropriations of private property was to be meaningfully enforced, the government's power to redefine the range of interests included in the ownership of property was necessarily constrained by constitutional limits. 260 U. S., at 414-415. If, instead, the uses of private property were subject to unbridled, uncompensated qualification under the police power, 'the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappear[ed].' Id., at 415. These considerations gave birth in that case to the oft-cited maxim that, 'while property may be regulated to a certain extent, if regulation goes too 326 In subsequent opinions we have repeatedly and consistently endorsed Holmes' observation that "if regulation goes too far it will be recognized as a taking." Id., at 415. Justice Holmes did not provide a standard for determining when a regulation goes "too far," but he did reject the view expressed in Justice Brandeis' dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.22 After Mahon, neither a physical appropriation nor a public use has ever been a necessary component of a "regulatory taking." In the decades following that decision, we have "generally eschewed" any set formula for determining how far is too far, choosing instead to engage in "'essentially ad hoc, factual inquiries.'" Lucas, 505 U. S., at 1015 (quoting Penn Central, 438 U. S., at 124). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine "a number of factors" rather than a simple "mathematically precise" formula.23 Justice Brennan's opinion for the Court in Penn far it will be recognized as a taking.' Ibid." 505 U. S., at 1014 (citation omitted). 22Justice Brandeis argued: "Every restriction upon the use of property imposed in the exercise of the police power deprives the owner of some right theretofore enjoyed, and is, in that sense, an abridgment by the State of rights in property without making compensation. But restriction imposed to protect the public health, safety or morals from dangers threatened is not a taking. The restriction here in question is merely the prohibition of a noxious use. The property so restricted remains in the possession of its owner. The State does not appropriate it or make any use of it. The State merely prevents the owner from making a use which interferes with paramount rights of the public." Mahon, 260 U. S., at 417 (dissenting opinion). 23 In her concurring opinion in Palazzolo, 533 U. S., at 633, JUSTICE O'CONNOR reaffirmed this approach: "Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a 327 Central did, however, make it clear that even though multiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus on "the parcel as a whole": "'Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a whole-here, the city tax block designated as the 'landmark site.'" Id., at 130-131. This requirement that "the aggregate must be viewed in its entirety" explains why, for example, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking. Andrus v. Allard, 444 U. S. 51 , 66 (1979). It also clarifies why restrictions on the use of only limited portions of the parcel, such as setback ordinances, Gorieb v. Fox, 274 U. S. 603 (1927), or a requirement that coal pillars be left in place to prevent mine subsidence, Keystone Bituminous Coal Assn. v. DeBenedictis, 480 U. S., at 498, were not considered regulatory takings. In each of these cases, we affirmed that "where an owner possesses a full 'bundle' of property rights, the destruction of one 'strand' of the bundle is not a taking." Andrus, 444 U. S., at 65-66. court must examine." Ibid. "Penn Central does not supply mathematically precise variables, but instead provides important guideposts that lead to the ultimate determination whether just compensation is required." Id., at 634. "The temptation to adopt what amount to per se rules in either direction must be resisted. The Takings Clause requires careful examination and weighing of all the relevant circumstances in this context." Id., at 636. 328 While the foregoing cases considered whether particular regulations had "gone too far" and were therefore invalid, none of them addressed the separate remedial question of how compensation is measured once a regulatory taking is established. In his dissenting opinion in San Diego Gas & Elec. Co. v. San Diego, 450 U. S. 621 , 636 (1981), Justice Brennan identified that question and explained how he would answer it: "The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a 'taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the 'taking,' and ending on the date the government entity chooses to rescind or otherwise amend the regulation." Id., at 658. Justice Brennan's proposed rule was subsequently endorsed by the Court in First English, 482 U. S., at 315, 318, 321. First English was certainly a significant decision, and nothing that we say today qualifies its holding. Nonetheless, it is important to recognize that we did not address in that case the quite different and logically prior question whether the temporary regulation at issue had in fact constituted a taking. In First English, the Court unambiguously and repeatedly characterized the issue to be decided as a "compensation question" or a "remedial question." Id., at 311 ("The disposition of the case on these grounds isolates the remedial question for our consideration"); see also id., at 313, 318. And the Court's statement of its holding was equally unambiguous: "We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." Id., at 321 (emphasis added). In fact, First English expressly disavowed any ruling on the 329 merits of the takings issue because the California courts had decided the remedial question on the assumption that a taking had been alleged. Id., at 312-313 ("We reject appellee's suggestion that ... we must independently evaluate the adequacy of the complaint and resolve the takings claim on the merits before we can reach the remedial question"). After our remand, the California courts concluded that there had not been a taking, First English Evangelical Church of Glendale v. County of Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989), and we declined review of that decision, 493 U. S. 1056 (1990). To the extent that the Court in First English referenced the antecedent takings question, we identified two reasons why a regulation temporarily denying an owner all use of her property might not constitute a taking. First, we recognized that "the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." 482 U. S., at 313. Second, we limited our holding "to the facts presented" and recognized "the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which [were] not before us." Id., at 321. Thus, our decision in First English surely did not approve, and implicitly rejected, the categorical submission that petitioners are now advocating. Similarly, our decision in Lucas is not dispositive of the question presented. Although Lucas endorsed and applied a categorical rule, it was not the one that petitioners propose. Lucas purchased two residential lots in 1988 for $975,000. These lots were rendered "valueless" by a statute enacted two years later. The trial court found that a taking had occurred and ordered compensation of $1,232,387.50, representing the value of the fee simple estate, plus interest. As the statute read at the time of the trial, it effected a taking that "was unconditional and permanent." 505 U. S., 330 at 1012. While the State's appeal was pending, the statute was amended to authorize exceptions that might have allowed Lucas to obtain a building permit. Despite the fact that the amendment gave the State Supreme Court the opportunity to dispose of the appeal on ripeness grounds, it resolved the merits of the permanent takings claim and reversed. Since "Lucas had no reason to proceed on a 'temporary taking' theory at trial," we decided the case on the permanent taking theory that both the trial court and the State Supreme Court had addressed. Ibid. The categorical rule that we applied in Lucas states that compensation is required when a regulation deprives an owner of "all economically beneficial uses" of his land. Id., at 1019. Under that rule, a statute that "wholly eliminated the value" of Lucas' fee simple title clearly qualified as a taking. But our holding was limited to "the extraordinary circumstance when no productive or economically beneficial use of land is permitted." Id., at 1017. The emphasis on the word "no" in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. Id., at 1019, n. 8.24 Anything less than a "complete elimination of value," or a "total loss," the Court acknowledged, would require the kind of analysis applied in Penn Central. Lucas, 505 U. S., at 1019-1020, n. 8.25 Certainly, our holding that the permanent "obliteration of the value" of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation 24JU8TICE KENNEDY concurred in the judgment on the basis of the regulation's impact on "reasonable, investment-backed expectations." 505 25 It is worth noting that Lucas underscores the difference between physical and regulatory takings. See supra, at 322-325. For under our physical takings cases it would be irrelevant whether a property owner maintained 5% of the value of her property so long as there was a physical appropriation of any of the parcel. 331 prohibiting any economic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this case under the rule announced in Lucas by arguing that we can effectively sever a 32-month segment from the remainder of each landowner's fee simple estate, and then ask whether that segment has been taken in its entirety by the moratoria. Of course, defining the property interest taken in terms of the very regulation being challenged is circular. With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners' "conceptual severance" argument is unavailing because it ignores Penn Central's admonition that in regulatory takings cases we must focus on "the parcel as a whole." 438 U. S., at 130131. We have consistently rejected such an approach to the "denominator" question. See Keystone, 480 U. S., at 497. See also Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal., 508 U. S. 602 , 644 (1993) ("To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question"). Thus, the District Court erred when it disaggregated petitioners' property into temporal segments corresponding to the regulations at issue and then analyzed whether petitioners were deprived of all economically viable use during each period. 34 F. Supp. 2d, at 1242-1245. The starting point for the court's analysis should have been to ask whether there was a total taking of the entire parcel; if not, then Penn Central was the proper framework. 26 An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the 26 THE CHIEF JUSTICE'S dissent makes the same mistake by carving out a 6-year interest in the property, rather than considering the parcel as a whole, and treating the regulations covering that segment as analogous to a total taking under Lucas, post, at 351. 332 term of years that describes the temporal aspect of the owner's interest. See Restatement of Property §§ 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner's use of the entire area is a taking of "the parcel as a whole," whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. Agins v. City of Tiburon, 447 U. S., at 263, n. 9 ("Even if the appellants' ability to sell their property was limited during the pendency of the condemnation proceeding, the appellants were free to sell or develop their property when the proceedings ended. Mere fluctuations in value during the process of governmental decisionmaking, absent extraordinary delay, are 'incidents of ownership. They cannot be considered as a "taking" in the constitutional sense'" (quoting Danforth v. United States, 308 U. S. 271 , 285 (1939))). Neither Lucas, nor First English, nor any of our other regulatory takings cases compels us to accept petitioners' categorical submission. In fact, these cases make clear that the categorical rule in Lucas was carved out for the "extraordinary case" in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry. Nevertheless, we will consider whether the interest in protecting individual property owners from bearing public burdens "which, in all fairness and justice, should be borne by the public as a whole," Armstrong v. United States, 364 U. S., at 49, justifies creating a new rule for these circumstances.27 27 Armstrong, like Lucas, was a case that involved the "total destruction by the Government of all value" in a specific property interest. 364 U. S., at 48-49. It is nevertheless perfectly clear that Justice Black's oft-quoted comment about the underlying purpose of the guarantee that private prop- 333 v Considerations of "fairness and justice" arguably could support the conclusion that TRP A's moratoria were takings of petitioners' property based on any of seven different theories. First, even though we have not previously done so, we might now announce a categorical rule that, in the interest of fairness and justice, compensation is required whenever government temporarily deprives an owner of all economically viable use of her property. Second, we could craft a narrower rule that would cover all temporary landuse restrictions except those "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like" which were put to one side in our opinion in First English, 482 U. S., at 321. Third, we could adopt a rule like the one suggested by an amicus supporting petitioners that would "allow a short fixed period for deliberations to take place without compensation-say maximum one year-after which the just compensation requirements" would "kick in." 28 Fourth, with the benefit of hindsight, we might characterize the successive actions of TRP A as a "series of rolling moratoria" that were the functional equivalent of a permanent taking.29 Fifth, were it not for the findings of the District Court that TRP A acted diligently and in good faith, we might have concluded that the agency was stalling in order to avoid promulgating the environmental threshold carrying capacities and regional plan mandated by the 1980 Compact. Cf. Monterey v. Del Monte Dunes at erty shall not be taken for a public use without just compensation applies to partial takings as well as total takings. 28 Brief for the Institute for Justice as Amicus Curiae 30. Although amicus describes the I-year cutoff proposal as the "better approach by far," ibid., its primary argument is that Penn Central should be overruled, id., at 20 ("All partial takings by way of land use restriction should be subject to the same prima facie rules for compensation as a physical occupation for a limited period of time"). 29 Brief for Petitioners 44. See also Pet. for Cert. i. 334 Monterey, Ltd., 526 U. S. 687 , 698 (1999). Sixth, apart from the District Court's finding that TRP A's actions represented a proportional response to a serious risk of harm to the lake, petitioners might have argued that the moratoria did not substantially advance a legitimate state interest, see Agins and Monterey. Finally, if petitioners had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn Central analysis. As the case comes to us, however, none of the last four theories is available. The "rolling moratoria" theory was presented in the petition for certiorari, but our order granting review did not encompass that issue, 533 U. S. 948 (2001); the case was tried in the District Court and reviewed in the Court of Appeals on the theory that each of the two moratoria was a separate taking, one for a 2-year period and the other for an 8-month period. 216 F. 3d, at 769. And, as we have already noted, recovery on either a bad faith theory or a theory that the state interests were insubstantial is foreclosed by the District Court's unchallenged findings of fact. Recovery under a Penn Central analysis is also foreclosed both because petitioners expressly disavowed that theory, and because they did not appeal from the District Court's conclusion that the evidence would not support it. Nonetheless, each of the three per se theories is fairly encompassed within the question that we decided to answer. With respect to these theories, the ultimate constitutional question is whether the concepts of "fairness and justice" that underlie the Takings Clause will be better served by one of these categorical rules or by a Penn Central inquiry into all of the relevant circumstances in particular cases. From that perspective, the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained. Petitioners' broad submission would apply to numerous 335 "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like," 482 U. S., at 321, as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in Mahon, "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." 260 U. S., at 413. A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.30 More importantly, for reasons set out at some length by JUSTICE O'CONNOR in her concurring opinion in Palazzolo v. Rhode Island, 533 U. S., at 636, we are persuaded that the better approach to claims that a regulation has effected a temporary taking "requires careful examination and weighing of all the relevant circumstances." In that opinion, JUSTICE O'CONNOR specifically considered the role that the "temporal relationship between regulatory enactment and title acquisition" should play in the analysis of a takings claim. Id., at 632. We have no occasion to address that particular issue in this case, because it involves a differ- 30 In addition, we recognize the anomaly that would be created if we were to apply Penn Central when a landowner is permanently deprived of 95% of the use of her property, Lucas, 505 U. S., at 1019, n. 8, and yet find a per se taking anytime the same property owner is deprived of all use for only five days. Such a scheme would present an odd inversion of Justice Holmes' adage: "A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change." Block v. Hirsh, 256 U. S. 135 , 157 (1921). 336 ent temporal relationship-the distinction between a temporary restriction and one that is permanent. Her comments on the "fairness and justice" inquiry are, nevertheless, instructive: "Today's holding does not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn Central analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn Central itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine .... "The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is '''designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.'" Penn Central, [438 U. S.], at 123-124 (quoting Armstrong v. United States, 364 U. S. 40 , 49 (1960)). The concepts of 'fairness and justice' that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed 'any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Penn Central, supra, at 124 (quoting Goldblatt v. Hempstead, 369 U. S. 590 , 594 (1962)). The outcome instead 'depends largely "upon the particular circumstances [in that] case.'" Penn Central, supra, at 124 (quoting United States v. Central Eureka Mining Co., 357 U. S. 155 , 168 (1958))." Id., at 633. 337 In rejecting petitioners' per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other. A narrower rule that excluded the normal delays associated with processing permits, or that covered only delays of more than a year, would certainly have a less severe impact on prevailing practices, but it would still impose serious financial constraints on the planning process.31 Unlike the "extraordinary circumstance" in which the government deprives a property owner of all economic use, Lucas, 505 U. S., at 1017, moratoria like Ordinance 81-5 and Resolution 8321 are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy.32 In fact, the consensus in the planning com- 31 Petitioners fail to offer a persuasive explanation for why moratoria should be treated differently from ordinary permit delays. They contend that a permit applicant need only comply with certain specific requirements in order to receive one and can expect to develop at the end of the process, whereas there is nothing the landowner subject to a moratorium can do but wait, with no guarantee that a permit will be granted at the end of the process. Brief for Petitioners 28. Setting aside the obvious problem with basing the distinction on a course of events we can only know after the fact-in the context of a facial challenge-petitioners' argument breaks down under closer examination because there is no guarantee that a permit will be granted, or that a decision will be made within a year. See, e. g., Dufau v. United States, 22 Cl. Ct. 156 (1990) (holding that 16-month delay in granting a permit did not constitute a temporary taking). Moreover, under petitioners' modified categorical rule, there would be no per se taking if TRPA simply delayed action on all permits pending a regional plan. Fairness and justice do not require that TRPA be penalized for achieving the same result, but with full disclosure. 32 See, e. g., Santa Fe Village Venture v. Albuquerque, 914 F. Supp. 478, 483 (N. M. 1995) (30-month moratorium on development of lands within the Petroglyph National Monument was not a taking); Williams v. Central, 907 P. 2d 701, 703-706 (Colo. App. 1995) (10-month moratorium on development in gaming district while studying city's ability to absorb growth was not a compensable taking); Woodbury Place Partners v. Woodbury, 492 N. W. 2d 258 (Minn. App. 1993) (moratorium pending review 338 munity appears to be that moratoria, or "interim development controls" as they are often called, are an essential tool of successful development.33 Yet even the weak version of petitioners' categorical rule would treat these interim measures as takings regardless of the good faith of the planners, the reasonable expectations of the landowners, or the actual impact of the moratorium on property values.34 of plan for land adjacent to interstate highway was not a taking even though it deprived property owner of all economically viable use of its property for two years); Zilber v. Moranga, 692 F. Supp. 1195 (ND Cal. 1988) (18-month development moratorium during completion of a comprehensive scheme for open space did not require compensation). See also Wayman, Leaders Consider Options for Town Growth, Charlotte Observer, Feb. 3, 2002, p. 15M (describing 10-month building moratorium imposed "to give town leaders time to plan for development"); Wallman, City May Put Reins on Beach Projects, Sun-Sentinel, May 16, 2000, p. 1B (2-year building moratorium on beachfront property in Fort Lauderdale pending new height, width, and dispersal regulations); Foderaro, In Suburbs, They're Cracking Down on the Joneses, N. Y. Times, Mar. 19,2001, p. Al (describing moratorium imposed in Eastchester, New York, during a review of the town's zoning code to address the problem of oversized homes); Dawson, Commissioners recommend Aboite construction ban be lifted, Fort Wayne News Sentinel, May 4, 2001, p. 1A (3-year moratorium to allow improvements in the water and sewage treatment systems). 33 See J. Juergensmeyer & T. Roberts, Land Use Planning and Control Law §§ 5.28(G) and 9.6 (1998); Garvin & Leitner, Drafting Interim Development Ordinances: Creating Time to Plan, 48 Land Use Law & Zoning Digest 3 (June 1996) ("With the planning so protected, there is no need for hasty adoption of permanent controls in order to avoid the establishment of nonconforming uses, or to respond in an ad hoc fashion to specific problems. Instead, the planning and implementation process may be permitted to run its full and natural course with widespread citizen input and involvement, public debate, and full consideration of all issues and points of view"); Freilich, Interim Development Controls: Essential Tools for Implementing Flexible Planning and Zoning, 49 J. Urb. L. 65 (1971). 34 THE CHIEF JUSTICE offers another alternative, suggesting that delays of six years or more should be treated as per se takings. However, his dissent offers no explanation for why 6 years should be the cutoff point rather than 10 days, 10 months, or 10 years. It is worth emphasizing that we do not reject a categorical rule in this case because a 32-month moratorium is just not that harsh. Instead, we reject a categorical rule 339 The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth. A finding in the 1980 Compact itself, which presumably was endorsed by all three legislative bodies that participated in its enactment, attests to the importance of that concern. 94 Stat. 3243 ("The legislatures of the States of California and Nevada find that in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan"). As JUSTICE KENNEDY explained in his opinion for the Court in Palazzolo, it is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims: "These cases stand for the important principle that a landowner may not establish a taking before a landuse authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable because we conclude that the Penn Central framework adequately directs the inquiry to the proper considerations-only one of which is the length of the delay. 340 and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been established. See Suitum [v. Tahoe Regional Planning Agency, 520 U. S. 725 , 736, and n.10 (1997)] (noting difficulty of demonstrating that 'mere enactment' of regulations restricting land use effects a taking)." 533 U. S., at 620-621. We would create a perverse system of incentives were we to hold that landowners must wait for a takings claim to ripen so that planners can make well-reasoned decisions while, at the same time, holding that those planners must compensate landowners for the delay. Indeed, the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. In the proceedings involving the Lake Tahoe Basin, for example, the moratoria enabled TRP A to obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations.35 Since a categorical rule tied to the length of deliberations would likely create added pressure on decisionmakers to reach a quick resolution of land-use questions, it would only serve to disadvantage those landowners and interest groups who are not as or- 35 Petitioner Preservation Council, "through its authorized representatives, actively participated in the entire TRPA regional planning process leading to the adoption of the 1984 Regional Plan at issue in this action, and attended and expressed its views and concerns, orally and in writing, at each public hearing held by the Defendant TRPA in connection with the consideration of the 1984 Regional Plan at issue herein, as well as in connection with the adoption of Ordinance 81-5 and the Revised 1987 Regional Plan addressed herein." App. 24. 341 ganized or familiar with the planning process. Moreover, with a temporary ban on development there is a lesser risk that individual landowners will be "singled out" to bear a special burden that should be shared by the public as a whole. Nollan v. California Coastal Comm'n, 483 U. S. 825 , 835 (1987). At least with a moratorium there is a clear "reciprocity of advantage," Mahon, 260 U. S., at 415, because it protects the interests of all affected landowners against immediate construction that might be inconsistent with the provisions of the plan that is ultimately adopted. "While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others." Keystone, 480 U. S., at 491. In fact, there is reason to believe property values often will continue to increase despite a moratorium. See, e. g., Growth Properties, Inc. v. Klingbeil Holding Co., 419 F. Supp. 212, 218 (Md. 1976) (noting that land values could be expected to increase 20% during a 5-year moratorium on development). Cf. For est Properties, Inc. v. United States, 177 F.3d 1360 , 1367 (CA Fed. 1999) (record showed that market value of the entire parcel increased despite denial of permit to fill and develop lake-bottom property). Such an increase makes sense in this context because property values throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will remain in its pristine state. Since in some cases a i-year moratorium may not impose a burden at all, we should not adopt a rule that assumes moratoria always force individuals to bear a special burden that should be shared by the public as a whole. It may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism. But given the fact that the District Court found that the 32 months required by TRP A to formulate the 1984 Regional Plan was not unreasonable, we could not possibly conclude that every delay of over one year is constitutionally 342 unacceptable.36 Formulating a general rule of this kind is a suitable task for state legislatures.37 In our view, the duration of the restriction is one of the important factors that a court must consider in the appraisal of a regulatory takings claim, but with respect to that factor as with respect to other factors, the "temptation to adopt what amount to per se rules in either direction must be resisted." Palaz zolo, 533 U. S., at 636 (O'CONNOR, J., concurring). There may be moratoria that last longer than one year which interfere with reasonable investment-backed expectations, but as the District Court's opinion illustrates, petitioners' proposed rule is simply "too blunt an instrument" for identifying those cases. Id., at 628. We conclude, therefore, that the interest in "fairness and justice" will be best served by relying on the familiar Penn Central approach when deciding cases like this, rather than by attempting to craft a new categorical rule. 36We note that the temporary restriction that was ultimately upheld in the First English case lasted for more than six years before it was replaced by a permanent regulation. First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 210 Cal. App. 3d 1353, 258 Cal. Rptr. 893 (1989). 37 Several States already have statutes authorizing interim zoning ordinances with specific time limits. See Cal. Govt. Code Ann. § 65858 (West Supp. 2002) (authorizing interim ordinance of up to two years); Colo. Rev. Stat. § 30-28-121 (2001) (six months); Ky. Rev. Stat. Ann. § 100.201 (2001) (one year); Mich. Compo Laws Ann. § 125.215 (West 2001) (three years); Minn. Stat. § 394.34 (2000) (two years); N. H. Rev. Stat. Ann. § 674:23 (West 2001) (one year); Ore. Rev. Stat. Ann. § 197.520 (1997) (10 months); S. D. Codified Laws § 11-2-10 (2001) (two years); Utah Code Ann. § 17-27-404 (1995) (18 months); Wash. Rev. Code § 35.63.200 (2001); Wis. Stat. § 62.23(7)(d) (2001) (two years). Other States, although without specific statutory authority, have recognized that reasonable interim zoning ordinances may be enacted. See, e. g., S. E. W Freil V. Triangle Oil Co., 76 Md. App. 96, 543 A. 2d 863 (1988); New Jersey Shore Builders Assn. V. Dover Twp. Comm., 191 N. J. Super. 627,468 A. 2d 742 (1983); SCA Chemical Waste Servs., Inc. V. Konigsberg, 636 S. W. 2d 430 (Tenn. 1982); Sturgess V. Chilmark, 380 Mass. 246, 402 N. E. 2d 1346 (1980); Lebanon V. Woods, 153 Conn. 182,215 A. 2d 112 (1965). 343 Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting. For over half a decade petitioners were prohibited from building homes, or any other structures, on their land. Because the Takings Clause requires the government to pay compensation when it deprives owners of all economically viable use of their land, see Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992), and because a ban on all development lasting almost six years does not resemble any traditional land-use planning device, I dissent. I "A court cannot determine whether a regulation has gone 'too far' unless it knows how far the regulation goes." MacDonald, Sommer & Frates v. Yolo County, 477 U. S. 340 , 348 (1986) (citing Pennsylvania Coal Co. v. Mahon, 260 U. S. 393 , 415 (1922)).1 In failing to undertake this inquiry, the Court 1 We are not bound by the Court of Appeals' determination that petitioners' claim under 42 U. S. C. § 1983 (1994 ed., Supp. V) permitted only challenges to Ordinance 81-5 and Regulation 83-21. Petitioners sought certiorari on the Court of Appeals' ruling that respondent Tahoe Regional Planning Agency (hereinafter respondent) did not cause petitioners' injury from 1984 to 1987. Pet. for Cert. 27-30. We did not grant certiorari on any of the petition's specific questions presented, but formulated the following question: "Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?" 533 U. S. 948-949 (2001). This Court's Rule 14(1)(a) provides that a "question presented is deemed to comprise every subsidiary question fairly included therein." The question of how long the moratorium on land development lasted is necessarily subsumed within the question whether the moratorium constituted a taking. Petitioners did not assume otherwise. Their brief on the merits argues that respondent "effectively blocked all construction for the past two decades." Brief for Petitioners 7. 344 ignores much of the impact of respondent's conduct on petitioners. Instead, it relies on the flawed determination of the Court of Appeals that the relevant time period lasted only from August 1981 until April 1984. Ante, at 312, 313-314. During that period, Ordinance 81-5 and Regulation 83-21 prohibited development pending the adoption of a new regional land-use plan. The adoption of the 1984 Regional Plan (hereinafter Plan or 1984 Plan) did not, however, change anything from petitioners' standpoint. After the adoption of the 1984 Plan, petitioners still could make no use of their land. The Court of Appeals disregarded this post-April 1984 deprivation on the ground that respondent did not "cause" it. In a 42 U. s. C. § 1983 action, "the plaintiff must demonstrate that the defendant's conduct was the actionable cause of the claimed injury." 216 F.3d 764 , 783 (CA9 2000). Applying this principle, the Court of Appeals held that the 1984 Plan did not amount to a taking because the Plan actually allowed permits to issue for the construction of single-family residences. Those permits were never issued because the District Court immediately issued a temporary restraining order, and later a permanent injunction that lasted until 1987, prohibiting the approval of any building projects under the 1984 Plan. Thus, the Court of Appeals concluded that the "1984 Plan itself could not have constituted a taking," because it was the injunction, not the Plan, that prohibited development during this period. Id., at 784. The Court of Appeals is correct that the 1984 Plan did not cause petitioners' injury. But that is the right answer to the wrong question. The causation question is not limited to whether the 1984 Plan caused petitioners' injury; the question is whether respondent caused petitioners' injury. We have never addressed the § 1983 causation requirement in the context of a regulatory takings claim, though language in Penn Central Transp. Co. v. New York City, 438 U. S. 104 (1978), suggests that ordinary principles of proximate cause 345 govern the causation inquiry for takings claims. Id., at 124. The causation standard does not require much elaboration in this case, because respondent was undoubtedly the "moving force" behind petitioners' inability to build on their land from August 1984 through 1987. Monell v. New York City Dept. of Social Servs., 436 U. S. 658 , 694 (1978) (§ 1983 causation established when government action is the "moving force" behind the alleged constitutional violation). The injunction in this case issued because the 1984 Plan did not comply with the 1980 Tahoe Regional Planning Compact (Compact) and regulations issued pursuant to the Compact. And, of course, respondent is responsible for the Compact and its regulations. On August 26, 1982, respondent adopted Resolution 82-11. That resolution established "environmental thresholds for water quality, soil conservation, air quality, vegetation preservation, wildlife, fisheries, noise, recreation, and scenic resources." California v. Tahoe Regional Planning Agency, 766 F.2d 1308 , 1311 (CA9 1985). The District Court enjoined the 1984 Plan in part because the Plan would have allowed 42,000 metric tons of soil per year to erode from some of the single-family residences, in excess of the Resolution 82-11 threshold for soil conservation. Id., at 1315; see also id., at 1312. Another reason the District Court enjoined the 1984 Plan was that it did not comply with article V(g) of the Compact, which requires a finding, "with respect to each project, that the project will not cause the established [environmental] thresholds to be exceeded." Ibid. Thus, the District Court enjoined the 1984 Plan because the Plan did not comply with the environmental requirements of respondent's regulations and of the Compact itself. Respondent is surely responsible for its own regulations, and it is also responsible for the Compact as it is the governmental agency charged with administering the Compact. Compact, Art. I(c), 94 Stat. 3234. It follows that respondent was the "moving force" behind petitioners' inability to de- 346 velop their land from April 1984 through the enactment of the 1987 plan. Without the environmental thresholds established by the Compact and Resolution 82-11, the 1984 Plan would have gone into effect and petitioners would have been able to build single-family residences. And it was certainly foreseeable that development projects exceeding the environmental thresholds would be prohibited; indeed, that was the very purpose of enacting the thresholds. Because respondent caused petitioners' inability to use their land from 1981 through 1987, that is the appropriate period of time from which to consider their takings claim. II I now turn to determining whether a ban on all economic development lasting almost six years is a taking. Lucas reaffirmed our "frequently expressed" view that "when the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking." 505 U. S., at 1019. See also Agins v. City of Tiburon, 447 U. S. 255 , 258-259 (1980). The District Court in this case held that the ordinances and resolutions in effect between August 24, 1981, and April 25, 1984, "did in fact deny the plaintiffs all economically viable use of their land." 34 F. Supp. 2d 1226, 1245 (Nev. 1999). The Court of Appeals did not overturn this finding. And the 1984 injunction, issued because the environmental thresholds issued by respondent did not permit the development of single-family residences, forced petitioners to leave their land economically idle for at least another three years. The Court does not dispute that petitioners were forced to leave their land economically idle during this period. See ante, at 312. But the Court refuses to apply Lucas on the ground that the deprivation was "temporary." Neither the Takings Clause nor our case law supports such a distinction. For one thing, a distinction between 347 "temporary" and "permanent" prohibitions is tenuous. The "temporary" prohibition in this case that the Court finds is not a taking lasted almost six years.2 The "permanent" prohibition that the Court held to be a taking in Lucas lasted less than two years. See 505 U. S., at 1011-1012. The "permanent" prohibition in Lucas lasted less than two years because the law, as it often does, changed. The South Carolina Legislature in 1990 decided to amend the 1988 Beachfront Management Act to allow the issuance of "'special permits' for the construction or reconstruction of habitable structures seaward of the baseline." Id., at 1011-1012. Landuse regulations are not irrevocable. And the government can even abandon condemned land. See United States v. Dow, 357 U. S. 17 , 26 (1958). Under the Court's decision today, the takings question turns entirely on the initial label given a regulation, a label that is often without much meaning. There is every incentive for government to simply label any prohibition on development "temporary," or to fix a set number of years. As in this case, this initial designation does not preclude the government from repeatedly extending the "temporary" prohibition into a long-term ban on all development. The Court now holds that such a designation by the government is conclusive even though in fact the moratorium greatly exceeds the time initially specified. Apparently, the Court would not view even a 10-year moratorium as a taking under Lucas because the moratorium is not "permanent." Our opinion in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 (1987), rejects any distinction between temporary and permanent takings when a landowner is deprived of all economically beneficial use of his land. First English stated that "'temporary takings which, as here, deny a landowner all use of his property, are not different in kind from permanent 2 Even under the Court's mistaken view that the ban on development lasted only 32 months, the ban in this case exceeded the ban in Lucas. 348 takings, for which the Constitution clearly requires compensation." Id., at 318. Because of First English's rule that "temporary deprivations of use are compensable under the Takings Clause," the Court in Lucas found nothing problematic about the later developments that potentially made the ban on development temporary. 505 U. S., at 1011-1012 (citing First English, supra); see also 505 U. S., at 1033 (KENNEDY, J., concurring in judgment) ("It is well established that temporary takings are as protected by the Constitution as are permanent ones" (citing First English, supra, at 318)). More fundamentally, even if a practical distinction between temporary and permanent deprivations were plausible, to treat the two differently in terms of takings law would be at odds with the justification for the Lucas rule. The Lucas rule is derived from the fact that a "total deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation." 505 U. S., at 1017. The regulation in Lucas was the "practical equivalence" of a long-term physical appropriation, i. e., a condemnation, so the Fifth Amendment required compensation. The "practical equivalence," from the landowner's point of view, of a "temporary" ban on all economic use is a forced leasehold. For example, assume the following situation: Respondent is contemplating the creation of a National Park around Lake Tahoe to preserve its scenic beauty. Respondent decides to take a 6-year leasehold over petitioners' property, during which any human activity on the land would be prohibited, in order to prevent any further destruction to the area while it was deciding whether to request that the area be designated a National Park. Surely that leasehold would require compensation. In a series of World War II-era cases in which the Government had condemned leasehold interests in order to support the war effort, the Government conceded that it was required 349 to pay compensation for the leasehold interest.3 See United States v. Petty Motor Co., 327 U. S. 372 (1946); United States v. General Motors Corp., 323 U. S. 373 , 376 (1945). From petitioners' standpoint, what happened in this case is no different than if the government had taken a 6-year lease of their property. The Court ignores this "practical equivalence" between respondent's deprivation and the deprivation resulting from a leasehold. In so doing, the Court allows the government to "do by regulation what it cannot do through eminent domain-i. e., take private property without paying for it." 228 F.3d 998 , 999 (CA9 2000) (Kozinski, J., dissenting from denial of rehearing en banc). Instead of acknowledging the "practical equivalence" of this case and a condemned leasehold, the Court analogizes to other areas of takings law in which we have distinguished between regulations and physical appropriations, see ante, at 321-324. But whatever basis there is for such distinctions in those contexts does not apply when a regulation deprives a landowner of all economically beneficial use of his land. In addition to the "practical equivalence" from the landowner's perspective of such a regulation and a physical appropriation, we have held that a regulation denying all productive use of land does not implicate the traditional justification for differentiating between regulations and physical appropriations. In "the extraordinary circumstance when no productive or economically beneficial use of land is permitted," it is less likely that "the legislature is simply 3 There was no dispute that just compensation was required in those cases. The disagreement involved how to calculate that compensation. In United States v. General Motors Corp., 323 U. S. 373 (1945), for example, the issues before the Court were how to value the leasehold interest (i. e., whether the "long-term rental value [should be] the sole measure of the value of such short-term occupancy," id., at 380), whether the Government had to pay for the respondent's removal of personal property from the condemned warehouse, and whether the Government had to pay for the reduction in value of the respondent's equipment and fixtures left in the warehouse. Id., at 380-381. 350 'adjusting the benefits and burdens of economic life' ... in a manner that secures an 'average reciprocity of advantage' to everyone concerned," Lucas, supra, at 1017-1018 (quoting Penn Central Transp. Co. v. New York City, 438 U. S., at 124, and Pennsylvania Coal Co. v. Mahon, 260 U. S., at 415), and more likely that the property "is being pressed into some form of public service under the guise of mitigating serious public harm," Lucas, supra, at 1018. The Court also reads Lucas as being fundamentally concerned with value, ante, at 329-331, rather than with the denial of "all economically beneficial or productive use of land," 505 U. S., at 1015. But Lucas repeatedly discusses its holding as applying where "no productive or economically beneficial use of land is permitted." Id., at 1017; see also ibid. ("[T]otal deprivation of beneficial use is, from the landowner's point of view, the equivalent of a physical appropriation"); id., at 1016 ("[T]he Fifth Amendment is violated when land-use regulation ... denies an owner economically viable use of his land"); id., at 1018 ("[T]he functional basis for permitting the government, by regulation, to affect property values without compensation ... does not apply to the relatively rare situations where the government has deprived a landowner of all economically beneficial uses"); ibid. ("[T]he fact that regulations that leave the owner of land without economically beneficial or productive options for its use ... carry with them a heightened risk that private property is being pressed into some form of public service"); id., at 1019 ("[W]hen the owner of real property has been called upon to sacrifice all economically beneficial uses in the name of the common good, that is, to leave his property economically idle, he has suffered a taking"). Moreover, the Court's position that value is the sine qua non of the Lucas rule proves too much. Surely, the land at issue in Lucas retained some market value based on the contingency, which soon came to fruition (see supra, at 347), that the development ban would be amended. 351 Lucas is implicated when the government deprives a landowner of "all economically beneficial or productive use of land." 505 U. S., at 1015. The District Court found, and the Court agrees, that the moratorium "temporarily" deprived petitioners of "'all economically viable use of their land.'" Ante, at 316. Because the rationale for the Lucas rule applies just as strongly in this case, the "temporary" denial of all viable use of land for six years is a taking. III The Court worries that applying Lucas here compels finding that an array of traditional, short-term, land-use planning devices are takings. Ante, at 334-335, 337-338. But since the beginning of our regulatory takings jurisprudence, we have recognized that property rights "are enjoyed under an implied limitation." Mahon, supra, at 413. Thus, in Lucas, after holding that the regulation prohibiting all economically beneficial use of the coastal land came within our categorical takings rule, we nonetheless inquired into whether such a result "inhere[d] in the title itself, in the restrictions that background principles of the State's law of property and nuisance already place upon land ownership." 505 U. S., at 1029. Because the regulation at issue in Lucas purported to be permanent, or at least long term, we concluded that the only implied limitation of state property law that could achieve a similar long-term deprivation of all economic use would be something "achieved in the courts-by adjacent landowners (or other uniquely affected persons) under the State's law of private nuisance, or by the State under its complementary power to abate nuisances that affect the public generally, or otherwise." Ibid. When a regulation merely delays a final land-use decision, we have recognized that there are other background principles of state property law that prevent the delay from being deemed a taking. We thus noted in First English that our discussion of temporary takings did not apply "in the case 352 of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like." 482 U. S., at 321. We reiterated this last Term: "The right to improve property, of course, is subject to the reasonable exercise of state authority, including the enforcement of valid zoning and land-use restrictions." Palazzolo v. Rhode Island, 533 U. S. 606, 627 (2001). Zoning regulations existed as far back as colonial Boston, see Treanor, The Original Understanding of the Takings Clause and the Political Process, 95 Colum. L. Rev. 782, 789 (1995), and New York City enacted the first comprehensive zoning ordinance in 1916, see 1 Anderson's American Law of Zoning § 3.07, p. 92 (K. Young rev. 4th ed. 1995). Thus, the short-term delays attendant to zoning and permit regimes are a longstanding feature of state property law and part of a landowner's reasonable investment-backed expectations. See Lucas, supra, at 1034 (KENNEDY, J., concurring in judgment). But a moratorium prohibiting all economic use for a period of six years is not one of the longstanding, implied limitations of state property law.4 Moratoria are "interim controls on the use of land that seek to maintain the status quo with respect to land development in an area by either 'freezing' existing land uses or by allowing the issuance of building permits for only certain land uses that would not be inconsistent with a contemplated zoning plan or zoning change." 1 E. Ziegler, Rathkopf's The Law of Zoning and 4 Six years is not a "cutoff point," ante, at 338, n. 34; it is the length involved in this case. And the "explanation" for the conclusion that there is a taking in this case is the fact that a 6-year moratorium far exceeds any moratorium authorized under background principles of state property law. See infra, at 353-354. This case does not require us to undertake a more exacting study of state property law and discern exactly how long a moratorium must last before it no longer can be considered an implied limitation of property ownership (assuming, that is, that a moratorium on all development is a background principle of state property law, see infra, at 353). 353 Planning § 13:3, p.13-6 (4th ed. 2001). Typical moratoria thus prohibit only certain categories of development, such as fast-food restaurants, see Schafer v. New Orleans, 743 F.2d 1086 (CA5 1984), or adult businesses, see Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), or all commercial development, see Arnold Bernhard & Co. v. Planning & Zoning Comm'n, 194 Conn. 152,479 A. 2d 801 (1984). Such moratoria do not implicate Lucas because they do not deprive landowners of all economically beneficial use of their land. As for moratoria that prohibit all development, these do not have the lineage of permit and zoning requirements and thus it is less certain that property is acquired under the "implied limitation" of a moratorium prohibiting all development. Moreover, unlike a permit system in which it is expected that a project will be approved so long as certain conditions are satisfied, a moratorium that prohibits all uses is by definition contemplating a new land-use plan that would prohibit all uses. But this case does not require us to decide as a categorical matter whether moratoria prohibiting all economic use are an implied limitation of state property law, because the duration of this "moratorium" far exceeds that of ordinary moratoria. As the Court recognizes, ante, at 342, n. 37, state statutes authorizing the issuance of moratoria often limit the moratoria's duration. California, where much of the land at issue in this case is located, provides that a moratorium "shall be of no further force and effect 45 days from its date of adoption," and caps extension of the moratorium so that the total duration cannot exceed two years. Cal. Govt. Code Ann. § 65858(a) (West Supp. 2002); see also Minn. Stat. § 462.355, subd. 4 (2000) (limiting moratoria to 18 months, with one permissible extension, for a total of two years). Another State limits moratoria to 120 days, with the possibility of a single 6-month extension. Ore. Rev. Stat. Ann. § 197.520(4) (1997). Others limit moratoria to six 354 months without any possibility of an extension. See Colo. Rev. Stat. § 30-28-121 (2001); N. J. Stat. Ann. § 40:55D-90(b) (1991).5 Indeed, it has long been understood that moratoria on development exceeding these short time periods are not a legitimate planning device. See, e. g., Holdsworth v. Hague, 9 N. J. Misc. 715, 155 A. 892 (1931). Resolution 83-21 reflected this understanding of the limited duration of moratoria in initially limiting the moratorium in this case to 90 days. But what resulted-a "moratorium" lasting nearly six years-bears no resemblance to the short-term nature of traditional moratoria as understood from these background examples of state property law. Because the prohibition on development of nearly six years in this case cannot be said to resemble any "implied limitation" of state property law, it is a taking that requires compensation. *** Lake Tahoe is a national treasure, and I do not doubt that respondent's efforts at preventing further degradation of the lake were made in good faith in furtherance of the public interest. But, as is the case with most governmental action that furthers the public interest, the Constitution requires that the costs and burdens be borne by the public at large, not by a few targeted citizens. Justice Holmes' admonition of 80 years ago again rings true: "We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change." Mahon, 260 U. S., at 416. 5 These are just some examples of the state laws limiting the duration of moratoria. There are others. See, e. g., Utah Code Ann. §§ 17-27404(3)(b)(i)-(ii) (1995) (temporary prohibitions on development "may not exceed six months in duration," with the possibility of extensions for no more than "two additional six-month periods"). See also ante, at 337, n. 31. 355 JUSTICE THOMAS, with whom JUSTICE SCALIA joins, dissenting. I join THE CHIEF JUSTICE'S dissent. I write separately to address the majority's conclusion that the temporary moratorium at issue here was not a taking because it was not a "taking of 'the parcel as a whole.'" Ante, at 332. While this questionable rule* has been applied to various alleged regulatory takings, it was, in my view, rejected in the context of temporal deprivations of property by First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U. S. 304 , 318 (1987), which held that temporary and permanent takings "are not different in kind" when a landowner is deprived of all beneficial use of his land. I had thought that First English put to rest the notion that the "relevant denominator" is land's infinite life. Consequently, a regulation effecting a total deprivation of the use of a so-called "temporal slice" of property is compensable under the Takings Clause unless background principles of state property law prevent it from being deemed a taking; "total deprivation of use is, from the landowner's point of view, the equivalent of a physical appropriation." Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1017 (1992). A taking is exactly what occurred in this case. No one seriously doubts that the land-use regulations at issue rendered petitioners' land unsusceptible of any economically beneficial use. This was true at the inception of the mora- *The majority's decision to embrace the "parcel as a whole" doctrine as settled is puzzling. See, e. g., Palazzolo v. Rhode Island, 533 U. S. 606 , 631 (2001) (noting that the Court has "at times expressed discomfort with the logic of [the parcel as a whole] rule"); Lucas v. South Carolina Coastal Council, 505 U. S. 1003 , 1017, n.7 (1992) (recognizing that "uncertainty regarding the composition of the denominator in [the Court's] 'deprivation' fraction has produced inconsistent pronouncements by the Court," and that the relevant calculus is a "difficult question"). 356 THOMAS, J., dissenting torium, and it remains true today. These individuals and families were deprived of the opportunity to build singlefamily homes as permanent, retirement, or vacation residences on land upon which such construction was authorized when purchased. The Court assures them that "a temporary prohibition on economic use" cannot be a taking because "[l]ogically ... the property will recover value as soon as the prohibition is lifted." Ante, at 332. But the "logical" assurance that a "temporary restriction ... merely causes a diminution in value," ibid., is cold comfort to the property owners in this case or any other. After all, "[i]n the long run we are all dead." J. Keynes, Monetary Reform 88 (1924). I would hold that regulations prohibiting all productive uses of property are subject to Lucas' per se rule, regardless of whether the property so burdened retains theoretical useful life and value if, and when, the "temporary" moratorium is lifted. To my mind, such potential future value bears on the amount of compensation due and has nothing to do with the question whether there was a taking in the first place. It is regrettable that the Court has charted a markedly different path today.

The Supreme Court ruled that the moratoria imposed by the Tahoe Regional Planning Agency (TRPA) on development in the Lake Tahoe Basin while formulating a land-use plan did not constitute a per se taking of property under the Takings Clause, reversing the District Court's decision. The Ninth Circuit Court of Appeals had also ruled in favor of TRPA, finding that the moratoria did not result in a categorical taking under Lucas v. South Carolina Coastal Council because they only temporarily impacted the landowners' fee interest. The Supreme Court agreed with this interpretation, distinguishing Lucas as applying to permanent denials of all productive use of land, whereas the moratoria in this case were temporary. The Court also emphasized the difference between physical and regulatory takings, noting that regulatory takings require a more nuanced, fact-specific inquiry. Justice Thomas dissented, arguing that regulations prohibiting all productive uses of property, even temporarily, should be subject to the per se rule in Lucas.

LGBTQ+ Rights

Obergefell v. Hodges

https://supreme.justia.com/cases/federal/us/576/14-556/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ Nos. 14 556, 14-562, 14-571 and 14 574 _________________ JAMES OBERGEFELL, et al., PETITIONERS 14 556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.; VALERIA TANCO, et al., PETITIONERS 14 562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, et al.; APRIL DeBOER, et al., PETITIONERS 14 571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, et al.; AND GREGORY BOURKE, et al., PETITIONERS 14 574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY on writs of certiorari to the united states court of appeals for the sixth circuit [June 26, 2015] Justice Kennedy delivered the opinion of the Court. The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex. I These cases come from Michigan, Kentucky, Ohio, and Tennessee, States that define marriage as a union between one man and one woman. See, e.g. , Mich. Const., Art. I, 25; Ky. Const. 233A; Ohio Rev. Code Ann. 3101.01 (Lexis 2008); Tenn. Const., Art. XI, 18. The petitioners are 14 same-sex couples and two men whose same-sex partners are deceased. The respondents are state officials responsible for enforcing the laws in question. The petitioners claim the respondents violate the Fourteenth Amendment by denying them the right to marry or to have their marriages, lawfully performed in another State, given full recognition. Petitioners filed these suits in United States District Courts in their home States. Each District Court ruled in their favor. Citations to those cases are in Appendix A, infra . The respondents appealed the decisions against them to the United States Court of Appeals for the Sixth Circuit. It consolidated the cases and reversed the judgments of the District Courts. DeBoerv. Snyder , 772 F. 3d 388 (2014). The Court of Appeals held that a State has no constitutional obligation to license same-sex marriages or to recognize same-sex marriages performed out of State. The petitioners sought certiorari. This Court granted review, limited to two questions. 574 U. S. ___ (2015). The first, presented by the cases from Michigan and Kentucky, is whether the Fourteenth Amendment requires a State to license a marriage between two people of the same sex. The second, presented by the cases from Ohio, Tennessee, and, again, Kentucky, is whether the Fourteenth Amendment requires a State to recognize a same-sex marriage licensed and performed in a State which does grant that right. II Before addressing the principles and precedents that govern these cases, it is appropriate to note the history of the subject now before the Court. A From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967). This wisdom was echoed centuries later and half a world away by Cicero, who wrote, "The first bond of society is marriage; next, children; and then the family." See De Officiis 57 (W. Miller transl. 1913). There are untold references to the beauty of marriage in religious and philosophical texts spanning time, cultures, and faiths, as well as in art and literature in all their forms. It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex. That history is the beginning of these cases. The respondents say it should be the end as well. To them, it would demean a timeless institution if the concept and lawful status of marriage were extended to two persons of the same sex. Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held and continues to be held in good faith by reasonable and sincere people here and throughout the world. The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners' claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners' contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect and need for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment. Recounting the circumstances of three of these cases illustrates the urgency of the petitioners' cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur's death certificate. By statute, they must remain strangers even in death, a state-imposed separation Obergefell deems "hurtful for the rest of time." App. in No. 14 556 etc., p. 38. He brought suit to be shown as the surviving spouse on Arthur's death certificate. April DeBoer and Jayne Rowse are co-plaintiffs in the case from Michigan. They celebrated a commitment ceremony to honor their permanent relation in 2007. They both work as nurses, DeBoer in a neonatal unit and Rowse in an emergency unit. In 2009, DeBoer and Rowse fostered and then adopted a baby boy. Later that same year, they welcomed another son into their family. The new baby, born prematurely and abandoned by his biological mother, required around-the-clock care. The next year, a baby girl with special needs joined their family. Michigan, however, permits only opposite-sex married couples or single individuals to adopt, so each child can have only one woman as his or her legal parent. If an emergency were to arise, schools and hospitals may treat the three children as if they had only one parent. And, were tragedy to befall either DeBoer or Rowse, the other would have no legal rights over the children she had not been permitted to adopt. This couple seeks relief from the continuing uncertainty their unmarried status creates in their lives. Army Reserve Sergeant First Class Ijpe DeKoe and his partner Thomas Kostura, co-plaintiffs in the Tennessee case, fell in love. In 2011, DeKoe received orders to deploy to Afghanistan. Before leaving, he and Kostura married in New York. A week later, DeKoe began his deployment, which lasted for almost a year. When he returned, the two settled in Tennessee, where DeKoe works full-time for the Army Reserve. Their lawful marriage is stripped from them whenever they reside in Tennessee, returning and disappearing as they travel across state lines. DeKoe, who served this Nation to preserve the freedom the Constitution protects, must endure a substantial burden. The cases now before the Court involve other petitioners as well, each with their own experiences. Their stories reveal that they seek not to denigrate marriage but rather to live their lives, or honor their spouses' memory, joined by its bond. B The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution even as confined to opposite-sex relations has evolved over time. For example, marriage was once viewed as an arrangement by the couple's parents based on political, religious, and financial concerns; but by the time of the Nation's founding it was understood to be a voluntary contract between a man and a woman. See N. Cott, Public Vows: A History of Marriage and the Nation 9 17 (2000); S. Coontz, Marriage, A History 15 16 (2005). As the role and status of women changed, the institution further evolved. Under the centuries-old doctrine of coverture, a married man and woman were treated by the State as a single, male-dominated legal entity. See 1 W. Blackstone, Commentaries on the Laws of England 430 (1765). As women gained legal, political, and property rights, and as society began to understand that women have their own equal dignity, the law of coverture was abandoned. See Brief for Historians of Marriage et al. as Amici Curiae 16 19. These and other developments in the institution of marriage over the past centuries were not mere superficial changes. Rather, they worked deep transformations in its structure, affecting aspects of marriage long viewed by many as essential. See generally N. Cott, Public Vows; S. Coontz, Marriage; H. Hartog, Man & Wife in America: A History (2000). These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process. This dynamic can be seen in the Nation's experiences with the rights of gays and lesbians. Until the mid-20th century, same-sex intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem homosexuals to have dignity in their own distinct identity. A truthful declaration by same-sex couples of what was in their hearts had to remain unspoken. Even when a greater awareness of the humanity and integrity of homosexual persons came in the period after World War II, the argument that gays and lesbians had a just claim to dignity was in conflict with both law and widespread social conventions. Same-sex intimacy remained a crime in many States. Gays and lesbians were prohibited from most government employment, barred from military service, excluded under immigration laws, targeted by police, and burdened in their rights to associate. See Brief for Organization of American Historians as Amicus Curiae 5 28. For much of the 20th century, moreover, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973. See Position Statement on Homosexuality and Civil Rights, 1973, in 131 Am. J. Psychiatry 497 (1974). Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable. See Brief for American Psychological Association et al. as Amici Curiae 7 17. In the late 20th century, following substantial cultural and political developments, same-sex couples began to lead more open and public lives and to establish families. This development was followed by a quite extensive discussion of the issue in both governmental and private sectors and by a shift in public attitudes toward greater tolerance. As a result, questions about the rights of gays and lesbians soon reached the courts, where the issue could be discussed in the formal discourse of the law. This Court first gave detailed consideration to the legal status of homosexuals in Bowersv. Hardwick , 478 U. S. 186 (1986) . There it upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts. Ten years later, in Romerv. Evans , 517 U. S. 620 (1996) , the Court invalidated an amendment to Colorado's Constitution that sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation. Then, in 2003, the Court overruled Bowers , holding that laws making same-sex intimacy a crime "demea[n] the lives of homosexual persons." Lawrencev. Texas , 539 U. S. 558 . Against this background, the legal question of same-sex marriage arose. In 1993, the Hawaii Supreme Court held Hawaii's law restricting marriage to opposite-sex couples constituted a classification on the basis of sex and was therefore subject to strict scrutiny under the Hawaii Constitution. Baehrv. Lewin , 74 Haw. 530, 852 P. 2d 44. Although this decision did not mandate that same-sex marriage be allowed, some States were concerned by its implications and reaffirmed in their laws that marriage is defined as a union between opposite-sex partners. So too in 1996, Congress passed the Defense of Marriage Act (DOMA), 110Stat. 2419, defining marriage for all federal-law purposes as "only a legal union between one man and one woman as husband and wife." 1 U. S. C. 7. The new and widespread discussion of the subject led other States to a different conclusion. In 2003, the Supreme Judicial Court of Massachusetts held the State's Constitution guaranteed same-sex couples the right to marry. See Goodridgev. Department of Public Health , 440 Mass. 309, 798 N. E. 2d 941 (2003). After that ruling, some additional States granted marriage rights to same-sex couples, either through judicial or legislative processes. These decisions and statutes are cited in Appendix B, infra . Two Terms ago, in United Statesv. Windsor , 570 U. S. ___ (2013), this Court invalidated DOMA to the extent it barred the Federal Government from treating same-sex marriages as valid even when they were lawful in the State where they were licensed. DOMA, the Court held, impermissibly disparaged those same-sex couples "who wanted to affirm their commitment to one another before their children, their family, their friends, and their community." Id. , at ___ (slip op., at 14). Numerous cases about same-sex marriage have reached the United States Courts of Appeals in recent years. In accordance with the judicial duty to base their decisions on principled reasons and neutral discussions, without scornful or disparaging commentary, courts have written a substantial body of law considering all sides of these issues. That case law helps to explain and formulate the underlying principles this Court now must consider. With the exception of the opinion here under review and one other, see Citizens for Equal Protection v. Bruning, 455 F. 3d 859, 864 868 (CAAdd hyphens between digits006), the Courts of Appeals have held that excluding same-sex couples from marriage violates the Constitution. There also have been many thoughtful District Court decisions addressing same-sex marriage and most of them, too, have concluded same-sex couples must be allowed to marry. In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State Constitutions. These state and federal judicial opinions are cited in Appendix A, infra. After years of litigation, legislation, referenda, and the discussions that attended these public acts, the States are now divided on the issue of same-sex marriage. See Office of the Atty. Gen. of Maryland, The State of Marriage Equality in America, State-by-State Supp. (2015). III Under the Due Process Clause of the Fourteenth Amendment, no State shall "deprive any person of life, liberty, or property, without due process of law." The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. See Duncanv. Louisiana , 391 U. S. 145 149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs. See, e.g. , Eisenstadtv. Baird , 405 U. S. 438, 453 (1972) ; Griswoldv. Connecticut , 381 U. S. 479 486 (1965). The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, "has not been reduced to any formula." Poev. Ullman , 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. See ibid. That process is guided by many of the same considerations relevant to analysis of other constitutional provisions that set forth broad principles rather than specific requirements. History and tradition guide and discipline this inquiry but do not set its outer boundaries. See Lawrence , supra , at 572. That method respects our history and learns from it without allowing the past alone to rule the present. The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed. Applying these established tenets, the Court has long held the right to marry is protected by the Constitution. In Lovingv. Virginia , 388 U. S. 1, 12 (1967) , which invalidated bans on interracial unions, a unanimous Court held marriage is "one of the vital personal rights essential to the orderly pursuit of happiness by free men." The Court reaffirmed that holding in Zablockiv. Redhail , 434 U. S. 374, 384 (1978) , which held the right to marry was burdened by a law prohibiting fathers who were behind on child support from marrying. The Court again applied this principle in Turnerv. Safley , 482 U. S. 78, 95 (1987) , which held the right to marry was abridged by regulations limiting the privilege of prison inmates to marry. Over time and in other contexts, the Court has reiterated that the right to marry is fundamental under the Due Process Clause. See, e.g., M. L. B.v. S. L. J. , 519 U. S. 102, 116 (1996) ; Cleveland Bd. of Ed.v. LaFleur , 414 U. S. 632 640 (1974); Griswold , supra , at 486; Skinnerv. Oklahoma ex rel. Williamson , 316 U. S. 535, 541 (1942) ; Meyerv. Nebraska , 262 U. S. 390, 399 (1923) . It cannot be denied that this Court's cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part. This was evident in Bakerv. Nelson , 409 U. S. 810 , a one-line summary decision issued in 1972, holding the exclusion of same-sex couples from marriage did not present a substantial federal question. Still, there are other, more instructive precedents. This Court's cases have expressed constitutional principles of broader reach. In defining the right to marry these cases have identified essential attributes of that right based in history, tradition, and other constitutional liberties inherent in this intimate bond. See, e.g. , Lawrence , 539 U. S., at 574; Turner , supra , at 95; Zablocki , supra , at 384; Loving , supra , at 12; Griswold , supra , at 486. And in assessing whether the force and rationale of its cases apply to same-sex couples, the Court must respect the basic reasons why the right to marry has been long protected. See, e.g. , Eisenstadt , supra , at 453 454; Poe , supra , at 542 553 (Harlan, J., dissenting). This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples. A first premise of the Court's relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki , supra , at 384 (observing Loving held "the right to marry is of fundamental importance for all individuals"). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence , supra , at 574. Indeed, the Court has noted it would be contradictory "to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society." Zablocki , supra , at 386. Choices about marriage shape an individual's destiny. As the Supreme Judicial Court of Massachusetts has explained, because "it fulfils yearnings for security, safe haven, and connection that express our common human ity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life's momentous acts of self-definition." Goodridge , 440 Mass., at 322, 798 N. E. 2d, at 955. The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor , 570 U. S., at ___ ___ (slip op., at 22 23). There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices. Cf. Loving , supra , at 12 ("[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State"). A second principle in this Court's jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. This point was central to Griswold v. Connecticut , which held the Constitution protects the right of married couples to use contraception. 381 U. S., at 485. Suggesting that marriage is a right "older than the Bill of Rights," Griswold described marriage this way: "Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions. " Id. , at 486. And in Turner , the Court again acknowledged the intimate association protected by this right, holding prisoners could not be denied the right to marry because their committed relationships satisfied the basic reasons why marriage is a fundamental right. See 482 U. S., at 95 96. The right to marry thus dignifies couples who "wish to define themselves by their commitment to each other." Windsor , supra , at ___ (slip op., at 14). Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other. As this Court held in Lawrence , same-sex couples have the same right as opposite-sex couples to enjoy intimate association. Lawrence invalidated laws that made same-sex intimacy a criminal act. And it acknowledged that "[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring." 539 U. S., at 567. But while Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty. A third basis for protecting the right to marry is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education. See Piercev. Society of Sisters , 268 U. S. 510 (1925) ; Meyer , 262 U. S., at 399. The Court has recognized these connections by describing the varied rights as a unified whole: "[T]he right to 'marry, establish a home and bring up children' is a central part of the liberty protected by the Due Process Clause." Zablocki , 434 U. S., at 384 (quoting Meyer , supra , at 399). Under the laws of the several States, some of marriage's protections for children and families are material. But marriage also confers more profound benefits. By giving recognition and legal structure to their parents' relationship, marriage allows children "to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives." Windsor , supra , at ___ (slip op., at 23). Marriage also affords the permanency and stability important to children's best interests. See Brief for Scholars of the Constitutional Rights of Children as Amici Curiae 22 27. As all parties agree, many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples. See Brief for Gary J. Gates as Amicus Curiae 4. Most States have allowed gays and lesbians to adopt, either as individuals or as couples, and many adopted and foster children have same-sex parents, see id. , at 5. This provides powerful confirmation from the law itself that gays and lesbians can create loving, supportive families. Excluding same-sex couples from marriage thus conflicts with a central premise of the right to marry. Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser. They also suffer the significant material costs of being raised by unmarried parents, relegated through no fault of their own to a more difficult and uncertain family life. The marriage laws at issue here thus harm and humiliate the children of same-sex couples. See Windsor , supra , at ___ (slip op., at 23). That is not to say the right to marry is less meaningful for those who do not or cannot have children. An ability, desire, or promise to procreate is not and has not been a prerequisite for a valid marriage in any State. In light of precedent protecting the right of a married couple not to procreate, it cannot be said the Court or the States have conditioned the right to marry on the capacity or commitment to procreate. The constitutional marriage right has many aspects, of which childbearing is only one. Fourth and finally, this Court's cases and the Nation's traditions make clear that marriage is a keystone of our social order. Alexis de Tocqueville recognized this truth on his travels through the United States almost two centuries ago: "There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and of peace . . . . [H]e afterwards carries [that image] with him into public affairs." 1 Democracy in America 309 (H. Reeve transl., rev. ed. 1990). In Maynardv. Hill , 125 U. S. 190, 211 (1888) , the Court echoed de Tocqueville, explaining that marriage is "the foundation of the family and of society, without which there would be neither civilization nor progress." Marriage, the Maynard Court said, has long been " 'a great public institution, giving character to our whole civil polity.' " Id. , at 213. This idea has been reiterated even as the institution has evolved in substantial ways over time, superseding rules related to parental consent, gender, and race once thought by many to be essential. See generally N. Cott, Public Vows. Marriage remains a building block of our national community. For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union. Indeed, while the States are in general free to vary the benefits they confer on all married couples, they have throughout our history made marriage the basis for an expanding list of governmental rights, benefits, and responsibilities. These aspects of marital status include: taxation; inheritance and property rights; rules of intestate succession; spousal privilege in the law of evidence; hospital access; medical decisionmaking authority; adoption rights; the rights and benefits of survivors; birth and death certificates; professional ethics rules; campaign finance restrictions; workers' compensation benefits; health insurance; and child custody, support, and visitation rules. See Brief for United States as Amicus Curiae 6 9; Brief for American Bar Association as Amicus Curiae 8 29. Valid marriage under state law is also a significant status for over a thousand provisions of federal law. See Windsor , 570 U. S., at ___ ___ (slip op., at 15 16). The States have contributed to the fundamental character of the marriage right by placing that institution at the center of so many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle. Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects. It demeans gays and lesbians for the State to lock them out of a central institution of the Nation's society. Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning. The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest. With that knowledge must come the recognition that laws excluding same-sex couples from the marriage right impose stigma and injury of the kind prohibited by our basic charter. Objecting that this does not reflect an appropriate framing of the issue, the respondents refer to Washingtonv. Glucksberg , 521 U. S. 702, 721 (1997) , which called for a " 'careful description' " of fundamental rights. They assert the petitioners do not seek to exercise the right to marry but rather a new and nonexistent "right to same-sex marriage." Brief for Respondent in No. 14 556, p. 8. Glucksberg did insist that liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices. Yet while that approach may have been appropriate for the asserted right there involved (physician-assisted suicide), it is inconsistent with the approach this Court has used in discussing other fundamental rights, including marriage and intimacy. Loving did not ask about a "right to interracial marriage"; Turner did not ask about a "right of inmates to marry"; and Zablocki did not ask about a "right of fathers with unpaid child support duties to marry." Rather, each case inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right. See also Glucksberg , 521 U. S., at 752 773 (Souter, J., concurring in judgment); id. , at 789 792 (Breyer, J., concurring in judgments). That principle applies here. If rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied. This Court has rejected that approach, both with respect to the right to marry and the rights of gays and lesbians. See Loving 388 U. S., at 12; Lawrence , 539 U. S., at 566 567. The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era. Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right. The right of same-sex couples to marry that is part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment's guarantee of the equal protection of the laws. The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles. Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right. See M. L. B. , 519 U. S., at 120 121; id. , at 128 129 (Kennedy, J., concurring in judgment); Beardenv. Georgia , 461 U. S. 660, 665 (1983) . This interrelation of the two principles furthers our understanding of what freedom is and must become. The Court's cases touching upon the right to marry reflect this dynamic. In Loving the Court invalidated a prohibition on interracial marriage under both the Equal Protection Clause and the Due Process Clause. The Court first declared the prohibition invalid because of its un-equal treatment of interracial couples. It stated: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause." 388 U. S., at 12. With this link to equal protection the Court proceeded to hold the prohibition offended central precepts of liberty: "To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law." Ibid. The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions. The synergy between the two protections is illustrated further in Zablocki . There the Court invoked the Equal Protection Clause as its basis for invalidating the challenged law, which, as already noted, barred fathers who were behind on child-support payments from marrying without judicial approval. The equal protection analysis depended in central part on the Court's holding that the law burdened a right "of fundamental importance." 434 U. S., at 383. It was the essential nature of the marriage right, discussed at length in Zablocki , see id. , at 383 387, that made apparent the law's incompatibility with requirements of equality. Each concept liberty and equal protection leads to a stronger understanding of the other. Indeed, in interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged. To take but one period, this occurred with respect to marriage in the 1970's and 1980's. Notwithstanding the gradual erosion of the doctrine of coverture, see supra , at 6, invidious sex-based classifications in marriage remained common through the mid-20th century. See App. to Brief for Appellant in Reedv. Reed , O. T. 1971, No. 70 4, pp. 69 88 (an extensive reference to laws extant as of 1971 treating women as unequal to men in marriage). These classifications denied the equal dignity of men and women. One State's law, for example, provided in 1971 that "the husband is the head of the family and the wife is subject to him; her legal civil existence is merged in the husband, except so far as the law recognizes her separately, either for her own protection, or for her benefit." Ga. Code Ann. 53 501 (1935). Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage. See, e.g., Kirchbergv. Feenstra , 450 U. S. 455 (1981) ; Wenglerv. Druggists Mut. Ins. Co. , 446 U. S. 142 (1980) ; Califanov. Westcott , 443 U. S. 76 (1979) ; Orrv. Orr , 440 U. S. 268 (1979) ; Califanov. Goldfarb , 430 U. S. 199 (1977) (plurality opinion); Weinbergerv. Wiesenfeld , 420 U. S. 636 (1975) ; Frontierov. Richardson , 411 U. S. 677 (1973) . Like Loving and Zablocki , these precedents show the Equal Protection Clause can help to identify and correct inequalities in the institution of marriage, vindicating precepts of liberty and equality under the Constitution. Other cases confirm this relation between liberty and equality. In M. L. B.v. S. L. J. , the Court invalidated under due process and equal protection principles a statute requiring indigent mothers to pay a fee in order to appeal the termination of their parental rights. See 519 U. S., at 119 124. In Eisenstadtv. Baird , the Court invoked both principles to invalidate a prohibition on the distribution of contraceptives to unmarried persons but not married persons. See 405 U. S., at 446 454. And in Skinnerv. Oklahoma ex rel. Williamson , the Court invalidated under both principles a law that allowed sterilization of habitual criminals. See 316 U. S., at 538 543. In Lawrence the Court acknowledged the interlocking nature of these constitutional safeguards in the context of the legal treatment of gays and lesbians. See 539 U. S., at 575. Although Lawrence elaborated its holding under the Due Process Clause, it acknowledged, and sought to remedy, the continuing inequality that resulted from laws making intimacy in the lives of gays and lesbians a crime against the State. See ibid. Lawrence therefore drew upon principles of liberty and equality to define and protect the rights of gays and lesbians, holding the State "cannot demean their existence or control their destiny by making their private sexual conduct a crime." Id. , at 578. This dynamic also applies to same-sex marriage. It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry. See, e.g. , Zablocki , supra , at 383 388; Skinner , 316 U. S., at 541. These considerations lead to the conclusion that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Bakerv. Nelson must be and now is overruled, and the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples. IV There may be an initial inclination in these cases to proceed with caution to await further legislation, litigation, and debate. The respondents warn there has been insufficient democratic discourse before deciding an issue so basic as the definition of marriage. In its ruling on the cases now before this Court, the majority opinion for the Court of Appeals made a cogent argument that it would be appropriate for the respondents' States to await further public discussion and political measures before licensing same-sex marriages. See DeBoer , 772 F. 3d, at 409. Yet there has been far more deliberation than this argument acknowledges. There have been referenda, legislative debates, and grassroots campaigns, as well as countless studies, papers, books, and other popular and scholarly writings. There has been extensive litigation in state and federal courts. See Appendix A, infra . Judicial opinions addressing the issue have been informed by the contentions of parties and counsel, which, in turn, reflect the more general, societal discussion of same-sex marriage and its meaning that has occurred over the past decades. As more than 100 amici make clear in their filings, many of the central institutions in American life state and local governments, the military, large and small businesses, labor unions, religious organizations, law enforcement, civic groups, professional organizations, and universities have devoted substantial attention to the question. This has led to an enhanced understanding of the issue an understanding reflected in the arguments now presented for resolution as a matter of constitutional law. Of course, the Constitution contemplates that democracy is the appropriate process for change, so long as that process does not abridge fundamental rights. Last Term, a plurality of this Court reaffirmed the importance of the democratic principle in Schuettev. BAMN , 572 U. S. ___ (2014), noting the "right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times." Id. , at ___ ___ (slip op., at 15 16). Indeed, it is most often through democracy that liberty is preserved and protected in our lives. But as Schuette also said, "[t]he freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power." Id. , at ___ (slip op., at 15). Thus, when the rights of persons are violated, "the Constitution requires redress by the courts," notwithstanding the more general value of democratic decisionmaking. Id. , at ___ (slip op., at 17). This holds true even when protecting individual rights affects issues of the utmost importance and sensitivity. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right. The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution "was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia Bd. of Ed.v. Barnette , 319 U. S. 624, 638 (1943) . This is why "fundamental rights may not be submitted to a vote; they depend on the outcome of no elections." Ibid. It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry. This is not the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights. In Bowers , a bare majority upheld a law criminalizing same-sex intimacy. See 478 U. S., at 186, 190 195. That approach might have been viewed as a cautious endorsement of the democratic process, which had only just begun to consider the rights of gays and lesbians. Yet, in effect, Bowers upheld state action that denied gays and lesbians a fundamental right and caused them pain and humiliation. As evidenced by the dissents in that case, the facts and principles necessary to a correct holding were known to the Bowers Court. See id. , at 199 (Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); id. , at 214 (Stevens, J., joined by Brennan and Marshall, JJ., dissenting). That is why Lawrence held Bowers was "not correct when it was decided." 539 U. S., at 578. Although Bowers was eventually repudiated in Lawrence , men and women were harmed in the interim, and the substantial effects of these injuries no doubt lingered long after Bowers was overruled. Dignitary wounds cannot always be healed with the stroke of a pen. A ruling against same-sex couples would have the same effect and, like Bowers , would be unjustified under the Fourteenth Amendment. The petitioners' stories make clear the urgency of the issue they present to the Court. James Obergefell now asks whether Ohio can erase his marriage to John Arthur for all time. April DeBoer and Jayne Rowse now ask whether Michigan may continue to deny them the certainty and stability all mothers desire to protect their children, and for them and their children the childhood years will pass all too soon. Ijpe DeKoe and Thomas Kostura now ask whether Tennessee can deny to one who has served this Nation the basic dignity of recognizing his New York marriage. Properly presented with the petitioners' cases, the Court has a duty to address these claims and answer these questions. Indeed, faced with a disagreement among the Courts of Appeals a disagreement that caused impermissible geographic variation in the meaning of federal law the Court granted review to determine whether same-sex couples may exercise the right to marry. Were the Court to uphold the challenged laws as constitutional, it would teach the Nation that these laws are in accord with our society's most basic compact. Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage. The respondents also argue allowing same-sex couples to wed will harm marriage as an institution by leading to fewer opposite-sex marriages. This may occur, the respondents contend, because licensing same-sex marriage severs the connection between natural procreation and marriage. That argument, however, rests on a counterintuitive view of opposite-sex couple's decisionmaking processes regarding marriage and parenthood. Decisions about whether to marry and raise children are based on many personal, romantic, and practical considerations; and it is unrealistic to conclude that an opposite-sex couple would choose not to marry simply because same-sex couples may do so. See Kitchenv. Herbert , 755 F. 3d 1193, 1223 (CA1Add hyphens between digits014) ("[I]t is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples"). The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe. Indeed, with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties. Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex. V These cases also present the question whether the Constitution requires States to recognize same-sex marriages validly performed out of State. As made clear by the case of Obergefell and Arthur, and by that of DeKoe and Kostura, the recognition bans inflict substantial and continuing harm on same-sex couples. Being married in one State but having that valid marriage denied in another is one of "the most perplexing and distressing complication[s]" in the law of domestic relations. Williamsv. North Carolina , 317 U. S. 287, 299 (1942) (internal quotation marks omitted). Leaving the current state of affairs in place would maintain and promote instability and uncertainty. For some couples, even an ordinary drive into a neighboring State to visit family or friends risks causing severe hardship in the event of a spouse's hospitalization while across state lines. In light of the fact that many States already allow same-sex marriage and hundreds of thousands of these marriages already have occurred the disruption caused by the recognition bans is significant and ever-growing. As counsel for the respondents acknowledged at argument, if States are required by the Constitution to issue marriage licenses to same-sex couples, the justifications for refusing to recognize those marriages performed elsewhere are undermined. See Tr. of Oral Arg. on Question 2, p. 44. The Court, in this decision, holds same-sex couples may exercise the fundamental right to marry in all States. It follows that the Court also must hold and it now does hold that there is no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character. * * * No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered. APPENDICES A State and Federal Judicial Decisions Addressing Same-Sex Marriage United States Courts of Appeals Decisions Adamsv. Howerton , 673 F. 2d 1036 (CAAdd hyphens between digits982) Smeltv. County of Orange , 447 F. 3d 673 (CAAdd hyphens between digits006) Citizens for Equal Protectionv. Bruning , 455 F. 3d 859 (CAAdd hyphens between digits006) Windsorv. United States , 699 F. 3d 169 (CAAdd hyphens between digits012) Massachusettsv. Department of Health and Human Services , 682 F. 3d 1 (CAAdd hyphens between digits012) Perryv. Brown , 671 F. 3d 1052 (CAAdd hyphens between digits012) Lattav. Otter , 771 F. 3d 456 (CAAdd hyphens between digits014) Baskinv. Bogan , 766 F. 3d 648 (CAAdd hyphens between digits014) Bishopv. Smith , 760 F. 3d 1070 (CA1Add hyphens between digits014) Bosticv. Schaefer , 760 F. 3d 352 (CAAdd hyphens between digits014) Kitchenv. Herbert , 755 F. 3d 1193 (CA1Add hyphens between digits014) DeBoerv. Snyder , 772 F. 3d 388 (CAAdd hyphens between digits014) Lattav. Otter , 779 F. 3d 902 (CAAdd hyphens between digits015) (O'Scannlain, J., dissenting from the denial of rehearing en banc) United States District Court Decisions Adamsv. Howerton , 486 F. Supp. 1119 (CD Cal. 1980) Citizens for Equal Protection, Inc.v. Bruning , 290 F. Supp. 2d 1004 (Neb. 2003) Citizens for Equal Protectionv. Bruning , 368 F. Supp. 2d 980 (Neb. 2005) Wilsonv. Ake , 354 F. Supp. 2d 1298 (MD Fla. 2005) Smeltv. County of Orange , 374 F. Supp. 2d 861 (CD Cal. 2005) Bishopv. Oklahoma ex rel. Edmondson , 447 F. Supp. 2d 1239 (ND Okla. 2006) Massachusettsv. Department of Health and Human Services , 698 F. Supp. 2d 234 (Mass. 2010) Gillv. Office of Personnel Management , 699 F. Supp. 2d 374 (Mass. 2010) Perryv. Schwarzenegger , 704 F. Supp. 2d 921 (ND Cal. 2010) Dragovichv. Department of Treasury , 764 F. Supp. 2d 1178 (ND Cal. 2011) Golinski v. Office of Personnel Management , 824 F. Supp. 2d 968 (ND Cal. 2012) Dragovichv. Department of Treasury , 872 F. Supp. 2d 944 (ND Cal. 2012) Windsorv. United States , 833 F. Supp. 2d 394 (SDNY 2012) Pedersenv. Office of Personnel Management , 881 F. Supp. 2d 294 (Conn. 2012) Jacksonv. Abercrombie , 884 F. Supp. 2d 1065 (Haw. 2012) Sevcikv. Sandoval , 911 F. Supp. 2d 996 (Nev. 2012) Merrittv. Attorney General , 2013 WL 6044329 (MD La., Nov. 14, 2013) Grayv. Orr , 4 F. Supp. 3d 984 (ND Ill. 2013) Leev. Orr , 2013 WL 6490577 (ND Ill., Dec. 10, 2013) Kitchenv. Herbert , 961 F. Supp. 2d 1181 (Utah 2013) Obergefellv. Wymyslo , 962 F. Supp. 2d 968 (SD Ohio 2013) Bishopv. United States ex rel. Holder , 962 F. Supp. 2d 1252 (ND Okla. 2014) Bourkev. Beshear , 996 F. Supp. 2d 542 (WD Ky. 2014) Leev. Orr , 2014 WL 683680 (ND Ill., Feb. 21, 2014) Bosticv. Rainey , 970 F. Supp. 2d 456 (ED Va. 2014) De Leonv. Perry , 975 F. Supp. 2d 632 (WD Tex. 2014) Tancov. Haslam , 7 F. Supp. 3d 759 (MD Tenn. 2014) DeBoerv. Snyder , 973 F. Supp. 2d 757 (ED Mich. 2014) Henryv. Himes , 14 F. Supp. 3d 1036 (SD Ohio 2014) Lattav. Otter , 19 F. Supp. 3d 1054 (Idaho 2014) Geigerv. Kitzhaber , 994 F. Supp. 2d 1128 (Ore. 2014) Evansv. Utah , 21 F. Supp. 3d 1192 (Utah 2014) Whitewoodv. Wolf , 992 F. Supp. 2d 410 (MD Pa. 2014) Wolfv. Walker , 986 F. Supp. 2d 982 (WD Wis. 2014) Baskinv. Bogan , 12 F. Supp. 3d 1144 (SD Ind. 2014) Lovev. Beshear , 989 F. Supp. 2d 536 (WD Ky. 2014) Burnsv. Hickenlooper , 2014 WL 3634834 (Colo., July 23, 2014) Bowlingv. Pence , 39 F. Supp. 3d 1025 (SD Ind. 2014) Brennerv. Scott , 999 F. Supp. 2d 1278 (ND Fla. 2014) Robicheauxv. Caldwell , 2 F. Supp. 3d 910 (ED La. 2014) General Synod of the United Church of Christv. Resinger , 12 F. Supp. 3d 790 (WDNC 2014) Hambyv. Parnell , 56 F. Supp. 3d 1056 (Alaska 2014) Fisher-Bornev. Smith , 14 F. Supp. 3d 695 (MDNC 2014) Majorsv. Horne , 14 F. Supp. 3d 1313 (Ariz. 2014) Connollyv. Jeanes , ___ F. Supp. 3d ___, 2014 WL 5320642 (Ariz., Oct. 17, 2014) Guzzov. Mead , 2014 WL 5317797 (Wyo., Oct. 17, 2014) Conde-Vidalv. Garcia-Padilla , 54 F. Supp. 3d 157 (PR 2014) Mariev. Moser , ___ F. Supp. 3d ___, 2014 WL 5598128 (Kan., Nov. 4, 2014) Lawsonv. Kelly , 58 F. Supp. 3d 923 (WD Mo. 2014) McGeev. Cole , ___ F. Supp. 3d ___, 2014 WL 5802665 (SD W. Va., Nov. 7, 2014) Condonv. Haley , 21 F. Supp. 3d 572 (S. C. 2014) Bradacsv. Haley , 58 F. Supp. 3d 514 (S. C. 2014) Rolandov. Fox , 23 F. Supp. 3d 1227 (Mont. 2014) Jerniganv. Crane , ___ F. Supp. 3d ___, 2014 WL 6685391 (ED Ark., Nov. 25, 2014) Campaign for Southern Equalityv. Bryant , ___ F. Supp. 3d ___, 2014 WL 6680570 (SD Miss., Nov. 25, 2014) Innissv. Aderhold , ___ F. Supp. 3d ___, 2015 WL 300593 (ND Ga., Jan. 8, 2015) Rosenbrahnv. Daugaard , 61 F. Supp. 3d 862 (S. D., 2015) Casparv. Snyder , ___ F. Supp. 3d ___, 2015 WL 224741 (ED Mich., Jan. 15, 2015) Searceyv. Strange , 2015 U. S. Dist. LEXIS 7776 (SD Ala., Jan. 23, 2015) Strawserv. Strange , 44 F. Supp. 3d 1206 (SD Ala. 2015) Watersv. Ricketts , 48 F. Supp. 3d 1271 (Neb. 2015) State Highest Court Decisions Bakerv. Nelson , 291 Minn. 310, 191 N. W. 2d 185 (1971) Jonesv. Hallahan , 501 S. W. 2d 588 (Ky. 1973) Baehrv. Lewin , 74 Haw. 530, 852 P. 2d 44 (1993) Deanv. District of Columbia , 653 A. 2d 307 (D. C. 1995) Bakerv. State , 170 Vt. 194, 744 A. 2d 864 (1999) Brausev. State , 21 P. 3d 357 (Alaska 2001) (ripeness) Goodridgev. Department of Public Health , 440 Mass. 309, 798 N. E. 2d 941 (2003) In re Opinions of the Justices to the Senate , 440 Mass. 1201, 802 N. E. 2d 565 (2004) Liv. State , 338 Or. 376, 110 P. 3d 91 (2005) Cote-Whitacrev. Department of Public Health ,446 Mass. 350, 844 N. E. 2d 623 (2006) Lewisv. Harris , 188 N. J. 415, 908 A. 2d 196 (2006) Andersenv. King County , 158 Wash. 2d 1, 138 P. 3d 963 (2006) Hernandezv. Robles , 7 N. Y. 3d 338, 855 N. E. 2d 1 (2006) Conawayv. Deane , 401 Md. 219, 932 A. 2d 571 (2007) In re Marriage Cases , 43 Cal. 4th 757, 183 P. 3d 384 (2008) Kerriganv. Commissioner of Public Health , 289 Conn. 135, 957 A. 2d 407 (2008) Straussv. Horton , 46 Cal. 4th 364, 207 P. 3d 48 (2009) Varnumv. Brien , 763 N. W. 2d 862 (Iowa 2009) Griegov. Oliver , 2014 NMSC 003, ___ N. M. ___, 316 P. 3d 865 (2013) Garden State Equalityv. Dow , 216 N. J. 314, 79 A. 3d 1036 (2013) Ex parte State ex rel. Alabama Policy Institute , ___ So. 3d ___, 2015 WL 892752 (Ala., Mar. 3, 2015) B State Legislation and Judicial Decisions Legalizing Same-Sex Marriage Legislation Del. Code Ann., Tit. 13, 129 (Cum. Supp. 2014) D. C. Act No. 18 248, 57 D. C. Reg. 27 (2010) Haw. Rev. Stat. 572 1 (2006) and 2013 Cum. Supp.) Ill. Pub. Act No. 98 597 Me. Rev. Stat. Ann., Tit. 19, 650 A (Cum. Supp. 2014) 2012 Md. Laws p. 9 2013 Minn Laws p. 404 2009 N. H. Laws p. 60 2011 N. Y Laws p. 749 2013 R. I. Laws p. 7 2009 Vt. Acts & Resolves p. 33 2012 Wash. Sess. Laws p. 199 Judicial Decisions Goodridgev. Department of Public Health , 440 Mass. 309, 798 N. E. 2d 941 (2003) Kerriganv. Commissioner of Public Health , 289 Conn. 135, 957 A. 2d 407 (2008) Varnumv. Brien , 763 N. W. 2d 862 (Iowa 2009) Griegov. Oliver , 2014 NMSC 003, ___ N. M. ___, 316 P. 3d 865 (2013) Garden State Equalityv. Dow , 216 N. J. 314, 79 A. 3d 1036 (2013) SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–556, 14-562, 14-571 and 14–574 _________________ JAMES OBERGEFELL, et al., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.; VALERIA TANCO, et al., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, et al.; APRIL DeBOER, et al., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, et al.; AND GREGORY BOURKE, et al., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY on writs of certiorari to the united states court of appeals for the sixth circuit [June 26, 2015] Chief Justice Roberts, with whom Justice Scalia and Justice Thomas join, dissenting. Petitioners make strong arguments rooted in social policy and considerations of fairness. They contend that same-sex couples should be allowed to affirm their love and commitment through marriage, just like opposite-sex couples. That position has undeniable appeal; over the past six years, voters and legislators in eleven States and the District of Columbia have revised their laws to allow marriage between two people of the same sex. But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” Ante , at 11, 23 . As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York , 198 U. S. 45, 76 (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id. , at 69 (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” Ante , at 19. I have no choice but to dissent. Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer. I Petitioners and their amici base their arguments on the “right to marry” and the imperative of “marriage equality.” There is no serious dispute that, under our precedents, the Constitution protects a right to marry and requires States to apply their marriage laws equally. The real question in these cases is what constitutes “marriage,” or—more precisely— who decides what constitutes “marriage”? The majority largely ignores these questions, relegating ages of human experience with marriage to a paragraph or two. Even if history and precedent are not “the end” of these cases, ante , at 4, I would not “sweep away what has so long been settled” without showing greater respect for all that preceded us. Town of Greece v. Galloway , 572 U. S. ___, ___ (2014) (slip op., at 8). A As the majority acknowledges, marriage “has existed for millennia and across civilizations.” Ante , at 3. For all those millennia, across all those civilizations, “marriage” referred to only one relationship: the union of a man and a woman. See ante , at 4; Tr. of Oral Arg. on Question 1, p. 12 (petitioners conceding that they are not aware of any society that permitted same-sex marriage before 2001). As the Court explained two Terms ago, “until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” United States v. Windsor , 570 U. S. ___, ___ (2013) (slip op., at 13). This universal definition of marriage as the union of a man and a woman is no historical coincidence. Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history—and certainly not as a result of a prehistoric decision to exclude gays and lesbians. It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising them in the stable conditions of a lifelong relationship. See G. Quale, A History of Marriage Systems 2 (1988); cf. M. Cicero, De Officiis 57 (W. Miller transl. 1913) (“For since the reproductive instinct is by nature’s gift the common possession of all living creatures, the first bond of union is that between husband and wife; the next, that between parents and children; then we find one home, with everything in common.”). The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.” J. Q. Wilson, The Marriage Problem 41 (2002). This singular understanding of marriage has prevailed in the United States throughout our history. The majority accepts that at “the time of the Nation’s founding [marriage] was understood to be a voluntary contract between a man and a woman.” Ante , at 6. Early Americans drew heavily on legal scholars like William Blackstone, who regarded marriage between “husband and wife” as one of the “great relations in private life,” and philosophers like John Locke, who described marriage as “a voluntary compact between man and woman” centered on “its chief end, procreation” and the “nourishment and support” of children. 1 W. Blackstone, Commentaries *410; J. Locke, Second Treatise of Civil Government §§78–79, p. 39 (J. Gough ed. 1947). To those who drafted and ratified the Constitution, this conception of marriage and family “was a given: its structure, its stability, roles, and values accepted by all.” Forte, The Framers’ Idea of Marriage and Family, in The Meaning of Marriage 100, 102 (R. George & J. Elshtain eds. 2006). The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife.” Windsor , 570 U. S., at ___ (slip op., at 17) (quoting In re Burrus , 136 U. S. 586 –594 (1890)). There is no dispute that every State at the founding—and every State throughout our history until a dozen years ago—defined marriage in the traditional, biologically rooted way. The four States in these cases are typical. Their laws, before and after statehood, have treated marriage as the union of a man and a woman. See DeBoer v. Snyder , 772 F. 3d 388, 396–399 (CA6 2014). Even when state laws did not specify this definition expressly, no one doubted what they meant. See Jones v. Hallahan , 501 S. W. 2d 588, 589 (Ky. App. 1973). The meaning of “marriage” went without saying. Of course, many did say it. In his first American dictionary, Noah Webster defined marriage as “the legal union of a man and woman for life,” which served the purposes of “preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.” 1 An American Dictionary of the English Language (1828). An influential 19th-century treatise defined marriage as “a civil status, existing in one man and one woman legally united for life for those civil and social purposes which are based in the distinction of sex.” J. Bishop, Commentaries on the Law of Marriage and Divorce 25 (1852). The first edition of Black’s Law Dictionary defined marriage as “the civil status of one man and one woman united in law for life.” Black’s Law Dictionary 756 (1891) (emphasis deleted). The dictionary maintained essentially that same definition for the next century. This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. Early cases on the subject referred to marriage as “the union for life of one man and one woman,” Murphy v. Ramsey , 114 U. S. 15, 45 (1885) , which forms “the foundation of the family and of society, without which there would be neither civilization nor progress,” Maynard v. Hill , 125 U. S. 190, 211 (1888) . We later described marriage as “fundamental to our very existence and survival,” an understanding that necessarily implies a procreative component. Loving v. Virginia , 388 U. S. 1, 12 (1967) ; see Skinner v. Oklahoma ex rel. Williamson , 316 U. S. 535, 541 (1942) . More recent cases have directly connected the right to marry with the “right to procreate.” Zablocki v. Redhail , 434 U. S. 374, 386 (1978) . As the majority notes, some aspects of marriage have changed over time. Arranged marriages have largely given way to pairings based on romantic love. States have replaced coverture, the doctrine by which a married man and woman became a single legal entity, with laws that respect each participant’s separate status. Racial restrictions on marriage, which “arose as an incident to slavery” to promote “White Supremacy,” were repealed by many States and ultimately struck down by this Court. Loving , 388 U. S., at 6–7. The majority observes that these developments “were not mere superficial changes” in marriage, but rather “worked deep transformations in its structure.” Ante , at 6–7. They did not, however, work any transformation in the core structure of marriage as the union between a man and a woman. If you had asked a person on the street how marriage was defined, no one would ever have said, “Marriage is the union of a man and a woman, where the woman is subject to coverture.” The majority may be right that the “history of marriage is one of both continuity and change,” but the core meaning of marriage has endured. Ante , at 6. B Shortly after this Court struck down racial restrictions on marriage in Loving , a gay couple in Minnesota sought a marriage license. They argued that the Constitution required States to allow marriage between people of the same sex for the same reasons that it requires States to allow marriage between people of different races. The Minnesota Supreme Court rejected their analogy to Loving , and this Court summarily dismissed an appeal. Baker v. Nelson , 409 U. S. 810 (1972) . In the decades after Baker , greater numbers of gays and lesbians began living openly, and many expressed a desire to have their relationships recognized as marriages. Over time, more people came to see marriage in a way that could be extended to such couples. Until recently, this new view of marriage remained a minority position. After the Massachusetts Supreme Judicial Court in 2003 interpreted its State Constitution to require recognition of same-sex marriage, many States—including the four at issue here—enacted constitutional amendments formally adopting the longstanding definition of marriage. Over the last few years, public opinion on marriage has shifted rapidly. In 2009, the legislatures of Vermont, New Hampshire, and the District of Columbia became the first in the Nation to enact laws that revised the definition of marriage to include same-sex couples, while also providing accommodations for religious believers. In 2011, the New York Legislature enacted a similar law. In 2012, voters in Maine did the same, reversing the result of a referendum just three years earlier in which they had upheld the traditional definition of marriage. In all, voters and legislators in eleven States and the District of Columbia have changed their definitions of marriage to include same-sex couples. The highest courts of five States have decreed that same result under their own Constitutions. The remainder of the States retain the traditional definition of marriage. Petitioners brought lawsuits contending that the Due Process and Equal Protection Clauses of the Fourteenth Amendment compel their States to license and recognize marriages between same-sex couples. In a carefully reasoned decision, the Court of Appeals acknowledged the democratic “momentum” in favor of “expand[ing] the definition of marriage to include gay couples,” but concluded that petitioners had not made “the case for constitutionalizing the definition of marriage and for removing the issue from the place it has been since the founding: in the hands of state voters.” 772 F. 3d, at 396, 403. That decision interpreted the Constitution correctly, and I would affirm. II Petitioners first contend that the marriage laws of their States violate the Due Process Clause. The Solicitor General of the United States, appearing in support of petitioners, expressly disowned that position before this Court. See Tr. of Oral Arg. on Question 1, at 38–39. The majority nevertheless resolves these cases for petitioners based almost entirely on the Due Process Clause. The majority purports to identify four “principles and traditions” in this Court’s due process precedents that support a fundamental right for same-sex couples to marry. Ante , at 12. In reality, however, the majority’s approach has no basis in principle or tradition, except for the unprincipled tradition of judicial policymaking that characterized discredited decisions such as Lochner v. New York , 198 U. S. 45 . Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law. A Petitioners’ “fundamental right” claim falls into the most sensitive category of constitutional adjudication. Petitioners do not contend that their States’ marriage laws violate an enumerated constitutional right, such as the freedom of speech protected by the First Amendment. There is, after all, no “Companionship and Understanding” or “Nobility and Dignity” Clause in the Constitution. See ante , at 3, 14. They argue instead that the laws violate a right implied by the Fourteenth Amendment’s requirement that “liberty” may not be deprived without “due process of law.” This Court has interpreted the Due Process Clause to include a “substantive” component that protects certain liberty interests against state deprivation “no matter what process is provided.” Reno v. Flores , 507 U. S. 292, 302 (1993) . The theory is that some liberties are “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and therefore cannot be deprived without compelling justification. Snyder v. Massachusetts , 291 U. S. 97, 105 (1934). Allowing unelected federal judges to select which unenumerated rights rank as “fundamental”—and to strike down state laws on the basis of that determination—raises obvious concerns about the judicial role. Our precedents have accordingly insisted that judges “exercise the utmost care” in identifying implied fundamental rights, “lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court.” Washington v. Glucksberg , 521 U. S. 702, 720 (1997) (internal quotation marks omitted); see Kennedy, Unenumerated Rights and the Dictates of Judicial Restraint 13 (1986) (Address at Stanford) (“One can conclude that certain essential, or fundamental, rights should exist in any just society. It does not follow that each of those essential rights is one that we as judges can enforce under the written Constitution. The Due Process Clause is not a guarantee of every right that should inhere in an ideal system.”). The need for restraint in administering the strong medicine of substantive due process is a lesson this Court has learned the hard way. The Court first applied substantive due process to strike down a statute in Dred Scott v. Sandford , 19 How. 393 (1857). There the Court invalidated the Missouri Compromise on the ground that legislation restricting the institution of slavery violated the implied rights of slaveholders. The Court relied on its own conception of liberty and property in doing so. It asserted that “an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States . . . could hardly be dignified with the name of due process of law.” Id., at 450. In a dissent that has outlasted the majority opinion, Justice Curtis explained that when the “fixed rules which govern the interpretation of laws [are] abandoned, and the theoretical opinions of individuals are allowed to control” the Constitution’s meaning, “we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Id. , at 621. Dred Scott ’s holding was overruled on the battlefields of the Civil War and by constitutional amendment after Appomattox, but its approach to the Due Process Clause reappeared. In a series of early 20th-century cases, most prominently Lochner v. New York , this Court invalidated state statutes that presented “meddlesome interferences with the rights of the individual,” and “undue interference with liberty of person and freedom of contract.” 198 U. S., at 60, 61. In Lochner itself, the Court struck down a New York law setting maximum hours for bakery employees, because there was “in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law.” Id., at 58. The dissenting Justices in Lochner explained that the New York law could be viewed as a reasonable response to legislative concern about the health of bakery employees, an issue on which there was at least “room for debate and for an honest difference of opinion.” Id., at 72 (opinion of Harlan, J.). The majority’s contrary conclusion required adopting as constitutional law “an economic theory which a large part of the country does not entertain.” Id., at 75 (opinion of Holmes, J.). As Justice Holmes memorably put it, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” a leading work on the philosophy of Social Darwinism. Ibid. The Constitution “is not intended to embody a particular economic theory . . . . It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution.” Id. , at 75–76. In the decades after Lochner , the Court struck down nearly 200 laws as violations of individual liberty, often over strong dissents contending that “[t]he criterion of constitutionality is not whether we believe the law to be for the public good.” Adkins v. Children’s Hospital of D. C. , 261 U. S. 525, 570 (1923) (opinion of Holmes, J.). By empowering judges to elevate their own policy judgments to the status of constitutionally protected “liberty,” the Lochner line of cases left “no alternative to regarding the court as a . . . legislative chamber.” L. Hand, The Bill of Rights 42 (1958). Eventually, the Court recognized its error and vowed not to repeat it. “The doctrine that . . . due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely,” we later explained, “has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws.” Ferguson v. Skrupa , 372 U. S. 726, 730 (1963) ; see Day-Brite Lighting, Inc. v. Missouri , 342 U. S. 421, 423 (1952) (“we do not sit as a super-legislature to weigh the wisdom of legislation”). Thus, it has become an accepted rule that the Court will not hold laws unconstitutional simply because we find them “unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Okla., Inc. , 348 U. S. 483, 488 (1955) . Rejecting Lochner does not require disavowing the doctrine of implied fundamental rights, and this Court has not done so. But to avoid repeating Lochner ’s error of converting personal preferences into constitutional mandates, our modern substantive due process cases have stressed the need for “judicial self-restraint.” Collins v. Harker Heights , 503 U. S. 115, 125 (1992) . Our precedents have required that implied fundamental rights be “objectively, deeply rooted in this Nation’s history and tradition,” and “implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed.” Glucksberg , 521 U. S., at 720–721 (internal quotation marks omitted). Although the Court articulated the importance of history and tradition to the fundamental rights inquiry most precisely in Glucksberg , many other cases both before and after have adopted the same approach. See, e.g., District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U. S. 52, 72 (2009) ; Flores , 507 U. S., at 303; United States v. Salerno , 481 U. S. 739, 751 (1987) ; Moore v. East Cleveland , 431 U. S. 494, 503 (1977) (plurality opinion); see also id., at 544 (White, J., dissenting) (“The Judiciary, including this Court, is the most vulnerable and comes nearest to illegitimacy when it deals with judge-made constitutional law having little or no cognizable roots in the language or even the design of the Constitution.”); Troxel v. Granville , 530 U. S. 57 –101 (2000) (Kennedy, J., dissenting) (consulting “ ‘[o]ur Nation’s history, legal traditions, and practices’ ” and concluding that “[w]e owe it to the Nation’s domestic relations legal structure . . . to proceed with caution” (quoting Glucksberg , 521 U. S., at 721)). Proper reliance on history and tradition of course requires looking beyond the individual law being challenged, so that every restriction on liberty does not supply its own constitutional justification. The Court is right about that. Ante , at 18. But given the few “guideposts for responsible decisionmaking in this unchartered area,” Collins , 503 U. S., at 125, “an approach grounded in history imposes limits on the judiciary that are more meaningful than any based on [an] abstract formula,” Moore , 431 U. S., at 504, n. 12 (plurality opinion). Expanding a right suddenly and dramatically is likely to require tearing it up from its roots. Even a sincere profession of “discipline” in identifying fundamental rights, ante , at 10–11, does not provide a meaningful constraint on a judge, for “what he is really likely to be ‘discovering,’ whether or not he is fully aware of it, are his own values,” J. Ely, Democracy and Distrust 44 (1980). The only way to ensure restraint in this delicate enterprise is “continual insistence upon respect for the teachings of history, solid recognition of the basic values that underlie our society, and wise appreciation of the great roles [of] the doctrines of federalism and separation of powers.” Griswold v. Connecticut , 381 U. S. 479, 501 (1965) (Harlan, J., concurring in judgment). B The majority acknowledges none of this doctrinal background, and it is easy to see why: Its aggressive application of substantive due process breaks sharply with decades of precedent and returns the Court to the unprincipled approach of Lochner . 1 The majority’s driving themes are that marriage is desirable and petitioners desire it. The opinion describes the “transcendent importance” of marriage and repeatedly insists that petitioners do not seek to “demean,” “devalue,” “denigrate,” or “disrespect” the institution. Ante , at 3, 4, 6, 28. Nobody disputes those points. Indeed, the compelling personal accounts of petitioners and others like them are likely a primary reason why many Americans have changed their minds about whether same-sex couples should be allowed to marry. As a matter of constitutional law, however, the sincerity of petitioners’ wishes is not relevant. When the majority turns to the law, it relies primarily on precedents discussing the fundamental “right to marry.” Turner v. Safley , 482 U. S. 78, 95 (1987) ; Zablocki , 434 U. S., at 383; see Loving , 388 U. S., at 12. These cases do not hold, of course, that anyone who wants to get married has a constitutional right to do so. They instead require a State to justify barriers to marriage as that institution has always been understood. In Loving , the Court held that racial restrictions on the right to marry lacked a compelling justification. In Zablocki , restrictions based on child support debts did not suffice. In Turner , restrictions based on status as a prisoner were deemed impermissible. None of the laws at issue in those cases purported to change the core definition of marriage as the union of a man and a woman. The laws challenged in Zablocki and Turner did not define marriage as “the union of a man and a woman, where neither party owes child support or is in prison .” Nor did the interracial marriage ban at issue in Loving define marriage as “the union of a man and a woman of the same race .” See Tragen, Comment, Statutory Prohibitions Against Interracial Marriage, 32 Cal. L. Rev. 269 (1944) (“at common law there was no ban on interracial marriage”); post , at 11–12, n. 5 (Thomas, J., dissenting). Removing racial barriers to marriage therefore did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases “presumed a relationship involving opposite-sex partners.” Ante , at 11. In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. See Windsor , 570 U. S., at ___ (Alito, J., dissenting) (slip op., at 8) (“What Windsor and the United States seek . . . is not the protection of a deeply rooted right but the recognition of a very new right.”). Neither petitioners nor the majority cites a single case or other legal source providing any basis for such a constitutional right. None exists, and that is enough to foreclose their claim. 2 The majority suggests that “there are other, more instructive precedents” informing the right to marry. Ante , at 12. Although not entirely clear, this reference seems to correspond to a line of cases discussing an implied fundamental “right of privacy.” Griswold , 381 U. S., at 486. In the first of those cases, the Court invalidated a criminal law that banned the use of contraceptives. Id. , at 485–486. The Court stressed the invasive nature of the ban, which threatened the intrusion of “the police to search the sacred precincts of marital bedrooms.” Id., at 485. In the Court’s view, such laws infringed the right to privacy in its most basic sense: the “right to be let alone.” Eisenstadt v. Baird , 405 U. S. 438 –454, n. 10 (1972) (internal quotation marks omitted); see Olmstead v. United States , 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting). The Court also invoked the right to privacy in Lawrence v. Texas , 539 U. S. 558 (2003) , which struck down a Texas statute criminalizing homosexual sodomy. Lawrence relied on the position that criminal sodomy laws, like bans on contraceptives, invaded privacy by inviting “unwarranted government intrusions” that “touc[h] upon the most private human conduct, sexual behavior . . . in the most private of places, the home.” Id. , at 562, 567. Neither Lawrence nor any other precedent in the privacy line of cases supports the right that petitioners assert here. Unlike criminal laws banning contraceptives and sodomy, the marriage laws at issue here involve no government intrusion. They create no crime and impose no punishment. Same-sex couples remain free to live together, to engage in intimate conduct, and to raise their families as they see fit. No one is “condemned to live in loneliness” by the laws challenged in these cases—no one. Ante , at 28. At the same time, the laws in no way interfere with the “right to be let alone.” The majority also relies on Justice Harlan’s influential dissenting opinion in Poe v. Ullman , 367 U. S. 497 (1961) . As the majority recounts, that opinion states that “[d]ue process has not been reduced to any formula.” Id., at 542. But far from conferring the broad interpretive discretion that the majority discerns, Justice Harlan’s opinion makes clear that courts implying fundamental rights are not “free to roam where unguided speculation might take them.” Ibid. They must instead have “regard to what history teaches” and exercise not only “judgment” but “restraint.” Ibid. Of particular relevance, Justice Harlan explained that “laws regarding marriage which provide both when the sexual powers may be used and the legal and societal context in which children are born and brought up . . . form a pattern so deeply pressed into the substance of our social life that any Constitutional doctrine in this area must build upon that basis.” Id. , at 546. In sum, the privacy cases provide no support for the majority’s position, because petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits. Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State. See DeShaney v. Winnebago County Dept. of Social Servs. , 489 U. S. 189, 196 (1989) ; San Antonio Independent School Dist. v. Rodriguez , 411 U. S. 1 –37 (1973); post , at 9–13 (Thomas, J., dissenting). Thus, although the right to privacy recognized by our precedents certainly plays a role in protecting the intimate conduct of same-sex couples, it provides no affirmative right to redefine marriage and no basis for striking down the laws at issue here. 3 Perhaps recognizing how little support it can derive from precedent, the majority goes out of its way to jettison the “careful” approach to implied fundamental rights taken by this Court in Glucksberg . Ante , at 18 (quoting 521 U. S., at 721). It is revealing that the majority’s position requires it to effectively overrule Glucksberg , the leading modern case setting the bounds of substantive due process. At least this part of the majority opinion has the virtue of candor. Nobody could rightly accuse the majority of taking a careful approach. Ultimately, only one precedent offers any support for the majority’s methodology: Lochner v. New York , 198 U. S. 45 . The majority opens its opinion by announcing petitioners’ right to “define and express their identity.” Ante , at 1–2. The majority later explains that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Ante , at 12. This freewheeling notion of individual autonomy echoes nothing so much as “the general right of an individual to be free in his person and in his power to contract in relation to his own labor.” Lochner , 198 U. S., at 58 (emphasis added). To be fair, the majority does not suggest that its individual autonomy right is entirely unconstrained. The constraints it sets are precisely those that accord with its own “reasoned judgment,” informed by its “new insight” into the “nature of injustice,” which was invisible to all who came before but has become clear “as we learn [the] meaning” of liberty. Ante , at 10, 11 . The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Ante , at 19. Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner . See 198 U. S., at 61 (“We do not believe in the soundness of the views which uphold this law,” which “is an illegal interference with the rights of individuals . . . to make contracts regarding labor upon such terms as they may think best”). The majority recognizes that today’s cases do not mark “the first time the Court has been asked to adopt a cautious approach to recognizing and protecting fundamental rights.” Ante , at 25. On that much, we agree. The Court was “asked”—and it agreed—to “adopt a cautious approach” to implying fundamental rights after the debacle of the Lochner era. Today, the majority casts caution aside and revives the grave errors of that period. One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people. Cf. Brown v. Buhman , 947 F. Supp. 2d 1170 (Utah 2013), appeal pending, No. 14-4117 (CA10). Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante , at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante , at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante , at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? See Bennett, Polyamory: The Next Sexual Revolution? Newsweek, July 28, 2009 (estimating 500,000 polyamorous families in the United States); Li, Married Lesbian “Throuple” Expecting First Child, N. Y. Post, Apr. 23, 2014; Otter, Three May Not Be a Crowd: The Case for a Constitutional Right to Plural Marriage, 64 Emory L. J. 1977 (2015). I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” Tr. of Oral Arg. on Question 2, p. 6. But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either. 4 Near the end of its opinion, the majority offers perhaps the clearest insight into its decision. Expanding marriage to include same-sex couples, the majority insists, would “pose no risk of harm to themselves or third parties.” Ante , at 27. This argument again echoes Lochner , which relied on its assessment that “we think that a law like the one before us involves neither the safety, the morals nor the welfare of the public, and that the interest of the public is not in the slightest degree affected by such an act.” 198 U. S., at 57. Then and now, this assertion of the “harm principle” sounds more in philosophy than law. The elevation of the fullest individual self-realization over the constraints that society has expressed in law may or may not be attractive moral philosophy. But a Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of “due process.” There is indeed a process due the people on issues of this sort—the democratic process. Respecting that understanding requires the Court to be guided by law, not any particular school of social thought. As Judge Henry Friendly once put it, echoing Justice Holmes’s dissent in Lochner , the Fourteenth Amendment does not enact John Stuart Mill’s On Liberty any more than it enacts Herbert Spencer’s Social Statics. See Randolph, Before Roe v. Wade : Judge Friendly’s Draft Abortion Opinion, 29 Harv. J. L. & Pub. Pol’y 1035, 1036–1037, 1058 (2006). And it certainly does not enact any one concept of marriage. The majority’s understanding of due process lays out a tantalizing vision of the future for Members of this Court: If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can? But this approach is dangerous for the rule of law. The purpose of insisting that implied fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs. The Court today not only overlooks our country’s entire history and tradition but actively repudiates it, preferring to live only in the heady days of the here and now. I agree with the majority that the “nature of injustice is that we may not always see it in our own times.” Ante , at 11. As petitioners put it, “times can blind.” Tr. of Oral Arg. on Question 1, at 9, 10. But to blind yourself to history is both prideful and unwise. “The past is never dead. It’s not even past.” W. Faulkner, Requiem for a Nun 92 (1951). III In addition to their due process argument, petitioners contend that the Equal Protection Clause requires their States to license and recognize same-sex marriages. The majority does not seriously engage with this claim. Its discussion is, quite frankly, difficult to follow. The central point seems to be that there is a “synergy between” the Equal Protection Clause and the Due Process Clause, and that some precedents relying on one Clause have also relied on the other. Ante , at 20. Absent from this portion of the opinion, however, is anything resembling our usual framework for deciding equal protection cases. It is casebook doctrine that the “modern Supreme Court’s treatment of equal protection claims has used a means-ends methodology in which judges ask whether the classification the government is using is sufficiently related to the goals it is pursuing.” G. Stone, L. Seidman, C. Sunstein, M. Tushnet, & P. Karlan, Constitutional Law 453 (7th ed. 2013). The majority’s approach today is different: “Rights implicit in liberty and rights secured by equal protection may rest on different precepts and are not always co-extensive, yet in some instances each may be instructive as to the meaning and reach of the other. In any particular case one Clause may be thought to capture the essence of the right in a more accurate and comprehensive way, even as the two Clauses may converge in the identification and definition of the right.” Ante , at 19. The majority goes on to assert in conclusory fashion that the Equal Protection Clause provides an alternative basis for its holding. Ante , at 22. Yet the majority fails to provide even a single sentence explaining how the Equal Protection Clause supplies independent weight for its position, nor does it attempt to justify its gratuitous violation of the canon against unnecessarily resolving constitutional questions. See Northwest Austin Municipal Util. Dist. No. One v. Holder , 557 U. S. 193, 197 (2009) . In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.” Lawrence , 539 U. S., at 585 (O’Connor, J., concurring in judgment). It is important to note with precision which laws petitioners have challenged. Although they discuss some of the ancillary legal benefits that accompany marriage, such as hospital visitation rights and recognition of spousal status on official documents, petitioners’ lawsuits target the laws defining marriage generally rather than those allocating benefits specifically. The equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits. Of course, those more selective claims will not arise now that the Court has taken the drastic step of requiring every State to license and recognize marriages between same-sex couples. IV The legitimacy of this Court ultimately rests “upon the respect accorded to its judgments.” Republican Party of Minn. v. White , 536 U. S. 765, 793 (2002) (Kennedy, J., concurring). That respect flows from the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law. The role of the Court envisioned by the majority today, however, is anything but humble or restrained. Over and over, the majority exalts the role of the judiciary in delivering social change. In the majority’s telling, it is the courts, not the people, who are responsible for making “new dimensions of freedom . . . apparent to new generations,” for providing “formal discourse” on social issues, and for ensuring “neutral discussions, without scornful or disparaging commentary.” Ante , at 7–9. Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. Ante , at 9, 10, 23. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” Ante , at 19. The answer is surely there in one of those amicus briefs or studies. Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion.” Ante , at 8. In our democracy, debate about the content of the law is not an exhaustion requirement to be checked off before courts can impose their will. “Surely the Constitution does not put either the legislative branch or the executive branch in the position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unresolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev. 693, 700 (1976). As a plurality of this Court explained just last year, “It is demeaning to the democratic process to presume that voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.” Schuette v. BAMN , 572 U. S. ___, ___ –___ (2014) (slip op., at 16–17). The Court’s accumulation of power does not occur in a vacuum. It comes at the expense of the people. And they know it. Here and abroad, people are in the midst of a serious and thoughtful public debate on the issue of same-sex marriage. They see voters carefully considering same-sex marriage, casting ballots in favor or opposed, and sometimes changing their minds. They see political leaders similarly reexamining their positions, and either reversing course or explaining adherence to old convictions confirmed anew. They see governments and businesses modifying policies and practices with respect to same-sex couples, and participating actively in the civic discourse. They see countries overseas democratically accepting profound social change, or declining to do so. This deliberative process is making people take seriously questions that they may not have even regarded as questions before. When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate. In addition, they can gear up to raise the issue later, hoping to persuade enough on the winning side to think again. “That is exactly how our system of government is supposed to work.” Post, at 2–3 (Scalia, J., dissenting). But today the Court puts a stop to all that. By deciding this question under the Constitution, the Court removes it from the realm of democratic decision. There will be consequences to shutting down the political process on an issue of such profound public significance. Closing debate tends to close minds. People denied a voice are less likely to accept the ruling of a court on an issue that does not seem to be the sort of thing courts usually decide. As a thoughtful commentator observed about another issue, “The political process was moving . . . , not swiftly enough for advocates of quick, complete change, but majoritarian institutions were listening and acting. Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.” Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade , 63 N. C. L. Rev. 375, 385–386 (1985) (footnote omitted). Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs. Federal courts are blunt instruments when it comes to creating rights. They have constitutional power only to resolve concrete cases or controversies; they do not have the flexibility of legislatures to address concerns of parties not before the court or to anticipate problems that may arise from the exercise of a new right. Today’s decision, for example, creates serious questions about religious liberty. Many good and decent people oppose same-sex marriage as a tenet of faith, and their freedom to exercise religion is—unlike the right imagined by the majority—actually spelled out in the Constitution. Amdt. 1. Respect for sincere religious conviction has led voters and legislators in every State that has adopted same-sex marriage democratically to include accommodations for religious practice. The majority’s decision imposing same-sex marriage cannot, of course, create any such accommodations. The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. Ante , at 27. The First Amendment guarantees, however, the freedom to “ exercise ” religion. Ominously, that is not a word the majority uses. Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage—when, for example, a religious college provides married student housing only to opposite-sex married couples, or a religious adoption agency declines to place children with same-sex married couples. Indeed, the Solicitor General candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage. See Tr. of Oral Arg. on Question 1, at 36–38. There is little doubt that these and similar questions will soon be before this Court. Unfortunately, people of faith can take no comfort in the treatment they receive from the majority today. Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same-sex marriage. Ante , at 19. That disclaimer is hard to square with the very next sentence, in which the majority explains that “the necessary consequence” of laws codifying the traditional definition of marriage is to “demea[n] or stigmatiz[e]” same-sex couples. Ante , at 19. The majority reiterates such characterizations over and over. By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history—in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage—have acted to “lock . . . out,” “disparage,” “disrespect and subordinate,” and inflict “[d]ignitary wounds” upon their gay and lesbian neighbors. Ante , at 17, 19, 22, 25. These apparent assaults on the character of fairminded people will have an effect, in society and in court. See post , at 6–7 (Alito, J., dissenting). Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s “better informed understanding” as bigoted. Ante , at 19. In the face of all this, a much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition. *  *  * If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. I respectfully dissent. SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–556, 14-562, 14-571 and 14–574 _________________ JAMES OBERGEFELL, et al., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.; VALERIA TANCO, et al., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, et al.; APRIL DeBOER, et al., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, et al.; AND GREGORY BOURKE, et al., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY on writs of certiorari to the united states court of appeals for the sixth circuit [June 26, 2015] Justice Scalia, with whom Justice Thomas joins, dissenting. I join The Chief Justice’s opinion in full. I write separately to call attention to this Court’s threat to American democracy. The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves. I Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.[ 1 ] Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.[ 2 ] The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”[ 3 ] denying “Full Faith and Credit” to the “public Acts” of other States,[ 4 ] prohibiting the free exercise of religion,[ 5 ] abridging the freedom of speech,[ 6 ] infringing the right to keep and bear arms,[ 7 ] authorizing unreasonable searches and seizures,[ 8 ] and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”[ 9 ] can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process? Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today): “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”[ 10 ] “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”[ 11 ] But we need not speculate. When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases. When it comes to determining the meaning of a vague constitutional provision—such as “due process of law” or “equal protection of the laws”—it is unquestionable that the People who ratified that provision did not understand it to prohibit a practice that remained both universal and uncontroversial in the years after ratification.[ 12 ] We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue. But the Court ends this debate, in an opinion lacking even a thin veneer of law. Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its “reasoned judgment,” thinks the Fourteenth Amendment ought to protect.[ 13 ] That is so because “[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ”[ 14 ] One would think that sentence would continue: “. . . and therefore they provided for a means by which the People could amend the Constitution,” or perhaps “. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.” But no. What logically follows, in the majority’s judge-empowering estimation, is: “and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”[ 15 ] The “we,” needless to say, is the nine of us. “History and tradition guide and discipline [our] inquiry but do not set its outer boundaries.”[ 16 ] Thus, rather than focusing on the People’s understanding of “liberty”—at the time of ratification or even today—the majority focuses on four “principles and traditions” that, in the majority’s view , prohibit States from defining marriage as an institution consisting of one man and one woman.[ 17 ] This is a naked judicial claim to legislative—indeed, super- legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy. Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. Not surprisingly then, the Federal Judiciary is hardly a cross-section of America. Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers[ 18 ] who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans[ 19 ]), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges , answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not . And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. II But what really astounds is the hubris reflected in today’s judicial Putsch. The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003.[ 20 ] They have discovered in the Fourteenth Amendment a “fundamental right” overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,[ 21 ] cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution. The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.[ 22 ] Of course the opinion’s showy profundities are often profoundly incoherent. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”[ 23 ] (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”[ 24 ] (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”[ 25 ] (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis. *  *  * Hubris is sometimes defined as o’erweening pride; and pride, we know, goeth before a fall. The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”[ 26 ] With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence. Notes 1 Brief for Respondents in No. 14–571, p. 14. 2 Accord, Schuette v. BAMN , 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17). 3 U. S. Const., Art. I, §10. 4 Art. IV, §1. 5 Amdt. 1. 6 Ibid . 7 Amdt. 2. 8 Amdt. 4. 9 Amdt. 10. 10 United States v. Windsor , 570 U. S. ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted). 11 Id., at ___ (slip op., at 17). 12 See Town of Greece v. Galloway , 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante , at 10 . 14 Ante , at 11. 15 Ibid . 16 Ante , at 10–11. 17 Ante, at 12–18. 18 The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14–574, pp. 1–5. 19 See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015). 20 Goodridge v. Department of Public Health , 440 Mass. 309, 798 N. E. 2d 941 (2003). 21 Windsor , 570 U. S., at ___ (Alito, J., dissenting) (slip op., at 7). 22 If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie. 23 Ante , at 13. 24 Ante, at 19. 25 Ibid . 26 The Federalist No. 78, pp. 522, 523 (J. Cooke ed. 1961) (A. Hamilton). SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–556, 14-562, 14-571 and 14–574 _________________ JAMES OBERGEFELL, et al., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.; VALERIA TANCO, et al., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, et al.; APRIL DeBOER, et al., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, et al.; AND GREGORY BOURKE, et al., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY on writs of certiorari to the united states court of appeals for the sixth circuit [June 26, 2015] Justice Thomas, with whom Justice Scalia joins, dissenting. The Court’s decision today is at odds not only with the Constitution, but with the principles upon which our Nation was built. Since well before 1787, liberty has been understood as freedom from government action, not entitlement to government benefits. The Framers created our Constitution to preserve that understanding of liberty. Yet the majority invokes our Constitution in the name of a “liberty” that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea—captured in our Declaration of Independence—that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constitution not only ignores the text, it inverts the relationship between the individual and the state in our Republic. I cannot agree with it. I The majority’s decision today will require States to issue marriage licenses to same-sex couples and to recognize same-sex marriages entered in other States largely based on a constitutional provision guaranteeing “due process” before a person is deprived of his “life, liberty, or prop-erty.” I have elsewhere explained the dangerous fiction of treating the Due Process Clause as a font of substantive rights. McDonald v. Chicago , 561 U. S. 742 –812 (2010) (Thomas, J., concurring in part and concurring in judgment) . It distorts the constitutional text, which guarantees only whatever “process” is “due” before a person is deprived of life, liberty, and property. U. S. Const., Amdt. 14, §1. Worse, it invites judges to do exactly what the majority has done here—“ ‘roa[m] at large in the constitutional field’ guided only by their personal views” as to the “ ‘fundamental rights’ ” protected by that document. Planned Parenthood of Southeastern Pa. v. Casey , 505 U. S. 833, 953, 965 (1992) (Rehnquist, C. J., concurring in judgment in part and dissenting in part) (quoting Griswold v. Connecticut , 381 U. S. 479, 502 (1965) (Harlan, J., concurring in judgment)). By straying from the text of the Constitution, substantive due process exalts judges at the expense of the People from whom they derive their authority. Petitioners argue that by enshrining the traditional definition of marriage in their State Constitutions through voter-approved amendments, the States have put the issue “beyond the reach of the normal democratic process.” Brief for Petitioners in No. 14–562, p. 54. But the result petitioners seek is far less democratic. They ask nine judges on this Court to enshrine their definition of marriage in the Federal Constitution and thus put it beyond the reach of the normal democratic process for the entire Nation. That a “bare majority” of this Court, ante, at 25, is able to grant this wish, wiping out with a stroke of the keyboard the results of the political process in over 30 States, based on a provision that guarantees only “due process” is but further evidence of the danger of substantive due process.[ 1 ] II Even if the doctrine of substantive due process were somehow defensible—it is not—petitioners still would not have a claim. To invoke the protection of the Due Process Clause at all—whether under a theory of “substantive” or “procedural” due process—a party must first identify a deprivation of “life, liberty, or property.” The majority claims these state laws deprive petitioners of “liberty,” but the concept of “liberty” it conjures up bears no resemblance to any plausible meaning of that word as it is used in the Due Process Clauses. A 1 As used in the Due Process Clauses, “liberty” most likely refers to “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” 1 W. Blackstone, Commentaries on the Laws of England 130 (1769) (Blackstone). That definition is drawn from the historical roots of the Clauses and is consistent with our Constitution’s text and structure. Both of the Constitution’s Due Process Clauses reach back to Magna Carta. See Davidson v. New Orleans , 96 U. S. 97 –102 (1878). Chapter 39 of the original Magna Carta provided, “No free man shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers and by the law of the land.” Magna Carta, ch. 39, in A. Howard, Magna Carta: Text and Commentary 43 (1964). Although the 1215 version of Magna Carta was in effect for only a few weeks, this provision was later reissued in 1225 with modest changes to its wording as follows: “No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers or by the law of the land.” 1 E. Coke, The Second Part of the Institutes of the Laws of England 45 (1797). In his influential commentary on the provision many years later, Sir Edward Coke interpreted the words “by the law of the land” to mean the same thing as “by due proces of the common law.” Id., at 50. After Magna Carta became subject to renewed interest in the 17th century, see, e.g., ibid. , William Blackstone referred to this provision as protecting the “absolute rights of every Englishman.” 1 Blackstone 123. And he formulated those absolute rights as “the right of personal secu-rity,” which included the right to life; “the right of personal liberty”; and “the right of private property.” Id., at 125. He defined “the right of personal liberty” as “the power of loco-motion, of changing situation, or removing one’s person to whatsoever place one’s own inclination may direct; without imprisonment or restraint, unless by due course of law.” Id. , at 125, 130.[ 2 ] The Framers drew heavily upon Blackstone’s formulation, adopting provisions in early State Constitutions that replicated Magna Carta’s language, but were modified to refer specifically to “life, liberty, or property.”[ 3 ] State decisions interpreting these provisions between the founding and the ratification of the Fourteenth Amendment almost uniformly construed the word “liberty” to refer only to freedom from physical restraint. See Warren, The New “Liberty” Under the Fourteenth Amendment, 39 Harv. L. Rev. 431, 441–445 (1926). Even one case that has been identified as a possible exception to that view merely used broad language about liberty in the context of a habeas corpus proceeding—a proceeding classically associated with obtaining freedom from physical restraint. Cf. id., at 444–445. In enacting the Fifth Amendment’s Due Process Clause, the Framers similarly chose to employ the “life, liberty, or property” formulation, though they otherwise deviated substantially from the States’ use of Magna Carta’s language in the Clause. See Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property,” 4 Harv. L. Rev. 365, 382 (1890). When read in light of the history of that formulation, it is hard to see how the “liberty” protected by the Clause could be interpreted to include anything broader than freedom from physical restraint. That was the consistent usage of the time when “liberty” was paired with “life” and “property.” See id., at 375. And that usage avoids rendering superfluous those protections for “life” and “property.” If the Fifth Amendment uses “liberty” in this narrow sense, then the Fourteenth Amendment likely does as well. See Hurtado v. California , 110 U. S. 516 –535 (1884). Indeed, this Court has previously commented, “The conclusion is . . . irresistible, that when the same phrase was employed in the Fourteenth Amendment [as was used in the Fifth Amendment], it was used in the same sense and with no greater extent.” Ibid . And this Court’s earliest Fourteenth Amendment decisions appear to interpret the Clause as using “liberty” to mean freedom from physical restraint. In Munn v. Illinois , 94 U. S. 113 (1877) , for example, the Court recognized the relationship between the two Due Process Clauses and Magna Carta, see id., at 123–124, and implicitly rejected the dissent’s argument that “ ‘liberty’ ” encompassed “something more . . . than mere freedom from physical restraint or the bounds of a prison,” id., at 142 (Field, J., dissenting). That the Court appears to have lost its way in more recent years does not justify deviating from the original meaning of the Clauses. 2 Even assuming that the “liberty” in those Clauses encompasses something more than freedom from physical restraint, it would not include the types of rights claimed by the majority. In the American legal tradition, liberty has long been understood as individual freedom from governmental action, not as a right to a particular governmental entitlement. The founding-era understanding of liberty was heavily influenced by John Locke, whose writings “on natural rights and on the social and governmental contract” were cited “[i]n pamphlet after pamphlet” by American writers. B. Bailyn, The Ideological Origins of the American Revolution 27 (1967). Locke described men as existing in a state of nature, possessed of the “perfect freedom to order their actions and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.” J. Locke, Second Treatise of Civil Government, §4, p. 4 (J. Gough ed. 1947) (Locke). Because that state of nature left men insecure in their persons and property, they entered civil society, trading a portion of their natural liberty for an increase in their security. See id., §97, at 49. Upon consenting to that order, men obtained civil liberty, or the freedom “to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of any will or restraint of any law, but what that legislative shall enact according to the trust put in it.” Id., §22, at 13.[ 4 ] This philosophy permeated the 18th-century political scene in America. A 1756 editorial in the Boston Gazette, for example, declared that “Liberty in the State of Nature ” was the “inherent natural Right” “of each Man” “to make a free Use of his Reason and Understanding, and to chuse that Action which he thinks he can give the best Account of,” but that, “in Society, every Man parts with a Small Share of his natural Liberty, or lodges it in the publick Stock, that he may possess the Remainder without Controul.” Boston Gazette and Country Journal, No. 58, May 10, 1756, p. 1. Similar sentiments were expressed in public speeches, sermons, and letters of the time. See 1 C. Hyneman & D. Lutz, American Political Writing During the Founding Era 1760–1805, pp. 100, 308, 385 (1983). The founding-era idea of civil liberty as natural liberty constrained by human law necessarily involved only those freedoms that existed outside of government. See Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 907, 918–919 (1993). As one later commentator observed, “[L]iberty in the eighteenth century was thought of much more in relation to ‘negative liberty’; that is, freedom from , not freedom to , freedom from a number of social and political evils, including arbitrary government power.” J. Reid, The Concept of Liberty in the Age of the American Revolution 56 (1988). Or as one scholar put it in 1776, “[T]he common idea of liberty is merely negative, and is only the absence of restraint .” R. Hey, Observations on the Nature of Civil Liberty and the Principles of Government §13, p. 8 (1776) (Hey). When the colonists described laws that would infringe their liberties, they discussed laws that would prohibit individuals “from walking in the streets and highways on certain saints days, or from being abroad after a certain time in the evening, or . . . restrain [them] from working up and manufacturing materials of [their] own growth.” Downer, A Discourse at the Dedication of the Tree of Liberty, in 1 Hyneman, supra , at 101. Each of those examples involved freedoms that existed outside of government. B Whether we define “liberty” as locomotion or freedom from governmental action more broadly, petitioners have in no way been deprived of it. Petitioners cannot claim, under the most plausible definition of “liberty,” that they have been imprisoned or physically restrained by the States for participating in same-sex relationships. To the contrary, they have been able to cohabitate and raise their children in peace. They have been able to hold civil marriage ceremonies in States that recognize same-sex marriages and private religious ceremonies in all States. They have been able to travel freely around the country, making their homes where they please. Far from being incarcerated or physically restrained, petitioners have been left alone to order their lives as they see fit. Nor, under the broader definition, can they claim that the States have restricted their ability to go about their daily lives as they would be able to absent governmental restrictions. Petitioners do not ask this Court to order the States to stop restricting their ability to enter same-sex relationships, to engage in intimate behavior, to make vows to their partners in public ceremonies, to engage in religious wedding ceremonies, to hold themselves out as married, or to raise children. The States have imposed no such restrictions. Nor have the States prevented petitioners from approximating a number of incidents of marriage through private legal means, such as wills, trusts, and powers of attorney. Instead, the States have refused to grant them governmental entitlements. Petitioners claim that as a matter of “liberty,” they are entitled to access privileges and benefits that exist solely because of the government. They want, for example, to receive the State’s imprimatur on their marriages—on state issued marriage licenses, death certificates, or other official forms. And they want to receive various monetary benefits, including reduced inheritance taxes upon the death of a spouse, compensation if a spouse dies as a result of a work-related injury, or loss of consortium damages in tort suits. But receiving governmental recognition and benefits has nothing to do with any understanding of “liberty” that the Framers would have recognized. To the extent that the Framers would have recognized a natural right to marriage that fell within the broader definition of liberty, it would not have included a right to governmental recognition and benefits. Instead, it would have included a right to engage in the very same activities that petitioners have been left free to engage in—making vows, holding religious ceremonies celebrating those vows, raising children, and otherwise enjoying the society of one’s spouse—without governmental interference. At the founding, such conduct was understood to predate government, not to flow from it. As Locke had explained many years earlier, “The first society was between man and wife, which gave beginning to that between parents and children.” Locke §77, at 39; see also J. Wilson, Lectures on Law, in 2 Collected Works of James Wilson 1068 (K. Hall and M. Hall eds. 2007) (concluding “that to the institution of marriage the true origin of society must be traced”). Petitioners misunderstand the institution of marriage when they say that it would “mean little” absent governmental recognition. Brief for Petitioners in No. 14–556, p. 33. Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia , 388 U. S. 1 (1967) , for example, involved a couple who was criminally prosecuted for marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3.[ 5 ] They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3.[ 6 ] In a similar vein, Zablocki v. Redhail , 434 U. S. 374 (1978) , involved a man who was prohibited, on pain of criminal penalty, from “marry[ing] in Wisconsin or elsewhere” because of his outstanding child-support obligations, id., at 387; see id., at 377–378. And Turner v. Safley , 482 U. S. 78 (1987) , involved state inmates who were prohib-ited from entering marriages without the permission of the superintendent of the prison, permission that could not be granted absent compelling reasons, id., at 82. In none of those cases were individuals denied solely governmental recognition and benefits associated with marriage. In a concession to petitioners’ misconception of liberty, the majority characterizes petitioners’ suit as a quest to “find . . . liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.” Ante, at 2. But “liberty” is not lost, nor can it be found in the way petitioners seek. As a philosophical matter, liberty is only freedom from governmental action, not an entitlement to governmental benefits. And as a constitutional matter, it is likely even narrower than that, encompassing only freedom from physical restraint and imprisonment. The majority’s “better informed understanding of how constitutional imperatives define . . . liberty,” ante, at 19,—better informed, we must assume, than that of the people who ratified the Fourteenth Amendment—runs headlong into the reality that our Constitution is a “collection of ‘Thou shalt nots,’ ” Reid v. Covert , 354 U. S. 1, 9 (1957) (plurality opinion), not “Thou shalt provides.” III The majority’s inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty. A The majority apparently disregards the political process as a protection for liberty. Although men, in forming a civil society, “give up all the power necessary to the ends for which they unite into society, to the majority of the community,” Locke §99, at 49, they reserve the authority to exercise natural liberty within the bounds of laws established by that society, id., §22, at 13; see also Hey §§52, 54, at 30–32. To protect that liberty from arbitrary interference, they establish a process by which that society can adopt and enforce its laws. In our country, that process is primarily representative government at the state level, with the Federal Constitution serving as a backstop for that process. As a general matter, when the States act through their representative governments or by popular vote, the liberty of their residents is fully vindicated. This is no less true when some residents disagree with the result; indeed, it seems difficult to imagine any law on which all residents of a State would agree. See Locke §98, at 49 (suggesting that society would cease to function if it required unanimous consent to laws). What matters is that the process established by those who created the society has been honored. That process has been honored here. The definition of marriage has been the subject of heated debate in the States. Legislatures have repeatedly taken up the matter on behalf of the People, and 35 States have put the question to the People themselves. In 32 of those 35 States, the People have opted to retain the traditional definition of marriage. Brief for Respondents in No. 14–571, pp. 1a–7a. That petitioners disagree with the result of that process does not make it any less legitimate. Their civil liberty has been vindicated. B Aside from undermining the political processes that protect our liberty, the majority’s decision threatens the religious liberty our Nation has long sought to protect. The history of religious liberty in our country is familiar: Many of the earliest immigrants to America came seeking freedom to practice their religion without restraint. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422–1425 (1990). When they arrived, they created their own havens for religious practice. Ibid. Many of these havens were initially homogenous communities with established religions. Ibid. By the 1780’s, however, “America was in the wake of a great religious revival” marked by a move toward free exercise of religion. Id., at 1437. Every State save Connecticut adopted protections for religious freedom in their State Constitutions by 1789, id., at 1455, and, of course, the First Amendment enshrined protection for the free exercise of religion in the U. S. Constitution. But that protection was far from the last word on religious liberty in this country, as the Federal Government and the States have reaffirmed their commitment to religious liberty by codifying protections for religious practice. See, e.g., Religious Freedom Restoration Act of 1993, 107Stat. 1488, 42 U. S. C. §2000bb et seq .; Conn. Gen. Stat. §52–571b (2015). Numerous amici —even some not supporting the States—have cautioned the Court that its decision here will “have unavoidable and wide-ranging implications for religious liberty.” Brief for General Conference of Seventh-Day Adventists et al. as Amici Curiae 5. In our society, marriage is not simply a governmental institution; it is a religious institution as well. Id., at 7. Today’s decision might change the former, but it cannot change the latter. It appears all but inevitable that the two will come into conflict, particularly as individuals and churches are confronted with demands to participate in and endorse civil marriages between same-sex couples. The majority appears unmoved by that inevitability. It makes only a weak gesture toward religious liberty in a single paragraph, ante, at 27. And even that gesture indicates a misunderstanding of religious liberty in our Nation’s tradition. Religious liberty is about more than just the protection for “religious organizations and persons . . . as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.[ 7 ] Although our Constitution provides some protection against such governmental restrictions on religious practices, the People have long elected to afford broader protections than this Court’s constitutional precedents mandate. Had the majority allowed the definition of marriage to be left to the political process—as the Constitution requires—the People could have considered the religious liberty implications of deviating from the traditional definition as part of their deliberative process. Instead, the majority’s decision short-circuits that process, with potentially ruinous consequences for religious liberty. IV Perhaps recognizing that these cases do not actually involve liberty as it has been understood, the majority goes to great lengths to assert that its decision will advance the “dignity” of same-sex couples. Ante, at 3, 13, 26, 28.[ 8 ] The flaw in that reasoning, of course, is that the Constitution contains no “dignity” Clause, and even if it did, the government would be incapable of bestowing dignity. Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built. The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away. The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue to adhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them. *  *  * Our Constitution—like the Declaration of Independence before it—was predicated on a simple truth: One’s liberty, not to mention one’s dignity, was something to be shielded from—not provided by—the State. Today’s decision casts that truth aside. In its haste to reach a desired result, the majority misapplies a clause focused on “due process” to afford substantive rights, disregards the most plausible understanding of the “liberty” protected by that clause, and distorts the principles on which this Nation was founded. Its decision will have inestimable consequences for our Constitution and our society. I respectfully dissent. Notes 1 The majority states that the right it believes is “part of the liberty promised by the Fourteenth Amendment is derived, too, from that Amendment’s guarantee of the equal protection of the laws.” Ante, at 19. Despite the “synergy” it finds “between th[ese] two protections,” ante , at 20, the majority clearly uses equal protection only to shore up its substantive due process analysis, an analysis both based on an imaginary constitutional protection and revisionist view of our history and tradition. 2 The seeds of this articulation can also be found in Henry Care’s influential treatise, English Liberties. First published in America in 1721, it described the “three things, which the Law of England . . . principally regards and taketh Care of,” as “ Life , Liberty and Estate ,” and described habeas corpus as the means by which one could procure one’s “Liberty” from imprisonment. The Habeas Corpus Act, comment., in English Liberties, or the Free-born Subject’s Inheritance 185 (H. Care comp. 5th ed. 1721). Though he used the word “Liberties” by itself more broadly, see, e.g., id., at 7, 34, 56, 58, 60, he used “Liberty” in a narrow sense when placed alongside the words “Life” or “Estate,” see, e.g., id., at 185, 200. 3 Maryland, North Carolina, and South Carolina adopted the phrase “life, liberty, or property” in provisions otherwise tracking Magna Carta: “That no freeman ought to be taken, or imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the judgment of his peers, or by the law of the land.” Md. Const., Declaration of Rights, Art. XXI (1776), in 3 Federal and State Constitutions, Colonial Charters, and Other Organic Laws 1688 (F. Thorpe ed. 1909); see also S. C. Const., Art. XLI (1778), in 6 id., at 3257; N. C. Const., Declaration of Rights, Art. XII (1776), in 5 id., at 2788. Massachusetts and New Hampshire did the same, albeit with some alterations to Magna Carta’s framework: “[N]o subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land.” Mass. Const., pt. I, Art. XII (1780), in 3 id., at 1891; see also N. H. Const., pt. I, Art. XV (1784), in 4 id., at 2455. 4 Locke’s theories heavily influenced other prominent writers of the 17th and 18th centuries. Blackstone, for one, agreed that “natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature” and described civil liberty as that “which leaves the subject entire master of his own conduct,” except as “restrained by human laws.” 1 Blackstone 121–122. And in a “treatise routinely cited by the Founders,” Zivotofsky v. Kerry , ante, at 5 (Thomas, J., concurring in judgment in part and dissenting in part), Thomas Rutherforth wrote, “By liberty we mean the power, which a man has to act as he thinks fit, where no law restrains him; it may therefore be called a mans right over his own actions.” 1 T. Rutherforth, Institutes of Natural Law 146 (1754). Rutherforth explained that “[t]he only restraint, which a mans right over his own actions is originally under, is the obligation of governing himself by the law of nature, and the law of God,” and that “[w]hatever right those of our own species may have . . . to restrain [those actions] within certain bounds, beyond what the law of nature has prescribed, arises from some after-act of our own, from some consent either express or tacit, by which we have alienated our liberty, or transferred the right of directing our actions from ourselves to them.” Id., at 147–148. 5 The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between “ ‘freeborne English women’ ” and “ ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong slavery in the colony. Id., at 19–20 . Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white suprem-acy.” Pascoe, supra , at 27–28. 6 The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia , O.T. 1966, No. 395, pp. 12–16. 7 Concerns about threats to religious liberty in this context are not unfounded. During the hey-day of antimiscegenation laws in this country, for instance, Virginia imposed criminal penalties on ministers who performed marriage in violation of those laws, though their religions would have permitted them to perform such ceremonies. Va. Code Ann. §20–60 (1960). 8 The majority also suggests that marriage confers “nobility” on individuals. Ante, at 3. I am unsure what that means. People may choose to marry or not to marry. The decision to do so does not make one person more “noble” than another. And the suggestion that Americans who choose not to marry are inferior to those who decide to enter such relationships is specious. SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–556, 14-562, 14-571 and 14–574 _________________ JAMES OBERGEFELL, et al., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, et al.; VALERIA TANCO, et al., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, et al.; APRIL DeBOER, et al., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, et al.; AND GREGORY BOURKE, et al., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY on writs of certiorari to the united states court of appeals for the sixth circuit [June 26, 2015] Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting. Until the federal courts intervened, the American people were engaged in a debate about whether their States should recognize same-sex marriage.[ 1 ] The question in these cases, however, is not what States should do about same-sex marriage but whether the Constitution answers that question for them. It does not. The Constitution leaves that question to be decided by the people of each State. I The Constitution says nothing about a right to same-sex marriage, but the Court holds that the term “liberty” in the Due Process Clause of the Fourteenth Amendment encompasses this right. Our Nation was founded upon the principle that every person has the unalienable right to liberty, but liberty is a term of many meanings. For classical liberals, it may include economic rights now limited by government regulation. For social democrats, it may include the right to a variety of government benefits. For today’s majority, it has a distinctively postmodern meaning. To prevent five unelected Justices from imposing their personal vision of liberty upon the American people, the Court has held that “liberty” under the Due Process Clause should be understood to protect only those rights that are “ ‘deeply rooted in this Nation’s history and tradition.’ ” Washington v . Glucksberg , 521 U. S. 701 –721 (1997). And it is beyond dispute that the right to same-sex marriage is not among those rights. See United States v. Windsor , 570 U. S. ___, ___ (2013) (Alito, J., dissenting) (slip op., at 7). Indeed: “In this country, no State permitted same-sex marriage until the Massachusetts Supreme Judicial Court held in 2003 that limiting marriage to opposite-sex couples violated the State Constitution. See Goodridge v. Department of Public Health , 440 Mass. 309, 798 N. E. 2d 941. Nor is the right to same-sex marriage deeply rooted in the traditions of other nations. No country allowed same-sex couples to marry until the Netherlands did so in 2000. “What [those arguing in favor of a constitutional right to same sex marriage] seek, therefore, is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people, but from unelected judges. Faced with such a request, judges have cause for both caution and humility.” Id., at ___ (slip op., at 7–8) (footnote omitted). For today’s majority, it does not matter that the right to same-sex marriage lacks deep roots or even that it is contrary to long-established tradition. The Justices in the majority claim the authority to confer constitutional protection upon that right simply because they believe that it is fundamental. II Attempting to circumvent the problem presented by the newness of the right found in these cases, the majority claims that the issue is the right to equal treatment. Noting that marriage is a fundamental right, the majority argues that a State has no valid reason for denying that right to same-sex couples. This reasoning is dependent upon a particular understanding of the purpose of civil marriage. Although the Court expresses the point in loftier terms, its argument is that the fundamental purpose of marriage is to promote the well-being of those who choose to marry. Marriage provides emotional fulfillment and the promise of support in times of need. And by benefiting persons who choose to wed, marriage indirectly benefits society because persons who live in stable, fulfilling, and supportive relationships make better citizens. It is for these reasons, the argument goes, that States encourage and formalize marriage, confer special benefits on married persons, and also impose some special obligations. This understanding of the States’ reasons for recognizing marriage enables the majority to argue that same-sex marriage serves the States’ objectives in the same way as opposite-sex marriage. This understanding of marriage, which focuses almost entirely on the happiness of persons who choose to marry, is shared by many people today, but it is not the traditional one. For millennia, marriage was inextricably linked to the one thing that only an opposite-sex couple can do: procreate. Adherents to different schools of philosophy use different terms to explain why society should formalize marriage and attach special benefits and obligations to persons who marry. Here, the States defending their adherence to the traditional understanding of marriage have explained their position using the pragmatic vocabulary that characterizes most American political discourse. Their basic argument is that States formalize and promote marriage, unlike other fulfilling human relationships, in order to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples. If this traditional understanding of the purpose of marriage does not ring true to all ears today, that is probably because the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women.[ 2 ] This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay. It is far beyond the outer reaches of this Court’s authority to say that a State may not adhere to the understanding of marriage that has long prevailed, not just in this country and others with similar cultural roots, but also in a great variety of countries and cultures all around the globe. As I wrote in Windsor : “The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage—for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage—have had far-reaching consequences. But the process by which such consequences come about is complex, involving the interaction of numerous factors, and tends to occur over an extended period of time. “We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. There are those who think that allowing same-sex marriage will seriously undermine the institution of marriage. Others think that recognition of same-sex marriage will fortify a now-shaky institution. “At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be. And judges are certainly not equipped to make such an assessment. The Members of this Court have the authority and the responsibility to interpret and apply the Constitution. Thus, if the Constitution contained a provision guaranteeing the right to marry a person of the same sex, it would be our duty to enforce that right. But the Constitution simply does not speak to the issue of same-sex marriage. In our system of government, ultimate sovereignty rests with the people, and the people have the right to control their own destiny. Any change on a question so fundamental should be made by the people through their elected officials.” 570 U. S., at ___ (dissenting opinion) (slip op., at 8–10) (citations and footnotes omitted). III Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. E.g. , ante , at 11–13. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent. Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reassure those who oppose same-sex marriage that their rights of conscience will be protected. Ante , at 26–27. We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools. The system of federalism established by our Constitution provides a way for people with different beliefs to live together in a single nation. If the issue of same-sex marriage had been left to the people of the States, it is likely that some States would recognize same-sex marriage and others would not. It is also possible that some States would tie recognition to protection for conscience rights. The majority today makes that impossible. By imposing its own views on the entire country, the majority facilitates the marginalization of the many Americans who have traditional ideas. Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play. But if that sentiment prevails, the Nation will experience bitter and lasting wounds. Today’s decision will also have a fundamental effect on this Court and its ability to uphold the rule of law. If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate. Even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims. Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. A lesson that some will take from today’s decision is that preaching about the proper method of interpreting the Constitution or the virtues of judicial self-restraint and humility cannot compete with the temptation to achieve what is viewed as a noble end by any practicable means. I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture’s conception of constitutional interpretation. Most Americans—understandably—will cheer or lament today’s decision because of their views on the issue of same-sex marriage. But all Americans, whatever their thinking on that issue, should worry about what the majority’s claim of power portends. Notes 1 I use the phrase “recognize marriage” as shorthand for issuing marriage licenses and conferring those special benefits and obligations provided under state law for married persons. 2 See, e.g., Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics, D. Martin, B. Hamilton, M. Osterman, S. Curtin, & T. Matthews, Births: Final Data for 2013, 64 National Vital Statistics Reports, No. 1, p. 2 (Jan. 15, 2015), online at http://www.cdc.gov/nchs/data/nvsr/nvsr64/nvsr64_01.pdf (all Internet materials as visited June 24, 2015, and available in Clerk of Court’s case file); cf. Dept. of Health and Human Services, Centers for Disease Control and Prevention, National Center for Health Statistics (NCHS), S. Ventura, Changing Patterns of Nonmartial Childbearing in the United States, NCHS Data Brief, No. 18 (May 2009), online at http://www.cdc.gov/nchs/data/databrief/db18.pdf.

The Supreme Court ruled that same-sex couples have a constitutional right to marry and have their marriages recognized across the United States, striking down state-level bans on same-sex marriage. The Court's decision was based on the Fourteenth Amendment's guarantee of liberty and equality. This ruling overturned the previous decisions of the Sixth Circuit Court of Appeals, which had upheld state bans on same-sex marriage. The Court's majority opinion, written by Justice Kennedy, emphasized the liberty of persons to define and express their identity, including the choice of a marital partner. Dissenting opinions expressed concern about the Court's overreach and the potential for marginalization of traditional views on marriage.

Property Rights & Land Use

Cedar Point Nursery v. Hassid

https://supreme.justia.com/cases/federal/us/594/20-107/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 20–107 _________________ CEDAR POINT NURSERY, et al., PETITIONERS v. VICTORIA HASSID, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2021] Chief Justice Roberts delivered the opinion of the Court. A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Cal. Code Regs., tit. 8, §20900(e)(1)(C) (2020). Agricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year. The question presented is whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments. I The California Agricultural Labor Relations Act of 1975 gives agricultural employees a right to self-organization and makes it an unfair labor practice for employers to interfere with that right. Cal. Lab. Code Ann. §§1152, 1153(a) (West 2020). The state Agricultural Labor Relations Board has promulgated a regulation providing, in its current form, that the self-organization rights of employees include “the right of access by union organizers to the premises of an agricultural employer for the purpose of meeting and talking with employees and soliciting their support.” Cal. Code Regs., tit. 8, §20900(e). Under the regulation, a labor organization may “take access” to an agricultural employer’s property for up to four 30-day periods in one calendar year. §§20900(e)(1)(A), (B). In order to take access, a labor organization must file a written notice with the Board and serve a copy on the employer. §20900(e)(1)(B). Two organizers per work crew (plus one additional organizer for every 15 workers over 30 workers in a crew) may enter the employer’s property for up to one hour before work, one hour during the lunch break, and one hour after work. §§20900(e)(3)(A)–(B), (4)(A). Organizers may not engage in disruptive conduct, but are otherwise free to meet and talk with employees as they wish. §§20900(e)(3)(A), (4)(C). Interference with organizers’ right of access may constitute an unfair labor practice, §20900(e)(5)(C), which can result in sanctions against the employer, see, e.g. , Harry Carian Sales v. Agricultural Labor Relations Bd. , 39 Cal. 3d 209 , 231–232, 703 P.2d 27 , 42 (1985). Cedar Point Nursery is a strawberry grower in northern California. It employs over 400 seasonal workers and around 100 full-time workers, none of whom live on the property. According to the complaint, in October 2015, at five o’clock one morning, members of the United Farm Workers entered Cedar Point’s property without prior notice. The organizers moved to the nursery’s trim shed, where hundreds of workers were preparing strawberry plants. Calling through bullhorns, the organizers disturbed operations, causing some workers to join the organizers in a protest and others to leave the worksite altogether. Cedar Point filed a charge against the union for taking access without giving notice. The union responded with a charge of its own, alleging that Cedar Point had committed an unfair labor practice. Fowler Packing Company is a Fresno-based grower and shipper of table grapes and citrus. It has 1,800 to 2,500 employees in its field operations and around 500 in its packing facility. As with Cedar Point, none of Fowler’s workers live on the premises. In July 2015, organizers from the United Farm Workers attempted to take access to Fowler’s property, but the company blocked them from entering. The union filed an unfair labor practice charge against Fowler, which it later withdrew. Believing that the union would likely attempt to enter their property again in the near future, the growers filed suit in Federal District Court against several Board members in their official capacity. The growers argued that the access regulation effected an unconstitutional per se physical taking under the Fifth and Fourteenth Amendments by appropriating without compensation an easement for union organizers to enter their property. They requested declaratory and injunctive relief prohibiting the Board from enforcing the regulation against them. The District Court denied the growers’ motion for a preliminary injunction and granted the Board’s motion to dismiss. The court rejected the growers’ argument that the access regulation constituted a per se physical taking, reasoning that it did not “allow the public to access their property in a permanent and continuous manner for whatever reason.” Cedar Point Nursery v. Gould , 2016 WL 1559271, *5 (ED Cal., Apr. 18, 2016) (emphasis deleted). In the court’s view, the regulation was instead subject to evaluation under the multifactor balancing test of Penn Central Transportation Co. v. New York City , 438 U.S. 104 (1978), which the growers had made no attempt to satisfy. Cedar Point Nursery v. Gould , 2016 WL 3549408, *4 (ED Cal., June 29, 2016). A divided panel of the Court of Appeals for the Ninth Circuit affirmed. The court identified three categories of regulatory actions in takings jurisprudence: regulations that impose permanent physical invasions, regulations that deprive an owner of all economically beneficial use of his property, and the remainder of regulatory actions. Cedar Point Nursery v. Shiroma , 923 F.3d 524, 530–531 (2019). On the court’s understanding, while regulations in the first two categories constitute per se takings, those in the third must be evaluated under Penn Central . 923 F. 3d, at 531. The court agreed with the District Court that the access regulation did not fall into the first category because it did not “allow random members of the public to unpredictably traverse [the growers’] property 24 hours a day, 365 days a year.” Id. , at 532. And given that the growers did not contend that the regulation deprived them of all economically beneficial use of their property, per se treatment was inappropriate. Id. , at 531, 534. Judge Leavy dissented. He observed that this Court had never allowed labor organizers to enter an employer’s property for substantial periods of time when its employees lived off premises. Id. , at 536; see Lechmere, Inc. v. NLRB , 502 U.S. 527 , 540–541 (1992); NLRB v. Babcock & Wilcox Co. , 351 U.S. 105 , 113 (1956). As he saw it, the regulation constituted a physical occupation and therefore effected a per se taking. 923 F. 3d, at 538. The Ninth Circuit denied rehearing en banc. Judge Ikuta dissented, joined by seven other judges. She reasoned that the access regulation appropriated from the growers a traditional form of private property—an easement in gross—and transferred that property to union organizers. Cedar Point Nursery v. Shiroma , 956 F.3d 1162, 1168, 1171 (2020). The appropriation of such an easement, she concluded, constituted a per se physical taking under the precedents of this Court. Id. , at 1168. We granted certiorari. 592 U. S. ___ (2020). II A The Takings Clause of the Fifth Amendment, applicable to the States through the Fourteenth Amendment, provides: “[N]or shall private property be taken for public use, without just compensation.” The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, “[p]roperty must be secured, or liberty cannot exist.” Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851). This Court agrees, having noted that protection of property rights is “necessary to preserve freedom” and “empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them.” Murr v. Wisconsin , 582 U. S. ___, ___ (2017) (slip op., at 8). When the government physically acquires private property for a public use, the Takings Clause imposes a clear and categorical obligation to provide the owner with just compensation. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302 , 321 (2002). The Court’s physical takings jurisprudence is “as old as the Republic.” Id. , at 322. The government commits a physical taking when it uses its power of eminent domain to formally condemn property. See United States v. General Motors Corp. , 323 U.S. 373 , 374–375 (1945); United States ex rel. TVA v. Powelson , 319 U.S. 266 , 270–271 (1943). The same is true when the government physically takes possession of property without acquiring title to it. See United States v. Pewee Coal Co. , 341 U.S. 114 , 115–117 (1951) (plurality opinion). And the government likewise effects a physical taking when it occupies property—say, by recurring flooding as a result of building a dam. See United States v. Cress , 243 U.S. 316 , 327–328 (1917). These sorts of physical appropriations constitute the “clearest sort of taking,” Palazzolo v. Rhode Island , 533 U.S. 606 , 617 (2001), and we assess them using a simple, per se rule: The government must pay for what it takes. See Tahoe-Sierra , 535 U. S., at 322. When the government, rather than appropriating private property for itself or a third party, instead imposes regulations that restrict an owner’s ability to use his own property, a different standard applies. Id. , at 321–322. Our jurisprudence governing such use restrictions has developed more recently. Before the 20th century, the Takings Clause was understood to be limited to physical appropriations of property. See Horne v. Department of Agriculture , 576 U.S. 351, 360 (2015); Legal Tender Cases , 12 Wall. 457, 551 (1871). In Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 (1922), however, the Court established the proposition that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Id. , at 415. This framework now applies to use restrictions as varied as zoning ordinances, Village of Euclid v. Ambler Realty Co. , 272 U.S. 365 , 387–388 (1926), orders barring the mining of gold, United States v. Central Eureka Mining Co. , 357 U.S. 155 , 168 (1958), and regulations prohibiting the sale of eagle feathers, Andrus v. Allard , 444 U.S. 51 , 65–66 (1979). To determine whether a use restriction effects a taking, this Court has generally applied the flexible test developed in Penn Central , balancing factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. 438 U. S., at 124. Our cases have often described use restrictions that go “too far” as “regulatory takings.” See, e.g. , Horne , 576 U. S., at 360; Yee v. Escondido , 503 U.S. 519 , 527 (1992). But that label can mislead. Government action that physically appropriates property is no less a physical taking because it arises from a regulation. That explains why we held that an administrative reserve requirement compelling raisin growers to physically set aside a percentage of their crop for the government constituted a physical rather than a regulatory taking. Horne , 576 U. S., at 361. The essential question is not, as the Ninth Circuit seemed to think, whether the government action at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous decree). It is whether the government has physically taken property for itself or someone else—by whatever means—or has instead restricted a property owner’s ability to use his own property. See Tahoe-Sierra , 535 U. S., at 321–323. Whenever a regulation results in a physical appropriation of property, a per se taking has occurred, and Penn Central has no place. B The access regulation appropriates a right to invade the growers’ property and therefore constitutes a per se physical taking. The regulation grants union organizers a right to physically enter and occupy the growers’ land for three hours per day, 120 days per year. Rather than restraining the growers’ use of their own property, the regulation appropriates for the enjoyment of third parties the owners’ right to exclude. The right to exclude is “one of the most treasured” rights of property ownership. Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419 , 435 (1982). According to Blackstone, the very idea of property entails “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe.” 2 W. Blackstone, Commentaries on the Laws of England 2 (1766). In less exuberant terms, we have stated that the right to exclude is “universally held to be a fundamental element of the property right,” and is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Kaiser Aetna v. United States , 444 U.S. 164 , 176, 179–180 (1979); see Dolan v. City of Tigard , 512 U.S. 374 , 384, 393 (1994); Nollan v. California Coastal Comm’n , 483 U.S. 825 , 831 (1987); see also Merrill, Property and the Right to Exclude, 77 Neb. L. Rev. 730 (1998) (calling the right to exclude the “ sine qua non ” of property). Given the central importance to property ownership of the right to exclude, it comes as little surprise that the Court has long treated government-authorized physical invasions as takings requiring just compensation. The Court has often described the property interest taken as a servitude or an easement. For example, in United States v. Causby we held that the invasion of private property by overflights effected a taking. 328 U.S. 256 (1946). The government frequently flew military aircraft low over the Causby farm, grazing the treetops and terrorizing the poultry. Id. , at 259. The Court observed that ownership of the land extended to airspace that low, and that “invasions of it are in the same category as invasions of the surface.” Id. , at 265. Because the damages suffered by the Causbys “were the product of a direct invasion of [their] domain,” we held that “a servitude has been imposed upon the land.” Id. , at 265–266, 267; see also Portsmouth Harbor Land & Hotel Co. v. United States , 260 U.S. 327 , 330 (1922) (government assertion of a right to fire coastal defense guns across private property would constitute a taking). We similarly held that the appropriation of an easement effected a taking in Kaiser Aetna v. United States . A real-estate developer dredged a pond, converted it into a marina, and connected it to a nearby bay and the ocean. 444 U. S., at 167. The government asserted that the developer could not exclude the public from the marina because the pond had become a navigable water. Id. , at 168. We held that the right to exclude “falls within [the] category of interests that the Government cannot take without compensation.” Id. , at 180. After noting that “the imposition of the navigational servitude” would “result in an actual physical invasion of the privately owned marina” by members of the public, we cited Causby and Portsmouth for the proposition that “even if the Government physically invades only an easement in property, it must nonetheless pay just compensation.” 444 U. S., at 180. In Loretto v. Teleprompter Manhattan CATV Corp. , we made clear that a permanent physical occupation constitutes a per se taking regardless whether it results in only a trivial economic loss. New York adopted a law requiring landlords to allow cable companies to install equipment on their properties. 458 U. S., at 423. Loretto alleged that the installation of a ½-inch diameter cable and two 1½-cubic-foot boxes on her roof caused a taking. Id. , at 424. We agreed, stating that where government action results in a “permanent physical occupation of property, our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public benefit or has only minimal economic impact on the owner.” Id. , at 434–435. We reiterated that the appropriation of an easement constitutes a physical taking in Nollan v. California Coastal Commission . The Nollans sought a permit to build a larger home on their beachfront lot. 483 U. S., at 828. The California Coastal Commission issued the permit subject to the condition that the Nollans grant the public an easement to pass through their property along the beach. Ibid. As a starting point to our analysis, we explained that, had the Commission simply required the Nollans to grant the public an easement across their property, “we have no doubt there would have been a taking.” Id. , at 831; see also Dolan , 512 U. S., at 384 (holding that compelled dedication of an easement for public use would constitute a taking). More recently, in Horne v. Department of Agriculture , we observed that “people still do not expect their property, real or personal, to be actually occupied or taken away.” 576 U. S., at 361. The physical appropriation by the government of the raisins in that case was a per se taking, even if a regulatory limit with the same economic impact would not have been. Id. , at 362; see supra , at 6. “The Constitution,” we explained, “is concerned with means as well as ends.” 576 U. S., at 362. The upshot of this line of precedent is that government-authorized invasions of property—whether by plane, boat, cable, or beachcomber—are physical takings requiring just compensation. As in those cases, the government here has appropriated a right of access to the growers’ property, allowing union organizers to traverse it at will for three hours a day, 120 days a year. The regulation appropriates a right to physically invade the growers’ property—to literally “take access,” as the regulation provides. Cal. Code Regs., tit. 8, §20900(e)(1)(C). It is therefore a per se physical taking under our precedents. Accordingly, the growers’ complaint states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments. C The Ninth Circuit saw matters differently, as do the Board and the dissent. In the decision below, the Ninth Circuit took the view that the access regulation did not qualify as a per se taking because, although it grants a right to physically invade the growers’ property, it does not allow for permanent and continuous access “24 hours a day, 365 days a year.” 923 F. 3d, at 532 (citing Nollan , 483 U. S., at 832). The dissent likewise concludes that the regulation cannot amount to a per se taking because it allows “access short of 365 days a year.” Post , at 11 (opinion of Breyer, J.). That position is insupportable as a matter of precedent and common sense. There is no reason the law should analyze an abrogation of the right to exclude in one manner if it extends for 365 days, but in an entirely different manner if it lasts for 364. To begin with, we have held that a physical appropriation is a taking whether it is permanent or temporary. Our cases establish that “compensation is mandated when a leasehold is taken and the government occupies property for its own purposes, even though that use is temporary.” Tahoe-Sierra , 535 U. S., at 322 (citing General Motors Corp. , 323 U.S. 373 ; United States v. Petty Motor Co. , 327 U.S. 372 (1946)). The duration of an appropriation—just like the size of an appropriation, see Loretto , 458 U. S., at 436–437—bears only on the amount of compensation. See United States v. Dow , 357 U.S. 17 , 26 (1958). For example, after finding a taking by physical invasion, the Court in Causby remanded the case to the lower court to determine “whether the easement taken was temporary or permanent,” in order to fix the compensation due. 328 U. S., at 267–268. To be sure, Loretto emphasized the heightened concerns associated with “[t]he permanence and absolute exclusivity of a physical occupation” in contrast to “temporary limitations on the right to exclude,” and stated that “[n]ot every physical invasion is a taking.” 458 U. S., at 435, n. 12; see also id. , at 432–435. The latter point is well taken, as we will explain. But Nollan clarified that appropriation of a right to physically invade property may constitute a taking “even though no particular individual is permitted to station himself permanently upon the premises.” 483 U. S., at 832. Next, we have recognized that physical invasions constitute takings even if they are intermittent as opposed to continuous. Causby held that overflights of private property effected a taking, even though they occurred on only 4% of takeoffs and 7% of landings at the nearby airport. 328 U. S., at 259. And while Nollan happened to involve a legally continuous right of access, we have no doubt that the Court would have reached the same conclusion if the easement demanded by the Commission had lasted for only 364 days per year. After all, the easement was hardly continuous as a practical matter. As Justice Brennan observed in dissent, given the shifting tides, “public passage for a portion of the year would either be impossible or would not occur on [the Nollans’] property.” 483 U. S., at 854. What matters is not that the easement notionally ran round the clock, but that the government had taken a right to physically invade the Nollans’ land. And when the government physically takes an interest in property, it must pay for the right to do so. See Horne , 576 U. S., at 357–358; Tahoe-Sierra , 535 U. S., at 322. The fact that a right to take access is exercised only from time to time does not make it any less a physical taking. Even the Board declines to defend the Ninth Circuit’s absolutist stance. It prudently concedes that “a requirement that landowners grant an easement otherwise identical to the one in Nollan but limited to daylight hours, might very well qualify as ‘a taking without regard to other factors that a court might ordinarily examine.’ ” Brief for Respondents 25–26 (quoting Loretto , 458 U. S., at 432; citation and some internal quotation marks omitted). But the access regulation, it contends, nevertheless fails to qualify as a per se taking because it “authorizes only limited and intermittent access for a narrow purpose.” Brief for Respondents 26. That position is little more defensible than the Ninth Circuit’s. The fact that the regulation grants access only to union organizers and only for a limited time does not transform it from a physical taking into a use restriction. Saying that appropriation of a three hour per day, 120 day per year right to invade the growers’ premises “does not constitute a taking of a property interest but rather . . . a mere restriction on its use, is to use words in a manner that deprives them of all their ordinary meaning.” Nollan , 483 U. S., at 831 (citation and internal quotation marks omitted). The Board also takes issue with the growers’ premise that the access regulation appropriates an easement. In the Board’s estimation, the regulation does not exact a true easement in gross under California law because the access right may not be transferred, does not burden any particular parcel of property, and may not be recorded. This, the Board says, reinforces its conclusion that the regulation does not take a constitutionally protected property interest from the growers. The dissent agrees, suggesting that the access right cannot effect a per se taking because it does not require the growers to grant the union organizers an easement as defined by state property law. See post , at 4, 11. These arguments misconstrue our physical takings doctrine. As a general matter, it is true that the property rights protected by the Takings Clause are creatures of state law. See Phillips v. Washington Legal Foundation , 524 U.S. 156 , 164 (1998); Lucas v. South Carolina Coastal Council , 505 U.S. 1003 , 1030 (1992). But no one disputes that, without the access regulation, the growers would have had the right under California law to exclude union organizers from their property. See Allred v. Harris , 14 Cal. App. 4th 1386 , 1390, 18 Cal. Rptr. 2d 530 , 533 (1993). And no one disputes that the access regulation took that right from them. The Board cannot absolve itself of takings liability by appropriating the growers’ right to exclude in a form that is a slight mismatch from state easement law. Under the Constitution, property rights “cannot be so easily manipulated.” Horne , 576 U. S., at 365 (internal quotation marks omitted); see also Webb’s Fabulous Pharmacies, Inc. v. Beckwith , 449 U.S. 155 , 164 (1980) (“a State, by ipse dixit , may not transform private property into public property without compensation”). Our decisions consistently reflect this intuitive approach. We have recognized that the government can commit a physical taking either by appropriating property through a condemnation proceeding or by simply “enter[ing] into physical possession of property without authority of a court order.” Dow , 357 U. S., at 21; see also United States v. Clarke , 445 U.S. 253 , 256–257, and n. 3 (1980). In the latter situation, the government’s intrusion does not vest it with a property interest recognized by state law, such as a fee simple or a leasehold. See Dow , 357 U. S., at 21. Yet we recognize a physical taking all the same. See id. , at 22. Any other result would allow the government to appropriate private property without just compensation so long as it avoids formal condemnation. We have never tolerated that outcome. See Pewee Coal Co. , 341 U. S., at 116–117. For much the same reason, in Portsmouth , Causby , and Loretto we never paused to consider whether the physical invasions at issue vested the intruders with formal easements according to the nuances of state property law (nor do we see how they could have). Instead, we followed our traditional rule: Because the government appropriated a right to invade, compensation was due. That same test governs here. The Board and the dissent further contend that our decision in PruneYard Shopping Center v. Robins , 447 U.S. 74 (1980), establishes that the access regulation cannot qualify as a per se taking. There the California Supreme Court held that the State Constitution protected the right to engage in leafleting at the PruneYard, a privately owned shopping center. Id. , at 78. The shopping center argued that the decision had taken without just compensation its right to exclude. Id. , at 82. Applying the Penn Central factors, we held that no compensable taking had occurred. 447 U. S., at 83; cf. Heart of Atlanta Motel, Inc. v. United States , 379 U.S. 241 , 261 (1964) (rejecting claim that provisions of the Civil Rights Act of 1964 prohibiting racial discrimination in public accommodations effected a taking). The Board and the dissent argue that PruneYard shows that limited rights of access to private property should be evaluated as regulatory rather than per se takings. See post , at 8–9. We disagree. Unlike the growers’ properties, the PruneYard was open to the public, welcoming some 25,000 patrons a day. 447 U. S., at 77–78. Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public. See Horne , 576 U. S., at 364 (distinguishing PruneYard as involving “an already publicly accessible” business); Nollan , 483 U. S., at 832, n. 1 (same). The Board also relies on our decision in NLRB v. Babcock & Wilcox Co . But that reliance is misplaced. In Babcock , the National Labor Relations Board found that several employers had committed unfair labor practices under the National Labor Relations Act by preventing union organizers from distributing literature on company property. 351 U. S., at 109. We held that the statute did not require employers to allow organizers onto their property, at least outside the unusual circumstance where their employees were otherwise “beyond the reach of reasonable union efforts to communicate with them.” Id. , at 113; see also Lechmere , 502 U. S., at 540 (employees residing off company property are presumptively not beyond the reach of the union’s message). The Board contends that Babcock ’s approach of balancing property and organizational rights should guide our analysis here. See Loretto , 458 U. S., at 434, n. 11 (discussing Babcock principle). But Babcock did not involve a takings claim. Whatever specific takings issues may be presented by the highly contingent access right we recognized under the NLRA, California’s access regulation effects a per se physical taking under our precedents. See Tahoe-Sierra , 535 U. S., at 322. D In its thoughtful opinion, the dissent advances a distinctive view of property rights. The dissent encourages readers to consider the issue “through the lens of ordinary English,” and contends that, so viewed, the “regulation does not appropriate anything.” Post , at 3, 5. Rather, the access regulation merely “ regulates . . . the owners’ right to exclude,” so it must be assessed “under Penn Central ’s fact-intensive test.” Post , at 2, 5. “A right to enter my woods only on certain occasions,” the dissent elaborates, “is a taking only if the regulation allowing it goes ‘too far.’ ” Post , at 11. The dissent contends that our decisions in Causby , Portsmouth , and Kaiser Aetna applied just such a flexible approach, under which the Court “balanced several factors” to determine whether the physical invasions at issue effected a taking. Post , at 9–11. According to the dissent, this kind of latitude toward temporary invasions is a practical necessity for governing in our complex modern world. See post , at 11–12. With respect, our own understanding of the role of property rights in our constitutional order is markedly different. In “ordinary English” “appropriation” means “ taking as one’s own,” 1 Oxford English Dictionary 587 (2d ed. 1989) (emphasis added), and the regulation expressly grants to labor organizers the “right to take access,” Cal. Code Regs., tit. 8, §20900(e)(1)(C) (emphasis added). We cannot agree that the right to exclude is an empty formality, subject to modification at the government’s pleasure. On the contrary, it is a “fundamental element of the property right,” Kaiser Aetna , 444 U. S., at 179–180, that cannot be balanced away. Our cases establish that appropriations of a right to invade are per se physical takings, not use restrictions subject to Penn Central : “[W]hen [government] planes use private airspace to approach a government airport, [the government] is required to pay for that share no matter how small.” Tahoe-Sierra , 535 U. S., at 322 (citing Causby ). And while Kaiser Aetna may have referred to the test from Penn Central , see 444 U. S., at 174–175, the Court concluded categorically that the government must pay just compensation for physical invasions, see id. , at 180 (citing Causby and Portsmouth ). With regard to the complexities of modern society, we think they only reinforce the importance of safeguarding the basic property rights that help preserve individual liberty, as the Founders explained. See supra , at 5. In the end, the dissent’s permissive approach to property rights hearkens back to views expressed (in dissent) for decades. See, e.g. , Nollan , 483 U. S., at 864 (Brennan, J., dissenting) (“[The Court’s] reasoning is hardly suited to the complex reality of natural resource protection in the 20th century.”); Loretto , 458 U. S., at 455 (Blackmun, J., dissenting) (“[T]oday’s decision . . . represents an archaic judicial response to a modern social problem.”); Causby , 328 U. S., at 275 (Black, J., dissenting) (“Today’s opinion is, I fear, an opening wedge for an unwarranted judicial interference with the power of Congress to develop solutions for new and vital national problems.”). As for today’s considered dissent, it concludes with “Better the devil we know . . . ,” post , at 16, but its objections, to borrow from then-Justice Rehnquist’s invocation of Wordsworth, “bear[ ] the sound of ‘Old, unhappy, far-off things, and battles long ago,’ ” Kaiser Aetna , 444 U. S., at 177. III The Board, seconded by the dissent, warns that treating the access regulation as a per se physical taking will endanger a host of state and federal government activities involving entry onto private property. See post , at 11–14. That fear is unfounded. First , our holding does nothing to efface the distinction between trespass and takings. Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right. This basic distinction is firmly grounded in our precedent. See Portsmouth , 260 U. S., at 329–330 (“[W]hile a single act may not be enough, a continuance of them in sufficient number and for a sufficient time may prove [the intent to take property]. Every successive trespass adds to the force of the evidence.”); 1 P. Nichols, The Law of Eminent Domain §112, p. 311 (1917) (“[A] mere occasional trespass would not constitute a taking.”). And lower courts have had little trouble applying it. See, e.g. , Hendler v. United States , 952 F.2d 1364, 1377 (CA Fed. 1991) (identifying a “truckdriver parking on someone’s vacant land to eat lunch” as an example of a mere trespass). The distinction between trespass and takings accounts for our treatment of temporary government-induced flooding in Arkansas Game and Fish Commission v. United States , 568 U.S. 23 (2012). There we held, “simply and only,” that such flooding “gains no automatic exemption from Takings Clause inspection.” Id. , at 38. Because this type of flooding can present complex questions of causation, we instructed lower courts evaluating takings claims based on temporary flooding to consider a range of factors including the duration of the invasion, the degree to which it was intended or foreseeable, and the character of the land at issue. Id. , at 38–39. Applying those factors on remand, the Federal Circuit concluded that the government had effected a taking in the form of a temporary flowage easement. Arkansas Game and Fish Comm’n v. United States , 736 F.3d 1364, 1372 (2013). Our approach in Arkansas Game and Fish Commission reflects nothing more than an application of the traditional trespass-versus-takings distinction to the unique considerations that accompany temporary flooding. Second , many government-authorized physical invasions will not amount to takings because they are consistent with longstanding background restrictions on property rights. As we explained in Lucas v. South Carolina Coastal Council , the government does not take a property interest when it merely asserts a “pre-existing limitation upon the land owner’s title.” 505 U. S., at 1028–1029. For example, the government owes a landowner no compensation for requiring him to abate a nuisance on his property, because he never had a right to engage in the nuisance in the first place. See id. , at 1029–1030. These background limitations also encompass traditional common law privileges to access private property. One such privilege allowed individuals to enter property in the event of public or private necessity. See Restatement (Second) of Torts §196 (1964) (entry to avert an imminent public disaster); §197 (entry to avert serious harm to a person, land, or chattels); cf. Lucas , 505 U. S., at 1029, n. 16. The common law also recognized a privilege to enter property to effect an arrest or enforce the criminal law under certain circumstances. Restatement (Second) of Torts §§204–205. Because a property owner traditionally had no right to exclude an official engaged in a reasonable search, see, e.g. , Sandford v. Nichols , 13 Mass. 286, 288 (1816), government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners. See generally Camara v. Municipal Court of City and County of San Francisco , 387 U.S. 523 , 538 (1967). Third , the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking. In Nollan , we held that “a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking.” 483 U. S., at 836. The inquiry, we later explained, is whether the permit condition bears an “essential nexus” and “rough proportionality” to the impact of the proposed use of the property. Dolan , 512 U. S., at 386, 391; see also Koontz v. St. Johns River Water Management Dist. , 570 U.S. 595 , 599 (2013). Under this framework, government health and safety inspection regimes will generally not constitute takings. See, e.g. , Ruckelshaus v. Monsanto Co. , 467 U.S. 986 , 1007 (1984). When the government conditions the grant of a benefit such as a permit, license, or registration on allowing access for reasonable health and safety inspections, both the nexus and rough proportionality requirements of the constitutional conditions framework should not be difficult to satisfy. See, e.g. , 7 U. S. C. §136g(a)(1)(A) (pesticide inspections); 16 U. S. C. §823b(a) (hydroelectric project investigations); 21 U. S. C. §374(a)(1) (pharmaceutical inspections); 42 U. S. C. §2201( o ) (nuclear material inspections). None of these considerations undermine our determination that the access regulation here gives rise to a per se physical taking. Unlike a mere trespass, the regulation grants a formal entitlement to physically invade the growers’ land. Unlike a law enforcement search, no traditional background principle of property law requires the growers to admit union organizers onto their premises. And unlike standard health and safety inspections, the access regulation is not germane to any benefit provided to agricultural employers or any risk posed to the public. See Horne , 576 U. S., at 366 (“basic and familiar uses of property” are not a special benefit that “the Government may hold hostage, to be ransomed by the waiver of constitutional protection”). The access regulation amounts to simple appropriation of private property. *  *  * The access regulation grants labor organizations a right to invade the growers’ property. It therefore constitutes a per se physical taking. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. SUPREME COURT OF THE UNITED STATES _________________ No. 20–107 _________________ CEDAR POINT NURSERY, et al., PETITIONERS v. VICTORIA HASSID, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2021] Justice Kavanaugh, concurring. I join the Court’s opinion, which carefully adheres to constitutional text, history, and precedent. I write separately to explain that, in my view, the Court’s precedent in NLRB v. Babcock & Wilcox Co. , 351 U.S. 105 (1956), also strongly supports today’s decision. In Babcock , the National Labor Relations Board argued that the National Labor Relations Act afforded union organizers a right to enter company property to communicate with employees. Several employers responded that the Board’s reading of the Act would infringe their Fifth Amendment property rights. The employers contended that Congress, “even if it could constitutionally do so, has at no time shown any intention of destroying property rights secured by the Fifth Amendment , in protecting employees’ rights of collective bargaining under the Act. Until Congress should evidence such intention by specific legislative language, our courts should not construe the Act on such dangerous constitutional grounds.” Brief for Respondent in NLRB v. Babcock & Wilcox Co. , O. T. 1955, No. 250, pp. 18–19. This Court agreed with the employers’ argument that the Act should be interpreted to avoid unconstitutionality. The Court reasoned that “the National Government” via the Constitution “preserves property rights,” including “the right to exclude from property.” Babcock , 351 U. S., at 112. Against the backdrop of the Constitution’s strong protection of property rights, the Court interpreted the Act to afford access to union organizers only when “needed,” ibid. —that is, when the employees live on company property and union organizers have no other reasonable means of communicating with the employees, id., at 113. See also Lechmere , Inc. v. NLRB , 502 U.S. 527 , 540–541 (1992). As I read it, Babcock recognized that employers have a basic Fifth Amendment right to exclude from their private property, subject to a “necessity” exception similar to that noted by the Court today. Ante , at 19. Babcock strongly supports the growers’ position in today’s case because the California union access regulation intrudes on the growers’ property rights far more than Babcock allows. When this same California union access regulation was challenged on constitutional grounds before the California Supreme Court in 1976, that court upheld the regulation by a 4-to-3 vote. Agricultural Labor Rel. Bd. v. Superior Ct. of Tulare Cty. , 16 Cal. 3d 392 , 546 P.2d 687. Justice William Clark wrote the dissent. Justice Clark stressed that “property rights are fundamental.” Id. , at 429, n. 4, 546 P. 2d, at 712, n. 4. And he concluded that the California union access regulation “violates the rule” of Babcock and thus “violates the constitutional provisions protecting private property.” 16 Cal. 3d, at 431, 546 P. 2d, at 713. In my view, Justice Clark had it exactly right. With those comments, I join the Court’s opinion in full. SUPREME COURT OF THE UNITED STATES _________________ No. 20–107 _________________ CEDAR POINT NURSERY, et al., PETITIONERS v. VICTORIA HASSID, et al. on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2021] Justice Breyer, with whom Justice Sotomayor and Justice Kagan join, dissenting. A California regulation provides that representatives of a labor organization may enter an agricultural employer’s property for purposes of union organizing. They may do so during four months of the year, one hour before the start of work, one hour during an employee lunch break, and one hour after work. The question before us is how to characterize this regulation for purposes of the Constitution’s Takings Clause. Does the regulation physically appropriate the employers’ property? If so, there is no need to look further; the Government must pay the employers “just compensation.” U. S. Const., Amdt. 5; see Arkansas Game and Fish Comm’n v. United States , 568 U.S. 23 , 31 (2012) (“ ‘[W]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner’ ”). Or does the regulation simply regulate the employers’ property rights? If so, then there is every need to look further; the government need pay the employers “just compensation” only if the regulation “goes too far.” Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 , 415 (1922) (Holmes, J., for the Court); see also Penn Central Transp. Co. v. New York City , 438 U.S. 104 , 124 (1978) (determining whether a regulation is a taking by examining the regulation’s “economic impact,” the extent of interference with “investment-backed expectations,” and the “character of the governmental action”); Arkansas Game and Fish Comm’n , 568 U. S., at 38–39 (listing factors relevant to the character of the regulation). The Court holds that the provision’s “access to organizers” requirement amounts to a physical appropriation of property. In its view, virtually every government-authorized invasion is an “appropriation.” But this regulation does not “appropriate” anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.” See, e.g., Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419 , 434 (1982). In my view, the majority’s conclusion threatens to make many ordinary forms of regulation unusually complex or impractical. And though the majority attempts to create exceptions to narrow its rule, see ante , at 17–20, the law’s need for feasibility suggests that the majority’s framework is wrong. With respect, I dissent from the majority’s conclusion that the regulation is a per se taking. I “In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.” Arkansas Game and Fish Comm’n , 568 U. S., at 31; see also Kaiser Aetna v. United States , 444 U.S. 164 , 175 (1979) (“[T]his Court has generally ‘been unable to develop any “set formula” for determining when “justice and fairness” require that economic injuries caused by public action be compensated by the government’ ”). Instead, most government action affecting property rights is analyzed case by case under Penn Central ’s fact-intensive test. Petitioners do not argue that the provision at issue is a “regulatory taking” under that test. Instead, the question before us is whether the access regulation falls within one of two narrow categories of government conduct that are per se takings. The first is when “ ‘the government directly appropriates private property for its own use.’ ” Horne v. Department of Agriculture , 576 U.S. 351, 357 (2015). The second is when the government causes a permanent physical occupation of private property. See Lingle v. Chevron U. S. A. Inc. , 544 U.S. 528 , 538 (2005). It does not. A Initially it may help to look at the legal problem—a problem of characterization—through the lens of ordinary English. The word “regulation” rather than “appropriation” fits this provision in both label and substance. Cf. ante , at 6. It is contained in Title 8 of the California Code of Regulations. It was adopted by a state regulatory board, namely, the California Agricultural Labor Relations Board, in 1975. It is embedded in a set of related detailed regulations that describe and limit the access at issue. In addition to the hours of access just mentioned, it provides that union representatives can enter the property only “for the purpose of meeting and talking with employees and soliciting their support”; they have access only to “areas in which employees congregate before and after working” or “at such location or locations as the employees eat their lunch”; and they cannot engage in “conduct disruptive of the employer’s property or agricultural operations, including injury to crops or machinery or interference with the process of boarding buses.” §§20900(e), (e)(3), (e)(4)(C) (2021). From the employers’ perspective, it restricts when and where they can exclude others from their property. At the same time, the provision only awkwardly fits the terms “physical taking” and “physical appropriation.” The “access” that it grants union organizers does not amount to any traditional property interest in land. It does not, for example, take from the employers, or provide to the organizers, any freehold estate ( e.g. , a fee simple, fee tail, or life estate); any concurrent estate ( e.g. , a joint tenancy, tenancy in common, or tenancy by the entirety); or any leasehold estate ( e.g. , a term of years, periodic tenancy, or tenancy at will). See J. Dukeminier, J. Krier, G. Alexander, M. Schill, & L. Strahilevitz, Property 215–216, 222–224, 226, 343–345, 443–445 (8th ed. 2014). Nor (as all now agree) does it provide the organizers with a formal easement or access resembling an easement, as the employers once argued, since it does not burden any particular parcel of property. See, e.g., Balestra v. Button , 54 Cal. App. 2d 192 , 197 (1942) (the burden of an easement in gross is appurtenant to “the real property of another”); Restatement (Third) of Property: Servitudes §1.2(3) (1998) (“The burden of an easement or profit is always appurtenant”); see also ante , at 13 (acknowledging a “slight mismatch from state easement law”). Compare Pet. for Cert. i (asking the Court to address “whether the uncompensated appropriation of an easement that is limited in time effects a per se physical taking under the Fifth Amendment”), with Reply Brief 8 (“[T]he access required here does not bear all the hallmarks of an easement”). The majority concludes that the regulation nonetheless amounts to a physical taking of property because, the majority says, it “appropriates” a “right to invade” or a “right to exclude” others. See ante , at 7, 12, 14, 15, 16, 20 (right to invade); ante , at 7, 8, 10, 13, 16 (right to exclude). It thereby likens this case to cases in which we have held that appropriation of property rights amounts to a physical per se taking. See ante, at 5–6 (citing United States v. Pewee Coal Co. , 341 U.S. 114 , 115 (1951) (plurality opinion) (seizure and operation of a coal mine by the United States); United States v. General Motors Corp. , 323 U.S. 373 , 375 (1945) (condemnation of a warehouse building by the United States); Horne , 576 U. S., at 361 (transfer of “[a]ctual raisins,” and title to the raisins, from growers to the Government)). It is important to understand, however, that, technically speaking, the majority is wrong. The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone. What does it do? It gives union organizers the right temporarily to invade a portion of the property owners’ land. It thereby limits the landowners’ right to exclude certain others. The regulation regulates (but does not appropriate ) the owners’ right to exclude. Why is it important to understand this technical point? Because only then can we understand the issue before us. That issue is whether a regulation that temporarily limits an owner’s right to exclude others from property automatically amounts to a Fifth Amendment taking. Under our cases, it does not. B Our cases draw a distinction between regulations that provide permanent rights of access and regulations that provide nonpermanent rights of access. They either state or hold that the first type of regulation is a taking per se, but the second kind is a taking only if it goes “too far.” And they make this distinction for good reason. Consider the Court’s reasoning in an important case in which the Court found a per se taking. In Loretto , the Court considered the status of a New York law that required landlords to permit cable television companies to install cable facilities on their property. 458 U. S., at 421. We held that the installation amounted to a permanent physical occupation of the property and hence to a per se taking. See id., at 441 (“affirm[ing] the traditional rule that a permanent physical occupation of property is a taking”); see also id. , at 427 (tracing that rule back to 1872). In reaching this holding we specifically said that “[n]ot every physical invasion is a taking.” Id. , at 435, n. 12 (emphasis deleted); see also ante , at 11 (acknowledging that this “point is well taken”). We explained that the “permanence and absolute exclusivity of a physical occupation distinguish it from temporary limitations on the right to exclude.” Loretto , 458 U. S., at 435, n. 12. And we provided an example of a federal statute that did not effect a per se taking—an example almost identical to the regulation before us. That statute provided “ ‘access . . . limited to (i) union organizers; (ii) prescribed non-working areas of the employer’s premises; and (iii) the duration of the organization activity.’ ” Id. , at 434, n. 11 (quoting Central Hardware Co. v. NLRB , 407 U.S. 539 , 545 (1972)). We also explained why permanent physical occupations are distinct from temporary limitations on the right to exclude. We said that, when the government permanently occupies property, it “does not simply take a single ‘strand’ from the ‘bundle’ of property rights: it chops through the bundle, taking a slice of every strand,” “effectively destroy[ing]” “the rights ‘to possess, use and dispose of it.’ ” Loretto , 458 U. S., at 435. We added that the property owner “ha[d] no right to possess the occupied space himself, and also ha[d] no power to exclude the occupier from possession and use of the space.” Ibid. The requirement “forever denie[d] the owner any power to control the use of the property” or make any “nonpossessory use” of it. Id., at 436. It would “ordinarily empty the right” to sell or transfer the occupied space “of any value, since the purchaser w[ould] also be unable to make any use of the property.” Ibid. The owner could not “exercise control” over the equipment’s installation, and so could not “minimize [its] physical, esthetic, and other effects.” Id. , at 441, n. 19. Thus, we concluded, a permanent physical occupation “is perhaps the most serious form of invasion of an owner’s property interests.” Id. , at 435. Now consider PruneYard Shopping Center v. Robins , 447 U.S. 74 (1980). We there considered the status of a state constitutional requirement that a privately owned shopping center permit other individuals to enter upon, and to use, the property to exercise their rights to free speech and petition. See id., at 78. We held that this requirement was not a per se taking in part because (even though the individuals may have “ ‘physically invaded’ ” the owner’s property) “[t]here [wa]s nothing to suggest that preventing [the owner] from prohibiting this sort of activity w[ould] unreasonably impair the value or use of th[e ] property as a shopping center,” and the owner could “adop[t ] time, place, and manner regulations that w[ould] minimize any interference with its commercial functions.” Id. , at 83–84; see also Loretto , 458 U. S., at 434 (describing the “invasion” in PruneYard as “temporary and limited in nature”). In Nollan v. California Coastal Comm’n , 483 U.S. 825 (1987), we held that the State’s taking of an easement across a landowner’s property did constitute a per se taking. But consider the Court’s reason: “[I]ndividuals are given a permanent and continuous right to pass to and fro.” Id., at 832 (emphasis added). We clarified that by “permanent” and “continuous” we meant that the “real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.” Ibid. In Arkansas Game and Fish Comm’n , 568 U.S. 23 , we again said that permanent physical occupations are per se takings, but temporary invasions are not. Rather, they “ ‘are subject to a more complex balancing process to determine whether they are a taking.’ ” Id., at 36; see also id., at 38–39 (courts should consider the length of the invasion, the “degree to which the invasion is intended or is the foreseeable result of authorized government action,” “the character of the land at issue,” “the owner’s ‘reasonable investment-backed expectations’ regarding the land’s use,” and the “[s]everity of the interference” (citing, inter alia , Penn Central , 438 U. S., at 130–131)). As these cases have used the terms, the regulation here at issue provides access that is “temporary,” not “permanent.” Unlike the regulation in Loretto , it does not place a “fixed structure on land or real property.” 458 U. S., at 437. The employers are not “forever denie[d]” “any power to control the use” of any particular portion of their property. Id. , at 436. And it does not totally reduce the value of any section of the property. Ibid. Unlike in Nollan , the public cannot walk over the land whenever it wishes; rather a subset of the public may enter a portion of the land three hours per day for four months per year (about 4% of the time). At bottom, the regulation here, unlike the regulations in Loretto and Nollan , is not “functionally equivalent to the classic taking in which government directly appropriates private property or ousts the owner from his domain.” Lingle , 544 U. S., at 539. At the same time, PruneYard ’s holding that the taking was “temporary” (and hence not a per se taking) fits this case almost perfectly. There the regulation gave non- owners the right to enter privately owned property for the purpose of speaking generally to others, about matters of their choice, subject to reasonable time, place, and manner restrictions. 447 U. S., at 83. The regulation before us grants a far smaller group of people the right to enter landowners’ property for far more limited times in order to speak about a specific subject. Employers have more power to control entry by setting work hours, lunch hours, and places of gathering. On the other hand, as the majority notes, the shopping center in PruneYard was open to the public generally. See ante , at 14–15. All these factors, however, are the stuff of which regulatory-balancing, not absolute per se , rules are made. Our cases have recognized, as the majority says, that the right to exclude is a “ ‘fundamental element of the property right.’ ” Ante , at 16. For that reason, “[a] ‘taking’ may more readily be found when the interference with property can be characterized as a physical invasion by government.” Penn Central , 438 U. S., at 124 (emphasis added); see also Loretto , 458 U. S., at 426 (“[W]e have long considered a physical intrusion by government to be a property restriction of an unusually serious character for purposes of the Takings Clause”). But a taking is not inevitably found just because the interference with property can be characterized as a physical invasion by the government, or, in other words, when it affects the right to exclude. The majority refers to other cases. But those cases do not help its cause. That is because the Court in those cases (some of which preceded Penn Central and others of which I have discussed above) did not apply a “ per se takings” approach. But see ante , at 14 (claiming that our “traditional rule” is that when “the government appropriate[s] a right to invade, compensation [i]s due”). In United States v. Causby , 328 U.S. 256 , 259 (1946), for example, the question was whether government flights over a piece of land constituted a taking. The flights amounted to 4% of the takeoffs, and 7% of the landings, at a nearby airport. See ibid. But the planes flew “in considerable numbers and rather close together.” Ibid. And the flights were “so low and so frequent as to be a direct and immediate interference with the enjoyment and use of the land.” Id. , at 266. Taken together, those flights “destr[oyed] the use of the property as a commercial chicken farm.” Id. , at 259. Based in part on that economic damage, the Court found that the rule allowing these overflights went “too far.” See id., at 266 (“ ‘[I]t is the character of the invasion, not the amount of damage resulting from it, so long as the damage is substantial , that determines the question whether it is a taking’ ” (emphasis added)). In Portsmouth Harbor Land & Hotel Co. v. United States , 260 U.S. 327 , 329 (1922), the Court held that the Government’s firing of guns across private property would be a taking only if the shots were sufficiently frequent to establish an “intent to fire across the claimants’ land at will.” The frequency of the projectiles itself mattered less than whether the Government acted “ ‘with the purpose and effect of subordinating the strip of land . . . to the right and privilege of the Government to fire projectiles directly across it for the purpose of practice or otherwise, whenever it saw fit , in time of peace, with the result of depriving the owner of its profitable use.’ ” Ibid. (emphasis added). Again, the Court balanced several factors—permanence, severity, and economic impact—rather than treating the mere fact of entry as dispositive. In Kaiser Aetna v. United States , 444 U.S. 164 , the Court considered whether the Government had taken property by converting a formerly “private pond” (with a private access fee) into a “public aquatic park” (with free navigation-related access for the public). Id. , at 176, 180. The Court held there was a taking. But in doing so, it applied a Penn Central, not a per se, analysis. The Court wrote that “[m]ore than one factor contribute[d] to” the conclusion that the Government had gone “far beyond ordinary regulation or improvement.” 444 U. S., at 178. And it found there was a taking. If there is ambiguity in these cases, it concerns whether the Court considered the occupation at issue to be temporary (requiring Penn Central ’s “too far” analysis) or permanent (automatically requiring compensation). Nothing in them suggests the majority’s view, namely, that compensation is automatically required for a temporary right of access. Nor does anything in them support the distinction that the majority gleans between “trespass” and “takings.” See ante , at 17–18; see also infra , at 14. The majority also refers to Nollan as support for its claim that the “fact that a right to take access is exercised only from time to time does not make it any less a physical taking.” Ante , at 12. True. Here, however, unlike in Nollan, the right taken is not a right to have access to the property at any time (which access different persons “exercis[e] . . . from time to time”). Rather here we have a right that does not allow access at any time. It allows access only from “time to time.” And that makes all the difference. A right to enter my woods whenever you wish is a right to use that property permanently, even if you exercise that right only on occasion. A right to enter my woods only on certain occasions is not a right to use the woods permanently. In the first case one might reasonably use the term per se taking. It is as if my woods are yours. In the second case it is a taking only if the regulation allowing it goes “too far,” considering the factors we have laid out in Penn Central . That is what our cases say. Finally, the majority says that Nollan would have come out the same way had it involved, similar to the regulation here, access short of 365 days a year. See ante , at 11. Perhaps so. But, if so, that likely would be because the Court would have viewed the access as an “easement,” and therefore an appropriation. See Nollan , 483 U. S., at 828. Or, perhaps, the Court would have viewed the regulation as going “too far.” I can assume, purely for argument’s sake, that that is so. But the law is clear: A regulation that provides temporary , not permanent , access to a landowner’s property, and that does not amount to a taking of a traditional property interest, is not a per se taking. That is, it does not automatically require compensation. Rather, a court must consider whether it goes “too far.” C The persistence of the permanent/temporary distinction that I have described is not surprising. That distinction serves an important purpose. We live together in communities. (Approximately 80% of Americans live in urban areas. U. S. Census Bureau, Urban Area Facts (Mar. 30, 2021), https://www.census.gov/programs-surveys/ geography/guidance/geo-areas/urban-rural/ua-facts.html.) Modern life in these communities requires different kinds of regulation. Some, perhaps many, forms of regulation require access to private property (for government officials or others) for different reasons and for varying periods of time. Most such temporary-entry regulations do not go “too far.” And it is impractical to compensate every property owner for any brief use of their land. As we have frequently said, “[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Pennsylvania Coal Co. , 260 U. S., at 413; see also, e.g. , Murr v. Wisconsin , 582 U. S. ___, ___–___ (2017) (slip op., at 8–9) (same); Lingle , 544 U. S., at 538 (same); Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U.S. 302 , 335 (2002) (same); Dolan v. City of Tigard , 512 U.S. 374 , 384–385 (1994) (same); Lucas v. South Carolina Coastal Council , 505 U.S. 1003 , 1018 (1992) (same); Andrus v. Allard , 444 U.S. 51 , 65 (1979) (same); Penn Central , 438 U. S, at 124 (same). Thus, the law has not, and should not, convert all temporary-access-permitting regulations into per se takings automatically requiring compensation. See, e.g. , Hodel v. Irving , 481 U.S. 704 , 713 (1987) (“This Court has held that the Government has considerable latitude in regulating property rights in ways that may adversely affect the owners”). Consider the large numbers of ordinary regulations in a host of different fields that, for a variety of purposes, permit temporary entry onto (or an “invasion of ”) a property owner’s land. They include activities ranging from examination of food products to inspections for compliance with preschool licensing requirements. See, e.g. , 29 U. S. C. §657(a) (authorizing inspections and investigations of “any . . . workplace or environment where work is performed” during “regular working hours and at other reasonable times”); 21 U. S. C. §606(a) (authorizing “examination and inspection of all meat food products . . . at all times, by day or night”); 42 U. S. C. §5413(b) (authorizing inspections anywhere “manufactured homes are manufactured, stored, or held for sale” at “reasonable times and without advance notice”); Miss. Code Ann. §49–27–63 (2012) (authorizing inspections of “coastal wetlands” “from time to time”); Mich. Comp. Laws §208.1435(5) (2010) (authorizing inspections of any “historic resource” “at any time during the rehabilitation process”); Mont. Code Ann. §81–22–304 (2019) (granting a “right of entry . . . [into] any premises where dairy products . . . are produced, manufactured, [or] sold” “during normal business hours”); Neb. Rev. Stat. §43–1303(5) (2016) (authorizing visitation of “foster care facilities in order to ascertain whether the individual physical, psychological, and sociological needs of each foster child are being met”); Va. Code Ann. §22.1–289.032(C)(8) (Cum. Supp. 2020) (authorizing “annual inspection” of “preschool programs of accredited private schools”); Cincinnati, Ohio, Municipal Code §603–1 (2021) (authorizing entry “at any time” for any place in which “animals are slaughtered”); Dallas, Tex., Code of Ordinance §33–5(a) (2021) (authorizing inspection of “assisted living facilit[ies]” “at reasonable times”); 6 N. Y. Rules & Regs. §360.7 (Supp. 2020) (authorizing inspection of solid waste management facilities “at all reasonable times, locations, whether announced or unannounced”); see also Boise Cascade Corp. v. United States , 296 F.3d 1339 , 1352 (CA Fed. 2002) (affirming an injunction requiring property owner to allow Government agents to enter its property to conduct owl surveys); Brief for Respondents 43–44, 46 (collecting similar regulations); App. to Brief for Local Governments as Amici Curiae 1–13 (same); Brief for Virginia et al. as Amici Curiae 3–6 (same). The majority tries to deal with the adverse impact of treating these, and other, temporary invasions as if they were per se physical takings by creating a series of exceptions from its per se rule. It says: (1) “Isolated physical invasions, not undertaken pursuant to a granted right of access, are properly assessed as individual torts rather than appropriations of a property right.” Ante , at 17. It also would except from its per se rule (2) government access that is “consistent with longstanding background restrictions on property rights,” including “traditional common law privileges to access private property.” Ante, at 18–19. And it adds that (3) “the government may require property owners to cede a right of access as a condition of receiving certain benefits, without causing a taking.” Ante , at 19. How well will this new system work? I suspect that the majority has substituted a new, complex legal scheme for a comparatively simpler old one. As to the first exception, what will count as “isolated”? How is an “isolated physical invasion” different from a “temporary” invasion, sufficient under present law to invoke Penn Central ? And where should one draw the line between trespass and takings? Imagine a school bus that stops to allow public school children to picnic on private land. Do three stops a year place the stops outside the exception? One stop every week? Buses from one school? From every school? Under current law a court would know what question to ask. The stops are temporary; no one assumes a permanent right to stop; thus the court will ask whether the school district has gone “too far.” Under the majority’s approach, the court must answer a new question (apparently about what counts as “isolated”). As to the second exception, a court must focus on “traditional common law privileges to access private property.” Just what are they? We have said before that the government can, without paying compensation, impose a limitation on land that “inhere[s] in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership.” Lucas , 505 U. S., at 1029. But we defined a very narrow set of such background principles. See ibid. , and n. 16 (abatement of nuisances and cases of “ ‘actual necessity’ ” or “to forestall other grave threats to the lives and property of others”). To these the majority adds “public or private necessity,” the enforcement of criminal law “under certain circumstances,” and reasonable searches. Ante , at 19. Do only those exceptions that existed in, say, 1789 count? Should courts apply those privileges as they existed at that time, when there were no union organizers? Or do we bring some exceptions (but not others) up to date, e.g. , a necessity exception for preserving animal habitats? As to the third, what is the scope of the phrase “certain benefits”? Does it include the benefit of being able to sell meat labeled “inspected” in interstate commerce? But see Horne , 576 U. S., at 366 (concluding that “[s]elling produce in interstate commerce” is “not a special governmental benefit”). What about the benefit of having electricity? Of sewage collection? Of internet accessibility? Myriad regulatory schemes based on just these sorts of benefits depend upon intermittent, temporary government entry onto private property. Labor peace (brought about through union organizing) is one such benefit, at least in the view of elected representatives. They wrote laws that led to rules governing the organizing of agricultural workers. Many of them may well have believed that union organizing brings with it “benefits,” including community health and educational benefits, higher standards of living, and (as I just said) labor peace. See, e.g., 1975 Cal. Stats. ch. 1, §1 (stating that the purpose of the Agricultural Labor Relations Act was to “ensure peace in the agricultural fields by guaranteeing justice for all agricultural workers and stability in labor relations”). A landowner, of course, may deny the existence of these benefits, but a landowner might do the same were a regulatory statute to permit brief access to verify proper preservation of wetlands or the habitat enjoyed by an endangered species or, for that matter, the safety of inspected meat. So, if a regulation authorizing temporary access for purposes of organizing agricultural workers falls outside of the Court’s exceptions and is a per se taking , then to what other forms of regulation does the Court’s per se conclusion also apply? II Finally, I touch briefly on remedies, which the majority does not address. The Takings Clause prohibits the Government from taking private property for public use without “just compensation.” U. S. Const., Amdt. 5. But the employers do not seek compensation. They seek only injunctive and declaratory relief. Indeed, they did not allege any damages. See App. to Pet. for Cert. G–16 to G–17. On remand, California should have the choice of foreclosing injunctive relief by providing compensation. See, e.g. , Knick v. Township of Scott , 588 U. S. __, __ (2019) (slip op., at 23) (“As long as just compensation remedies are available—as they have been for nearly 150 years—injunctive relief will be foreclosed”). *  *  * I recognize that the Court’s prior cases in this area are not easy to apply. Moreover, words such as “temporary,” “permanent,” or “too far” do not define themselves. But I do not believe that the Court has made matters clearer or better. Rather than adopt a new broad rule and indeterminate exceptions, I would stick with the approach that I believe the Court’s case law sets forth. “Better the devil we know . . . .” A right of access such as the right at issue here, a nonpermanent right, is not automatically a “taking.” It is a regulation that falls within the scope of Penn Central . Because the Court takes a different view, I respectfully dissent.

The Supreme Court ruled that a California regulation allowing union organizers to access agricultural employers' property to solicit support for unionization constitutes a per se physical taking under the Fifth and Fourteenth Amendments. This means that the government must provide just compensation to the landowners for the temporary occupation of their land. The case has broader implications for regulatory schemes that involve intermittent and temporary government access to private property.

Property Rights & Land Use

Murr v. Wisconsin

https://supreme.justia.com/cases/federal/us/582/15-214/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 15–214 _________________ JOSEPH P. MURR, et al., PETITIONERS v. WISCONSIN, et al. on writ of certiorari to the court of appeals of wisconsin, district iii [June 23, 2017] Justice Kennedy delivered the opinion of the Court. The classic example of a property taking by the government is when the property has been occupied or otherwise seized. In the case now before the Court, petition-ers contend that governmental entities took their real property—an undeveloped residential lot—not by some physical occupation but instead by enacting burdensome regulations that forbid its improvement or separate sale because it is classified as substandard in size. The relevant governmental entities are the respondents. Against the background justifications for the challenged restrictions, respondents contend there is no regulatory taking because petitioners own an adjacent lot. The regulations, in effecting a merger of the property, permit the continued residential use of the property including for a single improvement to extend over both lots. This retained right of the landowner, respondents urge, is of sufficient offsetting value that the regulation is not severe enough to be a regulatory taking. To resolve the issue whether the landowners can insist on confining the analysis just to the lot in question, without regard to their ownership of the adjacent lot, it is necessary to discuss the background principles that define regulatory takings. I A The St. Croix River originates in northwest Wisconsin and flows approximately 170 miles until it joins the Mississippi River, forming the boundary between Minnesota and Wisconsin for much of its length. The lower portion of the river slows and widens to create a natural water area known as Lake St. Croix. Tourists and residents of the region have long extolled the picturesque grandeur of the river and surrounding area. E.g., E. Ellett, Summer Rambles in the West 136–137 (1853). Under the Wild and Scenic Rivers Act, the river was designated, by 1972, for federal protection. §3(a)(6), 82Stat. 908, 16 U. S. C. §1274(a)(6) (designating Upper St. Croix River); Lower Saint Croix River Act of 1972, §2, 86Stat. 1174, 16 U. S. C. §1274(a)(9) (adding Lower St. Croix River). The law required the States of Wisconsin and Minnesota to develop “a management and development program” for the river area. 41 Fed. Reg. 26237 (1976). In compliance, Wisconsin authorized the State Department of Natural Resources to promulgate rules limiting development in order to “guarantee the protection of the wild, scenic and recreational qualities of the river for present and future generations.” Wis. Stat. §30.27(l) (1973). Petitioners are two sisters and two brothers in the Murr family. Petitioners’ parents arranged for them to receive ownership of two lots the family used for recreation along the Lower St. Croix River in the town of Troy, Wisconsin. The lots are adjacent, but the parents purchased them separately, put the title of one in the name of the family business, and later arranged for transfer of the two lots, on different dates, to petitioners. The lots, which are referred to in this litigation as Lots E and F, are described in more detail below. For the area where petitioners’ property is located, the Wisconsin rules prevent the use of lots as separate building sites unless they have at least one acre of land suitable for development. Wis. Admin. Code §§ NR 118.04(4), 118.03(27), 118.06(1)(a)(2)(a), 118.06(1)(b) (2017). A grand-father clause relaxes this restriction for substandardlots which were “in separate ownership from abutting lands” on January 1, 1976, the effective date of the regulation. § NR 118.08(4)(a)(1). The clause permits the use of qualifying lots as separate building sites. The rules also include a merger provision, however, which provides that adjacent lots under common ownership may not be “sold or developed as separate lots” if they do not meet the size requirement. § NR 118.08(4)(a)(2). The Wisconsin rules require localities to adopt parallel provisions, see § NR 118.02(3), so the St. Croix County zoning ordinance contains identical restrictions, see St. Croix County, Wis., Ordinance §17.36I.4.a (2005). The Wisconsin rules also authorize the local zoning authority to grant variances from the regulations where enforcement would create “unnecessary hardship.” § NR 118.09(4)(b); St. Croix County Ordinance §17.09.232. B Petitioners’ parents purchased Lot F in 1960 and built a small recreational cabin on it. In 1961, they transferred title to Lot F to the family plumbing company. In 1963, they purchased neighboring Lot E, which they held in their own names. The lots have the same topography. A steep bluff cuts through the middle of each, with level land suitable for development above the bluff and next to the water below it. The line dividing Lot E from Lot F runs from the riverfront to the far end of the property, crossing the blufftop along the way. Lot E has approximately 60 feet of river frontage, and Lot F has approximately 100 feet. Though each lot is approximately 1.25 acres in size, because of the waterline and the steep bank they each have less than one acre of land suitable for development. Even when combined, the lots’ buildable land area is only 0.98 acres due to the steep terrain. The lots remained under separate ownership, with Lot F owned by the plumbing company and Lot E owned by petitioners’ parents, until transfers to petitioners. Lot F was conveyed to them in 1994, and Lot E was conveyed to them in 1995. Murr v. St. Croix County Bd. of Adjustment , 2011 WI App 29, 332 Wis. 2d 172, 177–178, 184–185, 796 N. W. 2d 837, 841, 844 (2011); 2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628 (unpublished opinion), App. to Pet. for Cert. A–3, ¶¶4–5. (There are certain ambiguities in the record concerning whether the lots had merged earlier, but the parties and the courts below appear to have assumed the merger occurred upon transfer to petitioners.) A decade later, petitioners became interested in moving the cabin on Lot F to a different portion of the lot and selling Lot E to fund the project. The unification of the lots under common ownership, however, had implicated the state and local rules barring their separate sale or development. Petitioners then sought variances from the St. Croix County Board of Adjustment to enable their building and improvement plan, including a variance to allow the separate sale or use of the lots. The Board denied the requests, and the state courts affirmed in relevant part. In particular, the Wisconsin Court of Appeals agreed with the Board’s interpretation that the local ordinance “effectively merged” Lots E and F, so petitioners “could only sell or build on the single larger lot.” Murr , supra , at 184, 796 N. W. 2d, at 844. Petitioners filed the present action in state court, alleging that the state and county regulations worked a regulatory taking by depriving them of “all, or practically all, of the use of Lot E because the lot cannot be sold or developed as a separate lot.” App. 9. The parties each submitted appraisal numbers to the trial court. Respondents’ appraisal included values of $698,300 for the lots together as regulated; $771,000 for the lots as two distinct build-able properties; and $373,000 for Lot F as a single lot with improvements. Record 17–55, 17–56. Petitioners’ appraisal included an unrebutted, estimated value of $40,000 for Lot E as an undevelopable lot, based on the counterfactual assumption that it could be sold as a separate property. Id., at 22–188. The Circuit Court of St. Croix County granted summary judgment to the State, explaining that petitioners retained “several available options for the use and enjoyment of their property.” Case No. 12–CV–258 (Oct. 31, 2013), App. to Pet. for Cert. B–9. For example, they could preserve the existing cabin, relocate the cabin, or eliminate the cabin and build a new residence on Lot E, on Lot F, or across both lots. The court also found petitioners had not been deprived of all economic value of their property. Considering the valuation of the property as a single lot versus two separate lots, the court found the market value of the property was not significantly affected by the regulations because the decrease in value was less than 10 percent. Ibid . The Wisconsin Court of Appeals affirmed. The court explained that the regulatory takings inquiry required it to “ ‘first determine what, precisely, is the property at issue.’ ” Id., at A–9, ¶17. Relying on Wisconsin Supreme Court precedent in Zealy v. Waukesha , 201 Wis. 2d 365, 548 N. W. 2d 528 (1996), the Court of Appeals rejected petitioners’ request to analyze the effect of the regulations on Lot E only. Instead, the court held the takings analysis “properly focused” on the regulations’ effect “on the Murrs’ property as a whole”—that is, Lots E and F together. App. to Pet. for Cert. A–12, ¶22. Using this framework, the Court of Appeals concluded the merger regulations did not effect a taking. In particular, the court explained that petitioners could not reasonably have expected to use the lots separately because they were “ ‘charged with knowledge of the existing zoning laws’ ” when they acquired the property. Ibid. (quoting Murr , supra , at 184, 796 N. W. 2d, at 844). Thus, “even if [petitioners] did intend to develop or sell Lot E separately, that expectation of separate treatment became unreasonable when they chose to acquire Lot E in 1995, after their having acquired Lot F in 1994.” App. to Pet. for Cert. A–17, ¶30 . The court also discounted the severity of the economic impact on petitioners’ property, recognizing the Circuit Court’s conclusion that the regulations diminished the property’s combined value by less than 10 percent. The Supreme Court of Wisconsin denied discretionary review. This Court granted certiorari, 577 U. S. ___ (2016). II A The Takings Clause of the Fifth Amendment provides that private property shall not “be taken for public use, without just compensation.” The Clause is made applicable to the States through the Fourteenth Amendment. Chicago, B. & Q. R. Co. v. Chicago , 166 U. S. 226 (1897) . As this Court has recognized, the plain language of the Takings Clause “requires the payment of compensation whenever the government acquires private property for a public purpose,” see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302, 321 (2002) , but it does not address in specific terms the imposition of regulatory burdens on private property . Indeed, “[p]rior to Justice Holmes’s exposition in Pennsylvania Coal Co. v. Mahon , 260 U. S. 393 (1922) , it was generally thought that the Takings Clause reached only a direct appropriation of property, or the functional equivalent of a practical ouster of the owner’s possession,” like the permanent flooding of property. Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1014 (1992) (citation, brackets, and internal quotation marks omitted); accord, Horne v. Department of Agriculture , 576 U. S. ___, ___ (2015) (slip op., at 7); see also Loretto v. Teleprompter Manhattan CATV Corp. , 458 U. S. 419, 427 (1982) . Mahon , however, initiated this Court’s regulatory takings jurisprudence, declaring that “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” 260 U. S., at 415. A regulation, then, can be so burdensome as to become a taking, yet the Mahon Court did not formulate more detailed guidance for determining when this limit is reached. In the near century since Mahon , the Court for the most part has refrained from elaborating this principle through definitive rules. This area of the law has been characterized by “ad hoc, factual inquiries, designed to allow careful examination and weighing of all the relevant circumstances.” Tahoe-Sierra , supra , at 322 (citation and internal quotation marks omitted). The Court has, however, stated two guidelines relevant here for determining when government regulation is so onerous that it constitutes a taking. First, “with certain qualifications . . . a regulation which ‘denies all economically beneficial or productive use of land’ will require compensation under the Takings Clause.” Palazzolo v. Rhode Island , 533 U. S. 606, 617 (2001) (quoting Lucas , supra , at 1015). Second, when a regulation impedes the use of property without depriving the owner of all economically beneficial use, a taking still may be found based on “a complex of factors,” including (1) the economic impact of the regulation on the claimant; (2) the extent to which the regulation has interfered with distinct investment-backed expectations; and (3) the character of the governmental action. Palazzolo, supra, at 617 (citing Penn Central Transp. Co. v. New York City , 438 U. S. 104, 124 (1978) ). By declaring that the denial of all economically beneficial use of land constitutes a regulatory taking, Lucas stated what it called a “categorical” rule. See 505 U. S., at 1015. Even in Lucas , however, the Court included a ca-veat recognizing the relevance of state law and land-use customs: The complete deprivation of use will not re-quire compensation if the challenged limitations “inhere . . . in the restrictions that background principles of the State’s law of property and nuisance already placed upon land ownership.” Id. , at 1029; see also id., at 1030–1031 (listing factors for courts to consider in making thisdetermination). A central dynamic of the Court’s regulatory takings jurisprudence, then, is its flexibility. This has been and remains a means to reconcile two competing objectives central to regulatory takings doctrine. One is the individual’s right to retain the interests and exercise the freedoms at the core of private property ownership. Cf. id. , at 1028 (“[T]he notion . . . that title is somehow held subject to the ‘implied limitation’ that the State may subsequently eliminate all economically valuable use is inconsistent with the historical compact recorded in the Takings Clause that has become part of our constitutional culture”). Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them. The other persisting interest is the government’s well-established power to “adjus[t] rights for the public good.” Andrus v. Allard , 444 U. S. 51, 65 (1979) . As Justice Holmes declared, “Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law.” Mahon , supra , at 413. In adjudicating regulatory takings cases a proper balancing of these principles requires a careful inquiry informed by the specifics of the case. In all instances, the analysis must be driven “by the purpose of the Takings Clause, which is to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Palazzolo , supra , at 617–618 (quoting Armstrong v. United States , 364 U. S. 40, 49 (1960) ). B This case presents a question that is linked to the ultimate determination whether a regulatory taking has occurred: What is the proper unit of property against which to assess the effect of the challenged governmental action? Put another way, “[b]ecause our test for regulatory taking requires us to compare the value that has been taken from the property with the value that remains in the property, one of the critical questions is determining how to define the unit of property ‘whose value is to furnish the denominator of the fraction.’ ” Keystone Bituminous Coal Assn. v. DeBenedictis , 480 U. S. 470, 497 (1987) (quoting Michelman, Property, Utility, and Fairness, 80 Harv. L. Rev. 1165, 1992 (1967)). As commentators have noted, the answer to this question may be outcome determinative. See Eagle, The Four-Factor Penn Central Regulatory Takings Test, 118 Pa. St. L. Rev. 601, 631 (2014); see also Wright, A New Time for Denominators, 34 Env. L. 175, 180 (2004). This Court, too, has explained that the question is important to the regulatory takings inquiry. “To the extent that any portion of property is taken, that portion is always taken in its entirety; the relevant question, however, is whether the property taken is all, or only a portion of, the parcel in question.” Concrete Pipe & Products of Cal., Inc. v. Construction Laborers Pension Trust for Southern Cal. , 508 U. S. 602, 644 (1993) . Defining the property at the outset, however, should not necessarily preordain the outcome in every case. In some, though not all, cases the effect of the challenged regulation must be assessed and understood by the effect on the entire property held by the owner, rather than just some part of the property that, considered just on its own, has been diminished in value. This demonstrates the contrast between regulatory takings, where the goal is usually to determine how the challenged regulation affects the property’s value to the owner, and physical takings, where the impact of physical appropriation or occupation of the property will be evident. While the Court has not set forth specific guidance on how to identify the relevant parcel for the regulatory taking inquiry, there are two concepts which the Court has indicated can be unduly narrow. First, the Court has declined to limit the parcel in an artificial manner to the portion of property targeted by the challenged regulation. In Penn Central , for example, the Court rejected a challenge to the denial of a permit to build an office tower above Grand Central Terminal. The Court refused to measure the effect of the denial only against the “air rights” above the terminal, cautioning that “ ‘[t]aking’ jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated.” 438 U. S., at 130. In a similar way, in Tahoe-Sierra , the Court refused to “effectively sever” the 32 months during which petitioners’ property was restricted by temporary moratoria on development “and then ask whether that segment ha[d] been taken in its entirety.” 535 U. S., at 331. That was because “defining the property interest taken in terms of the very regulation being challenged is circular.” Ibid . That approach would overstate the effect of regulation on property, turning “every delay” into a “total ban.” Ibid . The second concept about which the Court has expressed caution is the view that property rights under the Takings Clause should be coextensive with those under state law. Although property interests have their foundations in state law, the Palazzolo Court reversed a state- court decision that rejected a takings challenge to regulations that predated the landowner’s acquisition of title. 533 U. S., at 626–627. The Court explained that States do not have the unfettered authority to “shape and define property rights and reasonable investment-backed expectations,” leaving landowners without recourse against unreasonable regulations. Id. , at 626. By the same measure, defining the parcel by reference to state law could defeat a challenge even to a state enactment that alters permitted uses of property in ways inconsistent with reasonable investment-backed expectations. For example, a State might enact a law that consolidates nonadjacent property owned by a single person or entity in different parts of the State and then imposes development limits on the aggregate set. If a court defined the parcel according to the state law requiring consolidation, this improperly would fortify the state law against a takings claim, because the court would look to the retained value in the property as a whole rather than considering whether individual holdings had lost all value. III A As the foregoing discussion makes clear, no single consideration can supply the exclusive test for determining the denominator. Instead, courts must consider a number of factors. These include the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land. The endeavor should determine whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts. The inquiry is objective, and the reasonable expectations at issue derive from background customs and the whole of our legal tradition. Cf. Lucas , 505 U. S., at 1035 (Kennedy, J., concurring) (“The expectations protected by the Constitution are based on objective rules and customs that can be understood as reasonable by all parties involved”). First, courts should give substantial weight to the treatment of the land, in particular how it is bounded or divided, under state and local law. The reasonable expectations of an acquirer of land must acknowledge legitimate restrictions affecting his or her subsequent use and dispensation of the property. See Ballard v. Hunter , 204 U. S. 241, 262 (1907) (“Of what concerns or may concern their real estate men usually keep informed, and on that probability the law may frame its proceedings”). A valid takings claim will not evaporate just because a purchaser took title after the law was enacted. See Palazzolo , 533 U. S., at 627 (some “enactments are unreasonable and do not become less so through passage of time or title”). A reasonable restriction that predates a landowner’s acquisition, however, can be one of the objective factors that most landowners would reasonably consider in forming fair expectations about their property. See ibid. (“[A] prospective enactment, such as a new zoning ordinance, can limit the value of land without effecting a taking because it can be understood as reasonable by all concerned”). Ina similar manner, a use restriction which is triggeredonly after, or because of, a change in ownership should also guide a court’s assessment of reasonable private expectations. Second, courts must look to the physical characteristics of the landowner’s property. These include the physical relationship of any distinguishable tracts, the parcel’s topography, and the surrounding human and ecological environment. In particular, it may be relevant that the property is located in an area that is subject to, or likely to become subject to, environmental or other regulation. Cf. Lucas , supra , at 1035 (Kennedy, J., concurring) (“Coastal property may present such unique concerns for a fragile land system that the State can go further in regulating its development and use than the common law of nuisance might otherwise permit”). Third, courts should assess the value of the property under the challenged regulation, with special attention to the effect of burdened land on the value of other holdings. Though a use restriction may decrease the market value of the property, the effect may be tempered if the regulated land adds value to the remaining property, such as by increasing privacy, expanding recreational space, or preserving surrounding natural beauty. A law that limits use of a landowner’s small lot in one part of the city by reason of the landowner’s nonadjacent holdings elsewhere may decrease the market value of the small lot in an unmitigated fashion. The absence of a special relationship between the holdings may counsel against consideration of all the holdings as a single parcel, making the restrictive law susceptible to a takings challenge. On the other hand, if the landowner’s other property is adjacent to the small lot, the market value of the properties may well increase if their combination enables the expansion of a structure, or if development restraints for one part of the parcel protect the unobstructed skyline views of another part. That, in turn, may counsel in favor of treatment as a single parcel and may reveal the weakness of a regulatory takings challenge to the law. State and federal courts have considerable experience in adjudicating regulatory takings claims that depart from these examples in various ways. The Court anticipates that in applying the test above they will continue to exercise care in this complex area. B The State of Wisconsin and petitioners each ask this Court to adopt a formalistic rule to guide the parcel inquiry. Neither proposal suffices to capture the central legal and factual principles that inform reasonable expectations about property interests. Wisconsin would tie the definition of the parcel to state law, considering the two lots here as a single whole due to their merger under the challenged regulations. That approach, as already noted, simply assumes the answer to the question: May the State define the relevant parcel in a way that permits it to escape its responsibility to justify regulation in light of legitimate property expectations? It is, of course, unquestionable that the law must recognize those legitimate expectations in order to give proper weight to the rights of owners and the right of the State to pass reasonable laws and regulations. See Palazzolo , supra , at 627. Wisconsin bases its position on a footnote in Lucas , which suggests the answer to the denominator question “may lie in how the owner’s reasonable expectations have been shaped by the State’s law of property— i.e., whether and to what degree the State’s law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value.” 505 U. S., at 1017, n. 7. As an initial matter, Lucas referenced the parcel problem only in dicta, unnecessary to the announcement or application of the rule it established. See ibid. (“[W]e avoid th[e] difficulty” of determining the relevant parcel “in the present case”). In any event, the test the Court adopts today is consistent with the respect for state law described in Lucas . The test considers state law but in addition weighs whether the state enactments at issue accord with other indicia of reasonable expectations about property. Petitioners propose a different test that is also flawed. They urge the Court to adopt a presumption that lot lines define the relevant parcel in every instance, making Lot E the necessary denominator. Petitioners’ argument, however, ignores the fact that lot lines are themselves creatures of state law, which can be overridden by the State in the reasonable exercise of its power. In effect, petitioners ask this Court to credit the aspect of state law that favors their preferred result (lot lines) and ignore that which does not (merger provision). This approach contravenes the Court’s case law, which recognizes that reasonable land-use regulations do not work a taking. See Palazzolo , 533 U. S., at 627; Mahon , 260 U. S., at 413. Among other cases, Agins v. City of Tiburon , 447 U. S. 255 (1980) , demonstrates the validity of this proposition because it upheld zoning regulations as a legitimate exercise of the government’s police power. Of course, the Court’s later opinion in Lingle v. Chevron U. S. A. Inc. recognized that the test articulated in Agins —that regulation effects a taking if it “ ‘does not substantially advance legitimate state interests’ ”—was improper because it invited courts to engage in heightened review of the effectiveness of government regulation. 544 U. S. 528, 540 (2005) (quoting Agins , supra , at 260). Lingle made clear, however, that the holding of Agins survived, even if its test was “imprecis[e].” See 544 U. S., at 545–546, 548. The merger provision here is likewise a legitimate exercise of government power, as reflected by its consistency with a long history of state and local merger regulations that originated nearly a century ago. See Brief for National Association of Counties et al. as Amici Curiae 5–10. Merger provisions often form part of a regulatory scheme that establishes a minimum lot size in order to preserve open space while still allowing orderly development. See E. McQuillin, Law of Municipal Corporations §25:24 (3d ed. 2010); see also Agins , supra , at 262 (challenged “zoning ordinances benefit[ed] the appellants as well as the public by serving the city’s interest in assuring careful and orderly development of residential property with provision for open-space areas”). When States or localities first set a minimum lot size, there often are existing lots that do not meet the new requirements, and so local governments will strive to reduce substandard lots in a gradual manner. The regulations here represent a classic way of doing this: by implementing a merger provision, which combines contiguous substandard lots under common ownership, alongside a grandfather clause, which preserves adjacent substandard lots that are in separate ownership. Also, as here, the harshness of a merger provision may be ameliorated by the availability of a variance from the local zoning authority for landowners in special circumstances. See 3 E. Ziegler, Rathkopf’s Law of Zoning and Planning §49:13 (39th ed. 2017). Petitioners’ insistence that lot lines define the relevant parcel ignores the well-settled reliance on the merger provision as a common means of balancing the legitimate goals of regulation with the reasonable expectations of landowners. Petitioners’ rule would frustrate municipalities’ ability to implement minimum lot size regulations by casting doubt on the many merger provisions that exist nationwide today. See Brief for National Association of Counties et al. as Amici Curiae 12–31 (listing over 100 examples of merger provisions). Petitioners’ reliance on lot lines also is problematic for another reason. Lot lines have varying degrees of formality across the States, so it is difficult to make them a standard measure of the reasonable expectations of property owners. Indeed, in some jurisdictions, lot lines may be subject to informal adjustment by property owners, with minimal government oversight. See Brief for California et al. as Amici Curiae 17; 1 J. Kushner, Subdivision Law and Growth Management §5:8 (2d ed. 2017) (lot line adjustments that create no new parcels are often exempt from subdivision review); see, e.g., Cal. Govt. Code Ann. §66412(d) (West 2016) (permitting adjustment of lot lines subject to limited conditions for government approval). The ease of modifying lot lines also creates the risk of gamesmanship by landowners, who might seek to alter the lines in anticipation of regulation that seems likely to affect only part of their property. IV Under the appropriate multifactor standard, it follows that for purposes of determining whether a regulatory taking has occurred here, petitioners’ property should be evaluated as a single parcel consisting of Lots E and F together. First, the treatment of the property under state and local law indicates petitioners’ property should be treated as one when considering the effects of the restrictions. As the Wisconsin courts held, the state and local regulations merged Lots E and F. E.g., App. to Pet. for Cert. A–3, ¶6 (“The 1995 transfer of Lot E brought the lots under common ownership and resulted in a merger of the two lots under [the local ordinance]”). The decision to adopt the merger provision at issue here was for a specific and legitimate purpose, consistent with the widespread understanding that lot lines are not dominant or controlling in every case. See supra, at ___. Petitioners’ land was subject to this regulatory burden, moreover, only because of voluntary conduct in bringing the lots under common ownership after the regulations were enacted. As a result, the valid merger of the lots under state law informs the reasonable expectation they will be treated as a single property. Second, the physical characteristics of the property support its treatment as a unified parcel. The lots are contiguous along their longest edge. Their rough terrain and narrow shape make it reasonable to expect their range of potential uses might be limited. Cf. App. to Pet. for Cert. A–5, ¶8 (“[Petitioners] asserted Lot E could not be put to alternative uses like agriculture or commerce due to its size, location and steep terrain”). The land’s location along the river is also significant. Petitioners could have anticipated public regulation might affect their enjoyment of their property, as the Lower St. Croix was a regulated area under federal, state, and local law long before petitioners possessed the land. Third, the prospective value that Lot E brings to Lot F supports considering the two as one parcel for purposes of determining if there is a regulatory taking. Petitioners are prohibited from selling Lots E and F separately or from building separate residential structures on each. Yet this restriction is mitigated by the benefits of using the property as an integrated whole, allowing increased privacy and recreational space, plus the optimal location of any improvements. See Case No. 12–CV–258, App. to Pet. for Cert. B–9 (“They have an elevated level of privacy because they do not have close neighbors and are able to swim and play volleyball at the property”). The special relationship of the lots is further shown by their combined valuation. Were Lot E separately saleable but still subject to the development restriction, petitioners’ appraiser would value the property at only $40,000. We express no opinion on the validity of this figure. We also note the number is not particularly helpful for understanding petitioners’ retained value in the properties because Lot E, under the regulations, cannot be sold without Lot F. The point that is useful for these purposes is that the combined lots are valued at $698,300, which is far greater than the summed value of the separate regulated lots (Lot F with its cabin at $373,000, according to respondents’ appraiser, and Lot E as an undevelopable plot at $40,000, according to petitioners’ appraiser). The value added by the lots’ combination shows their complementarity and supports their treatment as one parcel. The State Court of Appeals was correct in analyzing petitioners’ property as a single unit. Petitioners allege that in doing so, the state court applied a categorical rule that all contiguous, commonly owned holdings must be combined for Takings Clause analysis. See Brief for Petitioners i (“[D]oes the ‘parcel as a whole’ concept . . . establish a rule that two legally distinct, but commonly owned contiguous parcels, must be combined for takings analysis purposes”). This does not appear to be the case, however, for the precedent relied on by the Court of Appeals addressed multiple factors before treating contiguous properties as one parcel. See App. to Pet. for Cert. A–9–A–11, ¶¶17–19 (citing Zealy v. Waukesha , 201 Wis. 2d 365, 548 N. W. 2d 528); see id., at 378, 548 N. W. 2d, at 533 (considering the property as a whole because it was “part of a single purchase” and all 10.4 acres were undeveloped). The judgment below, furthermore, may be affirmed on any ground permitted by the law and record. See Thigpen v. Roberts , 468 U. S. 27, 30 (1984) . To the extent the state court treated the two lots as one parcel based on a bright-line rule, nothing in this opinion approves that methodology, as distinct from the result. Considering petitioners’ property as a whole, the state court was correct to conclude that petitioners cannot establish a compensable taking in these circumstances. Petitioners have not suffered a taking under Lucas , as they have not been deprived of all economically beneficial use of their property. See 505 U. S., at 1019. They can use the property for residential purposes, including an enhanced, larger residential improvement. See Palazzolo , 533 U. S., at 631 (“A regulation permitting a landowner to build a substantial residence . . . does not leave the property ‘economically idle’ ”). The property has not lost all economic value, as its value has decreased by less than 10 percent. See Lucas , supra , at 1019, n. 8 (suggesting that even a landowner with 95 percent loss may not recover). Petitioners furthermore have not suffered a taking under the more general test of Penn Central . See 438 U. S., at 124. The expert appraisal relied upon by the state courts refutes any claim that the economic impact of the regulation is severe. Petitioners cannot claim that they reasonably expected to sell or develop their lots separately given the regulations which predated their acquisition of both lots. Finally, the governmental action was a reasonable land-use regulation, enacted as part of a coordinated federal, state, and local effort to preserve the river and surrounding land. *  *  * Like the ultimate question whether a regulation has gone too far, the question of the proper parcel in regulatory takings cases cannot be solved by any simple test. See Arkansas Game and Fish Comm’n v. United States , 568 U. S. 23, 31 (2012) . Courts must instead define the parcel in a manner that reflects reasonable expectations about the property. Courts must strive for consistency with the central purpose of the Takings Clause: to “bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong , 364 U. S., at 49. Treating the lot in question as a single parcel is legitimate for purposes of this takings inquiry, and this supports the conclusion that no regulatory taking occurred here. The judgment of the Wisconsin Court of Appeals is affirmed. It is so ordered. Justice Gorsuch took no part in the consideration or decision of this case. SUPREME COURT OF THE UNITED STATES _________________ No. 15–214 _________________ JOSEPH P. MURR, et al., PETITIONERS v. WISCONSIN, et al. on writ of certiorari to the court of appeals of wisconsin, district iii [June 23, 2017] Chief Justice Roberts, with whom Justice Thomas and Justice Alito join, dissenting. The Murr family owns two adjacent lots along the Lower St. Croix River. Under a local regulation, those two properties may not be “sold or developed as separate lots” because neither contains a sufficiently large area of buildable land. Wis. Admin. Code §NR 118.08(4)(a)(2) (2017). The Court today holds that the regulation does not effect a taking that requires just compensation. This bottom-line conclusion does not trouble me; the majority presents a fair case that the Murrs can still make good use of both lots, and that the ordinance is a commonplace tool to preserve scenic areas, such as the Lower St. Croix River, for the benefit of landowners and the public alike. Where the majority goes astray, however, is in concluding that the definition of the “private property” at issue in a case such as this turns on an elaborate test looking not only to state and local law, but also to (1) “the physical characteristics of the land,” (2) “the prospective value of the regulated land,” (3) the “reasonable expectations” of the owner, and (4) “background customs and the whole of our legal tradition.” Ante, at 11–12. Our decisions have, time and again, declared that the Takings Clause protects private property rights as state law creates and defines them. By securing such established property rights, the Takings Clause protects individuals from being forced to bear the full weight of actions that should be borne by the public at large. The majority’s new, malleable definition of “private property”—adopted solely “for purposes of th[e] takings inquiry,” ante, at 20—undermines that protection. I would stick with our traditional approach: State law defines the boundaries of distinct parcels of land, and those boundaries should determine the “private property” at issue in regulatory takings cases. Whether a regulation effects a taking of that property is a separate question, one in which common ownership of adjacent property may be taken into account. Because the majority departs from these settled principles, I respectfully dissent. I A The Takings Clause places a condition on the government’s power to interfere with property rights, instructing that “private property [shall not] be taken for public use, without just compensation.” Textually and logically, this Clause raises three basic questions that individuals, governments, and judges must consider when anticipating or deciding whether the government will have to provide reimbursement for its actions. The first is what “pri-vate property” the government’s planned course of conduct will affect. The second, whether that property has been “taken” for “public use.” And if “private property” has been “taken,” the last item of business is to calculate the “just compensation” the owner is due. Step one—identifying the property interest at stake—requires looking outside the Constitution. The word “property” in the Takings Clause means “the group of rights inhering in [a] citizen’s relation to [a] . . . thing, as the right to possess, use and dispose of it.” United States v. General Motors Corp. , 323 U. S. 373, 378 (1945) . The Clause does not, however, provide the definition of those rights in any particular case. Instead, “property interests . . . are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.” Ruckelshaus v. Monsanto Co. , 467 U. S. 986, 1001 (1984) (alteration and internal quotation marks omitted). By protecting these established rights, the Takings Clause stands as a buffer between property owners and governments, which might naturally look to put private property to work for the public at large. When government action interferes with property rights, the next question becomes whether that interference amounts to a “taking.” “The paradigmatic taking . . . is a direct government appropriation or physical invasion of private property.” Lingle v. Chevron U. S. A. Inc. , 544 U. S. 528, 537 (2005) . These types of actions give rise to “ per se taking[s]” because they are “perhaps the most serious form[s] of invasion of an owner’s property interests, depriving the owner of the rights to possess, use and dispose of the property.” Horne v. Department of Agriculture , 576 U. S. ___, ___ (2015) (slip op., at 7) (internal quotation marks omitted). But not all takings are so direct: Governments can infringe private property interests for public use not only through appropriations, but through regulations as well. If compensation were required for one but not the other, “the natural tendency of human nature” would be to extend regulations “until at last private property disappears.” Pennsylvania Coal Co. v. Mahon , 260 U. S. 393, 415 (1922) . Our regulatory takings decisions, then, have recognized that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” Ibid. This rule strikes a balance between property owners’ rights and the government’s authority to advance the common good. Owners can rest assured that they will be compensated for particularly onerous regulatory actions, while governments maintain the freedom to adjust the benefits and burdens of property ownership without incurring crippling costs from each alteration. Depending, of course, on how far is “too far.” We have said often enough that the answer to this question generally resists per se rules and rigid formulas. There are, however, a few fixed principles: The inquiry “must be conducted with respect to specific property.” Keystone Bituminous Coal Assn. v. DeBenedictis , 480 U. S. 470, 495 (1987) (internal quotation marks omitted). And if a “regulation denies all economically beneficial or productive use of land,” the interference categorically amounts to a taking. Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1015 (1992) . For the vast array of regulations that lack such an extreme effect, a flexible approach is more fitting. The factors to consider are wide ranging, and include the economic impact of the regulation, the owner’s investment-backed expectations, and the character of the government action. The ultimate question is whether the government’s imposition on a property has forced the owner “to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Penn Central Transp. Co. v. New York City , 438 U. S. 104, 123 (1978) (internal quotation marks omitted). Finally, if a taking has occurred, the remaining matter is tabulating the “just compensation” to which the property owner is entitled. “[J]ust compensation normally is tobe measured by the market value of the property at the time of the taking.” Horne , 576 U. S., at ___ (slip op., at 15) (internal quotation marks omitted). B Because a regulation amounts to a taking if it completely destroys a property’s productive use, there is an incen-tive for owners to define the relevant “private property” narrowly. This incentive threatens the careful balance between property rights and government authority that our regulatory takings doctrine strikes: Put in terms of the familiar “bundle” analogy, each “strand” in the bundle of rights that comes along with owning real property is a distinct property interest. If owners could define the relevant “private property” at issue as the specific “strand” that the challenged regulation affects, they could convert nearly all regulations into per se takings. And so we do not allow it. In Penn Central Transportation Co. v. New York City , we held that property owners may not “establish a ‘taking’ simply by showing that they have been denied the ability to exploit a property interest.” 438 U. S., at 130. In that case, the owner of Grand Central Terminal in New York City argued that a restriction on the owner’s ability to add an office building atop the station amounted to a taking of its air rights. We rejected that narrow definition of the “property” at issue, concluding that the correct unit of analysis was the owner’s “rights in the parcel as a whole.” Id., at 130–131. “[W]here an owner possesses a full ‘bundle’ of property rights, the destruction of one strand of the bundle is not a taking, because the aggregate must be viewed in its entirety.” Andrus v. Allard , 444 U. S. 51 –66 (1979); see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302, 327 (2002) . The question presented in today’s case concerns the “parcel as a whole” language from Penn Central . This enigmatic phrase has created confusion about how to identify the relevant property in a regulatory takings case when the claimant owns more than one plot of land. Should the impact of the regulation be evaluated with respect to each individual plot, or with respect to adjacent plots grouped together as one unit? According to the majority, a court should answer this question by considering a number of facts about the land and the regulation at issue. The end result turns on whether those factors “would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” Ante, at 12. I think the answer is far more straightforward: State laws define the boundaries of distinct units of land, and those boundaries should, in all but the most exceptional circumstances, determine the parcel at issue. Even in regulatory takings cases, the first step of the Takings Clause analysis is still to identify the relevant “private property.” States create property rights with respect to particular “things.” And in the context of real property, those “things” are horizontally bounded plots of land. Tahoe-Sierra , 535 U. S., at 331 (“An interest in real property is defined by the metes and bounds that describe its geographic dimensions”). States may define those plots differently—some using metes and bounds, others using government surveys, recorded plats, or subdivision maps. See 11 D. Thomas, Thompson on Real Property §94.07(s) (2d ed. 2002); Powell on Real Property §81A.05(2)(a) (M. Wolf ed. 2016). But the definition of property draws the basic line between, as P. G. Wodehouse would put it, meum and tuum . The question of who owns what is pretty important: The rules must provide a readily ascertainable definition of the land to which a particular bundle of rights attaches that does not vary depending upon the purpose at issue. See, e.g., Wis. Stat. §236.28 (2016) (“[T]he lots in [a] plat shall be described by the name of the plat and the lot and block . . . for all purposes, including those of assessment, taxation, devise, descent and conveyance”). Following state property lines is also entirely consistent with Penn Central . Requiring consideration of the “parcel as a whole” is a response to the risk that owners will strategically pluck one strand from their bundle of property rights—such as the air rights at issue in Penn Central —and claim a complete taking based on that strand alone. That risk of strategic unbundling is not present when a legally distinct parcel is the basis of the regulatory takings claim. State law defines all of the interests that come along with owning a particular parcel, and both property owners and the government must take those rights as they find them. The majority envisions that relying on state law will create other opportunities for “gamesmanship” by landowners and States: The former, it contends, “might seek to alter [lot] lines in anticipation of regulation,” while the latter might pass a law that “consolidates . . . property” to avoid a successful takings claim. Ante, at 11, 17. But such obvious attempts to alter the legal landscape in anticipation of a lawsuit are unlikely and not particularly difficult to detect and disarm. We rejected the strategic splitting of property rights in Penn Central , and courts could do the same if faced with an attempt to create a takings-specific definition of “private property.” Cf. Phillips v. Washington Legal Foundation , 524 U. S. 156, 167 (1998) (“[A] State may not sidestep the Takings Clause by disavowing traditional property interests long recognized under state law”). Once the relevant property is identified, the real work begins. To decide whether the regulation at issue amounts to a “taking,” courts should focus on the effect of the regulation on the “private property” at issue. Adjacent land under common ownership may be relevant to that inquiry. The owner’s possession of such a nearby lot could, for instance, shed light on how the owner reasonably expected to use the parcel at issue before the regulation. If the court concludes that the government’s action amounts to a taking, principles of “just compensation” may also allow the owner to recover damages “with regard to a separate parcel” that is contiguous and used in conjunction with the parcel at issue. 4A L. Smith & M. Hansen, Nichols’ Law of Eminent Domain, ch. 14B, §14B.02 (rev. 3d ed. 2010). In sum, the “parcel as a whole” requirement prevents a property owner from identifying a single “strand” in his bundle of property rights and claiming that interest has been taken. Allowing that strategic approach to defining “private property” would undermine the balance struck by our regulatory takings cases. Instead, state law creates distinct parcels of land and defines the rights that come along with owning those parcels. Those established bundles of rights should define the “private property” in regulatory takings cases. While ownership of contiguous properties may bear on whether a person’s plot has been “taken,” Penn Central provides no basis for disregarding state property lines when identifying the “parcel as a whole.” II The lesson that the majority draws from Penn Central is that defining “the proper parcel in regulatory takings cases cannot be solved by any simple test.” Ante, at 20. Following through on that stand against simplicity, the majority lists a complex set of factors theoretically designed to reveal whether a hypothetical landowner might expect that his property “would be treated as one parcel, or, instead, as separate tracts.” Ante, at 11. Those factors, says the majority, show that Lots E and F of the Murrs’ property constitute a single parcel and that the local ordinance requiring the Murrs to develop and sell those lots as a pair does not constitute a taking. In deciding that Lots E and F are a single parcel, the majority focuses on the importance of the ordinance at issue and the extent to which the Murrs may have been especially surprised, or unduly harmed, by the application of that ordinance to their property. But these issues should be considered when deciding if a regulation constitutes a “taking.” Cramming them into the definition of “private property” undermines the effectiveness of the Takings Clause as a check on the government’s power to shift the cost of public life onto private individuals. The problem begins when the majority loses track of the basic structure of claims under the Takings Clause. While it is true that we have referred to regulatory takings claims as involving “essentially ad hoc, factual inquiries,” we have conducted those wide-ranging investigations when assessing “the question of what constitutes a ‘ taking ’ ” under Penn Central . Ruckelshaus , 467 U. S., at 1004 (emphasis added); see Tahoe-Sierra , 535 U. S., at 326 (“[W]e have generally eschewed any set formula for determining how far is too far ” (emphasis added; internal quotation marks omitted)). And even then, we reach that “ad hoc” Penn Central framework only after determining that the regulation did not deny all productive use of the parcel. See Tahoe-Sierra , 535 U. S., at 331. Both of these inquiries presuppose that the relevant “private property” has already been identified. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. , 452 U. S. 264, 295 (1981) (explaining that “[t]hese ‘ad hoc, factual inquiries’ must be conducted with respect to specific property”). There is a simple reason why the majority does not cite a single instance in which we have made that identification by relying on anything other than state property principles—we have never done so. In departing from state property principles, the majority authorizes governments to do precisely what we rejected in Penn Central : create a litigation-specific definition of “property” designed for a claim under the Takings Clause. Whenever possible, governments in regulatory takings cases will ask courts to aggregate legally distinct properties into one “parcel,” solely for purposes of resisting a particular claim. And under the majority’s test, identifying the “parcel as a whole” in such cases will turn on the reasonableness of the regulation as applied to the claimant. The result is that the government’s regulatory interests will come into play not once, but twice—first when identifying the relevant parcel, and again when determining whether the regulation has placed too great a public burden on that property. Regulatory takings, however—by their very nature—pit the common good against the interests of a few. There is an inherent imbalance in that clash of interests. The widespread benefits of a regulation will often appear far weightier than the isolated losses suffered by individuals. And looking at the bigger picture, the overall societal good of an economic system grounded on private property will appear abstract when cast against a concrete regulatory problem. In the face of this imbalance, the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government,” Monongahela Nav. Co. v. United States , 148 U. S. 312, 325 (1893) , by considering the effect of a regulation on specific property rights as they are established at state law. But the majority’s approach undermines that protection, defining property only after engaging in an ad hoc, case-specific consideration of individual and community interests. The result is that the government’s goals shape the playing field before the contest over whether the challenged regulation goes “too far” even gets underway. Suppose, for example, that a person buys two distinct plots of land—known as Lots A and B—from two different owners. Lot A is landlocked, but the neighboring Lot B shares a border with a local beach. It soon comes to light, however, that the beach is a nesting habitat for a species of turtle. To protect this species, the state government passes a regulation preventing any development or recreation in areas abutting the beach—including Lot B. If that lot became the subject of a regulatory takings claim, the purchaser would have a strong case for a per se taking: Even accounting for the owner’s possession of the other property, Lot B had no remaining economic value or productive use. But under the majority’s approach, the government can argue that—based on all the circumstances and the nature of the regulation—Lots A and B should be considered one “parcel.” If that argument succeeds, the owner’s per se takings claim is gone, and he is left to roll the dice under the Penn Central balancing framework, where the court will, for a second time, throw the reason-ableness of the government’s regulatory action into the balance. The majority assures that, under its test, “[d]efining the property . . . should not necessarily preordain the outcome in every case.” Ante, at 10 (emphasis added). The underscored language cheapens the assurance. The framework laid out today provides little guidance for identifying whether “expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” Ante, at 12. Instead, the majority’s approach will lead to definitions of the “parcel” that have far more to do with the reasonableness of applying the challenged regulation to a particular landowner. The result is clear double counting to tip the scales in favor of the government: Reasonable government regulation should have been anticipated by the landowner, so the relevant parcel is defined consistent with that regulation. In deciding whether there is a taking under the second step of the analysis, the regulation will seem eminently reasonable given its impact on the pre-packaged parcel. Not, as the Court assures us, “necessarily” in “every” case, but surely in most. Moreover, given its focus on the particular challenged regulation, the majority’s approach must mean that two lots might be a single “parcel” for one takings claim, but separate “parcels” for another. See ante, at 13. This is just another opportunity to gerrymander the definition of “private property” to defeat a takings claim. The majority also emphasizes that courts trying to identify the relevant parcel “must strive” to ensure that “some people alone [do not] bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Ante, at 20 (internal quotation marks omitted). But this refrain is the traditional touchstone for spotting a taking, not for defining private property. Put simply, today’s decision knocks the definition of “private property” loose from its foundation on stable state law rules and throws it into the maelstrom of multiple factors that come into play at the second step of the takings analysis. The result: The majority’s new framework compromises the Takings Clause as a barrier between individuals and the press of the public interest. III Staying with a state law approach to defining “private property” would make our job in this case fairly easy. The Murr siblings acquired Lot F in 1994 and Lot E a year later. Once the lots fell into common ownership, the challenged ordinance prevented them from being “sold or developed as separate lots” because neither contained a sufficiently large area of buildable land. Wis. Admin. Code §NR 118.08(4)(a)(2). The Murrs argued that the ordinance amounted to a taking of Lot E, but the State of Wisconsin and St. Croix County proposed that both lots together should count as the relevant “parcel.” The trial court sided with the State and County, and the Wisconsin Court of Appeals affirmed. Rather than considering whether Lots E and F are separate parcels under Wisconsin law, however, the Court of Appeals adopted a takings-specific approach to defining the relevant parcel. See 2015 WI App 13, 359 Wis. 2d 675, 859 N. W. 2d 628 (unpublished opinion), App. to Pet. for Cert. A–9, ¶17 (framing the issue as “whether contiguous property is analytically divisible for purposes of a regulatory takings claim”). Relying on what it called a “well-established rule” for “regulatory takings cases,” the court explained “that contiguous property under common ownership is considered as a whole regardless of the number of parcels contained therein.” Id., at A–11, ¶20. And because Lots E and F were side by side and owned by the Murrs, the case was straightforward: The two lots were one “parcel” for the regulatory takings analysis. The court therefore evaluated the effect of the ordinance on the two lots considered together. As I see it, the Wisconsin Court of Appeals was wrong to apply a takings-specific definition of the property at issue. Instead, the court should have asked whether, under general state law principles, Lots E and F are legally distinct parcels of land. I would therefore vacate the judgment below and remand for the court to identify the relevant property using ordinary principles of Wisconsin property law. After making that state law determination, the next step would be to determine whether the challenged ordinance amounts to a “taking.” If Lot E is a legally distinct parcel under state law, the Court of Appeals would have to perform the takings analysis anew, but could still consider many of the issues the majority finds important. The majority, for instance, notes that under the ordinance the Murrs can use Lot E as “recreational space,” as the “location of any improvements,” and as a valuable addition to Lot F. Ante, at 18. These facts could be relevant to whether the “regulation denies all economically beneficial or productive use” of Lot E. Lucas , 505 U. S., at 1015. Similarly, the majority touts the benefits of the ordinance and observes that the Murrs had little use for Lot E independent of Lot F and could have predicted that Lot E would be regulated. Ante, at 18. These facts speak to “the economic impact of the regulation,” interference with “investment-backed expectations,” and the “character of the governmental action”—all things we traditionally consider in the Penn Central analysis. 438 U. S., at 124. I would be careful, however, to confine these considerations to the question whether the regulation constitutes a taking. As Alexander Hamilton explained, “the security of Property” is one of the “great object[s] of government.” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed. 1911). The Takings Clause was adopted to ensure such security by protecting property rights as they exist under state law. Deciding whether a regulation has gone so far as to constitute a “taking” of one of those property rights is, properly enough, a fact-intensive task that relies “as much on the exercise of judgment as on the application of logic.” MacDonald, Sommer & Frates v. Yolo County , 477 U. S. 340, 349 (1986) (alterations and internal quotation marks omitted). But basing the definition of “property” on a judgment call, too, allows the government’s interests to warp the private rights that the Takings Clause is supposed to secure. I respectfully dissent. SUPREME COURT OF THE UNITED STATES _________________ No. 15–214 _________________ JOSEPH P. MURR, et al., PETITIONERS v. WISCONSIN, et al. on writ of certiorari to the court of appeals of wisconsin, district iii [June 23, 2017] Justice Thomas, dissenting. I join The Chief Justice’s dissent because it correctly applies this Court’s regulatory takings precedents, which no party has asked us to reconsider. The Court, however, has never purported to ground those precedents in the Constitution as it was originally understood. In Pennsylvania Coal Co. v. Mahon , 260 U. S. 393, 415 (1922) , the Court announced a “general rule” that “if regulation goes too far it will be recognized as a taking.” But we have since observed that, prior to Mahon , “it was generally thought that the Takings Clause reached only a ‘direct appropriation’ of property, Legal Tender Cases , 12 Wall. 457, 551 (1871), or the functional equivalent of a ‘practical ouster of [the owner’s] possession,’ Transportation Co. v. Chicago , 99 U. S. 635, 642 (1879) .” Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1014 (1992) . In my view, it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment. See generally Rappaport, Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, but the Fourteenth Amendment May, 45 San Diego L. Rev. 729 (2008) (describing the debate among scholars over those questions).

The Supreme Court ruled that a regulatory taking of property occurs when a government regulation imposes burdens or restrictions that diminish the value or use of the property, not just through physical occupation or seizure. In this case, the government's classification of a landowner's lot as substandard in size, which prevented its separate sale or improvement, was found to be a regulatory taking. The Court considered the impact of the regulation, the interference with investment-backed expectations, and the character of the governmental action. Justice Thomas dissented, suggesting a re-examination of regulatory takings jurisprudence to align with the original public meaning of the Takings Clause.

Property Rights & Land Use

Sheetz v. County of El Dorado, California

https://supreme.justia.com/cases/federal/us/601/22-1074/

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. SUPREME COURT OF THE UNITED STATES _________________ No. 22–1074 _________________ GEORGE SHEETZ, PETITIONER v. COUNTY OF EL DORADO, CALIFORNIA on writ of certiorari to the court of appeal of california, third appellate district [April 12, 2024] Justice Barrett delivered the opinion of the Court. George Sheetz wanted to build a small, prefabricated home on his residential parcel of land. To obtain a permit, though, he had to pay a substantial fee to mitigate local traffic congestion. Relying on this Court’s decisions in Nollan v. California Coastal Comm’n , 483 U.S. 825 (1987), and Dolan v. City of Tigard , 512 U.S. 374 (1994), Sheetz challenged the fee as an unlawful “exaction” of money under the Takings Clause. The California Court of Appeal rejected that argument because the traffic impact fee was imposed by legislation, and, according to the court, Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators. That is incorrect. The Takings Clause does not distinguish between legislative and administrative permit conditions. I A El Dorado County, California is a rural jurisdiction that lies east of Sacramento and extends to the Nevada border. Much of the County’s 1,700 square miles is backcountry. It is home to the Sierra Nevada mountain range and the Eldorado National Forest. Those areas, composed mainly of public lands, are sparsely populated. Visitors from around the world use the natural areas for fishing, backpacking, and other recreational activities. Most of the County’s residents are concentrated in the west and east regions. In the west, the towns of El Dorado Hills, Cameron Park, and Shingle Springs form the outer reaches of Sacramento’s suburbs. Placerville, the county seat, lies just beyond them. In the east, residents live along the south shores of Lake Tahoe. Highway 50 connects these population centers and divides the County into north and south portions. In recent decades, the County has experienced significant population growth, and with it an increase in new development. To account for the new demand on public services, the County’s Board of Supervisors adopted a planning document, which it calls the General Plan, to address issues ranging from wastewater collection to land-use restrictions.[ 1 ] The Board of Supervisors is a legislative body under state law, and the adoption of its General Plan is a legislative act. See Cal. Govt. Code Ann. §65300 et seq. (West 2024). To address traffic congestion, the General Plan requires developers to pay a traffic impact fee as a condition of receiving a building permit. The County uses proceeds from these fees to fund improvements to its road system. The fee amount is determined by a rate schedule, which takes into account the type of development (commercial, residential, and so on) and its location within the County. The amount is not based on “the cost specifically attributable to the particular project on which the fee is imposed.” 84 Cal. App. 5th 394, 402, 300 Cal. Rptr. 3d 308, 312 (2022). B George Sheetz owns property in the center of the County near Highway 50, which the General Plan classifies as “Low Density Residential.” [ 2 ] Sheetz and his wife applied for a permit to build a modest prefabricated house on the parcel, with plans to raise their grandson there. As a condition of receiving the permit, the County required Sheetz to pay a traffic impact fee of $23,420, as dictated by the General Plan’s rate schedule. Sheetz paid the fee under protest and obtained the permit. The County did not respond to his request for a refund. Sheetz sought relief in state court. He claimed, among other things, that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause. In Sheetz’s view, our decisions in Nollan v. California Coastal Comm’n , 483 U.S. 825 , and Dolan v. City of Tigard , 512 U.S. 374 , required the County to make an individualized determination that the fee amount was necessary to offset traffic congestion attributable to his specific development. The County’s predetermined fee schedule, Sheetz argued, failed to meet that requirement. The trial court rejected Sheetz’s claim and the California Court of Appeal affirmed. Relying on precedent from the California Supreme Court, the Court of Appeal asserted that the Nollan / Dolan test applies only to permit conditions imposed “ ‘on an individual and discretionary basis.’ ” 84 Cal. App. 5th, at 406, 300 Cal. Rptr. 3d, at 316 (quoting San Remo Hotel L. P. v. City and Cty. of San Francisco , 27 Cal. 4th 643 , 666–670, 41 P.3d 87 , 102–105 (2002)). Fees imposed on “a broad class of property owners through legislative action,” it said, need not satisfy that test. 84 Cal. App. 5th, at 407, 300 Cal. Rptr. 3d, at 316. The California Supreme Court denied review. State courts have reached different conclusions on the question whether the Takings Clause recognizes a distinction between legislative and administrative conditions on land-use permits.[ 3 ] We granted certiorari to resolve the split. 600 U. S. ___ (2023). II A When the government wants to take private property to build roads, courthouses, or other public projects, it must compensate the owner at fair market value. The just compensation requirement comes from the Fifth Amendment’s Takings Clause, which provides: “nor shall private property be taken for public use, without just compensation.” By requiring the government to pay for what it takes, the Takings Clause saves individual property owners from bearing “public burdens which, in all fairness and justice, should be borne by the public as a whole.” Armstrong v. United States , 364 U.S. 40 , 49 (1960). The Takings Clause’s right to just compensation coexists with the States’ police power to engage in land-use planning. (Though at times the two seem more like in-laws than soulmates.) While States have substantial authority to regulate land use, see Village of Euclid v. Amber Realty Co. , 272 U.S. 365 (1926), the right to compensation is triggered if they “physically appropriat[e]” property or otherwise interfere with the owner’s right to exclude others from it, Cedar Point Nursery v. Hassid , 594 U.S. 139, 149–152 (2021). That sort of intrusion on property rights is a per se taking. Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419 , 426 (1982). Different rules apply to State laws that merely restrict how land is used. A use restriction that is “reasonably necessary to the effectuation of a substantial government purpose” is not a taking unless it saps too much of the property’s value or frustrates the owner’s investment-backed expectations. Penn Central Transp. Co. v. New York City , 438 U.S. 104 , 123, 127 (1978); see also Lucas v. South Carolina Coastal Council , 505 U.S. 1003 , 1016 (1992) (“[T]he Fifth Amendment is violated when land-use regulation does not substantially advance legitimate state interests or denies an owner economically viable use of his land ” (internal quotation marks omitted)). Permit conditions are more complicated. If the government can deny a building permit to further a “legitimate police-power purpose,” then it can also place conditions on the permit that serve the same end. Nollan , 483 U. S., at 836. Such conditions do not entitle the landowner to compensation even if they require her to convey a portion of her property to the government. Ibid. Thus, if a proposed development will “substantially increase traffic congestion,” the government may condition the building permit on the owner’s willingness “to deed over the land needed to widen a public road.” Koontz v. St. Johns River Water Management Dist. , 570 U.S. 595 , 605 (2013). We have described permit conditions of this nature as “a hallmark of responsible land-use policy.” Ibid. The government is entitled to put the landowner to the choice of accepting the bargain or abandoning the proposed development. See R. Epstein, Bargaining With the State 188 (1993). The bargain takes on a different character when the government withholds or conditions a building permit for reasons unrelated to its land-use interests. Imagine that a local planning commission denies the owner of a vacant lot a building permit unless she allows the commission to host its annual holiday party in her backyard (in propertyspeak, granting it a limited-access easement). The landowner is “likely to accede to the government’s demand, no matter how unreasonable,” so long as she values the building permit more. Koontz , 570 U. S., at 605. So too if the commission gives the landowner the option of bankrolling the party at a local pub instead of hosting it on her land. See id ., at 612–615. Because such conditions lack a sufficient connection to a legitimate land-use interest, they amount to “an out-and-out plan of extortion.” Nollan , 483 U. S., at 837 (internal quotation marks omitted). Our decisions in Nollan and Dolan address this potential abuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine. See Perry v. Sindermann , 408 U.S. 593 , 597 (1972) (government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests”). First, permit conditions must have an “essential nexus” to the government’s land-use interest. Nollan , 483 U. S., at 837. The nexus requirement ensures that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. See id ., at 841. Second, permit conditions must have “ ‘rough proportionality’ ” to the development’s impact on the land-use interest. Dolan , 512 U. S., at 391. A permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose. See id ., at 393. This test applies regardless of whether the condition requires the landowner to relinquish property or requires her to pay a “monetary exactio[n]” instead of relinquishing the property. Koontz, 570 U. S., at 612–615. B The California Court of Appeal declined to assess the County’s traffic impact fee for an essential nexus and rough proportionality based on its view that the Nollan / Dolan test does not apply to “legislatively prescribed monetary fees.” 84 Cal. App. 5th, at 407, 300 Cal. Rptr. 3d, at 316 (internal quotation marks omitted). That was error. Nothing in constitutional text, history, or precedent supports exempting legislatures from ordinary takings rules. The Constitution’s text does not limit the Takings Clause to a particular branch of government. The Clause itself, which speaks in the passive voice, “focuses on (and prohibits) a certain ‘act’: the taking of private property without just compensation.” Knight v. Metropolitan Govt. of Nashville & Davidson Cty. , 67 F. 4th 816, 829 (CA6 2023). It does not single out legislative acts for special treatment. Nor does the Fourteenth Amendment, which incorporates the Takings Clause against the States. On the contrary, the Amendment constrains the power of each “State” as an undivided whole. §1. Thus, there is “no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation.” Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection , 560 U.S. 702 , 714 (2010) (plurality opinion). Just as the Takings Clause “protects ‘private property’ without any distinction between different types,” Horne v. Department of Agriculture , 576 U.S. 351 , 358 (2015), it constrains the government without any distinction between legislation and other official acts. So far as the Constitution’s text is concerned, permit conditions imposed by the legislature and other branches stand on equal footing. The same goes for history. In fact, special deference for legislative takings would have made little sense historically, because legislation was the conventional way that governments exercised their eminent domain power. Before the founding, colonial governments passed statutes to secure land for courthouses, prisons, and other public buildings. See, e . g ., 4 Statutes at Large of South Carolina 319 (T. Cooper ed. 1838) (Act of 1770) (Cooper); 6 Statutes at Large, Laws of Virginia 283 (W. Hening ed. 1819) (Act of 1752) (Hening). These statutes “invariably required the award of compensation to the owners when land was taken.” J. Ely, “That Due Satisfaction May Be Made:” the Fifth Amendment and the Origins of the Compensation Principle, 36 Am. J. Legal Hist. 1, 5 (1992). Colonial practice thus echoed English law, which vested Parliament alone with the eminent domain power and required that property owners receive “full indemnification . . . for a reasonable price.” 1 W. Blackstone, Commentaries on the Laws of England 139 (1768). During and after the Revolution, governments continued to exercise their eminent domain power through legislation. States passed statutes to obtain private land for their new capitals and provided compensation to the landowners. See, e . g ., 4 Cooper 751–752 (Act of 1786); 10 Hening 85–87 (1822 ed.) (Act of 1779). At the national level, Congress passed legislation to settle the Northwest Territory, which likewise required the payment of compensation to dispossessed property owners. Northwest Ordinance of 1789, 1Stat. 52. Two years later, the Fifth Amendment enshrined this longstanding practice. Against this background, it is little surprise that early constitutional theorists understood the Takings Clause to bind the legislature specifically. See, e.g. , 3 J. Story, Commentaries on the Constitution of the United States §1784, p. 661 (1833); 2 J. Kent, Commentaries on American Law 275–276 (1827). Far from supporting a deferential view, history shows that legislation was a prime target for scrutiny under the Takings Clause. Precedent points the same way as text and history. A legislative exception to the Nollan / Dolan test “conflicts with the rest of our takings jurisprudence,” which does not otherwise distinguish between legislation and other official acts. Knick v. Township of Scott, 588 U.S. 180, 185 (2019). That is true of physical takings, regulatory takings, and the unconstitutional conditions doctrine in which the Nollan / Dolan test is rooted. Start with our physical takings cases. We have applied the per se rule requiring just compensation to both legislation and administrative action. In Loretto , we held that a state statute effected a taking because it authorized cable companies to install equipment on private property without the owner’s consent. 458 U. S., at 438. In Horne , we held that an administrative order effected a taking because it required farmers to give the Federal Government a portion of their crop to stabilize market prices. 576 U. S., at 361. The branch of government that authorized the appropriation did not matter to the analysis in either case. Nor should it have. As we have explained: “The essential question is not . . . whether the government action at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous decree). It is whether the government has physically taken property for itself or someone else.” Cedar Point , 594 U. S., at 149. This principle is evident in our regulatory takings cases too. We have examined land-use restrictions imposed by both legislatures and administrative agencies to determine whether the restriction amounted to a taking. In Pennsylvania Coal Co. v. Mahon , we held a state statute effected a taking because it prohibited the owner of mineral rights from mining coal beneath the surface estate, thus depriving the mineral rights of practically all economic value. 260 U.S. 393 , 414 (1922). And in Palazzolo v. Rhode Island , we remanded for the lower courts to determine whether an agency decision effected a taking when it denied the owner permission to build a beach club on the wetland portion of his property but allowed him to build a home on the upland portion. 533 U.S. 606 , 631 (2001). Here again, our decisions did not suggest that the outcome turned on which branch of government imposed the restrictions. Excusing legislation from the Nollan / Dolan test would also conflict with precedent applying the unconstitutional conditions doctrine in other contexts. We have applied that doctrine to scrutinize legislation that placed conditions on the right to free speech, Agency for Int’l Development v. Alliance for Open Society Int’l, Inc. , 570 U.S. 205 (2013), free exercise of religion, Sherbert v. Verner , 374 U.S. 398 (1963), and access to federal courts, Terral v. Burke Constr. Co. , 257 U.S. 529 (1922), among others, e . g ., Memorial Hospital v. Maricopa County , 415 U.S. 250 (1974) (right to travel). Failing to give like treatment to legislative conditions on building permits would thus “relegat[e the just compensation requirement] to the status of a poor relation” to other constitutional rights. Dolan , 512 U. S., at 392. In sum, there is no basis for affording property rights less protection in the hands of legislators than administrators. The Takings Clause applies equally to both—which means that it prohibits legislatures and agencies alike from imposing unconstitutional conditions on land-use permits. III The County no longer contends otherwise. In fact, at oral argument, the parties expressed “radical agreement” that conditions on building permits are not exempt from scrutiny under Nollan and Dolan just because a legislature imposed them. Tr. of Oral Arg. 4, 73–74. The County was wise to distance itself from the rule applied by the California Court of Appeal, because, as we have explained, a legislative exception to the ordinary takings rules finds no support in constitutional text, history, or precedent. We do not address the parties’ other disputes over the validity of the traffic impact fee, including whether a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development. The California Court of Appeal did not consider this point—or any of the parties’ other nuanced arguments—because it proceeded from the erroneous premise that legislative permit conditions are categorically exempt from the requirements of Nollan and Dolan . Whether the parties’ other arguments are preserved and how they bear on Sheetz’s legal challenge are for the state courts to consider in the first instance. *  *  * The judgment of the California Court of Appeal is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Notes 1 See County of El Dorado Adopted General Plan, https://edcgov.us/Government/planning/Pages/adopted_general_plan.aspx. 2 See Figure LU–1: Land Use Diagram, https://edcgov.us/government/ planning/adoptedgeneralplan/figures/documents/LU-1.pdf. 3 Compare, e . g ., Home Builders Assn. of Dayton and Miami Valley v. Beavercreek , 89 Ohio St. 3d 121, 128, 729 N.E.2d 349, 356 (2000); Northern Ill. Home Builders Assn. v. County of Du Page , 165 Ill. 2d 25 , 32–33, 649 N.E.2d 384 , 389 (1995) (applying the Nollan / Dolan test to legislative permit conditions), with, e . g ., St. Clair Cty. Home Builders Assn. v. Pell City , 61 So. 3d 992, 1007 (Ala. 2010); Home Builders Assn. of Central Ariz. v. Scottsdale , 187 Ariz. 479, 486, 930 P.2d 993 , 1000 (1997) (following California’s approach). SUPREME COURT OF THE UNITED STATES _________________ No. 22–1074 _________________ GEORGE SHEETZ, PETITIONER v. COUNTY OF EL DORADO, CALIFORNIA on writ of certiorari to the court of appeal of california, third appellate district [April 12, 2024] Justice Sotomayor, with whom Justice Jackson joins, concurring. I join the Court’s resolution of the limited question presented in this case, that conditions on building permits are “not exempt from scrutiny under Nollan and Dolan just because a legislature imposed them.” Ante , at 10; see Nollan v. California Coastal Comm’n , 483 U.S. 825 (1987); Dolan v. City of Tigard , 512 U.S. 374 (1994). There is, however, an important threshold question to any application of Nollan / Dolan scrutiny: whether the permit condition would be a compensable taking if imposed outside the permitting context. “A predicate for any unconstitutional conditions claim is that the government could not have constitutionally ordered the person asserting the claim to do what it attempted to pressure that person into doing.” Koontz v. St. Johns River Water Management Dist. , 570 U.S. 595 , 612 (2013). In the takings context, Nollan / Dolan scrutiny therefore applies only when the condition at issue would have been a compensable taking if imposed outside the permitting process. See Koontz , 570 U. S., at 612 (“[W]e began our analysis in both Nollan and Dolan by observing that if the government had directly seized the easements it sought to obtain through the permitting process, it would have committed a per se taking”). The question presented in this case did not include that antecedent question: whether the traffic impact fee would be a compensable taking if imposed outside the permitting context and therefore could trigger Nollan / Dolan scrutiny. The California Court of Appeal did not consider that question and the Court does not resolve it. See ante, at 10–11. With this understanding, I join the Court’s opinion. SUPREME COURT OF THE UNITED STATES _________________ No. 22–1074 _________________ GEORGE SHEETZ, PETITIONER v. COUNTY OF EL DORADO, CALIFORNIA on writ of certiorari to the court of appeal of california, third appellate district [April 12, 2024] Justice Gorsuch, concurring. George Sheetz sued El Dorado County, alleging that the county’s actions violated the Takings Clause under the test this Court set forth in Nollan v. California Coastal Comm’n , 483 U.S. 825 (1987), and Dolan v. City of Tigard , 512 U.S. 374 (1994). State courts dismissed Mr. Sheetz’s suit, holding that the Nollan/Dolan test applies only in challenges to administrative, not legislative, actions. Today, the county essentially confesses error, and the Court corrects the state courts’ mistake. It does so because our Constitution deals in substance, not form. However the government chooses to act, whether by way of regulation “ ‘or statute, or ordinance, or miscellaneous decree,’ ” it must follow the same constitutional rules. Ante, at 9 (quoting Cedar Point Nursery v. Hassid , 594 U.S. 139, 149 (2021)). The Court notes but does not address a separate question: whether the Nollan/Dolan test operates differently when an alleged taking affects a “class of properties” rather than “a particular development.” Ante, at 11. But how could it? To assess whether a government has engaged in a taking by imposing a condition on the development of land, the Nollan/Dolan test asks whether the condition in question bears an “ ‘essential nexus’ ” to the government’s land-use interest and has “ ‘rough proportionality’ ” to a property’s impact on that interest. Ante, at 6. Nothing about that test depends on whether the government imposes the challenged condition on a large class of properties or a single tract or something in between. Once more, how the government acts may vary but the Constitution’s standard for assessing those actions does not. Our precedents confirm as much. In Nollan , the California Coastal Commission told the plaintiffs that they could build a home on their land only if they accepted an easement allowing public access across their property along the beach. The plaintiffs argued that the commission’s demand amounted to a taking without just compensation, and the Court agreed. In doing so, the Court acknowledged that the commission hadn’t singled out the plaintiffs’ particular property for special treatment but “had similarly conditioned” dozens of other building projects. 483 U. S., at 829. It acknowledged, too, that the commission’s demand of the plaintiffs came about only because of a “ ‘comprehensive program’ ” demanding similar public access easements up and down the California coast. Id., at 841. But none of that made any difference in the Court’s analysis, the test it applied, or the conclusion it reached. All that mattered was whether the government’s action amounted to an uncompensated taking of the property of the plaintiffs whose case was actually before the Court. Id., at 838. In Dolan , the Court faced a similar situation and reached a similar conclusion. There, an Oregon municipality conditioned a building permit on the plaintiff ’s agreement to dedicate part of her land to “flood control and traffic improvements.” 512 U. S., at 377. No one suggested that the city had targeted the plaintiff ’s development for special treatment; everyone agreed that the city’s challenged action was the result of a “comprehensive land use pla[n],” one developed to meet “statewide planning goals.” Ibid. Even so, the Court held an “individualized determination” necessary to determine whether an unconstitutional taking had occurred under the same test the Court applied in Nollan . 512 U. S., at 393. The logic of today’s decision is entirely consistent with these conclusions. The Takings Clause, the Court stresses, is no “ ‘poor relation’ to other constitutional rights.” Ante, at 10 (quoting Dolan , 512 U. S., at 392). And the government rarely mitigates a constitutional problem by multiplying it. A governmentally imposed condition on the freedom of speech, the right to assemble, or the right to confront one’s accuser, for example, is no more permissible when enforced against a large “class” of persons than it is when enforced against a “particular” group. If takings claims must receive “like treatment,” ante, at 10, whether the government owes just compensation for taking your property cannot depend on whether it has taken your neighbors’ property too. In short, nothing in Nollan , Dolan , or today’s decision supports distinguishing between government actions against the many and the few any more than it supports distinguishing between legislative and administrative actions. In all these settings, the same constitutional rules apply. With that understanding, I am pleased to join the Court’s opinion. SUPREME COURT OF THE UNITED STATES _________________ No. 22–1074 _________________ GEORGE SHEETZ, PETITIONER v. COUNTY OF EL DORADO, CALIFORNIA on writ of certiorari to the court of appeal of california, third appellate district [April 12, 2024] Justice Kavanaugh, with whom Justice Kagan and Justice Jackson join, concurring. I join the Court’s opinion. I write separately to underscore that the Court has not previously decided—and today explicitly declines to decide—whether “a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.” Ante , at 10–11. Importantly, therefore, today’s decision does not address or prohibit the common government practice of imposing permit conditions, such as impact fees, on new developments through reasonable formulas or schedules that assess the impact of classes of development rather than the impact of specific parcels of property. Moreover, as is apparent from the fact that today’s decision expressly leaves the question open, no prior decision of this Court has addressed or prohibited that longstanding government practice. Both Nollan and Dolan considered permit conditions tailored to specific parcels of property. See Dolan v. City of Tigard , 512 U.S. 374 , 379–381, 393 (1994); Nollan v. California Coastal Comm’n , 483 U.S. 825 , 828–829 (1987). Those decisions had no occasion to address permit conditions, such as impact fees, that are imposed on permit applicants based on reasonable formulas or schedules that assess the impact of classes of development.

The Supreme Court ruled that local governments cannot require property owners to pay fees to mitigate traffic congestion as a condition for obtaining building permits, as it violates the Takings Clause of the Constitution. This decision applies regardless of whether the fee is imposed through legislation or administrative action.

Property Rights & Land Use

Knick v. Township of Scott

https://supreme.justia.com/cases/federal/us/588/17-647/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 17–647 _________________ ROSE MARY KNICK, PETITIONER v. TOWNSHIP OF SCOTT, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 21, 2019] Chief Justice Roberts delivered the opinion of the Court. The Takings Clause of the Fifth Amendment states that “private property [shall not] be taken for public use, without just compensation.” In Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985), we held that a property owner whose property has been taken by a local government has not suffered a violation of his Fifth Amendment rights—and thus cannot bring a federal takings claim in federal court—until a state court has denied his claim for just compensation under state law. The Williamson County Court anticipated that if the property owner failed to secure just compensation under state law in state court, he would be able to bring a “ripe” federal takings claim in federal court. See id ., at 194. But as we later held in San Remo Hotel , L. P. v. City and County of San Francisco , 545 U.S. 323 (2005), a state court’s resolution of a claim for just compensation under state law generally has preclusive effect in any subsequent federal suit. The takings plaintiff thus finds himself in a Catch-22: He cannot go to federal court without going to state court first; but if he goes to state court and loses, his claim will be barred in federal court. The federal claim dies aborning. The San Remo preclusion trap should tip us off that the state-litigation requirement rests on a mistaken view of the Fifth Amendment. The Civil Rights Act of 1871, after all, guarantees “a federal forum for claims of unconstitutional treatment at the hands of state officials,” and the settled rule is that “exhaustion of state remedies ‘is not a prerequisite to an action under [42 U. S. C.] §1983.’ ” Heck v. Humphrey , 512 U.S. 477 , 480 (1994) (quoting Patsy v. Board of Regents of Fla. , 457 U.S. 496 , 501 (1982)). But the guarantee of a federal forum rings hollow for takings plaintiffs, who are forced to litigate their claims in state court. We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time. I Petitioner Rose Mary Knick owns 90 acres of land in Scott Township, Pennsylvania, a small community just north of Scranton. Knick lives in a single-family home on the property and uses the rest of the land as a grazing area for horses and other farm animals. The property includes a small graveyard where the ancestors of Knick’s neighbors are allegedly buried. Such family cemeteries are fairly common in Pennsylvania, where “backyard burials” have long been permitted. In December 2012, the Township passed an ordinance requiring that “[a]ll cemeteries . . . be kept open and accessible to the general public during daylight hours.” The ordinance defined a “cemetery” as “[a] place or area of ground, whether contained on private or public property, which has been set apart for or otherwise utilized as a burial place for deceased human beings.” The ordinance also authorized Township “code enforcement” officers to “enter upon any property” to determine the existence and location of a cemetery. App. 21–23. In 2013, a Township officer found several grave markers on Knick’s property and notified her that she was violating the ordinance by failing to open the cemetery to the public during the day. Knick responded by seeking declaratory and injunctive relief in state court on the ground that the ordinance effected a taking of her property. Knick did not seek compensation for the taking by bringing an “inverse condemnation” action under state law. Inverse condemnation is “a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant.” United States v. Clarke , 445 U.S. 253 , 257 (1980) (quoting D. Hagman, Urban Planning and Land Development Control Law 328 (1971)). Inverse condemnation stands in contrast to direct condemnation, in which the government initiates proceedings to acquire title under its eminent domain authority. Pennsylvania, like every other State besides Ohio, provides a state inverse condemnation action. 26 Pa. Cons. Stat. §502(c) (2009).[ 1 ] In response to Knick’s suit, the Township withdrew the violation notice and agreed to stay enforcement of the ordinance during the state court proceedings. The court, however, declined to rule on Knick’s request for declara- tory and injunctive relief because, without an ongoing en- forcement action, she could not demonstrate the irreparable harm necessary for equitable relief. Knick then filed an action in Federal District Court under 42 U. S. C. §1983, alleging that the ordinance violated the Takings Clause of the Fifth Amendment.[ 2 ] The District Court dismissed Knick’s takings claim under Williamson County because she had not pursued an inverse condemnation action in state court. 2016 WL 4701549, *5–*6 (MD Pa., Sept. 8, 2016). On appeal, the Third Circuit noted that the ordinance was “extraordinary and constitutionally suspect,” but affirmed the District Court in light of Williamson County . 862 F.3d 310, 314 (2017). We granted certiorari to reconsider the holding of Williamson County that property owners must seek just compensation under state law in state court before bringing a federal takings claim under §1983. 583 U. S. ___ (2018). II In Williamson County , a property developer brought a takings claim under §1983 against a zoning board that had rejected the developer’s proposal for a new subdivision. Williamson County held that the developer’s Fifth Amendment claim was not “ripe” for two reasons. First, the developer still had an opportunity to seek a variance from the appeals board, so any taking was therefore not yet final. 473 U. S., at 186–194. Knick does not question the validity of this finality requirement, which is not at issue here. The second holding of Williamson County is that the developer had no federal takings claim because he had not sought compensation “through the procedures the State ha[d] provided for doing so.” Id. , at 194. That is the holding Knick asks us to overrule. According to the Court, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation.” Id. , at 195. The Court concluded that the developer’s federal takings claim was “premature” because he had not sought compensation through the State’s inverse condemnation procedure. Id ., at 197. The unanticipated consequences of this ruling were not clear until 20 years later, when this Court decided San Remo . In that case, the takings plaintiffs complied with Williamson County and brought a claim for compensation in state court. 545 U. S., at 331. The complaint made clear that the plaintiffs sought relief only under the takings clause of the State Constitution, intending to reserve their Fifth Amendment claim for a later federal suit if the state suit proved unsuccessful. Id ., at 331–332. When that happened, however, and the plaintiffs proceeded to federal court, they found that their federal claim was barred. This Court held that the full faith and credit statute, 28 U. S. C. §1738, required the federal court to give preclusive effect to the state court’s decision, blocking any subsequent consideration of whether the plaintiff had suffered a taking within the meaning of the Fifth Amendment. 545 U. S., at 347. The adverse state court decision that, according to Williamson County , gave rise to a ripe federal takings claim simultaneously barred that claim, preventing the federal court from ever considering it. The state-litigation requirement relegates the Takings Clause “to the status of a poor relation” among the provisions of the Bill of Rights. Dolan v. City of Tigard , 512 U.S. 374 , 392 (1994). Plaintiffs asserting any other constitutional claim are guaranteed a federal forum under §1983, but the state-litigation requirement “hand[s] authority over federal takings claims to state courts.” San Remo , 545 U. S., at 350 (Rehnquist, C. J., concurring in judgment). Fidelity to the Takings Clause and our cases construing it requires overruling Williamson County and restoring takings claims to the full-fledged constitutional status the Framers envisioned when they included the Clause among the other protections in the Bill of Rights. III A Contrary to Williamson County , a property owner has a claim for a violation of the Takings Clause as soon as a government takes his property for public use without paying for it. The Clause provides: “[N]or shall private property be taken for public use, without just compensation.” It does not say: “Nor shall private property be taken for public use, without an available procedure that will result in compensation.” If a local government takes private property without paying for it, that government has violated the Fifth Amendment—just as the Takings Clause says—without regard to subsequent state court proceedings. And the property owner may sue the government at that time in federal court for the “deprivation” of a right “secured by the Constitution.” 42 U. S. C. §1983. We have long recognized that property owners may bring Fifth Amendment claims against the Federal Government as soon as their property has been taken. The Tucker Act, which provides the standard procedure for bringing such claims, gives the Court of Federal Claims jurisdiction to “render judgment upon any claim against the United States founded either upon the Constitution” or any federal law or contract for damages “in cases not sounding in tort.” 28 U. S. C. §1491(a)(1). We have held that “[i]f there is a taking, the claim is ‘founded upon the Constitution’ and within the jurisdiction of the Court of Claims to hear and determine.” United States v. Causby , 328 U.S. 256 , 267 (1946). And we have explained that “the act of taking” is the “event which gives rise to the claim for compensation.” United States v. Dow , 357 U.S. 17 , 22 (1958). The Fifth Amendment right to full compensation arises at the time of the taking, regardless of post-taking remedies that may be available to the property owner. That principle was confirmed in Jacobs v. United States , 290 U.S. 13 (1933), where we held that a property owner found to have a valid takings claim is entitled to compensation as if it had been “paid contemporaneously with the taking”—that is, the compensation must generally consist of the total value of the property when taken, plus interest from that time. Id. , at 17 (quoting Seaboard Air Line R. Co. v. United States , 261 U.S. 299 , 306 (1923)). We rejected the view of the lower court that a property owner is entitled to interest only when the government provides a particular remedy—direct condemnation proceedings—and not when the owner brings a takings suit under the Tucker Act. “The form of the remedy d[oes] not qualify the right. It rest[s] upon the Fifth Amendment.” 290 U. S., at 16. Jacobs made clear that, no matter what sort of procedures the government puts in place to remedy a taking, a property owner has a Fifth Amendment entitlement to compensation as soon as the government takes his prop- erty without paying for it. Whether the government does nothing, forcing the owner to bring a takings suit under the Tucker Act, or whether it provides the owner with a statutory compensation remedy by initiating direct condemnation proceedings, the owner’s claim for compensation “rest[s] upon the Fifth Amendment.” Although Jacobs concerned a taking by the Federal Government, the same reasoning applies to takings by the States. The availability of any particular compensation remedy, such as an inverse condemnation claim under state law, cannot infringe or restrict the property owner’s federal constitutional claim—just as the existence of a state action for battery does not bar a Fourth Amendment claim of excessive force. The fact that the State has provided a property owner with a procedure that may subsequently result in just compensation cannot deprive the owner of his Fifth Amendment right to compensation under the Constitution, leaving only the state law right. And that is key because it is the existence of the Fifth Amendment right that allows the owner to proceed directly to federal court under §1983. Williamson County had a different view of how the Takings Clause works. According to Williamson County , a taking does not give rise to a federal constitutional right to just compensation at that time, but instead gives a right to a state law procedure that will eventually result in just compensation. As the Court put it, “if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the [Takings] Clause until it has used the procedure and been denied just compensation.” 473 U. S., at 195. In the absence of a state remedy, the Fifth Amendment right to compensation would attach immediately. But, under Williamson County , the presence of a state remedy qualifies the right, preventing it from vesting until exhaustion of the state procedure. That is what Jacobs confirmed could not be done. Just two years after Williamson County , in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U.S. 304 (1987), the Court returned to the understanding that the Fifth Amendment right to compensation automatically arises at the time the government takes property without paying for it. Relying heavily on Jacobs and other Fifth Amendment precedents neglected by Williamson County , First English held that a property owner is entitled to compensation for the temporary loss of his property. We explained that “government action that works a taking of property rights necessarily implicates the ‘constitutional obligation to pay just compensation.’ ” 482 U. S., at 315. Because of “the self-executing character” of the Takings Clause “with respect to compensation,” a property owner has a constitutional claim for just compensation at the time of the taking. Ibid. (quoting 6 P. Nichols, Eminent Domain §25.41 (3d rev. ed. 1972)). The government’s post-taking actions (there, repeal of the challenged ordinance) cannot nullify the property owner’s existing Fifth Amendment right: “[W]here the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation.” 482 U. S., at 321.[ 3 ] In holding that a property owner acquires an irrevocable right to just compensation immediately upon a taking, First English adopted a position Justice Brennan had taken in an earlier dissent. See id ., at 315, 318 (quoting and citing San Diego Gas & Elec. Co. v. San Diego , 450 U.S. 621 , 654, 657 (1981) (Brennan, J., dissenting)).[ 4 ] In that opinion, Justice Brennan explained that “once there is a ‘taking,’ compensation must be awarded” because “[a]s soon as private property has been taken, whether through formal condemnation proceedings, occupancy, physical invasion, or regulation, the landowner has already suffered a constitutional violation.” Id. , at 654. First English embraced that view, reaffirming that “in the event of a taking, the compensation remedy is required by the Constitution.” 482 U. S., at 316; see ibid ., n. 9 (rejecting the view that “the Constitution does not, of its own force, furnish a basis for a court to award money damages against the government” (quoting Brief for United States as Amicus Curiae 14)). Compensation under the Takings Clause is a remedy for the “constitutional violation” that “the landowner has already suffered” at the time of the uncompensated taking. San Diego Gas & Elec. Co. , 450 U. S., at 654 (Brennan, J., dissenting); see First English , 482 U. S., at 315. A later payment of compensation may remedy the constitutional violation that occurred at the time of the taking, but that does not mean the violation never took place. The violation is the only reason compensation was owed in the first place. A bank robber might give the loot back, but he still robbed the bank. The availability of a subsequent compensation remedy for a taking without compensation no more means there never was a constitutional violation in the first place than the availability of a damages action renders negligent conduct compliant with the duty of care. In sum, because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking, the property owner can bring a federal suit at that time. Just as someone whose property has been taken by the Federal Government has a claim “founded . . . upon the Constitution” that he may bring under the Tucker Act, someone whose property has been taken by a local government has a claim under §1983 for a “deprivation of [a] right[ ] . . . secured by the Constitution” that he may bring upon the taking in federal court. The “general rule” is that plaintiffs may bring constitutional claims under §1983 “without first bringing any sort of state lawsuit, even when state court actions addressing the underlying behavior are available.” D. Dana & T. Merrill, Property: Takings 262 (2002); see McNeese v. Board of Ed. for Community Unit School Dist. 187 , 373 U.S. 668 , 672 (1963) (observing that it would defeat the purpose of §1983 “if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court”); Monroe v. Pape , 365 U.S. 167 , 183 (1961) (“The federal remedy is supplementary to the state rem- edy, and the latter need not be first sought and refused before the federal one is invoked.”). This is as true for takings claims as for any other claim grounded in the Bill of Rights. B Williamson County effectively established an exhaustion requirement for §1983 takings claims when it held that a property owner must pursue state procedures for obtaining compensation before bringing a federal suit. But the Court did not phrase its holding in those terms; if it had, its error would have been clear. Instead, Williamson County broke with the Court’s longstanding position that a property owner has a constitutional claim to compensation at the time the government deprives him of his property, and held that there can be no uncompensated taking, and thus no Fifth Amendment claim actionable under §1983, until the property owner has tried and failed to obtain compensation through the available state procedure. “[U]ntil it has used the procedure and been denied just compensation,” the property owner “ ‘has no claim against the Government’ for a taking.” 473 U. S., at 194–195 (quoting Ruckelshaus v. Monsanto Co. , 467 U.S. 986 , 1018, n. 21 (1984)). Williamson County drew that understanding of the Clause from Ruckelshaus v. Monsanto Co. , a decision from the prior Term. Monsanto did not involve a takings claim for just compensation. The plaintiff there sought to enjoin a federal statute because it effected a taking, even though the statute set up a special arbitration procedure for obtaining compensation, and the plaintiff could bring a takings claim pursuant to the Tucker Act if arbitration did not yield sufficient compensation. 467 U. S., at 1018. The Court rejected the plaintiff’s claim because “[e]quitable relief is not available to enjoin an alleged taking of private property for a public use, duly authorized by law, when a suit for compensation can be brought against the sovereign subsequent to the taking.” Id. , at 1016 (footnote omitted). That much is consistent with our precedent: Equitable relief was not available because monetary relief was under the Tucker Act. That was enough to decide the case. But Monsanto went on to say that if the plaintiff obtained compensation in arbitration, then “no taking has occurred and the [plaintiff] has no claim against the Government.” Id ., at 1018, n. 21. Certainly it is correct that a fully compensated plaintiff has no further claim, but that is because the taking has been remedied by compensation, not because there was no taking in the first place. See First English , 482 U. S., at 316, n. 9. The statute in Monsanto simply required the plaintiff to attempt to vindicate its claim to compensation through arbitration before proceeding under the Tucker Act. The case offers no support to Williamson County in this regard, because Congress—unlike the States—is free to require plaintiffs to exhaust administrative remedies before bringing constitutional claims. See McCarthy v. Madigan , 503 U.S. 140 , 144 (1992) (“Where Congress specifically mandates, exhaustion is required.”). Williamson County also relied on Monsanto when it analogized its new state-litigation requirement to federal takings practice, stating that “taking[s] claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act.” 473 U. S., at 195. But the Court was simply confused. A claim for just compensation brought under the Tucker Act is not a prerequisite to a Fifth Amendment takings claim—it is a Fifth Amendment takings claim. A party who loses a Tucker Act suit has nowhere else to go to seek compensation for an alleged taking. Other than Monsanto , the principal case to which Williamson County looked was Parratt v. Taylor , 451 U.S. 527 (1981). Like Monsanto , Parratt did not involve a takings claim for just compensation. Indeed, it was not a takings case at all. Parratt held that a prisoner deprived of $23.50 worth of hobby materials by the rogue act of a state employee could not state a due process claim if the State provided adequate post-deprivation process. 451 U. S., at 543–544. But the analogy from the due process context to the takings context is strained, as Williamson County itself recognized. See 473 U. S., at 195, n. 14. It is not even possible for a State to provide pre-deprivation due process for the unauthorized act of a single employee. That is quite different from the taking of property by the government through physical invasion or a regulation that destroys a property’s productive use. The poor reasoning of Williamson County may be partially explained by the circumstances in which the state-litigation issue reached the Court. The Court granted certiorari to decide whether the Fifth Amendment entitles a property owner to just compensation when a regulation temporarily deprives him of the use of his property. ( First English later held that the answer was yes.) As amicus curiae in support of the local government, the United States argued in this Court that the developer could not state a Fifth Amendment claim because it had not pursued an inverse condemnation suit in state court. Neither party had raised that argument before.[ 5 ] The Court then adopted the reasoning of the Solicitor General in an alternative holding, even though the case could have been resolved solely on the narrower and settled ground that no taking had occurred because the zoning board had not yet come to a final decision regarding the developer’s proposal. In these circumstances, the Court may not have ade- quately tested the logic of the state-litigation requirement or considered its implications, most notably the preclusion trap later sprung by San Remo . That consequence was totally unanticipated in Williamson County . The dissent, doing what respondents do not even dare to attempt, defends the original rationale of Williamson County —that there is no Fifth Amendment violation, and thus no Fifth Amendment claim, until the government denies the property owner compensation in a subsequent proceeding.[ 6 ] But although the dissent makes a more thoughtful and considered argument than Williamson County , it cannot reconcile its view with our repeated holdings that a property owner acquires a constitutional right to compensation at the time of the taking. See supra , at 7–11. The only reason that a taking would automatically entitle a property owner to the remedy of compensation is that, as Justice Brennan explained, with the uncompensated taking “the landowner has already suffered a constitutional violation.” San Diego Gas & Elec. Co. , 450 U. S., at 654 (dissenting opinion). The dissent here provides no more reason to resist that conclusion than did Williamson County . C The Court in Williamson County relied on statements in our prior opinions that the Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken. But the owner is entitled to reasonable, certain and adequate provision for obtaining compensation” after a taking. Cherokee Nation v. Southern Kansas R. Co. , 135 U.S. 641 , 659 (1890). Respondents rely on the same cases in contending that uncompensated takings for which compensation is subsequently available do not violate the Fifth Amendment at the time of the taking. But respondents read those statements too broadly. They concerned requests for injunctive relief, and the availability of subsequent compensation meant that such an equitable remedy was not available. See Regional Rail Reorganization Act Cases , 419 U.S. 102 , 107, 149 (1974) (reversing a decision “enjoin[ing]” the enforcement of a federal statute because “the availability of the Tucker Act guarantees an adequate remedy at law for any taking which might occur”); Hurley v. Kincaid , 285 U.S. 95 , 99, 105 (1932) (rejecting a request to “enjoin the carrying out of any work” on a flood control project because the Tucker Act provided the plaintiff with “a plain, adequate, and complete remedy at law”). Simply because the property owner was not entitled to injunctive relief at the time of the taking does not mean there was no violation of the Takings Clause at that time. The history of takings litigation provides valuable context. At the time of the founding there usually was no compensation remedy available to property owners. On occasion, when a legislature authorized a particular government action that took private property, it might also create a special owner-initiated procedure for obtaining compensation. But there were no general causes of action through which plaintiffs could obtain compensation for property taken for public use. Brauneis, The First Constitutional Tort: The Remedial Revolution in Nineteenth-Century State Just Compensation Law, 52 Vand. L. Rev. 57, 69–70, and n. 33 (1999). Until the 1870s, the typical recourse of a property owner who had suffered an uncompensated taking was to bring a common law trespass action against the responsible corporation or government official. The official would then raise the defense that his trespass was lawful because authorized by statute or ordinance, and the plaintiff would respond that the law was unconstitutional because it provided for a taking without just compensation. If the plaintiff prevailed, he nonetheless had no way at common law to obtain money damages for a permanent taking—that is, just compensation for the total value of his prop- erty. He could obtain only retrospective damages, as well as an injunction ejecting the government from his property going forward. See id ., at 67–69, 97–99. As Chancellor Kent explained when granting a property owner equitable relief, the Takings Clause and its analogs in state constitutions required that “a fair compensation must, in all cases, be previously made to the individuals affected.” Gardner v. Newburgh , 2 Johns. Ch. 162, 166 (N. Y. 1816) (emphasis added). If a government took property without payment, a court would set aside the taking because it violated the Constitution and order the property restored to its owner. The Framers meant to prohibit the Federal Government from taking property without paying for it. Allowing the government to keep the property pending subsequent compensation to the owner, in proceedings that hardly existed in 1787, was not what they envisioned. Antebellum courts, which had no means of compensating a property owner for his loss, had no way to redress the violation of an owner’s Fifth Amendment rights other than ordering the government to give him back his prop- erty. See Callender v. Marsh , 18 Mass. 418, 430–431 (1823) (“[I]f by virtue of any legislative act the land of any citizen should be occupied by the public . . . , without any means provided to indemnify the owner of the property, . . . because such a statute would be directly contrary to the [Massachusetts takings clause]; and as no action can be maintained against the public for damages, the only way to secure the party in his constitutional rights would be to declare void the public appropriation.”). But in the 1870s, as state courts began to recognize implied rights of action for damages under the state equivalents of the Takings Clause, they declined to grant injunctions because prop- erty owners had an adequate remedy at law. See, e.g. , Stet- son v. Chicago & Evanston R. Co. , 75 Ill. 74, 78 (1874) (“What injury, if any, [the property owner] has sustained, may be compensated by damages recoverable by an action at law.”); see also Brauneis, supra , at 97–99, 110–112. On the federal level, Congress enabled property owners to obtain compensation for takings in federal court when it passed the Tucker Act in 1887, and we subsequently joined the state courts in holding that the compensation remedy is required by the Takings Clause itself. See First English , 482 U. S., at 316 (collecting cases). Today, because the federal and nearly all state governments provide just compensation remedies to property owners who have suffered a taking, equitable relief is generally unavailable. As long as an adequate provision for obtaining just compensation exists, there is no basis to enjoin the government’s action effecting a taking. But that is because, as the Court explained in First English , such a procedure is a remedy for a taking that violated the Constitution, not because the availability of the procedure somehow prevented the violation from occurring in the first place. See supra , at 9–11.[ 7 ] The dissent contends that our characterization of Cherokee Nation effectively overrules “a hundred-plus years of legal rulings.” Post , at 6 (opinion of Kagan, J.). But under today’s decision every one of the cases cited by the dissent would come out the same way—the plaintiffs would not be entitled to the relief they requested because they could instead pursue a suit for compensation. The premise of such a suit for compensation is that the prop- erty owner has already suffered a violation of the Fifth Amendment that may be remedied by money damages.[ 8 ] *  *  * We conclude that a government violates the Takings Clause when it takes property without compensation, and that a property owner may bring a Fifth Amendment claim under §1983 at that time. That does not as a practical matter mean that government action or regulation may not proceed in the absence of contemporaneous compensation. Given the availability of post-taking compensation, barring the government from acting will ordinarily not be appropriate. But because the violation is complete at the time of the taking, pursuit of a remedy in federal court need not await any subsequent state action. Takings claims against local governments should be handled the same as other claims under the Bill of Rights. Williamson County erred in holding otherwise. IV The next question is whether we should overrule Williamson County , or whether stare decisis counsels in favor of adhering to the decision, despite its error. The doctrine of stare decisis reflects a judgment “that ‘in most matters it is more important that the applicable rule of law be settled than that it be settled right.’ ” Agostini v. Felton , 521 U.S. 203 , 235 (1997) (quoting Burnet v. Coronado Oil & Gas Co. , 285 U.S. 393 , 406 (1932) (Brandeis, J., dissenting)). The doctrine “is at its weakest when we interpret the Constitution,” as we did in Williamson County , because only this Court or a constitutional amendment can alter our holdings. Agostini , 521 U. S., at 235. We have identified several factors to consider in deciding whether to overrule a past decision, including “the quality of [its] reasoning, the workability of the rule it established, its consistency with other related decisions, . . . and reliance on the decision.” Janus v. State , County , and Municipal Employees , 585 U. S. ___, ___–___ (2018) (slip op., at 34–35). All of these factors counsel in favor of overruling Williamson County . Williamson County was not just wrong. Its reasoning was exceptionally ill founded and conflicted with much of our takings jurisprudence. See supra , at 12–14. Its key conclusion, which it drew from unnecessary language in Monsanto —that a property owner does not have a ripe federal takings claim until he has unsuccessfully pursued an initial state law claim for just compensation—ignored Jacobs and many subsequent decisions holding that a property owner acquires a Fifth Amendment right to compensation at the time of a taking. This contradiction was on stark display just two years later in First English . The decision has come in for repeated criticism over the years from Justices of this Court and many respected commentators. See San Remo , 545 U. S., at 348 (Rehnquist, C. J., joined by O’Connor, Kennedy, and Thomas, JJ., concurring in judgment); Arrigoni Enter- prises , LLC v. Durham , 578 U. S. ___ (2016) (Thomas, J., joined by Kennedy, J., dissenting from denial of certiorari); Merrill, Anticipatory Remedies for Takings, 128 Harv. L. Rev. 1630, 1647–1649 (2015); McConnell, Horne and the Normalization of Takings Litigation: A Response to Professor Echeverria, 43 Env. L. Rep. 10749, 10751 (2013); Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211, 1264 (2004); Monaghan, State Law Wrongs, State Law Remedies, and the Fourteenth Amendment, 86 Colum. L. Rev. 979, 989 (1986). Even the academic defenders of the state-litigation requirement base it on federalism concerns (although they do not reconcile those concerns with the settled construction of §1983) rather than the reasoning of the opinion itself. See Echeverria, Horne v. Department of Agriculture : An Invitation To Reexamine “Ripeness” Doctrine in Takings Litigation, 43 Env. L. Rep. 10735, 10744 (2013); Sterk, The Demise of Federal Takings Litigation, 48 Wm. & Mary L. Rev. 251, 288 (2006). Because of its shaky foundations, the state-litigation requirement has been a rule in search of a justification for over 30 years. We eventually abandoned the view that the requirement is an element of a takings claim and recast it as a “prudential” ripeness rule. See Horne v. Department of Agriculture , 569 U.S. 513 , 525–526 (2013); Suitum v. Tahoe Regional Planning Agency , 520 U.S. 725 , 733–734 (1997). No party defends that approach here. See Brief for Respondents 37; Brief for United States as Amicus Curiae 19–20. Respondents have taken a new tack, adopting a §1983–specific theory at which Williamson County did not even hint. See n. 6, supra . The fact that the justification for the state-litigation requirement continues to evolve is another factor undermining the force of stare decisis . See Janus , 585 U. S., at ___ (slip op., at 23). The state-litigation requirement has also proved to be unworkable in practice. Williamson County envisioned that takings plaintiffs would ripen their federal claims in state court and then, if necessary, bring a federal suit under §1983. But, as we held in San Remo , the state court’s resolution of the plaintiff’s inverse condemnation claim has preclusive effect in any subsequent federal suit. The upshot is that many takings plaintiffs never have the opportunity to litigate in a federal forum that §1983 by its terms seems to provide. That significant consequence was not considered by the Court in Williamson County . The dissent argues that our constitutional holding in Williamson County should enjoy the “enhanced” form of stare decisis we usually reserve for statutory decisions, because Congress could have eliminated the San Remo preclusion trap by amending the full faith and credit statute. Post , at 17 (quoting Kimble v. Marvel Entertainment , LLC , 578 U. S. ___, ___ (slip op., at 8)). But takings plaintiffs, unlike plaintiffs bringing any other constitutional claim, would still have been forced to pursue relief under state law before they could bring suit in federal court. Congress could not have lifted that unjustified exhaustion requirement because, under Williamson County , a property owner had no federal claim until a state court denied him compensation. Finally, there are no reliance interests on the state-litigation requirement. We have recognized that the force of stare decisis is “reduced” when rules that do not “serve as a guide to lawful behavior” are at issue. United States v. Gaudin , 515 U.S. 506 , 521 (1995); see Alleyne v. United States , 570 U.S. 99, 119 (2013) (Sotomayor, J., concurring). Our holding that uncompensated takings violate the Fifth Amendment will not expose governments to new liability; it will simply allow into federal court takings claims that otherwise would have been brought as inverse condemnation suits in state court. Governments need not fear that our holding will lead federal courts to invalidate their regulations as unconstitutional. As long as just compensation remedies are available—as they have been for nearly 150 years—injunctive relief will be foreclosed. For the same reason, the Federal Government need not worry that courts will set aside agency actions as unconstitutional under the Administrative Procedure Act. 5 U. S. C. §706(2)(B). Federal courts will not invalidate an otherwise lawful uncompensated taking when the property owner can receive complete relief through a Fifth Amendment claim brought under the Tucker Act. In light of all the foregoing, the dissent cannot, with respect, fairly maintain its extreme assertions regarding our application of the principle of stare decisis . *  *  * The state-litigation requirement of Williamson County is overruled. A property owner may bring a takings claim under §1983 upon the taking of his property without just compensation by a local government. The judgment of the United States Court of Appeals for the Third Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 A property owner in Ohio who has suffered a taking without compensation must seek a writ of mandamus to compel the government to initiate condemnation proceedings. See, e.g. , State ex rel. Doner v. Zody , 130 Ohio St. 3d 446, 2011-Ohio-6117, 958 N.E.2d 1235. 2 Section 1983 provides: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . .” 3 First English distinguished Williamson County in a footnote, explaining that the case addressed only “whether the constitutional claim was ripe for review” before the State denied compensation. 482 U. S., at 320, n. 10. But Williamson County was based on the premise that there was no Fifth Amendment claim at all until the State denies compensation. Having rejected that premise, First English eliminated the rationale for the state-litigation requirement. The author of First English later recognized that it was “not clear . . . that Williamson County was correct in demanding that . . . the claimant must seek compensation in state court before bringing a federal takings claim in federal court.” San Remo Hotel , L. P. v. City and County of San Francisco , 545 U.S. 323 , 349 (2005) (Rehnquist, C. J., concurring in judgment). 4 Justice Brennan was joined by Justices Stewart, Marshall, and Powell. The majority did not disagree with Justice Brennan’s analysis of the merits, but concluded that the Court lacked jurisdiction to address the question presented. Justice Rehnquist, concurring on the jurisdictional issue, noted that if he were satisfied that jurisdiction was proper, he “would have little difficulty in agreeing with much of what is said in the dissenting opinion.” 450 U. S., at 633–634. The Court reached the merits of the question presented in San Diego in First English , adopting Justice Brennan’s view in an opinion by Chief Justice Rehnquist. 5 The Solicitor General continues this tradition here, arguing for the first time as amicus curiae that state inverse condemnation claims “aris[e] under” federal law and can be brought in federal court under 28 U. S. C. §1331 through the Grable doctrine. Brief for United States as Amicus Curiae 22–24; see Grable & Sons Metal Products , Inc. v. Darue Engineering & Mfg. , 545 U.S. 308 (2005). Because we agree with the Solicitor General’s principal contention that federal takings claims can be brought immediately under §1983, we have no occasion to consider his novel §1331 argument. 6 The dissent thinks that respondents still press this theory. Post , at 6 n. 3. But respondents instead describe Williamson County as resting on an understanding not of the elements of a federal takings claim but of the scope of 42 U. S. C. §1983. They even go so far as to rewrite petitioner’s question presented in such terms. Brief for Respondents i. For respondents, it does not matter whether a property owner has a Fifth Amendment claim at the time of a taking. What matters is that, in respondents’ view, no constitutional violation occurs for purposes of §1983 until the government has subsequently denied compensation. That characterization has no basis in the Williamson County opinion, which did not even quote §1983 and stated that the Court’s reasoning applied with equal force to takings by the Federal Government, not covered by §1983. 473 U. S., at 195. Respondents’ attempt to recast the state-litigation requirement as a §1983-specific rule fails for the same reason as the logic of Williamson County —a property owner has a Fifth Amendment claim for a violation of the Takings Clause as soon as the government takes his property without paying for it. 7 Among the cases invoking the Cherokee Nation language that the parties have raised, only one, Yearsley v. W. A. Ross Constr. Co. , 309 U.S. 18 (1940), rejected a demand for compensation. Yearsley concerned a state tort suit alleging a taking by a contractor building dikes for the Federal Government. In ruling for the contractors, we sug-gested that the taking did not violate the Fifth Amendment because the property owner had the opportunity to pursue a claim for just compensation under the Tucker Act. As explained, however, a claim for compensation brought under the Tucker Act is a claim for a violation of the Fifth Amendment; it does not prevent a violation from occurring. Regardless, Yearsley was right to hold that the contractors were immune from suit. Because the Tucker Act provides a complete remedy for any taking by the Federal Government, it “excludes liability of the Government’s representatives lawfully acting on its behalf in relation to the taking,” barring the plaintiffs from seeking any relief from the contractors themselves. Id. , at 22. 8 The dissent also asserts that today’s ruling “betrays judicial federalism.” Post , at 15. But since the Civil Rights Act of 1871, part of “judicial federalism” has been the availability of a federal cause of action when a local government violates the Constitution. 42 U. S. C. §1983. Invoking that federal protection in the face of state action violating the Fifth Amendment cannot properly be regarded as a betrayal of federalism. SUPREME COURT OF THE UNITED STATES _________________ No. 17–647 _________________ ROSE MARY KNICK, PETITIONER v. TOWNSHIP OF SCOTT, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 21, 2019] Justice Thomas, concurring. The Fifth Amendment’s Takings Clause prohibits the government from “tak[ing]” private property “without just compensation.” The Court correctly interprets this text by holding that a violation of this Clause occurs as soon as the government takes property without paying for it. The United States, by contrast, urges us not to enforce the Takings Clause as written. It worries that requiring payment to accompany a taking would allow courts to enjoin or invalidate broad regulatory programs “merely” because the program takes property without paying for it. Brief for United States as Amicus Curiae 12. According to the United States, “there is a ‘nearly infinite variety of ways in which government actions or regulations can affect property interests,’ ” and it ought to be good enough that the government “implicitly promises to pay compensation for any taking” if a property owner successfully sues the government in court. Supplemental Letter Brief for United States as Amicus Curiae 5 (Supp. Brief) (citing the Tucker Act, 28 U. S. C. §1491). Government officials, the United States contends, should be able to implement regulatory programs “without fear” of injunction or invalidation under the Takings Clause, “even when” the program is so far reaching that the officials “cannot determine whether a taking will occur.” Supp. Brief 5. This “sue me” approach to the Takings Clause is untenable. The Fifth Amendment does not merely provide a damages remedy to a property owner willing to “shoulder the burden of securing compensation” after the government takes property without paying for it. Arrigoni Enterprises, LLC v. Durham , 578 U. S. ___, ___ (2016) (Thomas, J., dissenting from denial of certiorari) (slip op., at 2). Instead, it makes just compensation a “prerequisite” to the government’s authority to “tak[e] property for public use.” Ibid. A “purported exercise of the eminent-domain power” is therefore “invalid” unless the government “pays just compensation before or at the time of its taking.” Id. , at ___ (slip op., at 3). If this requirement makes some regulatory programs “unworkable in practice,” Supp. Brief 5, so be it—our role is to enforce the Takings Clause as written. Of course, as the Court correctly explains, the United States’ concerns about injunctions may be misplaced. Ante, at 15–18. Injunctive relief is not available when an adequate remedy exists at law. E.g. , Monsanto Co. v. Geertson Seed Farms , 561 U.S. 139 , 156 (2010). And even when relief is appropriate for a particular plaintiff, it does not follow that a court may enjoin or invalidate an entire regulatory “program,” Supp. Brief 5, by granting relief “beyond the parties to the case,” Trump v. Hawaii , 585 U. S. ___, ___ (2018) (Thomas, J., concurring) (slip op., at 6); see id. , at ___ (slip op., at 2) (expressing skepticism about “universal injunctions”). Still, “[w]hen the government repudiates [its] duty” to pay just compensation, its actions “are not only unconstitutional” but may be “tortious as well.” Monterey v. Del Monte Dunes at Monterey, Ltd. , 526 U.S. 687 , 717 (1999) (plurality opinion). I do not understand the Court’s opinion to foreclose the application of ordinary remedial principles to takings claims and related common-law tort claims, such as trespass. I therefore join it in full. SUPREME COURT OF THE UNITED STATES _________________ No. 17–647 _________________ ROSE MARY KNICK, PETITIONER v. TOWNSHIP OF SCOTT, PENNSYLVANIA, et al. on writ of certiorari to the united states court of appeals for the third circuit [June 21, 2019] Justice Kagan, with whom Justice Ginsburg, Justice Breyer, and Justice Sotomayor join, dissenting. Today, the Court formally overrules Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City , 473 U.S. 172 (1985). But its decision rejects far more than that single case. Williamson County was rooted in an understanding of the Fifth Amendment’s Takings Clause stretching back to the late 1800s. On that view, a government could take property so long as it provided a reliable mechanism to pay just compensation, even if the payment came after the fact. No longer. The majority today holds, in conflict with precedent after precedent, that a government violates the Constitution whenever it takes property without advance compensation—no matter how good its commitment to pay. That conclusion has no basis in the Takings Clause. Its consequence is to channel a mass of quintessentially local cases involving complex state-law issues into federal courts. And it transgresses all usual principles of stare decisis . I respectfully dissent. I Begin with the basics—the meaning of the Takings Clause. The right that Clause confers is not to be free from government takings of property for public purposes. Instead, the right is to be free from those takings when the government fails to provide “just compensation.” In other words, the government can take private property for public purposes, so long as it fairly pays the property owner. That precept, which the majority does not contest, comes straight out of the constitutional text: “[P]rivate property [shall not] be taken for public use, without just compensation.” Amdt. 5. “As its language indicates, [the Takings Clause] does not prohibit the taking of private property, but instead places a condition on the exercise of that power.” First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U.S. 304 , 314 (1987). And that constitutional choice accords with ancient principles about what governments do. The eminent domain power—the capacity to “take private property for public uses”—is an integral “attribute of sovereignty.” Boom Co. v. Patterson , 98 U.S. 403 , 406 (1879); see Kohl v. United States , 91 U.S. 367 , 371 (1876) (The power is “essential to [the Government’s] independent existence and perpetuity”). Small surprise, then, that the Constitution does not prohibit takings for public purposes, but only requires the government to pay fair value. In that way, the Takings Clause is unique among the Bill of Rights’ guarantees. It is, for example, unlike the Fourth Amendment’s protection against excessive force—which the majority mistakenly proposes as an analogy. See ante , at 8. Suppose a law enforcement officer uses excessive force and the victim recovers damages for his injuries. Did a constitutional violation occur? Of course. The Constitution prohibits what the officer did; the payment of damages merely remedied the constitutional wrong. But the Takings Clause is different because it does not prohibit takings; to the contrary, it permits them provided the government gives just compensation. So when the government “takes and pays,” it is not violating the Constitution at all. Put another way, a Takings Clause violation has two necessary elements. First, the government must take the property. Second, it must deny the property owner just compensation. See Horne v. Department of Agriculture , 569 U.S. 513 , 525–526 (2013) (“[A] Fifth Amendment claim is premature until it is clear that the Government has both taken property and denied just compensation” (emphasis in original)). If the government has not done both, no constitutional violation has happened. All this is well-trod ground. See, e.g. , United States v. Jones , 109 U.S. 513 , 518 (1883); Albert Hanson Lumber Co. v. United States , 261 U.S. 581 , 586 (1923). Even the majority (despite its faulty analogy) does not contest it. Similarly well-settled—until the majority’s opinion today—was the answer to a follow-on question: At what point has the government denied a property owner just compensation, so as to complete a Fifth Amendment violation? For over a hundred years, this Court held that advance or contemporaneous payment was not required, so long as the government had established reliable procedures for an owner to later obtain just compensation (including interest for any time elapsed). The rule got its start in Cherokee Nation v. Southern Kansas R. Co. , 135 U.S. 641 (1890), where the Tribe argued that a federal statute authorizing condemnation of its property violated the Fifth Amendment because the law did not require advance payment. The Court disagreed. It held that the Takings Clause “does not provide or require that compensation shall be actually paid in advance of the occupancy of the land to be taken” so long as the government made available to the owner “reasonable, certain and adequate provision for obtaining compensation” afterward. Id. , at 659. Decade after decade, the Court repeated that principle.[ 1 ] As another case put the point: The Takings Clause does not demand “that compensation should be made previous to the taking” so long as “adequate means [are] provided for a reasonably just and prompt ascertainment and payment of the compensation.” Crozier v. Krupp A. G. , 224 U.S. 290 , 306 (1912). And the Court also made clear that a statute creating a right of action against the responsible government entity generally qualified as a constitutionally adequate compensatory mechanism. See, e.g. , Williams v. Parker , 188 U.S. 491 , 502 (1903); Yearsley v. W. A. Ross Constr. Co. , 309 U.S. 18 , 20–21 (1940).[ 2 ] Williamson County followed from those decisions as night the day. The case began when a local planning commission rejected a property owner’s development proposal. The owner chose not to seek compensation through the procedure the State had created—an “inverse condemnation” action against the commission. Instead, the owner sued in federal court alleging a Takings Clause violation under 42 U. S. C. §1983. Consistent with the century’s worth of precedent I have recounted above, the Court found that no Fifth Amendment violation had yet occurred. See 473 U. S., at 195. The Court first recognized that “[t]he Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation.” Id. , at 194. Next, the Court stated (citing no fewer than five precedents) that the Amendment does not demand that “compensation be paid in advance of, or contemporaneously with, the taking.” Ibid. “[A]ll that is required,” the Court continued, is that the State have provided “a ‘reasonable, certain and adequate provision for obtaining compensation.’ ” Ibid. (quoting Cherokee Nation , 135 U. S., at 659). Here, the State had done so: Nothing suggested that the inverse condemnation procedure was inadequate. 473 U. S., at 196–197. So the property owner’s claim was “not yet ripe”: The owner could not “claim a violation of the [Takings] Clause until it [had] used the procedure and been denied.” Id. , at 194–195. So contrary to the majority’s portrayal, Williamson County did not result from some inexplicable confusion about “how the Takings Clause works.” Ante , at 8. Far from it. Williamson County built on a long line of decisions addressing the elements of a Takings Clause violation. The Court there said only two things remotely new. First, the Court found that the State’s inverse condemnation procedure qualified as a “reasonable, certain and adequate” procedure. But no one in this case disputes anything to do with that conclusion—including that the equivalent Pennsylvania procedure here is similarly adequate. Second, the Court held that a §1983 suit could not be brought until a property owner had unsuccessfully invoked the State’s procedure for obtaining payment. But that was a direct function of the Court’s prior holdings. Everyone agrees that a §1983 suit cannot be brought before a constitutional violation has occurred. And according to the Court’s repeated decisions, a Takings Clause violation does not occur until an owner has used the government’s procedures and failed to obtain just compensation. All that Williamson County did was to put the period on an already-completed sentence about when a takings claim arises.[ 3 ] Today’s decision thus overthrows the Court’s long-settled view of the Takings Clause. The majority declares, as against a mountain of precedent, that a government taking private property for public purposes must pay compensation at that moment or in advance. See ante , at 6–7. If the government fails to do so, a constitutional violation has occurred, regardless of whether “reasonable, certain and adequate” compensatory mechanisms exist. Cherokee Nation , 135 U. S., at 659. And regardless of how many times this Court has said the opposite before. Under cover of overruling “only” a single decision, today’s opinion smashes a hundred-plus years of legal rulings to smithereens. II So how does the majority defend taking down Williamson County and its many precursors? Its decision rests on four ideas: a comparison between takings claims and other constitutional claims, a resort to the Takings Clause’s text, and theories about two lines of this Court’s precedent. All are misguided. The majority uses the term “shaky foundations.” Ante , at 21. It knows whereof it speaks. The first crack comes from the repeated assertion (already encountered in the majority’s Fourth Amendment analogy, see supra , at 2) that Williamson County treats takings claims worse than other claims founded in the Bill of Rights. See ante , at 6, 8, 11–12, 20. That is not so. The distinctive aspects of litigating a takings claim merely reflect the distinctive aspects of the constitutional right. Once again, a Fourth Amendment claim arises at the moment a police officer uses excessive force, because the Constitution prohibits that thing and that thing only. (Similarly, for the majority’s other analogies, a bank robber commits his offense when he robs a bank and a tortfeasor when he acts negligently—because that conduct, and it alone, is what the law forbids.) Or to make the same point a bit differently, even if a government could compensate the victim in advance—as the majority requires here—the victim would still suffer constitutional injury when the force is used. But none of that is true of Takings Clause violations. That kind of infringement, as explained, is complete only after two things occur: (1) the government takes property, and (2) it fails to pay just compensation. See supra , at 2–3. All Williamson County and its precursors do is recognize that fact, by saying that a constitutional claim (and thus a §1983 suit) arises only after the second condition is met—when the property owner comes away from the government’s compensatory procedure empty-handed. That is to treat the Takings Clause exactly as its dual elements require—and because that is so, neither worse nor better than any other right. Second, the majority contends that its rule follows from the constitutional text, because the Takings Clause does not say “[n]or shall private property be taken for public use, without an available procedure that will result in compensation.” Ante , at 6. There is a reason the majority devotes only a few sentences to that argument. Because here’s another thing the text does not say: “Nor shall private property be taken for public use, without advance or contemporaneous payment of just compensation, notwithstanding ordinary procedures.” In other words, the text no more states the majority’s rule than it does Williamson County ’s (and its precursors’). As constitutional text often is, the Takings Clause is spare. It says that a government taking property must pay just compensation—but does not say through exactly what mechanism or at exactly what time. That was left to be worked out, consistent with the Clause’s (minimal) text and purpose. And from 1890 until today, this Court worked it out Williamson County ’s way, rather than the majority’s. See supra , at 3–4. Under our caselaw, a government could use reliable post-taking compensatory mechanisms (with payment calculated from the taking) without violating the Takings Clause. Third, the majority tries to explain away that mass of precedent, with a theory so, well, inventive that it appears in neither the petitioner’s nor her 15-plus amici ’s briefs. Don’t read the decisions “too broadly,” the majority says. Ante , at 16. Yes, the Court in each rejected a takings claim, instructing the property owner to avail herself instead of a government-created compensatory mechanism. But all the Court meant (the majority says) was that the plaintiffs had sought the wrong kind of relief: They could not get injunctions because the available compensatory procedures gave an adequate remedy at law. The Court still believed (so says the majority) that the cases involved constitutional violations. Or said otherwise (again, according to the majority), the Court still understood the Takings Clause to prohibit delayed payment. Points for creativity, but that is just not what the decisions say. Most of the cases involved requests for injunctions, but the equity/law distinction played little or no role in our analyses. Instead, the decisions addressed directly what the Takings Clause requires (or not). And as already shown, supra , at 3–4, they held that the Clause does not demand advance payment. Beginning again at the beginning, Cherokee Nation decided that the Takings Clause “does not provide or require that compensation shall be actually paid in advance.” 135 U. S., at 659. In Backus v. Fort Street Union Depot Co. , 169 U.S. 557 , 567–568 (1898), the Court declared that a property owner had no “constitutional right to have the amount of his compensation finally determined and paid before yielding possession.” By the time of Williams v. Parker , 188 U. S., at 502, the Court could state that “it is settled by repeated decisions” that the Constitution allows the taking of property “prior to any payment.” Similarly, in Joslin Mfg. Co. v. Providence , 262 U.S. 668 , 677 (1923), the Court noted that “[i]t has long been settled that the taking of property . . . need not be accompanied or preceded by payment, but that the requirement of just compensation is satisfied when” there is a pledge of “reasonably prompt ascertainment and payment.” In Hurley v. Kincaid , 285 U.S. 95 , 104 (1932), the Court repeated that the “ Fifth Amendment does not entitle [a property owner] to be paid in advance of the taking.” I could go on—there are eighty more years to cover, and more decisions in the early years too—but by now you probably get the idea. Well, just one more especially good demonstration. In Yearsley v. W. A. Ross Constr. Co. , 309 U.S. 18 (1940), the plaintiffs sought money damages for an alleged Takings Clause violation. For that reason, the Court’s theory about suits seeking injunctions has no possible application. Still, the Court rejected the claim: The different remedy requested made no difference in the result. And yet more important: In refusing to find a Takings Clause violation, the Court used the exact same reasoning as it had in all the cases requesting injunctions. Once again, the Court did not focus on the nature of the relief sought. It simply explained that the government had provided a procedure for obtaining post-taking compensation—and that was enough. “The Fifth Amendment does not entitle him [the owner] to be paid in advance of the taking,” held the Court, quoting the last injunction case described above. Id. , at 21 (quoting Hurley , 285 U. S., at 104; brackets in original). Because the government had set up an adequate compensatory mechanism, the taking was “within [the government’s] constitutional power.” 309 U. S., at 22. Once again, the opposite of what the majority pronounces today.[ 4 ] Fourth and finally, the majority lays claim to another line of decisions—involving the Tucker Act—but with no greater success. The Tucker Act waives the Federal Government’s sovereign immunity and grants the Court of Federal Claims jurisdiction over suits seeking compensation for takings. See 28 U. S. C. §1491(a)(1). According to the majority, this Court’s cases establish that such an action “ is a claim for a violation of the Fifth Amendment”—that is, for a constitutional offense that has already happened because of the absence of advance payment. Ante , at 19, n. 7 (emphasis in original); see ante , at 13. But again, the precedents say the opposite. The Tucker Act is the Federal Government’s equivalent of a State’s inverse condemnation procedure, by which a property owner can obtain just compensation. The former, no less than the latter, forestalls any constitutional violation by ensuring that an owner gets full and fair payment for a taking. The Court, for example, stated in United States v. Riverside Bayview Homes, Inc. , 474 U.S. 121 , 128 (1985), that “so long as [post-taking Tucker Act] compensation is available for those whose property is in fact taken, the governmental action is not unconstitutional.” Similarly, we held in Preseault v. ICC , 494 U.S. 1 , 4–5 (1990) that when “compensation is available to [property owners] under the Tucker Act[,] the requirements of the Fifth Amendment are satisfied.” And again, in Ruckelshaus v. Monsanto Co. , 467 U.S. 986 , 1016 (1984) we rejected a takings claim because the plaintiff could “seek just compensation under the Tucker Act” and “[t]he Fifth Amendment does not require that compensation precede the taking.” All those decisions (and there are others) rested on the premise, merely reiterated in Williamson County , that the “availability of a suit for compensation against the sovereign will defeat a contention that the action is unconstitutional as a violation of the Fifth Amendment.” Larson v. Domestic and Foreign Commerce Corp. , 337 U.S. 682 , 697, n. 18 (1949).[ 5 ] To the extent it deals with these cases (mostly, it just ignores them), the majority says only that they (like Williamson County ) were “confused” or wrong. See ante , at 13, 19, n. 7. But maybe the majority should take the hint: When a theory requires declaring precedent after precedent after precedent wrong, that’s a sign the theory itself may be wrong. The majority’s theory is just that. III And not only wrong on prior law. The majority’s overruling of Williamson County will have two damaging consequences. It will inevitably turn even well-meaning government officials into lawbreakers. And it will subvert important principles of judicial federalism. To begin with, today’s decision means that government regulators will often have no way to avoid violating the Constitution. There are a “nearly infinite variety of ways” for regulations to “affect property interests.” Arkansas Game and Fish Comm’n v. United States , 568 U.S. 23 , 31 (2012). And under modern takings law, there is “no magic formula” to determine “whether a given government interference with property is a taking.” Ibid. For that reason, a government actor usually cannot know in advance whether implementing a regulatory program will effect a taking, much less of whose property. Until today, such an official could do his work without fear of wrongdoing, in any jurisdiction that had set up a reliable means for property owners to obtain compensation. Even if some regulatory action turned out to take someone’s property, the official would not have violated the Constitution. But no longer. Now, when a government undertakes land-use regulation (and what government doesn’t?), the responsible employees will almost inescapably become constitutional malefactors. That is not a fair position in which to place persons carrying out their governmental duties. Still more important, the majority’s ruling channels to federal courts a (potentially massive) set of cases that more properly belongs, at least in the first instance, in state courts—where Williamson County put them. The regulation of land use, this Court has stated, is “perhaps the quintessential state activity.” FERC v. Mississippi , 456 U.S. 742 , 768, n. 30 (1982). And a claim that a land-use regulation violates the Takings Clause usually turns on state-law issues. In that respect, takings claims have little in common with other constitutional challenges. The question in takings cases is not merely whether a given state action meets federal constitutional standards. Before those standards can come into play, a court must typically decide whether, under state law, the plaintiff has a property interest in the thing regulated. See Phillips v. Washington Legal Foundation , 524 U.S. 156 , 164 (1998); see also Sterk, The Demise of Federal Takings Litigation, 48 Wm. & Mary L. Rev. 251, 288 (2006) (“[I]f background state law did not recognize or create property in the first instance, then a subsequent state action cannot take property”). Often those questions—how does pre-existing state law define the property right?; what interests does that law grant?; and conversely what interests does it deny?—are nuanced and complicated. And not a one of them is familiar to federal courts. This case highlights the difficulty. The ultimate constitutional question here is: Did Scott Township’s cemetery ordinance “go[ ] too far” (in Justice Holmes’s phrase), so as to effect a taking of Rose Mary Knick’s property? Pennsylvania Coal Co. v. Mahon , 260 U.S. 393 , 415 (1922). But to answer that question, it is first necessary to address an issue about background state law. In the Township’s view, the ordinance did little more than codify Pennsylvania common law, which (the Township says) has long required property owners to make land containing human remains open to the public. See Brief for Respondents 48; Brief for Cemetery Law Scholars as Amici Curiae 6–26. If the Township is right on that state-law question, Knick’s constitutional claim will fail: The ordinance, on that account, didn’t go far at all. But Knick contends that no common law rule of that kind exists in Pennsylvania. See Reply Brief 22. And if she is right, her takings claim may yet have legs. But is she? Or is the Township? I confess: I don’t know. Nor, I would venture, do my colleagues on the federal bench. But under today’s decision, it will be the Federal District Court for the Middle District of Pennsylvania that will have to resolve this question of local cemetery law. And if the majority thinks this case is an outlier, it’s dead wrong; indeed, this case will be easier than many. Take Lucas v. South Carolina Coastal Council , 505 U.S. 1003 (1992). There, this Court held that a South Carolina ban on development of beachfront property worked a taking of the plaintiff’s land—unless the State’s nuisance law already prohibited such development. See id. , at 1027–1030. The Court then—quite sensibly—remanded the case to the South Carolina Supreme Court to resolve that question. See id. , at 1031–1032. (And while spotting the nuisance issue, the Court may have overlooked other state-law constraints on development. In some States, for example, the public trust doctrine or public prescriptive easements limit the development of beachfront land. See Sterk, The Federalist Dimension of Regulatory Takings Jurisprudence, 114 Yale L. J. 203, 227 (2004).) Or consider Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection , 560 U.S. 702 (2010). The federal constitutional issue there was whether a decision of the Florida Supreme Court relating to beachfront property constituted a taking. To resolve that issue, though, the Court first had to address whether, under pre-existing Florida property law, “littoral-property owners had rights to future accretions and contact with the water superior to the State’s right to fill in its submerged land.” Id. , at 730. The Court bit the bullet and decided that issue itself, as it sometimes has to (though thankfully with the benefit of a state high court’s reasoning). But there is no such necessity here—and no excuse for making complex state-law issues part of the daily diet of federal district courts. State courts are—or at any rate, are supposed to be—the “ultimate expositors of state law.” Mullaney v. Wilbur , 421 U.S. 684 , 691 (1975). The corollary is that federal courts should refrain whenever possible from deciding novel or difficult state-law questions. That stance, as this Court has long understood, respects the “rightful independence of the state governments,” “avoid[s] needless friction with state policies,” and promotes “harmonious relation[s] between state and federal authority.” Railroad Comm’n of Tex. v. Pullman Co. , 312 U.S. 496 , 500–501 (1941). For that reason, this Court has promoted practices of certification and abstention to put difficult state-law issues in state judges’ hands. See, e.g. , Arizonans for Official English v. Arizona , 520 U.S. 43 , 77 (1997) (encouraging certification of “novel or unsettled questions of state law” to “hel[p] build a cooperative judicial federalism”); Louisiana Power & Light Co. v. City of Thibodaux , 360 U.S. 25 , 28 (1959) (approving federal-court abstention in an eminent domain proceeding because such cases “turn on legislation with much local variation interpreted in local settings”). We may as well not have bothered. Today’s decision sends a flood of complex state-law issues to federal courts. It makes federal courts a principal player in local and state land-use disputes. It betrays judicial federalism. IV Everything said above aside, Williamson County should stay on the books because of stare decisis . Adherence to precedent is “a foundation stone of the rule of law.” Michigan v. Bay Mills Indian Community , 572 U.S. 782, 798 (2014). “[I]t promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee , 501 U.S. 808 , 827 (1991). Stare decisis , of course, is “not an inexorable command.” Id. , at 828. But it is not enough that five Justices believe a precedent wrong. Reversing course demands a “special justification—over and above the belief that the precedent was wrongly decided.” Kimble v. Marvel Entertainment, LLC , 576 U. S. ___, ___ (2015) (slip op., at 8) (internal quotation marks omitted). The majority offers no reason that qualifies. In its only real stab at a special justification, the major- ity focuses on what it calls the “ San Remo preclusion trap.” Ante , at 2. As the majority notes, this Court held in a post- Williamson County decision interpreting the full faith and credit statute, 28 U. S. C. §1738, that a state court’s resolution of an inverse condemnation proceeding has preclusive effect in a later federal suit. See San Remo Hotel, L. P. v. City and County of San Francisco , 545 U.S. 323 (2005); ante , at 1–2, 5–6, 22. The interaction between San Remo and Williamson County means that “many takings plaintiffs never have the opportunity to litigate in a federal forum.” Ante , at 22. According to the majority, that unanticipated result makes Williamson County itself “unworkable.” Ibid. But in highlighting the preclusion concern, the majority only adds to the case for respecting stare decisis —because that issue can always be addressed by Congress. When “correction can be had by legislation,” Justice Brandeis once stated, the Court should let stand even “error[s on] matter[s] of serious concern.” Square D Co. v. Niagara Frontier Tariff Bureau, Inc. , 476 U.S. 409 , 424 (1986) (quoting Burnet v. Coronado Oil & Gas Co. , 285 U.S. 393 , 406 (1932) (dissenting)). Or otherwise said, stare decisis then “carries enhanced force.” Kimble , 576 U. S., at ___ (slip op., at 8); see South Dakota v. Wayfair, Inc. , 585 U. S. ___, ___ (2018) (Roberts, C. J., dissenting) (slip op., at 2) (The stare decisis “bar is even higher” when Congress “can, if it wishes, override this Court’s decisions with contrary legislation”). Here, Congress can reverse the San Remo preclusion rule any time it wants, and thus give property owners an opportunity— after a state-court proceeding—to litigate in federal court. The San Remo decision, as noted above, interpreted the federal full faith and credit statute; Congress need only add a provision to that law to flip the Court’s result. In fact, Congress has already considered proposals responding to San Remo —though so far to no avail. See Brief for Congressman Steve King et al. as Amici Curiae 7. Following this Court’s normal rules of practice means leaving the San Remo “ball[ in] Congress’s court,” so that branch can decide whether to pick it up. Kimble , 576 U. S., at ___ (slip op., at 8).[ 6 ] And the majority has no other special justification. It says Williamson County did not create “reliance interests.” Ante, at 23. But even if so, those interests are a plus-factor in the doctrine; when they exist, stare decisis becomes “superpowered.” Kimble , 576 U. S., at ___ (slip op., at 10); Payne , 501 U. S., at 828 ( Stare decisis concerns are “at their acme” when “reliance interests are involved”). The absence of reliance is not itself a reason for overruling a decision. Next, the majority says that the “justification for [ Williamson County ’s] state-litigation requirement” has “evolve[d].” Ante , at 22. But to start with, it has not. The original rationale—in the majority’s words, that the requirement “is an element of a takings claim,” ante , at 22—has held strong for 35 years (including in the cases the majority cites), and is the same one I rely on today. See, e.g., Horne , 569 U. S., at 525–526 (quoting Williamson County ’s rationale); Suitum v. Tahoe Regional Planning Agency , 520 U.S. 725 , 734 (1997) (same); supra , at 2–3. And anyway, “evolution” in the way a decision is described has never been a ground for abandoning stare decisis . Here, the majority’s only citation is to last Term’s decision overruling a 40-year-old precedent. See ante , at 22 (citing Janus v. State, County, and Municipal Employees , 585 U. S. ___, ___ (2018) (slip op., at 23)). If that is the way the majority means to proceed—relying on one subversion of stare decisis to support another—we may as well not have principles about precedents at all. What is left is simply the majority’s view that Williamson County was wrong. The majority repurposes all its merits arguments—all its claims that Williamson County was “ill founded”—to justify its overruling. Ante , at 20–21. But the entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance. Once again, they need a reason other than the idea “that the precedent was wrongly decided.” Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 266 (2014); see supra , at 16. For it is hard to overstate the value, in a country like ours, of stability in the law. Just last month, when the Court overturned another longstanding precedent, Justice Breyer penned a dissent. See Franchise Tax Bd. of Cal. v. Hyatt , 587 U. S. ___, ___ (2019). He wrote of the dangers of reversing legal course “only because five Members of a later Court” decide that an earlier ruling was incorrect. Id. , at ___ (slip op., at 13). He concluded: “Today’s decision can only cause one to wonder which cases the Court will overrule next.” Ibid. Well, that didn’t take long. Now one may wonder yet again. Notes 1 See also, e.g. , Yearsley v. W. A. Ross Constr. Co. , 309 U.S. 18 , 21–22 (1940); Hurley v. Kincaid , 285 U.S. 95 , 104 (1932); Dohany v. Rogers , 281 U.S. 362 , 365 (1930); Joslin Mfg. Co. v. Providence , 262 U.S. 668 , 677 (1923); Albert Hanson Lumber Co. v. United States , 261 U.S. 581 , 587 (1923); Hayes v. Port of Seattle , 251 U.S. 233 , 238 (1920); Bragg v. Weaver , 251 U.S. 57 , 62 (1919); Madisonville Traction Co. v. Saint Bernard Mining Co. , 196 U.S. 239 , 251–252 (1905); Williams v. Parker , 188 U.S. 491 , 502 (1903); Backus v. Fort Street Union Depot Co. , 169 U.S. 557 , 568 (1898); Sweet v. Rechel , 159 U.S. 380 , 400–402 (1895). 2 In many of these cases, the Court held as well that if payment occurs later, it must include interest. See, e.g. , id. , at 407; Albert Hanson Lumber Co. , 261 U. S., at 586. That requirement flows from the constitutional demand for “just” compensation: As one of the early cases explained, the property owner must be placed “in as good position pecuniarily as he would have been if his property had not been taken.” Ibid. 3 Contrary to the majority’s description, see ante , at 15, and n. 6, the respondents have exactly this view of Williamson County (and of the cases preceding it). The respondents discuss (as I do, see supra , at 3–4) the “long line of precedent” holding that “the availability of a reason-able, certain, and adequate inverse-condemnation procedure fulfills the duty” of a government to pay just compensation for a taking. Brief for Respondents 22–23. The respondents then conclude (again, as I do, see supra , at 4–6) that Williamson County “sound[ly]” and “straightforwardly applied that precedent to hold that a property owner who forgoes an available and adequate inverse-condemnation remedy has not been deprived of any constitutional right and thus cannot proceed under Section 1983.” Brief for Respondents 22. (Again contra the majority, the respondents’ only theory of §1983 is the one everyone agrees with—that a §1983 suit cannot be brought before a constitu-tional violation has occurred.) So while I appreciate the compliment, I cannot claim to argue anything novel or “dar[ing]” here. Ante , at 15. My argument is the same as the respondents’, which is the same as Williamson County ’s, which is the same as all the prior precedents’. 4 The majority’s supposed best case to the contrary, First English Evangelical Lutheran Church of Glendale v. County of Los Angeles , 482 U.S. 304 (1987), is not so good, as is apparent from its express statement that it accords with Williamson County. See 482 U. S., at 320, n. 10. In First English , the Court held that a property owner was entitled to compensation for the temporary loss of his property, occurring while a (later-repealed) regulation was in effect. See id. , at 321. The Court made clear that a government’s duty to compensate for a taking—including a temporary taking—arises from the Fifth Amendment, as of course it does. See id. , at 315. But the Court nowhere suggested that a Fifth Amendment violation happens even before a government denies the required compensation. (You will scan the majority’s description of First English in vain for a quote to that effect—because no such quote exists. See ante , at 9–11.) To the contrary, the Court went out of its way to recognize the Williamson County principle that “no constitutional violation occurs until just compensation has been denied.” 482 U. S., at 320, n. 10 (internal quotation marks omitted). 5 Jacobs v. United States , 290 U.S. 13 (1933), the Tucker Act case the majority cites to support its argument, says nothing different. The majority twice notes Jacobs ’ statement that a Tucker Act claim “rest[s] upon the Fifth Amendment.” Ante , at 7–8 (quoting 290 U. S., at 16). And so it does, because the compensatory obligation that the Tucker Act vindicates arises from—or “rests upon”—the Fifth Amendment. But that is a far cry from saying, as the majority does, that theGovernment has already violated the Fifth Amendment when the Tucker Act claim is brought—before the Government has denied fair compensation. 6 Confronted with that point, the majority shifts ground. It notes that even if Congress eliminated the San Remo rule, takings plaintiffs would still have to comply with Williamson County ’s “unjustified” demand that they bring suit in state court first. See ante , at 22. But that argument does not even purport to state a special justification. It merely reiterates the majority’s view on the merits.

The Supreme Court ruled that a property owner can bring a federal takings claim against a local government in federal court without first having to litigate the claim in state court. This ruling overturns the previous decision in Williamson County, which required property owners to seek just compensation under state law before bringing a federal claim. The Court found that the state-litigation requirement imposed an unfair burden on takings plaintiffs and conflicted with other takings jurisprudence.

Miranda Rights

Beckwith v. U.S.

https://supreme.justia.com/cases/federal/us/425/341/

U.S. Supreme Court Beckwith v. United States, 425 U.S. 341 (1976) Beckwith v. United States No. 74-1243 Argued December 1, 1975 Decided April 21, 1976 425 U.S. 341 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Syllabus Statements made by petitioner taxpayer to Internal Revenue agents during the course of a noncustodial interview in a criminal tax investigation held admissible against him in the ensuing criminal tax fraud prosecution even though he was not given warnings required by Miranda v. Arizona, 384 U. S. 436 . Although the "focus" of the investigation may have been on petitioner when he was interviewed, in the sense that his tax liability was under scrutiny, that is not the equivalent of "focus" for Miranda purposes, which involves "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 384 U. S. 444 (emphasis supplied). Pp. 425 U. S. 344 -348. 166 U.S. App.D.C. 361, 510 F.2d 741, affirmed. BURGER, C.J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, post, p. 425 U. S. 348 . BRENNAN, J., filed a dissenting opinion, post, p. 425 U. S. 349 . STEVENS, J., took no part in the consideration or decision of the case. MR. CHIEF JUSTICE BURGER delivered the opinion of the Court. The important issue presented in this case is whether a special agent of the Internal Revenue Service, investigating potential criminal income tax violations, must, in Page 425 U. S. 342 an interview with a taxpayer, not in custody, give the warnings called for by this Court's decision in Miranda v. Arizona, 384 U. S. 436 (1966). We granted certiorari to resolve the conflict between the holding of the Court of Appeals in this case, which is consistent with the weight of authority on the issue, [ Footnote 1 ] and the position adopted by the United States Court of Appeals for the Seventh Circuit. [ Footnote 2 ] The District Court conducted a thorough inquiry into the facts surrounding the interview of petitioner before ruling on his motion to suppress the statements at issue. After a considerable amount of investigation, two special agents of the Intelligence Division of the Internal Revenue Service met with petitioner in a private home where petitioner occasionally stayed. The senior agent testified that they went to see petitioner at this private residence at 8 a.m. in order to spare petitioner the possible embarrassment of being interviewed at his place of employment, which opened at 10 a.m. Upon their arrival, they identified themselves to the person answering the door and asked to speak to petitioner. The agents were invited into the house and, when petitioner entered the room where they were waiting, they introduced themselves Page 425 U. S. 343 and, according to the testimony of the senior agent, Beckwith then excused himself for a period in excess of five minutes, to finish dressing. [ Footnote 3 ] Petitioner then sat down at the dining room table with the agents; they presented their credentials and stated they were attached to the Intelligence Division and that one of their functions was to investigate the possibility of criminal tax fraud. They then informed petitioner that they were assigned to investigate his federal income tax liability for the years 1966 through 1971. The senior agent then read to petitioner from a printed card the following: "As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses." "Under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate you in any way. I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding." App. 65-66. Petitioner acknowledged that he understood his rights. The agents then interviewed him until about 11 o'clock. The agents described the conversation as "friendly" and "relaxed." The petitioner noted that the agents did not "press" him on any question he could not or chose not to answer. Prior to the conclusion of the interview, the senior agent requested that petitioner permit the agents to Page 425 U. S. 344 inspect certain records. Petitioner indicated that they were at his place of employment. The agents asked if they could meet him there later. Having traveled separately from petitioner, the agents met petitioner approximately 45 minutes later, and the senior agent advised the petitioner that he was not required to furnish any books or records; petitioner, however, supplied the books to the agents. Prior to trial, petitioner moved to suppress all statements he made to the agents or evidence derived from those statements on the ground that petitioner had not been given the warnings mandated by Miranda. The District Court ruled that he was entitled to such warnings "when the court finds as a fact that there were custodial circumstances." The District Judge went on to find that, "on this record . . . , there is no evidence whatsoever of any such situation." The Court of Appeals affirmed the judgment of conviction. 166 U.S.App.D.C. 361, 510 F.2d 741 (1975). It noted that the reasoning of Miranda was based "in crucial part" on whether the suspect "has been taken into custody or otherwise deprived of his freedom in any significant way," id. at 362, 510 F.2d at 742, citing Miranda, supra at 384 U. S. 477 ; and agreed with the District Court that "Beckwith was neither arrested nor detained against his will." 166 U.S.App.D.C. at 362, 510 F.2d at 742. We agree with the analysis of the Court of Appeals, [ Footnote 4 ] and therefore affirm its judgment. Petitioner contends that the "entire starting point" for the criminal prosecution brought against him was secured from his own statements and disclosures during the interview with the Internal Revenue agents from the Page 425 U. S. 345 Intelligence Division. He correctly points out that cases are assigned to the Intelligence Division only when there is some indication of criminal fraud, and that, especially since tax offenses rarely result in pretrial custody, the taxpayer is clearly the "focus" of a criminal investigation when a matter is assigned to the Intelligence Division. Given the complexity of the tax structure and the confusion on the part of taxpayers between the civil and criminal function of the Internal Revenue Service, such a confrontation, argues petitioner, places the taxpayer under "psychological restraints" which are the functional, and, therefore, the legal, equivalent of custody. In short, we agree with Chief Judge Bazelon, speaking for a unanimous Court of Appeals, that "[t]he major thrust of Beckwith's argument is that the principle of Miranda and Mathis [ Footnote 5 ] should be extended to cover interrogation in noncustodial circumstances after a police investigation has focused on the suspect." Ibid. With the Court of Appeals, we "are not impressed with this argument in the abstract, nor as applied to the particular facts of Beckwith's interrogation." Ibid. It goes far beyond the reasons for that holding and such an extension of the Miranda requirements would cut this Court's holding in that case completely loose from its own explicitly stated rationale. The narrow issue before the Court in Miranda was presented very precisely in the opening paragraph of that opinion -- "the admissibility of statements obtained from an individual who is subjected to custodial police interrogation." 384 U.S. at 384 U. S. 439 . [ Footnote 6 ] (Emphasis supplied.) The Court concluded Page 425 U. S. 346 that compulsion is "inherent in custodial surroundings," [ Footnote 7 ] id. at 384 U. S. 458 , and, consequently, that special safeguards were required in the case of "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights." Id. at 384 U. S. 445 . In subsequent decisions, the Court specifically stressed that it was the custodial nature of the interrogation which triggered the necessity for adherence to the specific requirements of its Miranda holding. Oroxco v. Texas, 394 U. S. 324 (1969); Mathis v. United States, 391 U. S. 1 (1968). See generally Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 247 (1973). Petitioner's argument that he was placed in the functional, and, therefore, legal, equivalent of the Miranda situation asks us now to ignore completely that Miranda was grounded squarely in the Court's explicit and detailed assessment of the peculiar "nature and setting of . . . in-custody interrogation," 384 U.S. at 384 U. S. 445 . That Courts of Appeals have so read Miranda is suggested by Chief Judge Lumbard in United States v. Caiello, 420 F.2d 471, 473 (CA2 1969): "'It was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the court to impose the Page 425 U. S. 347 Miranda requirements with regard to custodial questioning.'" Mathis v. United States, supra, directly supports this conclusion in holding that the Miranda requirements are applicable to interviews with Internal Revenue agents concerning tax liability when the subject is in custody; the Court thus squarely grounded its holding on the custodial aspects of the situation, not the subject matter of the interview. [ Footnote 8 ] An interview with Government agents in a situation such as the one shown by this record simply does not present the elements which the Miranda Court found so inherently coercive as to require its holding. Although the "focus" of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding. Miranda implicitly defined "focus," for its purposes, as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 384 U. S. 444 . (Emphasis supplied.) It may well be true, as petitioner contends, that the "starting point" for the criminal prosecution was the information obtained from petitioner and the records exhibited by him. But this amounts to no more than saying that a tax return signed by a taxpayer can be the "starting point" for a prosecution. We recognize, of course, that noncustodial interrogation might possibly, in some situations, by virtue of some Page 425 U. S. 348 special circumstances, be characterized as one where "the behavior of . . . law enforcement officials was such as to overbear petitioner's will to resist and bring about confessions not freely self-determined. . . ." Rogers v. Richmond, 365 U. S. 534 , 365 U. S. 544 (1961). When such a claim is raised, it is the duty of an appellate court, including this Court, "to examine the entire record and make an independent determination of the ultimate issue of voluntariness." Davis v. North Carolina, 384 U. S. 737 , 384 U. S. 741 -742 (1966). Proof that some kind of warnings were given or that none were given would be relevant evidence only on the issue of whether the questioning was, in fact, coercive. Frazier v. Cupp, 394 U. S. 731 , 394 U. S. 79 (1969); Davis v. North Carolina, supra at 384 U. S. 740 -741. In the present case, however, as Chief Judge Bazelon noted, "[t]he entire interview was free of coercion," 166 U.S.App.D.C. at 363, 510 F.2d at 743 (footnote omitted). Accordingly, the judgment of the Court of Appeals is Affirmed. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. [ Footnote 1 ] See, e.g., Taglianetti v. United States, 398 F.2d 558, 566 (CA1 1968), aff'd on another ground, 394 U. S. 316 (1969); United States v. Mackiewicz, 401 F.2d 219, 221-222 (CA2), cert. denied, 393 U.S. 923 (1968); United States v. Jaskiewicz, 433 F.2d 415, 417-420 (CA3 1970), cert. denied, 400 U.S. 1021 (1971); United States v. Browney, 421 F.2d 48, 51-52 (CA4 1970); United States v. Prudden, 424 F.2d 1021, 1027-1031 (CA5), cert. denied, 400 U.S. 831 (1970); United States v. Stribling, 437 F.2d 765, 771 (CA6), cert. denied, 402 U.S. 973 (1971); United States v. MacLeod, 436 F.2d 947, 950 (CA8), cert. denied, 402 U.S. 907 (1971); United States v. Robson, 477 F.2d 13, 16 (CA9 1973); Hensley v. United States, 406 F.2d 481, 484 (CA10 1968); but cf. United States v. Lockyer, 448 F.2d 417, 422 (CA10 1971). [ Footnote 2 ] United States v. Dickerson, 413 F.2d 1111 (1969). [ Footnote 3 ] Petitioner claimed at the suppression hearing that he was fully dressed when he first met the agents. The District Court did not explicitly resolve this conflict in testimony. [ Footnote 4 ] On petition for writ of certiorari to this Court, Beckwith does not challenge the further holding of the Court of Appeals that, the Miranda question aide, the "entire interview was free of coercion," 166 U.S.App.D.C. at 363, 510 F.2d at 743 (footnote omitted). [ Footnote 5 ] Mathis v. United States, 391 U. S. 1 (1968). [ Footnote 6 ] The Court also stated: "The constitutional issue we decide . . . is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 384 U. S. 445 . The Court specifically defined "custodial interrogation" to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 384 U. S. 444 . [ Footnote 7 ] The Court gave great weight to contemporaneous police manuals, and concluded that custodial interrogation was "psychologically . . . oriented," id. at 384 U. S. 448 , and that the principal psychological factor contributing to successful interrogation was isolating the suspect in unfamiliar surroundings "for no purpose other than to subjugate the individual to the will of his examiner." Id. at 384 U. S. 457 . [ Footnote 8 ] Four Members of the Court joined Mr. Justice Black; the dissenters regarded Mathis as an extension of Miranda largely because the custody and the interrogation were in no way related, and because a prisoner interrogated in prison was not in unfamiliar surroundings. MR. JUSTICE MARSHALL, concurring in the judgment. While the Internal Revenue Service agents in this case did not give petitioner the full warnings prescribed in Miranda v. Arizona, 384 U. S. 436 (1966), they did give him the following warning before questioning him: "As a special agent, one of my functions is to investigate the possibility of criminal violations of the Internal Revenue laws, and related offenses." "Under the Fifth Amendment to the Constitution of the United States, I cannot compel you to answer any questions or to submit any information if such answers or information might tend to incriminate Page 425 U. S. 349 you in any way. I also advise you that anything which you say and any information which you submit may be used against you in any criminal proceeding which may be undertaken. I advise you further that you may, if you wish, seek the assistance of an attorney before responding." App. 65-66. Under the circumstances of this case, in which petitioner was not under arrest and the interview took place in a private home where petitioner occasionally stayed, the warning recited above satisfied the requirements of the Fifth Amendment. If this warning had not been given, however, I would not join the judgment of the Court. MR. JUSTICE BRENNAN, dissenting. I respectfully dissent. In my view, the District Court should have granted petitioner's motion to suppress all statements made by him to the agents because the agents did not give petitioner the warnings mandated by Miranda v. Arizona, 384 U. S. 436 (1966). The Court affirms the conviction on the ground that, "[a]lthough the 'focus' of an investigation may indeed have been on Beckwith at the time of the interview in the sense that it was his tax liability which was under scrutiny, he hardly found himself in the custodial situation described by the Miranda Court as the basis for its holding." Ante at 384 U. S. 347 (emphasis supplied). But the fact that Beckwith had not been taken into formal "custody" is not determinative of the question whether the agents were required to give him the Miranda warnings. I agree with the Court of Appeals for the Seventh Circuit that the warnings are also mandated when the taxpayer is, as here, interrogated by Intelligence Division agents of the Internal Revenue Service in surroundings where, as in the case of the subject in "custody," the practical compulsion Page 425 U. S. 350 to respond to questions about his tax returns is comparable to the psychological pressures described in Miranda. United States v. Dickerson, 413 F.2d 1111 (1969); United States v. Oliver, 505 F.2d 301 (1974). Interrogation under conditions that have the practical consequence of compelling the taxpayer to make disclosures, and interrogation in "custody" having the same consequence, are, in my view, peas from the same pod. Oliver states the analysis with which I agree, and which requires suppression of Beckwith's statements: "The application of Miranda does not turn on such a simple axis as whether or not the suspect is in custody when he is being questioned. As the Court repeatedly indicated, the prescribed warnings are required if the defendant is in custody 'or otherwise deprived of his freedom of action in any significant way.' The fact of custody is emphasized in the [ Miranda ] opinion as having the practical consequence of compelling the accused to make disclosures. But the test also differentiates between the questioning of a mere witness and the interrogation of an accused for the purpose of securing his conviction; the test serves the purpose" "of determining when the adversary process has begun, i.e., when the investigative machinery of the government is directed toward the ultimate conviction of a particular individual and when, therefore, a suspect should be advised of his rights." "Since the constitutional protection is expressly applicable to testimony in the criminal case itself, for the purpose of determining when warnings are required, the Miranda analysis treats the adversary proceeding as though it commences when a prospective defendant is taken into custody or otherwise significantly restrained. After that point is reached, it is not unreasonable to treat any compelled disclosure Page 425 U. S. 351 as protected by the Fifth Amendment unless, of course, the constitutional protection has been waived. Adequate warnings, or the advise [ sic ] of counsel, are essential if such a waiver is to be effective." "The requirement of warnings set forth in Dickerson rests on the same underlying rationale. While the commencement of adversary proceedings against Dickerson had not been marked by taking him into custody, the I.R.S., by assigning the matter to the Intelligence Division, had commenced the preparation of its criminal case. When the agents questioned him about his tax return, without clearly explaining their mission, the dual criminal-civil nature of an I.R.S. interrogation created three key misapprehensions for the taxpayer." " Incriminating statements elicited in reliance upon the taxpayer's misapprehension as to the nature of the inquiry, his obligation to respond, and the possible consequences of doing so must be regarded as equally violative of constitutional protections as a custodial confession extracted without proper warnings." "413 F.2d at 1116 (emphasis added). The practical effect of these misapprehensions during questioning of a taxpayer was to 'compel' him to provide information that could be used to obtain his conviction in a criminal tax fraud proceeding, in much the same way that placing a suspect under physical restraint leads to psychological compulsion. Thus, the misapprehensions are tantamount to the deprivation of the suspect's 'freedom of action in any significant way,' repeatedly referred to in Miranda. " 505 F.2d at 30305. (Footnotes omitted.) I would reverse the judgment of conviction and remand to the District Court for a new trial.

In the case of Beckwith v. United States (1976), the Supreme Court ruled that statements made by a taxpayer to Internal Revenue agents during a non-custodial interview are admissible in a criminal tax fraud prosecution, even if the taxpayer was not given Miranda warnings. The Court emphasized that the "focus" of an investigation for Miranda purposes involves questioning by law enforcement officers after a person has been taken into custody or deprived of their freedom of action, which was not the case for the taxpayer.

Miranda Rights

Miranda v. Arizona

https://supreme.justia.com/cases/federal/us/384/436/

U.S. Supreme Court Miranda v. Arizona, 384 U.S. 436 (1966) Miranda v. Arizona No. 759 Argued February 28-March 1, 1966 Decided June 13, 1966* 384 U.S. 436 CERTIORARI TO THE SUPREME COURT OF ARIZONA MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. [440 ] We dealt with certain phases of this problem recently in Escobedo v. Illinois , 378 U. S. 478 (1964). There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible. This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions. [ Footnote 1 ] A wealth of scholarly material has been written tracing its ramifications and underpinnings. [ Footnote 2 ] Police and prosecutor [441 ] have speculated on its range and desirability. [ Footnote 3 ] We granted certiorari in these cases, 382 U.S. 924, 925, 937, in order further to explore some facets of the problems thus exposed of applying the privilege against self-incrimination to in-custody interrogation, and to give [442 ] concrete constitutional guidelines for law enforcement agencies and courts to follow. We start here, as we did in Escobedo , with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough reexamination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitution -- that "No person . . . shall be compelled in any criminal case to be a witness against himself," and that "the accused shall . . . have the Assistance of Counsel" -- rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And, in the words of Chief Justice Marshall, they were secured "for ages to come, and . . . designed to approach immortality as nearly as human institutions can approach it," Cohens v. Virginia , 6 Wheat. 264, 387 (1821). Over 70 years ago, our predecessors on this Court eloquently stated: "The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688 and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the [443 ] questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." Brown v. Walker , 161 U. S. 591 , 596-597 (1896). In stating the obligation of the judiciary to apply these constitutional rights, this Court declared in Weems v. United States , 217 U. S. 349 , 373 (1910): ". . . our contemplation cannot be only of what has been, but of what may be. Under any other rule, a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value, and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The [444 ] meaning and vitality of the Constitution have developed against narrow and restrictive construction." This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a "form of words," Silverthorne Lumber Co. v. United States , 251 U. S. 385 , 392 (1920), in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today. Our holding will be spelled out with some specificity in the pages which follow, but, briefly stated, it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. [ Footnote 4 ] As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the [445 ] process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. I The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features -- incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights. An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that, in this country, they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930's, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that time. [ Footnote 5 ] [446 ] In a series of cases decided by this Court long after these studies, the police resorted to physical brutality -- beating, hanging, whipping -- and to sustained and protracted questioning incommunicado in order to extort confessions. [ Footnote 6 ] The Commission on Civil Rights in 1961 found much evidence to indicate that "some policemen still resort to physical force to obtain confessions," 1961 Comm'n on Civil Rights Rep. Justice, pt. 5, 17. The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party. People v. Portelli , 15 N.Y.2d 235, 205 N.E.2d 857, 257 N.Y.S.2d 931 (1965). [ Footnote 7 ] [447 ] The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved -- such as these decisions will advance -- there can be no assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the Wickersham Commission Report, made over 30 years ago, is still pertinent: "To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey):" "It is not admissible to do a great right by doing a little wrong. . . . It is not sufficient to do justice by obtaining a proper result by irregular or improper means." "Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, 'It is a short-cut, and makes the police lazy and unenterprising.' Or, as another official quoted remarked: 'If you use your fists, you [448 ] are not so likely to use your wits.' We agree with the conclusion expressed in the report, that" "The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of Justice is held by the public." "IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931)." Again we stress that the modern practice of in-custody interrogation is psychologically, rather than physically, oriented. As we have stated before, "Since Chambers v. Florida , 309 U. S. 227 , this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama , 361 U. S. 199 , 206 (1960). Interrogation still takes place in privacy. Privacy results in secrecy, and this, in turn, results in a gap in our knowledge as to what, in fact, goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics. [ Footnote 8 ] These [449 ] texts are used by law enforcement agencies themselves as guides. [ Footnote 9 ] It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country. The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is privacy -- being alone with the person under interrogation. [ Footnote 10 ]" The efficacy of this tactic has been explained as follows: "If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home, he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and [450 ] more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law. [ Footnote 11 ]" To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and, from outward appearance, to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense, [ Footnote 12 ] to cast blame on the victim or on society. [ Footnote 13 ] These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already -- that he is guilty. Explanations to the contrary are dismissed and discouraged. The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. [451 ] One writer describes the efficacy of these characteristics in this manner: "In the preceding paragraphs, emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours, pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable. [ Footnote 14 ]" The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge killing, for example, the interrogator may say: "Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him, and that's why you carried a gun -- for your own protection. You knew him for what he was, no good. Then when you met him, he probably started using foul, abusive language and he gave some indication [452 ] that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe? [ Footnote 15 ]" Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which negates the self-defense explanation. This should enable him to secure the entire story. One text notes that, "Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense 'out' at the time of trial. [ Footnote 16 ]" When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the "friendly-unfriendly," or the "Mutt and Jeff" act: ". . . In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime, and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics, and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room. [ Footnote 17 ] " [453 ] The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. "The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party. [ Footnote 18 ]" Then the questioning resumes "as though there were now no doubt about the guilt of the subject." A variation on this technique is called the "reverse line-up": "The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations. [ Footnote 19 ]" The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. "This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses [454 ] the subject with the apparent fairness of his interrogator. [ Footnote 20 ]" After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk: "Joe, you have a right to remain silent. That's your privilege, and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O. K. But let me ask you this. Suppose you were in my shoes, and I were in yours, and you called me in to ask me about this, and I told you, 'I don't want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over. [ Footnote 21 ]" Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly. In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered: "[T]he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself, rather than get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, 'Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You can handle this by yourself.' [ Footnote 22 ] " [455 ] From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: to be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained." [ Footnote 23 ] When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights. Even without employing brutality, the "third degree" or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty, and trades on the weakness of individuals. [ Footnote 24 ] [456 ] This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term immediately preceding our Escobedo decision. In Townsend v. Sain , 372 U. S. 293 (1963), the defendant was a 19-year-old heroin addict, described as a "near mental defective," id. at 307-310. The defendant in Lynumn v. Illinois , 372 U. S. 528 (1963), was a woman who confessed to the arresting officer after being importuned to "cooperate" in order to prevent her children from being taken by relief authorities. This Court, as in those cases, reversed the conviction of a defendant in Haynes v. Washington , 373 U. S. 503 (1963), whose persistent request during his interrogation was to phone his wife or attorney. [ Footnote 25 ] In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed. In the cases before us today, given this background, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring. In No. 759, Miranda v. Arizona , the police arrested the defendant and took him to a special interrogation room, where they secured a confession. In No. 760, Vignera v. New York , the defendant made oral admissions to the police after interrogation in the afternoon, and then signed an inculpatory statement upon being questioned by an assistant district attorney later the same evening. In No. 761, Westover v. United States , the defendant was handed over to the Federal Bureau of Investigation by [457 ] local authorities after they had detained and interrogated him for a lengthy period, both at night and the following morning. After some two hours of questioning, the federal officers had obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart , the local police held the defendant five days in the station and interrogated him on nine separate occasions before they secured his inculpatory statement. In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent, for example, in Miranda , where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies, and in Stewart , in which the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice. It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity. [ Footnote 26 ] The current practice of incommunicado interrogation is at odds with one of our [458 ] Nation's most cherished principles -- that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation. II We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came, and the fervor with which it was defended. Its roots go back into ancient times. [ Footnote 27 ] Perhaps [459 ] the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton , 3 How.St.Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating: "Another fundamental right I then contended for was that no man's conscience ought to be racked by oaths imposed to answer to questions concerning himself in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944) On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England. [ Footnote 28 ] These sentiments worked their way over to the Colonies, and were implanted after great struggle into the Bill of Rights. [ Footnote 29 ] Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that "illegitimate and unconstitutional practices get their first footing . . . by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States , 116 U. S. 616 , 635 (1886). The privilege was elevated to constitutional status, and has always been "as broad as the mischief [460 ] against which it seeks to guard." Counselman v. Hitchcock , 142 U. S. 547 , 562 (1892). We cannot depart from this noble heritage. Thus, we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a "noble principle often transcends its origins," the privilege has come rightfully to be recognized in part as an individual's substantive right, a "right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." United States v. Grunewald , 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd , 353 U.S. 391 (1957). We have recently noted that the privilege against self-incrimination -- the essential mainstay of our adversary system -- is founded on a complex of values, Murphy v. Waterfront Comm'n , 378 U. S. 52 , 55-57, n. 5 (1964); Tehan v. Shott , 382 U. S. 406 , 414-415, n. 12 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government -- state or federal -- must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton rev.1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida , 309 U. S. 227 , 235-238 (1940). In sum, the privilege is fulfilled only when the person is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan , 378 U. S. 1 , 8 (1964). The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. [461 ] In this Court, the privilege has consistently been accorded a liberal construction. Albertson v. SACB , 382 U. S. 70 , 81 (1965); Hoffman v. United States , 341 U. S. 479 , 486 (1951); Arndstein v. McCarthy , 254 U. S. 71 , 72-73 (1920); Counselman v. Hitchock , 142 U. S. 547 , 562 (1892). We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery. [ Footnote 30 ] This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States , 168 U. S. 532 , 542 (1897), this Court held: "In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment . . . commanding that no person 'shall be compelled in any criminal case to be a witness against himself.'" In Bram , the Court reviewed the British and American history and case law and set down the Fifth Amendment standard for compulsion which we implement today: "Much of the confusion which has resulted from the effort to deduce from the adjudged cases what [462 ] would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a misconception of the subject to which the proof must address itself. The rule is not that, in order to render a statement admissible, the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when, but for the improper influences, he would have remained silent. . . ." 168 U.S. at 549. And see id. at 542. The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a conviction resting on a compelled confession, Wan v. United States , 266 U. S. 1 . He stated: "In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States , 168 U. S. 532 ." 266 U.S. at 14-15. In addition to the expansive historical development of the privilege and the sound policies which have nurtured [463 ] its evolution, judicial precedent thus clearly establishes its application to incommunicado interrogation. In fact, the Government concedes this point as well established in No. 761, Westover v. United States , stating: "We have no doubt . . . that it is possible for a suspect's Fifth Amendment right to be violated during in-custody questioning by a law enforcement officer. [ Footnote 31 ]" Because of the adoption by Congress of Rule 5(a) of the Federal Rules of Criminal Procedure, and this Court's effectuation of that Rule in McNabb v. United States , 318 U. S. 332 (1943), and Mallory v. United States , 354 U. S. 449 (1957), we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner "without unnecessary delay" and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb , 318 U.S. at 343-344, and in Mallory , 354 U.S. at 455-456, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself. [ Footnote 32 ] Our decision in Malloy v. Hogan , 378 U. S. 1 (1964), necessitates an examination of the scope of the privilege in state cases as well. In Malloy , we squarely held the [464 ] privilege applicable to the States, and held that the substantive standards underlying the privilege applied with full force to state court proceedings. There, as in Murphy v. Waterfront Comm'n , 378 U. S. 52 (1964), and Griffin v. California , 380 U. S. 609 (1965), we applied the existing Fifth Amendment standards to the case before us. Aside from the holding itself, the reasoning in Malloy made clear what had already become apparent -- that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege, 378 U.S. at 7-8. [ Footnote 33 ] The voluntariness doctrine in the state cases, as Malloy indicates, encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from [465 ] making a free and rational choice. [ Footnote 34 ] The implications of this proposition were elaborated in our decision in Escobedo v. Illinois , 378 U. S. 478 , decided one week after Malloy applied the privilege to the States. Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S. at 483, 485, 491. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege -- the choice on his part to speak to the police -- was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak. A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. In Escobedo , however, the police did not relieve the defendant of the anxieties which they had created in the interrogation rooms. Rather, they denied his request for the assistance of counsel, 378 U.S. at 481, 488, 491. [ Footnote 35 ] This heightened his dilemma, and [466 ] made his later statements the product of this compulsion. Cf. Haynes v. Washington , 373 U. S. 503 , 373 U.S. 514 (1963). The denial of the defendant's request for his attorney thus undermined his ability to exercise the privilege -- to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would he the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion. It was in this manner that Escobedo explicated another facet of the pretrial privilege, noted in many of the Court's prior decisions: the protection of rights at trial. [ Footnote 36 ] That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the factfinding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warnings and the rights of counsel, "all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police." Mapp v. Ohio , 367 U. S. 643 , 685 (1961) (HARLAN, J., dissenting). Cf. Pointer v. Texas , 380 U. S. 400 (1965). [467 ] III Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings, and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored. It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rulemaking capacities. Therefore, we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed. At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and [468 ] unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it -- the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning, and will bode ill when presented to a jury. [ Footnote 37 ] Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it. The Fifth Amendment privilege is so fundamental to our system of constitutional rule, and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information [469 ] as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; [ Footnote 38 ] a warning is a clear-cut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time. The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system -- that he is not in the presence of persons acting solely in his interest. The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere [470 ] warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent, without more, "will benefit only the recidivist and the professional." Brief for the National District Attorneys Association as amicus curiae , p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. Illinois , 378 U. S. 478 , 485, n. 5. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires. The presence of counsel at the interrogation may serve several significant subsidiary functions, as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present, the likelihood that the police will practice coercion is reduced, and, if coercion is nevertheless exercised, the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police, and that the statement is rightly reported by the prosecution at trial. See Crooker v. California , 357 U. S. 433 , 443-448 (1958) (DOUGLAS, J., dissenting). An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request [471 ] may be the person who most needs counsel. As the California Supreme Court has aptly put it: "Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request, and, by such failure, demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it." People v. Dorado , 62 Cal. 2d 338 , 351, 398 P.2d 361, 369-370, 42 Cal. Rptr. 169, 177-178 (1965) (Tobriner, J.). In Carnley v. Cochran , 369 U. S. 506 , 513 (1962), we stated: "[I]t is settled that, where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request." This proposition applies with equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of interrogation. [ Footnote 39 ] Although the role of counsel at trial differs from the role during interrogation, the differences are not relevant to the question whether a request is a prerequisite. Accordingly, we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of [472 ] circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead. Only through such a warning is there ascertainable assurance that the accused was aware of this right. If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us, as well as the vast majority of confession cases with which we have dealt in the past, involve those unable to retain counsel. [ Footnote 40 ] While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice. [ Footnote 41 ] Denial [473 ] of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright , 372 U. S. 335 (1963), and Douglas v. California , 372 U. S. 353 (1963). In order fully to apprise a person interrogated of the extent of his rights under this system, then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that, if he is indigent, a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent -- the person most often subjected to interrogation -- the knowledge that he too has a right to have counsel present. [ Footnote 42 ] As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it. [ Footnote 43 ] Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, [474 ] at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. [ Footnote 44 ] At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent. This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners. It does mean, however, that, if police propose to interrogate a person, they must make known to him that he is entitled to a lawyer and that, if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time. [475 ] If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois , 378 U. S. 478 , 490, n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst , 304 U. S. 458 (1938), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place, and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders. An express statement that the individual is willing to make a statement and does not want an attorney, followed closely by a statement, could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given, or simply from the fact that a confession was, in fact, eventually obtained. A statement we made in Carnley v. Cochran , 369 U. S. 506 , 516 (1962), is applicable here: "Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." See also Glasser v. United States , 315 U. S. 60 (1942). Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives [476 ] some information on his own prior to invoking his right to remain silent when interrogated. [ Footnote 45 ] Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances, the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege, and not simply a preliminary ritual to existing methods of interrogation. The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to "admissions" of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, [477 ] for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely "exculpatory." If a statement made were, in fact, truly exculpatory, it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation, and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word, and may not be used without the full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself. The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today, or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point. Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois , 378 U. S. 478 , 492. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding. It is an act of [478 ] responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations, the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present. [ Footnote 46 ] In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, [ Footnote 47 ] or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today. To summarize, we hold that, when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to [479 ] protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him. [ Footnote 48 ] IV A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See, e.g., Chambers v. Florida , 309 U. S. 227 , 240-241 (1940). The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed: "Decency, security and liberty alike demand that government officials shall be subjected to the same [480 ] rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fail to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that, in the administration of the criminal law, the end justifies the means . . . would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States , 277 U. S. 438 , 485 (1928) (dissenting opinion). [ Footnote 49 ] In this connection, one of our country's distinguished jurists has pointed out: "The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law." [ Footnote 50 ] If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath -- to protect to the extent of his ability the rights of his client. [481 ] In fulfilling this responsibility, the attorney plays a vital role in the administration of criminal justice under our Constitution. In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the "need" for confessions. In each case, authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant. [ Footnote 51 ] Further examples are chronicled in our prior cases. See, e.g., Haynes v. Washington , 373 U. S. 503 , 518-519 (1963); Rogers v. Richmond , 365 U. S. 534 , 541 (1961); Malinski v. New York , 324 U. S. 401 ,402 (1945). [ Footnote 52 ] [482 ] It is also urged that an unfettered right to detention for interrogation should be allowed because it will often redound to the benefit of the person questioned. When police inquiry determines that there is no reason to believe that the person has committed any crime, it is said, he will be released without need for further formal procedures. The person who has committed no offense, however, will be better able to clear himself after warnings with counsel present than without. It can be assumed that, in such circumstances, a lawyer would advise his client to talk freely to police in order to clear himself. Custodial interrogation, by contrast, does not necessarily afford the innocent an opportunity to clear themselves. A serious consequence of the present practice of the interrogation alleged to be beneficial for the innocent is that many arrests "for investigation" subject large numbers of innocent persons to detention and interrogation. In one of the cases before us, No. 584, California v. Stewart , police held four persons, who were in the defendant's house at the time of the arrest, in jail for five days until defendant confessed. At that time, they were finally released. Police stated that there was "no evidence to connect them with any crime." Available statistics on the extent of this practice where it is condoned indicate that these four are far from alone in being subjected to arrest, prolonged detention, and interrogation without the requisite probable cause. [ Footnote 53 ] [483 ] Over the years, the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice, and, more recently, that he has a right to free counsel if he is unable to pay. [ Footnote 54 ] A letter received from the Solicitor General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for the [484 ] rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today. It states: "At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director of the Federal Bureau of Investigation, and am submitting herewith a statement of the questions and of the answers which we have received." " (1) When an individual is interviewed by agents of the Bureau, what warning is given to him?" " The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S. , 337 F.2d 136 (1964), cert. den. , 380 U.S. 935." " After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to counsel warning [485 ] to read counsel of his own choice, or anyone else with whom he might wish to speak." " (2) When is the warning given?" " The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above. The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg , 336 F.2d 844 (1964), cert. den. , 379 U.S. 933, but, in any event, it must precede the interview with the person for a confession or admission of his own guilt." " (3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears?" " When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, Shultz v. U.S. , 351 F.2d 287 (1965). It may be continued, however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U.S. , 354 F.2d 4 (1965), the Agent's conclusion that the person arrested had waived his right to counsel was upheld by the courts." " A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in Caldwell v. U.S. , 351 F.2d 459 (1965). When counsel appears in person, he is permitted to confer with his client in private. " [486 ] " (4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney?" " If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before proceeding, further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge. [ Footnote 55 ]" The practice of the FBI can readily be emulated by state and local enforcement agencies. The argument that the FBI deals with different crimes than are dealt with by state authorities does not mitigate the significance of the FBI experience. [ Footnote 56 ] The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed. The English procedure, since 1912 under the Judges' Rules, is significant. As recently [487 ] strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the accused without questioning by police. [ Footnote 57 ] [488 ] The right of the individual to consult with an attorney during this period is expressly recognized. [ Footnote 58 ] The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in evidence of most confessions obtained through police interrogation. [ Footnote 59 ] In India, confessions made to police not in the presence of a magistrate have been excluded [489 ] by rule of evidence since 1872, at a time when it operated under British law. [ Footnote 60 ] Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895. [ Footnote 61 ] Similarly, in our country, the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement, and that any statement he makes may be used against him. [ Footnote 62 ] Denial of the right to consult counsel during interrogation has also been proscribed by military tribunals. [ Footnote 63 ] There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth Amendment of the Constitution, [490 ] whereas other jurisdictions arrived at their conclusions on the basis of principles of justice not so specifically defined. [ Footnote 64 ] It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had an opportunity to deal with these problems by rulemaking. [ Footnote 65 ] We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions, and must be determined by the courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant's constitutional rights is an issue the resolution of which has long since been undertaken by this Court. See Hopt v. Utah , 110 U. S. 574 (1884). Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us, and it is our [491 ] responsibility today. Where rights secured by the Constitution are involved, there can be no rulemaking or legislation which would abrogate them. V Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege. No. 759. Miranda v. Arizona On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police station. He was there identified by the complaining witness. The police then took him to "Interrogation Room No. 2" of the detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was not advised that he had a right to have an attorney present. [ Footnote 66 ] Two hours later, the [492 ] officers emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and "with full knowledge of my legal rights, understanding any statement I make may be used against me." [ Footnote 67 ] At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the officers testified to the prior oral confession made by Miranda during the interrogation. Miranda was found guilty of kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on each count, the sentences to run concurrently. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession, and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721 . In reaching its decision, the court emphasized heavily the fact that Miranda did not specifically request counsel. We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings, the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had "full knowledge" of his "legal rights" does not approach the knowing and intelligent waiver required to relinquish constitutional rights. Cf. 373 U. S. Washington , 373 U.S. [493 ] 503, 512-513 (1963); Haley v. Ohio , 332 U. S. 596 , 601 (1948) (opinion of MR JUSTICE DOUGLAS). No. 760. Vignera v. New York Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime thereafter, he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question, and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a saleslady as the man who robbed the dress shop. At about 3 p.m., he was formally arrested. The police then transported him to still another station, the 70th Precinct in Brooklyn, "for detention." At 11 p.m., Vignera was questioned by an assistant district attorney in the presence of a hearing reporter, who transcribed the questions and Vignera's answers. This verbatim account of these proceedings contains no statement of any warnings given by the assistant district attorney. At Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part as follows: "The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what [494 ] I said? I am telling you what the law of the State of New York is." Vignera was found guilty of first degree robbery. He was subsequently adjudged a third-felony offender and sentenced to 30 to 60 years' imprisonment. [ Footnote 68 ] The conviction was affirmed without opinion by the Appellate Division, Second Department, 21 App.Div.2d 752, 252 N.Y.S.2d 19, and by the Court of Appeals, also without opinion, 15 N.Y.2d 970, 207 N.E.2d 527, 259 N.Y.S.2d 857, remittitur amended , 16 N.Y.2d 614, 209 N.E.2d 110, 261 N.Y. .2d 65. In argument to the Court of Appeals, the State contended that Vignera had no constitutional right to be advised of his right to counsel or his privilege against self-incrimination. We reverse. The foregoing indicates that Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect these rights. Thus, he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present, and his statements are inadmissible. No. 761. Westover v. United States At approximately 9:45 p.m. on March 20, 1963, petitioner, Carl Calvin Westover, was arrested by local police in Kansas City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and, at about 11:45 p.m., he was booked. Kansas City police interrogated Westover [495 ] on the night of his arrest. He denied any knowledge of criminal activities. The next day, local officers interrogated him again throughout the morning. Shortly before noon, they informed the FBI that they were through interrogating Westover and that the FBI could proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his rights by local police. At noon, three special agents of the FBI continued the interrogation in a private interview room of the Kansas City Police Department, this time with respect to the robbery of a savings and loan association and bank in Sacramento, California. After two or two and one-half hours, Westover signed separate confessions to each of these two robberies which had been prepared by one of the agents during the interrogation. At trial, one of the agents testified, and a paragraph on each of the statements states, that the agents advised Westover that he did not have to make a statement, that any statement he made could be used against him, and that he had the right to see an attorney. Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at trial. He was sentenced to 15 years' imprisonment on each count, the sentences to run consecutively. On appeal, the conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d 684. We reverse. On the facts of this case, we cannot find that Westover knowingly and intelligently waived his right to remain silent and his right to consult with counsel prior to the time he made the statement. [ Footnote 69 ] At the [496 ] time the FBI agents began questioning Westover, he had been in custody for over 14 hours, and had been interrogated at length during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police, and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct, and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation, nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did, in fact, confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view, the warnings came at the end of the interrogation process. In these circumstances, an intelligent waiver of constitutional rights cannot be assumed. We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here, the FBI interrogation was conducted immediately following the state interrogation in the same police station -- in the same compelling surroundings. Thus, in obtaining a confession from Westover [497 ] the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances, the giving of warnings alone was not sufficient to protect the privilege. No. 584. California v. Stewart In the course of investigating a series of purse-snatch robberies in which one of the victims had died of injuries inflicted by her assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police as the endorser of dividend checks taken in one of the robberies. At about 7:15 p.m., January 31, 1963, police officers went to Stewart's house and arrested him. One of the officers asked Stewart if they could search the house, to which he replied, "Go ahead." The search turned up various items taken from the five robbery victims. At the time of Stewart's arrest, police also arrested Stewart's wife and three other persons who were visiting him. These four were jailed along with Stewart, and were interrogated. Stewart was taken to the University Station of the Los Angeles Police Department, where he was placed in a cell. During the next five days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with his interrogators. During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to connect them with any crime, the police then released the other four persons arrested with him. Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right to counsel. In a number of instances, [498 ] however, the interrogating officers were asked to recount everything that was said during the interrogations. None indicated that Stewart was ever advised of his rights. Stewart was charged with kidnapping to commit robbery, rape, and murder. At his trial, transcripts of the first interrogation and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first degree murder, and fixed the penalty as death. On appeal, the Supreme Court of California reversed. 62 Cal. 2d 571 , 400 P.2d 97, 43 Cal. Rptr. 201. It held that, under this Court's decision in Escobedo , Stewart should have been advised of his right to remain silent and of his right to counsel, and that it would not presume in the face of a silent record that the police advised Stewart of his rights. [ Footnote 70 ] We affirm. [ Footnote 71 ] In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of [499 ] these rights be assumed on a silent record. Furthermore, Stewart's steadfast denial of the alleged offenses through eight of the nine interrogations over a period of five days is subject to no other construction than that he was compelled by persistent interrogation to forgo his Fifth Amendment privilege. Therefore, in accordance with the foregoing, the judgments of the Supreme Court Of Arizona in No. 759, of the New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761, are reversed. The judgment of the Supreme Court of California in No. 584 is affirmed. It is so ordered. * Together with No. 760, Vignera v. New York , on certiorari to the Court of Appeals of New York and No. 761, Westover v. United States , on certiorari to the United States Court of Appeals for the Ninth Circuit, both argued February 28-March 1, 1966, and No. 584, California v. Stewart , on certiorari to the Supreme Court of California, argued February 28-March 2, 1966. MR. JUSTICE CLARK, dissenting in Nos. 759, 760, and 761, and concurring in the result in No. 584. It is with regret that I find it necessary to write in these cases. However, I am unable to join the majority because its opinion goes too far on too little, while my dissenting brethren do not go quite far enough. Nor can I join in the Court's criticism of the present practices of police and investigatory agencies as to custodial interrogation. The materials it refers to as "police manuals" [ Footnote 1 ] are, as I read them, merely writings in this field by professors and some police officers. Not one is shown by the record here to be the official manual of any police department, much less in universal use in crime detection. Moreover, the examples of police brutality mentioned by the Court [ Footnote 2 ] are rare exceptions to the thousands of cases [500 ] that appear every year in the law reports. The police agencies -- all the way from municipal and state forces to the federal bureaus -- are responsible for law enforcement and public safety in this country. I am proud of their efforts, which, in my view, are not fairly characterized by the Court's opinion. I The ipse dixit of the majority has no support in our cases. Indeed, the Court admits that "we might not find the defendants' statements [here] to have been involuntary in traditional terms." Ante , p. 457. In short, the Court has added more to the requirements that the accused is entitled to consult with his lawyer and that he must be given the traditional warning that he may remain silent and that anything that he says may be used against him. Escobedo v. Illinois , 378 U. S. 478 , 490-491 (1964). Now the Court fashions a constitutional rule that the police may engage in no custodial interrogation without additionally advising the accused that he has a right under the Fifth Amendment to the presence of counsel during interrogation and that, if he is without funds, counsel will be furnished him. When, at any point during an interrogation, the accused seeks affirmatively or impliedly to invoke his rights to silence or counsel, interrogation must be forgone or postponed. The Court further holds that failure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof. Such a strict constitutional specific inserted at the nerve center of crime detection may well kill the patient. [ Footnote 3 ] [501 ] Since there is at this time a paucity of information and an almost total lack of empirical knowledge on the practical operation of requirements truly comparable to those announced by the majority, I would be more restrained, lest we go too far too fast. II Custodial interrogation has long been recognized as "undoubtedly an essential tool in effective law enforcement." Haynes v. Washington , 373 U. S. 503 , 515 (1963). Recognition of this fact should put us on guard against the promulgation of doctrinaire rules. Especially is this true where the Court finds that "the Constitution has prescribed" its holding, and where the light of our past cases, from Hopt v. Utah , 110 U. S. 574 (1884), down to Haynes v. Washington, supra , is to [502 ] the contrary. Indeed, even in Escobedo , the Court never hinted that an affirmative "waiver" was a prerequisite to questioning; that the burden of proof as to waiver was on the prosecution; that the presence of counsel -- absent a waiver -- during interrogation was required; that a waiver can be withdrawn at the will of the accused; that counsel must be furnished during an accusatory stage to those unable to pay; nor that admissions and exculpatory statements are "confessions." To require all those things at one gulp should cause the Court to choke over more cases than Crooker v. California , 357 U. S. 433 (1958), and Cicenia v. Lagay , 357 U. S. 504 (1958), which it expressly overrules today. The rule prior to today -- as Mr. Justice Goldberg, the author of the Court's opinion in Escobedo , stated it in Haynes v. Washington -- depended upon "a totality of circumstances evidencing an involuntary . . . admission of guilt." 373 U.S. at 373 U.S. 514 . And he concluded: "Of course, detection and solution of crime is, at best, a difficult and arduous task requiring determination and persistence on the part of all responsible officers charged with the duty of law enforcement. And certainly we do not mean to suggest that all interrogation of witnesses and suspects is impermissible. Such questioning is undoubtedly an essential tool in effective law enforcement. The line between proper and permissible police conduct and techniques and methods offensive to due process is, at best, a difficult one to draw, particularly in cases such as this, where it is necessary to make fine judgments as to the effect of psychologically coercive pressures and inducements on the mind and will of an accused. . . . We are here impelled to the conclusion, from all of the facts presented, that the bounds of due process have been exceeded." Id. at 373 U.S. 514 -515. [503 ] III I would continue to follow that rule. Under the "totality of circumstances" rule of which my Brother Goldberg spoke in Haynes , I would consider in each case whether the police officer, prior to custodial interrogation, added the warning that the suspect might have counsel present at the interrogation, and, further, that a court would appoint one at his request if he was too poor to employ counsel. In the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that, in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary. Rather than employing the arbitrary Fifth Amendment rule [ Footnote 4 ] which the Court lays down, I would follow the more pliable dictates of the Due Process Clauses of the Fifth and Fourteenth Amendments which we are accustomed to administering, and which we know from our cases are effective instruments in protecting persons in police custody. In this way, we would not be acting in the dark, nor, in one full sweep, changing the traditional rules of custodial interrogation which this Court has for so long recognized as a justifiable and proper tool in balancing individual rights against the rights of society. It will be soon enough to go further when we are able to appraise with somewhat better accuracy the effect of such a holding. I would affirm the convictions in Miranda v. Arizona , No. 759; Vignera v. New York , No. 760, and Westover v. United States , No. 761. In each of those cases, I find from the circumstances no warrant for reversal. In [504 ] California v. Stewart , No. 584, I would dismiss the writ of certiorari for want of a final judgment, 28 U.S.C. § 1257(3) (1964 ed.); but, if the merits are to be reached, I would affirm on the ground that the State failed to fulfill its burden, in the absence of a showing that appropriate warnings were given, of proving a waiver or a totality of circumstances showing voluntariness. Should there be a retrial, I would leave the State free to attempt to prove these elements. MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART and MR. JUSTICE WHITE join, dissenting. I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be, only time can tell. But the basic flaws in the Court's justification seem to me readily apparent now, once all sides of the problem are considered. I . INTRODUCTION At the outset, it is well to note exactly what is required by the Court's new constitutional code of rules for confessions. The foremost requirement, upon which later admissibility of a confession depends, is that a four-fold warning be given to a person in custody before he is questioned, namely, that he has a right to remain silent, that anything he says may be used against him, that he has a right to have present an attorney during the questioning, and that, if indigent he has a right to a lawyer without charge. To forgo these rights, some affirmative statement of rejection is seemingly required, and threats, tricks, or cajolings to obtain this waiver are forbidden. If, before or during questioning, the suspect seeks to invoke his right to remain silent, interrogation must be forgone or cease; a request for counsel [505 ] brings about the same result until a lawyer is procured. Finally, there are a miscellany of minor directives, for example, the burden of proof of waiver is on the State, admissions and exculpatory statements are treated just like confessions, withdrawal of a waiver is always permitted, and so forth. [ Footnote 1 ] While the fine points of this scheme are far less clear than the Court admits, the tenor is quite apparent. The new rules are not designed to guard against police brutality or other unmistakably banned forms of coercion. Those who use third-degree tactics and deny them in court are equally able and destined to lie as skillfully about warnings and waivers. Rather, the thrust of the new rules is to negate all pressures, to reinforce the nervous or ignorant suspect, and ultimately to discourage any confession at all. The aim, in short, is toward "voluntariness" in a utopian sense, or, to view it from a different angle, voluntariness with a vengeance. To incorporate this notion into the Constitution requires a strained reading of history and precedent and a disregard of the very pragmatic concerns that alone may on occasion justify such strains. I believe that reasoned examination will show that the Due Process Clauses provide an adequate tool for coping with confessions ,and that, even if the Fifth Amendment privilege against self-incrimination be invoked, its precedents, taken as a whole, do not sustain the present rules. Viewed as a choice based on pure policy, these new rules prove to be a highly debatable, if not one-sided, appraisal of the competing interests, imposed over widespread objection, at the very time when judicial restraint is most called for by the circumstances. [506 ] II . CONSTITUTIONAL PREMISES It is most fitting to begin an inquiry into the constitutional precedents by surveying the limits on confessions the Court has evolved under the Due Process Clause of the Fourteenth Amendment. This is so because these cases show that there exists a workable and effective means of dealing with confessions in a judicial manner; because the cases are the baseline from which the Court now departs, and so serve to measure the actual, as opposed to the professed, distance it travels, and because examination of them helps reveal how the Court has coasted into its present position. The earliest confession cases in this Court emerged from federal prosecutions, and were settled on a nonconstitutional basis, the Court adopting the common law rule that the absence of inducements, promises, and threats made a confession voluntary and admissible. Hopt v. Utah , 110 U. S. 574 ; Pierce v. United States , 160 U. S. 355 . While a later case said the Fifth Amendment privilege controlled admissibility, this proposition was not itself developed in subsequent decisions. [ Footnote 2 ] The Court did, however, heighten the test of admissibility in federal trials to one of voluntariness "in fact," Wan v. [507 ] United States , 266 U. S. 1 , 14 (quoted, ante p. 462), and then, by and large, left federal judges to apply the same standards the Court began to derive in a string of state court cases. This new line of decisions, testing admissibility by the Due Process Clause, began in 1936 with Brown v. Mississippi , 297 U. S. 278 , and must now embrace somewhat more than 30 full opinions of the Court. [ Footnote 3 ] While the voluntariness rubric was repeated in many instances, e.g., Lyons v. Oklahoma , 322 U. S. 596 , the Court never pinned it down to a single meaning, but, on the contrary, infused it with a number of different values. To travel quickly over the main themes, there was an initial emphasis on reliability, e.g., Ward v. Texas , 316 U. S. 547 , supplemented by concern over the legality and fairness of the police practices, e.g., Ashcraft v. Tennessee , 322 U. S. 143 , in an "accusatorial" system of law enforcement, Watts v. Indiana , 338 U. S. 49 , 54, and eventually by close attention to the individual's state of mind and capacity for effective choice, e.g., Gallegos v. Colorado , 370 U. S. 49 . The outcome was a continuing reevaluation on the facts of each case of how much pressure on the suspect was permissible. [ Footnote 4 ] [508 ] Among the criteria often taken into account were threats or imminent danger, e.g., Payne v. Arkansas , 356 U. S. 560 , physical deprivations such as lack of sleep or food, e.g., Reck v. Pate , 367 U. S. 433 , repeated or extended interrogation, e.g., Chambers v. Florida , 309 U. S. 227 , limits on access to counsel or friends, Crooker v. California , 357 U. S. 433 ; Cicenia v. Lagay , 357 U. S. 504 , length and illegality of detention under state law, e.g., Haynes v. Washington , 373 U. S. 503 , and individual weakness or incapacities, Lynumn v. Illinois , 372 U. S. 528 . Apart from direct physical coercion, however, no single default or fixed combination of defaults guaranteed exclusion, and synopses of the cases would serve little use, because the overall gauge has been steadily changing, usually in the direction of restricting admissibility. But to mark just what point had been reached before the Court jumped the rails in Escobedo v. Illinois , 378 U. S. 478 , it is worth capsulizing the then-recent case of Haynes v. Washington , 373 U. S. 503 . There, Haynes had been held some 16 or more hours in violation of state law before signing the disputed confession, had received no warnings of any kind, and, despite requests, had been refused access to his wife or to counsel, the police indicating that access would be allowed after a confession. Emphasizing especially this last inducement and rejecting some contrary indicia of voluntariness, the Court in a 5-to-4 decision, held the confession inadmissible. There are several relevant lessons to be drawn from this constitutional history. The first is that, with over 25 years of precedent, the Court has developed an elaborate, sophisticated, and sensitive approach to admissibility of confessions. It is "judicial" in its treatment of one case at a time, see Culombe v. Connecticut , 367 U. S. 568 , 635 (concurring opinion of THE CHIEF JUSTICE), flexible in its ability to respond to the endless mutations of fact presented, and ever more familiar to the lower courts. [509 ] Of course, strict certainty is not obtained in this developing process, but this is often so with constitutional principles, and disagreement is usually confined to that borderland of close cases where it matters least. The second point is that, in practice and, from time to time, in principle, the Court has given ample recognition to society's interest in suspect questioning as an instrument of law enforcement. Cases countenancing quite significant pressures can be cited without difficulty, [ Footnote 5 ] and the lower courts may often have been yet more tolerant. Of course, the limitations imposed today were rejected by necessary implication in case after case, the right to warnings having been explicitly rebuffed in this Court many years ago. Powers v. United States , 223 U. S. 303 ; Wilson v. United States , 162 U. S. 613 . As recently as Haynes v. Washington , 373 U. S. 503 , 515, the Court openly acknowledged that questioning of witnesses and suspects "is undoubtedly an essential tool in effective law enforcement." Accord, Crooker v. California , 357 U. S. 433 , 441. Finally, the cases disclose that the language in many of the opinions overstates the actual course of decision. It has been said, for example, that an admissible confession must be made by the suspect "in the unfettered exercise of his own will," Malloy v. Hogan , 378 U. S. 1 , 8, and that "a prisoner is not to be made the deluded instrument of his own conviction,'" Culombe v. Connecticut , 367 U. S. 568 , 581 (Frankfurter, J., announcing the Court's judgment and an opinion). Though often repeated, such principles are rarely observed in full measure. Even the word "voluntary" may be deemed some [510 ] what misleading, especially when one considers many of the confessions that have been brought under its umbrella. See, e.g., supra , n. 5. The tendency to overstate may be laid in part to the flagrant facts often before the Court; but, in any event, one must recognize how it has tempered attitudes and lent some color of authority to the approach now taken by the Court. I turn now to the Court's asserted reliance on the Fifth Amendment, an approach which I frankly regard as a tromp l'oeil. The Court's opinion, in my view, reveals no adequate basis for extending the Fifth Amendment's privilege against self-incrimination to the police station. Far more important, it fails to show that the Court's new rules are well supported, let alone compelled, by Fifth Amendment precedents. Instead, the new rules actually derive from quotation and analogy drawn from precedents under the Sixth Amendment, which should properly have no bearing on police interrogation. The Court's opening contention, that the Fifth Amendment governs police station confessions, is perhaps not an impermissible extension of the law but it has little to commend itself in the present circumstances. Historically, the privilege against self-incrimination did not bear at all on the use of extra-legal confessions, for which distinct standards evolved; indeed, "the history of the two principles is wide apart, differing by one hundred years in origin, and derived through separate lines of precedents. . . ." 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev.1961). Practice under the two doctrines has also differed in a number of important respects. [ Footnote 6 ] [511 ] Even those who would readily enlarge the privilege must concede some linguistic difficulties, since the Fifth Amendment, in terms, proscribes only compelling any person "in any criminal case to be a witness against himself." Cf. Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 25-26 (1965). Though weighty, I do not say these points and similar ones are conclusive, for, as the Court reiterates, the privilege embodies basic principles always capable of expansion. [ Footnote 7 ] Certainly the privilege does represent a protective concern for the accused and an emphasis upon accusatorial, rather than inquisitorial, values in law enforcement, although this is similarly true of other limitations such as the grand jury requirement and the reasonable doubt standard. Accusatorial values, however, have openly been absorbed into the due process standard governing confessions; this, indeed, is why, at present, "the kinship of the two rules [governing confessions and self-incrimination] is too apparent for denial." McCormick, Evidence 155 (1954). Since extension of the general principle has already occurred, to insist that the privilege applies as such serves only to carry over inapposite historical details and engaging rhetoric and to obscure the policy choices to be made in regulating confessions. Having decided that the Fifth Amendment privilege does apply in the police station, the Court reveals that the privilege imposes more exacting restrictions than does the Fourteenth Amendment's voluntariness test. [ Footnote 8 ] [512 ] It then emerges from a discussion of Escobedo that the Fifth Amendment requires, for an admissible confession, that it be given by one distinctly aware of his right not to speak and shielded from "the compelling atmosphere" of interrogation. See ante pp. 465-466. From these key premises, the Court finally develops the safeguards of warning, counsel, and so forth. I do not believe these premises are sustained by precedents under the Fifth Amendment. [ Footnote 9 ] The more important premise is that pressure on the suspect must be eliminated, though it be only the subtle influence of the atmosphere and surroundings. The Fifth Amendment, however, has never been thought to forbid all pressure to incriminate one's self in the situations covered by it. On the contrary, it has been held that failure to incriminate one's self can result in denial of removal of one's case from state to federal court, Maryland v. Soper , 270 U. S. 9 ; in refusal of a military commission, Orloff v. Willoughby , 345 U. S. 83 ; in denial of a discharge in bankruptcy, Kaufman v. Hurwitz , 176 F.2d 210, and in numerous other adverse consequences. See 8 Wigmore, Evidence § 2272, at 441-444, n. 18 (McNaughton rev.1961); Maguire, Evidence of Guilt § 2.062 (1959). This is not to say that, short of jail or torture, any sanction is permissible in any case; policy and history alike may impose sharp limits. See, e.g. , [513 ] Griffin v. California , 380 U. S. 609 . However, the Court's unspoken assumption that any pressure violates the privilege is not supported by the precedents, and it has failed to show why the Fifth Amendment prohibits that relatively mild pressure the Due Process Clause permits. The Court appears similarly wrong in thinking that precise knowledge of one's rights is a settled prerequisite under the Fifth Amendment to the loss of its protections. A number of lower federal court cases have held that grand jury witnesses need not always be warned of their privilege, e.g., United States v. Scully , 225 F.2d 113, 116, and Wigmore states this to be the better rule for trial witnesses. See 8 Wigmore, Evidence § 2269 (McNaughton rev.1961). Cf. Henry v. Mississippi , 379 U. S. 443 , 451-452 (waiver of constitutional rights by counsel despite defendant's ignorance held allowable). No Fifth Amendment precedent is cited for the Court's contrary view. There might, of course, be reasons apart from Fifth Amendment precedent for requiring warning or any other safeguard on questioning, but that is a different matter entirely. See infra pp. 516-517. A closing word must be said about the Assistance of Counsel Clause of the Sixth Amendment, which is never expressly relied on by the Court, but whose judicial precedents turn out to be linchpins of the confession rules announced today. To support its requirement of a knowing and intelligent waiver, the Court cites Johnson v. Zerbst , 304 U. S. 458 , ante p. 475; appointment of counsel for the indigent suspect is tied to Gideon v. Wainwright , 372 U. S. 335 , and Douglas v. California , 372 U. S. 353 , ante p. 473; the silent-record doctrine is borrowed from Carnley v. Cochran , 369 U. S. 506 , ante p. 475, as is the right to an express offer of counsel, ante p. 471. All these cases imparting glosses to the Sixth Amendment concerned counsel at trial or on appeal. While the Court finds no pertinent difference between judicial proceedings and police interrogation, I believe [514 ] the differences are so vast as to disqualify wholly the Sixth Amendment precedents as suitable analogies in the present cases. [ Footnote 10 ] The only attempt in this Court to carry the right to counsel into the stationhouse occurred in Escobedo , the Court repeating several times that that stage was no less "critical" than trial itself. See 378 U.S. 485-488. This is hardly persuasive when we consider that a grand jury inquiry, the filing of a certiorari petition, and certainly the purchase of narcotics by an undercover agent from a prospective defendant may all be equally "critical," yet provision of counsel and advice on that score have never been thought compelled by the Constitution in such cases. The sound reason why this right is so freely extended for a criminal trial is the severe injustice risked by confronting an untrained defendant with a range of technical points of law, evidence, and tactics familiar to the prosecutor, but not to himself. This danger shrinks markedly in the police station, where, indeed, the lawyer, in fulfilling his professional responsibilities, of necessity may become an obstacle to truthfinding. See infra , n. 12. The Court's summary citation of the Sixth Amendment cases here seems to me best described as "the domino method of constitutional adjudication . . . , wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation." Friendly, supra , n. 10, at 950. III . POLICY CONSIDERATIONS Examined as an expression of public policy, the Court's new regime proves so dubious that there can be no due [515 ] compensation for its weakness in constitutional law. The foregoing discussion has shown, I think, how mistaken is the Court in implying that the Constitution has struck the balance in favor of the approach the Court takes. Ante , p. 479. Rather, precedent reveals that the Fourteenth Amendment, in practice, has been construed to strike a different balance, that the Fifth Amendment gives the Court little solid support in this context, and that the Sixth Amendment should have no bearing at all. Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land. Without at all subscribing to the generally black picture of police conduct painted by the Court, I think it must be frankly recognized at the outset that police questioning allowable under due process precedents may inherently entail some pressure on the suspect, and may seek advantage in his ignorance or weaknesses. The atmosphere and questioning techniques, proper and fair though they be, can, in themselves, exert a tug on the suspect to confess, and, in this light, "[t]o speak of any confessions of crime made after arrest as being 'voluntary' or 'uncoerced' is somewhat inaccurate, although traditional. A confession is wholly and incontestably voluntary only if a guilty person gives himself up to the law and becomes his own accuser." Ashcraft v. Tennessee , 322 U. S. 143 , 161 (Jackson, J., dissenting). Until today, the role of the Constitution has been only to sift out undue pressure, not to assure spontaneous confessions. [ Footnote 11 ] [516 ] The Court's new rules aim to offset these minor pressures and disadvantages intrinsic to any kind of police interrogation. The rules do not serve due process interests in preventing blatant coercion, since, as I noted earlier, they do nothing to contain the policeman who is prepared to lie from the start. The rules work for reliability in confessions almost only in the Pickwickian sense that they can prevent some from being given at all. [ Footnote 12 ] In short, the benefit of this new regime is simply to lessen or wipe out the inherent compulsion and inequalities to which the Court devotes some nine pages of description. Ante , pp. 448-456. What the Court largely ignores is that its rules impair, if they will not eventually serve wholly to frustrate, an instrument of law enforcement that has long and quite reasonably been thought worth the price paid for it. [ Footnote 13 ] There can be little doubt that the Court's new code would markedly decrease the number of confessions. To warn the suspect that he may remain silent and remind him that his confession may be used in court are minor obstructions. To require also an express waiver by the suspect and an end to questioning whenever he demurs [517 ] must heavily handicap questioning. And to suggest or provide counsel for the suspect simply invites the end of the interrogation. See supra , n. 12. How much harm this decision will inflict on law enforcement cannot fairly be predicted with accuracy. Evidence on the role of confessions is notoriously incomplete, see Developments, supra , n. 2, at 941-944, and little is added by the Court's reference to the FBI experience and the resources believed wasted in interrogation. See infra , n.19, and text. We do know that some crimes cannot be solved without confessions, that ample expert testimony attests to their importance in crime control, [ Footnote 14 ] and that the Court is taking a real risk with society's welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation. While passing over the costs and risks of its experiment, the Court portrays the evils of normal police questioning in terms which I think are exaggerated. Albeit stringently confined by the due process standards, interrogation is no doubt often inconvenient and unpleasant for the suspect. However, it is no less so for a man to be arrested and jailed, to have his house searched, or to stand trial in court, yet all this may properly happen to the most innocent, given probable cause, a warrant, or an indictment. Society has always paid a stiff price for law and order, and peaceful interrogation is not one of the dark moments of the law. This brief statement of the competing considerations seems to me ample proof that the Court's preference is highly debatable, at best, and therefore not to be read into [518 ] the Constitution. However, it may make the analysis more graphic to consider the actual facts of one of the four cases reversed by the Court. Miranda v. Arizona serves best, being neither the hardest nor easiest of the four under the Court's standards. [ Footnote 15 ] On March 3, 1963, an 18-year-old girl was kidnapped and forcibly raped near Phoenix, Arizona. Ten days later, on the morning of March 13, petitioner Miranda was arrested and taken to the police station. At this time, Miranda was 23 years old, indigent, and educated to the extent of completing half the ninth grade. He had "an emotional illness" of the schizophrenic type, according to the doctor who eventually examined him; the doctor's report also stated that Miranda was "alert and oriented as to time, place, and person," intelligent within normal limits, competent to stand trial, and sane within the legal definition. At the police station, the victim picked Miranda out of a lineup, and two officers then took him into a separate room to interrogate him, starting about 11:30 a.m. Though at first denying his guilt, within a short time, Miranda gave a detailed oral confession, and then wrote out in his own hand and signed a brief statement admitting and describing the crime. All this was accomplished in two hours or less, without any force, threats or promises, and -- I will assume this, though the record is uncertain, ante 491-492 and nn 66-67 -- without any effective warnings at all Miranda's oral and written confessions are now held inadmissible under the Court's new rules. One is entitled to feel astonished that the Constitution can be read to produce this result. These confessions were obtained [519 ] during brief daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime, for which the police had and quite possibly could obtain little evidence other than the victim's identifications, evidence which is frequently unreliable. There was, in sum, a legitimate purpose, no perceptible unfairness, and certainly little risk of injustice in the interrogation. Yet the resulting confessions, and the responsible course of police practice they represent, are to be sacrificed to the Court's own finespun conception of fairness, which I seriously doubt is shared by many thinking citizens in this country. [ Footnote 16 ] The tenor of judicial opinion also falls well short of supporting the Court's new approach. Although Escobedo has widely been interpreted as an open invitation to lower courts to rewrite the law of confessions, a significant heavy majority of the state and federal decisions in point have sought quite narrow interpretations. [ Footnote 17 ] Of [520 ] the courts that have accepted the invitation, it is hard to know how many have felt compelled by their best guess as to this Court's likely construction; but none of the state decisions saw fit to rely on the state privilege against self-incrimination, and no decision at all has gone as far as this Court goes today. [ Footnote 18 ] It is also instructive to compare the attitude in this case of those responsible for law enforcement with the official views that existed when the Court undertook three major revisions of prosecutorial practice prior to this case, Johnson v. Zerbst , 304 U. S. 458 , Mapp v. Ohio , 367 U. S. 643 , and Gideon v. Wainwright , 372 U. S. 335 . In Johnson , which established that appointed counsel must be offered the indigent in federal criminal trials, the Federal Government all but conceded the basic issue, which had, in fact, been recently fixed as Department of Justice policy. See Beaney, Right to Counsel 29-30, 342 (1955). In Mapp , which imposed the exclusionary rule on the States for Fourth Amendment violations, more than half of the States had themselves already adopted some such rule. See 367 U.S. at 651. In Gideon , which extended Johnson v. Zerbst to the States, an amicus brief was filed by 22 States and Commonwealths urging that course; only two States besides that of the respondent came forward to protest. See 372 U.S. at 345. By contrast, in this case, new restrictions on police [521 ] questioning have been opposed by the United States and in an amicus brief signed by 27 States and Commonwealths, not including the three other States which are parties. No State in the country has urged this Court to impose the newly announced rules, nor has any State chosen to go nearly so far on its own. The Court, in closing its general discussion, invokes the practice in federal and foreign jurisdictions as lending weight to its new curbs on confessions for all the States. A brief resume will suffice to show that none of these jurisdictions has struck so one-sided a balance as the Court does today. Heaviest reliance is placed on the FBI practice. Differing circumstances may make this comparison quite untrustworthy, [ Footnote 19 ] but, in any event, the FBI falls sensibly short of the Court's formalistic rules. For example, there is no indication that FBI agents must obtain an affirmative "waiver" before they pursue their questioning. Nor is it clear that one invoking his right to silence may not be prevailed upon to change his mind. And the warning as to appointed counsel apparently indicates only that one will be assigned by the judge when the suspect appears before him; the thrust of the Court's rules is to induce the suspect to obtain appointed counsel before continuing the interview. See ante pp. 484-486. Apparently, American military practice, briefly mentioned by the Court, has these same limits, and is still less favorable to the suspect than the FBI warning, making no mention of appointed counsel. Developments, supra , n. 2, at 1084-1089. The law of the foreign countries described by the Court also reflects a more moderate conception of the rights of [522 ] the accused as against those of society when other data are considered. Concededly, the English experience is most relevant. In that country, a caution as to silence, but not counsel, has long been mandated by the "Judges' Rules," which also place other somewhat imprecise limits on police cross-examination of suspects. However, in the court's discretion, confessions can be, and apparently quite frequently are, admitted in evidence despite disregard of the Judges' Rules, so long as they are found voluntary under the common law test. Moreover, the check that exists on the use of pretrial statements is counterbalanced by the evident admissibility of fruits of an illegal confession and by the judge's often-used authority to comment adversely on the defendant's failure to testify. [ Footnote 20 ] India, Ceylon and Scotland are the other examples chosen by the Court. In India and Ceylon, the general ban on police-adduced confessions cited by the Court is subject to a major exception: if evidence is uncovered by police questioning, it is fully admissible at trial along with the confession itself, so far as it relates to the evidence and is not blatantly coerced. See Developments, supra , n. 2, at 1106-1110; Reg. v. Ramasamy [1965] A.C. 1 (P.C.). Scotland's limits on interrogation do measure up to the Court's; however, restrained comment at trial on the defendant's failure to take the stand is allowed the judge, and, in many other respects, Scotch law redresses the prosecutor's disadvantage in ways not permitted in this country. [ Footnote 21 ] The Court ends its survey by imputing [523 ] added strength to our privilege against self-incrimination since, by contrast to other countries, it is embodied in a written Constitution. Considering the liberties the Court has today taken with constitutional history and precedent, few will find this emphasis persuasive. In closing this necessarily truncated discussion of policy considerations attending the new confession rules, some reference must be made to their ironic untimeliness. There is now in progress in this country a massive reexamination of criminal law enforcement procedures on a scale never before witnessed. Participants in this undertaking include a Special Committee of the American Bar Association, under the chairmanship of Chief Judge Lumbard of the Court of Appeals for the Second Circuit; a distinguished study group of the American Law Institute, headed by Professors Vorenberg and Bator of the Harvard Law School, and the President's Commission on Law Enforcement and Administration of Justice, under the leadership of the Attorney General of the United States. [ Footnote 22 ] Studies are also being conducted by the District of Columbia Crime Commission, the Georgetown Law Center, and by others equipped to do practical research. [ Footnote 23 ] There are also signs that legislatures in some of the States may be preparing to reexamine the problem before us. [ Footnote 24 ] [524 ] It is no secret that concern has been expressed lest long-range and lasting reforms be frustrated by this Court's too rapid departure from existing constitutional standards. Despite the Court's disclaimer, the practical effect of the decision made today must inevitably be to handicap seriously sound efforts at reform, not least by removing options necessary to a just compromise of competing interests. Of course, legislative reform is rarely speedy or unanimous, though this Court has been more patient in the past. [ Footnote 25 ] But the legislative reforms, when they come, would have the vast advantage of empirical data and comprehensive study, they would allow experimentation and use of solutions not open to the courts, and they would restore the initiative in criminal law reform to those forums where it truly belongs. IV . CONCLUSIONS All four of the cases involved here present express claims that confessions were inadmissible not because of coercion in the traditional due process sense, but solely because of lack of counsel or lack of warnings concerning counsel and silence. For the reasons stated in this opinion, I would adhere to the due process test and reject the new requirements inaugurated by the Court. On this premise, my disposition of each of these cases can be stated briefly. In two of the three cases coming from state courts, Miranda v. Arizona (No. 759) and Vignera v. New York (No. 760), the confessions were held admissible, and no other errors worth comment are alleged by petitioners. [525 ] I would affirm in these two cases. The other state case is California v. Stewart (No. 584), where the state supreme court held the confession inadmissible, and reversed the conviction. In that case, I would dismiss the writ of certiorari on the ground that no final judgment is before us, 28 U.S.C. 1257 (1964 ed.); putting aside the new trial open to the State in any event, the confession itself has not even been finally excluded, since the California Supreme Court left the State free to show proof of a waiver. If the merits of the decision in Stewart be reached, then I believe it should be reversed, and the case remanded so the state supreme court may pass on the other claims available to respondent. In the federal case, Westover v. United States (No. 761), a number of issues are raised by petitioner apart from the one already dealt with in this dissent. None of these other claims appears to me tenable, nor in this context to warrant extended discussion. It is urged that the confession was also inadmissible because not voluntary, even measured by due process standards, and because federal-state cooperation brought the McNabb-Mallory rule into play under Anderson v. United States , 318 U. S. 350 . However, the facts alleged fall well short of coercion, in my view, and I believe the involvement of federal agents in petitioner's arrest and detention by the State too slight to invoke Anderson. I agree with the Government that the admission of the evidence now protested by petitioner was, at most, harmless error, and two final contentions -- one involving weight of the evidence and another improper prosecutor comment -- seem to me without merit. I would therefore affirm Westover's conviction. In conclusion: nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously [526 ] taken by the Court in the name of fulfilling its constitutional responsibilities. The foray which the Court makes today brings to mind the wise and farsighted words of Mr. Justice Jackson in Douglas v. Jeannette , 319 U. S. 157 , 181 (separate opinion): "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added." MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN and MR. JUSTICE STEWART join, dissenting. I The proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment. As for the English authorities and the common law history, the privilege, firmly established in the second half of the seventeenth century, was never applied except to prohibit compelled judicial interrogations. The rule excluding coerced confessions matured about 100 years later, "[b]ut there is nothing in the reports to suggest that the theory has its roots in the privilege against self-incrimination. And, so far as the cases reveal, the privilege, as such, seems to have been given effect only in judicial proceedings, including the preliminary examinations by authorized magistrates." Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 18 (1949). Our own constitutional provision provides that no person "shall be compelled in any criminal case to be a witness against himself." These words, when "[c]onsidered in the light to be shed by grammar and the dictionary . . . , appear to signify simply that nobody shall be [527 ] compelled to give oral testimony against himself in a criminal proceeding under way in which he is defendant." Corwin, The Supreme Court's Construction of the Self-Incrimination Clause, 29 Mich.L.Rev. 1, 2. And there is very little in the surrounding circumstances of the adoption of the Fifth Amendment or in the provisions of the then existing state constitutions or in state practice which would give the constitutional provision any broader meaning. Mayers, The Federal Witness' Privilege Against Self-Incrimination: Constitutional or Common-Law? 4 American Journal of Legal History 107 (1960). Such a construction, however, was considerably narrower than the privilege at common law, and, when eventually faced with the issues, the Court extended the constitutional privilege to the compulsory production of books and papers, to the ordinary witness before the grand jury, and to witnesses generally. Boyd v. United States , 116 U. S. 616 , and Counselman v. Hitchcock , 142 U. S. 547 . Both rules had solid support in common law history, if not in the history of our own constitutional provision. A few years later, the Fifth Amendment privilege was similarly extended to encompass the then well established rule against coerced confessions: "In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person 'shall be compelled in any criminal case to be a witness against himself.'" Bram v. United States , 168 U. S. 532 , 542. Although this view has found approval in other cases, Burdeau v. McDowell , 256 U. S. 465 , 475; Powers v. United States , 223 U. S. 303 , 313; Shotwell v. United States , 371 U. S. 341 , 347, it has also been questioned, see Brown v. Mississippi , 297 U. S. 278 , 285; United States v. Carignan , [528 ] 342 U. S. 36 , 41; Stein v. New York , 346 U. S. 156 , 191, n. 35, and finds scant support in either the English or American authorities, see generally Regina v. Scott , Dears. & Bell 47; 3 Wigmore, Evidence § 823 (3d ed.1940), at 249 ("a confession is not rejected because of any connection with the privilege against self-crimination"), and 250, n. 5 (particularly criticizing Bram ); 8 Wigmore, Evidence § 2266, at 400-401 (McNaughton rev.1961). Whatever the source of the rule excluding coerced confessions, it is clear that, prior to the application of the privilege itself to state courts, Malloy v. Hogan , 378 U. S. 1 , the admissibility of a confession in a state criminal prosecution was tested by the same standards as were applied in federal prosecutions. Id. at 6-7, 10. Bram , however, itself rejected the proposition which the Court now espouses. The question in Bram was whether a confession, obtained during custodial interrogation, had been compelled, and, if such interrogation was to be deemed inherently vulnerable, the Court's inquiry could have ended there. After examining the English and American authorities, however, the Court declared that: "In this court also, it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary, but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary." 168 U.S. at 558. In this respect, the Court was wholly consistent with prior and subsequent pronouncements in this Court. Thus, prior to Bram , the Court, in Hopt v. Utah , 110 U. S. 574 , 583-587, had upheld the admissibility of a [529 ] confession made to police officers following arrest, the record being silent concerning what conversation had occurred between the officers and the defendant in the short period preceding the confession. Relying on Hopt , the Court ruled squarely on the issue in Sparf and Hansen v. United States , 156 U. S. 51 , 55: "Counsel for the accused insist that there cannot be a voluntary statement, a free open confession, while a defendant is confined and in irons under an accusation of having committed a capital offence. We have not been referred to any authority in support of that position. It is true that the fact of a prisoner's being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not, in itself, sufficient to justify the exclusion of a confession if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by promises. Wharton's Cr.Ev. 9th ed. §§ 661, 663, and authorities cited." Accord, Pierce v. United States , 160 U. S. 355 , 357. And in Wilson v. United States , 162 U. S. 613 , 623, the Court had considered the significance of custodial interrogation without any antecedent warnings regarding the right to remain silent or the right to counsel. There, the defendant had answered questions posed by a Commissioner, who had failed to advise him of his rights, and his answers were held admissible over his claim of involuntariness. "The fact that [a defendant] is in custody and manacled does not necessarily render his statement involuntary, nor is that necessarily the effect of popular excitement shortly preceding. . . . And it is laid down [530 ] that it is not essential to the admissibility of a confession that it should appear that the person was warned that what he said would be used against him, but, on the contrary, if the confession was voluntary, it is sufficient though it appear that he was not so warned." Since Bram , the admissibility of statements made during custodial interrogation has been frequently reiterated. Powers v. United States , 223 U. S. 303 , cited Wilson approvingly and held admissible as voluntary statements the accused's testimony at a preliminary hearing even though he was not warned that what he said might be used against him. Without any discussion of the presence or absence of warnings, presumably because such discussion was deemed unnecessary, numerous other cases have declared that "[t]he mere fact that a confession was made while in the custody of the police does not render it inadmissible," McNabb v. United States , 318 U. S. 332 , 346; accord, United States v. Mitchell , 322 U. S. 65 , despite its having been elicited by police examination, Wan v. United States , 266 U. S. 1 , 14; United States v. Carignan , 342 U. S. 36 , 39. Likewise, in Crooker v. California , 357 U. S. 433 , 437, the Court said that "the bare fact of police 'detention and police examination in private of one in official state custody' does not render involuntary a confession by the one so detained." And finally, in Cicenia v. Lagay , 357 U. S. 504 , a confession obtained by police interrogation after arrest was held voluntary even though the authorities refused to permit the defendant to consult with his attorney. See generally Culombe v. Connecticut , 367 U. S. 568 , 587-602 (opinion of Frankfurter, J.); 3 Wigmore, Evidence § 851, at 313 (3d ed.1940); see also Joy, Admissibility of Confessions 38, 46 (1842). Only a tiny minority of our judges who have dealt with the question, including today's majority, have considered in-custody interrogation, without more, to be a violation of the Fifth Amendment. And this Court, as [531 ] every member knows, has left standing literally thousands of criminal convictions that rested at least in part on confessions taken in the course of interrogation by the police after arrest. II That the Court's holding today is neither compelled nor even strongly suggested by the language of the Fifth Amendment, is at odds with American and English legal history, and involves a departure from a long line of precedent does not prove either that the Court has exceeded its powers or that the Court is wrong or unwise in its present reinterpretation of the Fifth Amendment. It does, however, underscore the obvious -- that the Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in the course of interpreting other great clauses of the Constitution. [ Footnote 1 ] This is what the Court historically has done. Indeed, it is what it must do, and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers. But if the Court is here and now to announce new and fundamental policy to govern certain aspects of our affairs, it is wholly legitimate to examine the mode of this or any other constitutional decision in this Court, and to inquire into the advisability of its end product in terms of the long-range interest of the country. At the very least, the Court's text and reasoning should withstand analysis, and be a fair exposition of the constitutional provision which its opinion interprets. Decisions [532 ] like these cannot rest alone on syllogism, metaphysics or some ill-defined notions of natural justice, although each will perhaps play its part. In proceeding to such constructions as it now announces, the Court should also duly consider all the factors and interests bearing upon the cases, at least insofar as the relevant materials are available, and, if the necessary considerations are not treated in the record or obtainable from some other reliable source, the Court should not proceed to formulate fundamental policies based on speculation alone. III First, we may inquire what are the textual and factual bases of this new fundamental rule. To reach the result announced on the grounds it does, the Court must stay within the confines of the Fifth Amendment, which forbids self-incrimination only if compelled. Hence, the core of the Court's opinion is that, because of the "compulsion inherent in custodial surroundings, no statement obtained from [a] defendant [in custody] can truly be the product of his free choice," ante at 458, absent the use of adequate protective devices as described by the Court. However, the Court does not point to any sudden inrush of new knowledge requiring the rejection of 70 years' experience. Nor does it assert that its novel conclusion reflects a changing consensus among state courts, see Mapp v. Ohio , 367 U. S. 643 , or that a succession of cases had steadily eroded the old rule and proved it unworkable, see Gideon v. Wainwright , 372 U. S. 335 . Rather than asserting new knowledge, the Court concedes that it cannot truly know what occurs during custodial questioning, because of the innate secrecy of such proceedings. It extrapolates a picture of what it conceives to be the norm from police investigatorial manuals, published in 1959 and 1962 or earlier, without any attempt to allow for adjustments in police practices that may [533 ] have occurred in the wake of more recent decisions of state appellate tribunals or this Court. But even if the relentless application of the described procedures could lead to involuntary confessions, it most assuredly does not follow that each and every case will disclose this kind of interrogation or this kind of consequence. [ Footnote 2 ] Insofar as appears from the Court's opinion, it has not examined a single transcript of any police interrogation, let alone the interrogation that took place in any one of these cases which it decides today. Judged by any of the standards for empirical investigation utilized in the social sciences, the factual basis for the Court's premise is patently inadequate. Although, in the Court's view, in-custody interrogation is inherently coercive, the Court says that the spontaneous product of the coercion of arrest and detention is still to be deemed voluntary. An accused, arrested on probable cause, may blurt out a confession which will be admissible despite the fact that he is alone and in custody, without any showing that he had any notion of his right to remain silent or of the consequences of his admission. Yet, under the Court's rule, if the police ask him a single question, such as "Do you have anything to say?" or "Did you kill your wife?", his response, if there is one, has somehow been compelled, even if the accused has [534 ] been clearly warned of his right to remain silent. Common sense informs us to the contrary. While one may say that the response was "involuntary" in the sense the question provoked or was the occasion for the response, and thus the defendant was induced to speak out when he might have remained silent if not arrested and not questioned, it is patently unsound to say the response is compelled. Today's result would not follow even if it were agreed that, to some extent, custodial interrogation is inherently coercive. See Ashcraft v. Tennessee , 322 U. S. 143 , 161 (Jackson, J., dissenting). The test has been whether the totality of circumstances deprived the defendant of a "free choice to admit, to deny, or to refuse to answer," Lisenba v. California , 314 U. S. 219 , 241, and whether physical or psychological coercion was of such a degree that "the defendant's will was overborne at the time he confessed," Haynes v. Washington , 373 U. S. 503 , 513; Lynumn v. Illinois , 372 U. S. 528 , 534. The duration and nature of incommunicado custody, the presence or absence of advice concerning the defendant's constitutional rights, and the granting or refusal of requests to communicate with lawyers, relatives or friends have all been rightly regarded as important data bearing on the basic inquiry. See, e.g., Ashcraft v. Tennessee , 322 U. S. 143 ; Haynes v. Washington , 373 U. S. 503 . [ Footnote 3 ] [535 ] But it has never been suggested, until today, that such questioning was so coercive and accused persons so lacking in hardihood that the very first response to the very first question following the commencement of custody must be conclusively presumed to be the product of an overborne will. If the rule announced today were truly based on a conclusion that all confessions resulting from custodial interrogation are coerced, then it would simply have no rational foundation. Compare Tot v. United States , 319 U. S. 463 , 466; United States v. Romano , 382 U. S. 136 . A fortiori , that would be true of the extension of the rule to exculpatory statements, which the Court effects after a brief discussion of why, in the Court's view, they must be deemed incriminatory, but without any discussion of why they must be deemed coerced. See Wilson v. United States , 162 U. S. 613 , 624. Even if one were to postulate that the Court's concern is not that all confessions induced by police interrogation are coerced, but rather that some such confessions are coerced and present judicial procedures are believed to be inadequate to identify the confessions that are coerced and those that are not, it would still not be essential to impose the rule that the Court has now fashioned. Transcripts or observers could be required, specific time limits, tailored to fit the cause, could be imposed, or other devices could be utilized to reduce the chances that otherwise indiscernible coercion will produce an inadmissible confession. On the other hand, even if one assumed that there was an adequate factual basis for the conclusion that all confessions obtained during in-custody interrogation are the product of compulsion, the rule propounded by [536 ] the Court would still be irrational, for, apparently, it is only if the accused is also warned of his right to counsel and waives both that right and the right against self-incrimination that the inherent compulsiveness of interrogation disappears. But if the defendant may not answer without a warning a question such as "Where were you last night?" without having his answer be a compelled one, how can the Court ever accept his negative answer to the question of whether he wants to consult his retained counsel or counsel whom the court will appoint? And why, if counsel is present and the accused nevertheless confesses, or counsel tells the accused to tell the truth and that is what the accused does, is the situation any less coercive insofar as the accused is concerned? The Court apparently realizes its dilemma of foreclosing questioning without the necessary warnings but, at the same time, permitting the accused, sitting in the same chair in front of the same policemen, to waive his right to consult an attorney. It expects, however, that the accused will not often waive the right, and, if it is claimed that he has, the State faces a severe, if not impossible burden of proof. All of this makes very little sense in terms of the compulsion which the Fifth Amendment proscribes. That amendment deals with compelling the accused himself. It is his free will that is involved. Confessions and incriminating admissions, as such, are not forbidden evidence; only those which are compelled are banned. I doubt that the Court observes these distinctions today. By considering any answers to any interrogation to be compelled regardless of the content and course of examination, and by escalating the requirements to prove waiver, the Court not only prevents the use of compelled confessions, but, for all practical purposes, forbids interrogation except in the presence of counsel. That is, instead of confining itself to protection of the right against compelled [537 ] self-incrimination the Court has created a limited Fifth Amendment right to counsel -- or, as the Court expresses it, a "need for counsel to protect the Fifth Amendment privilege. . . ." Ante at 470. The focus then is not on the will of the accused, but on the will of counsel, and how much influence he can have on the accused. Obviously there is no warrant in the Fifth Amendment for thus installing counsel as the arbiter of the privilege. In sum, for all the Court's expounding on the menacing atmosphere of police interrogation procedures, it has failed to supply any foundation for the conclusions it draws or the measures it adopts. IV Criticism of the Court's opinion, however, cannot stop with a demonstration that the factual and textual bases for the rule it propounds are, at best, less than compelling. Equally relevant is an assessment of the rule's consequences measured against community values. The Court's duty to assess the consequences of its action is not satisfied by the utterance of the truth that a value of our system of criminal justice is "to respect the inviolability of the human personality" and to require government to produce the evidence against the accused by its own independent labors. Ante at 460. More than the human dignity of the accused is involved; the human personality of others in the society must also be preserved. Thus, the values reflected by the privilege are not the sole desideratum; society's interest in the general security is of equal weight. The obvious underpinning of the Court's decision is a deep-seated distrust of all confessions. As the Court declares that the accused may not be interrogated without counsel present, absent a waiver of the right to counsel, and as the Court all but admonishes the lawyer to [538 ] advise the accused to remain silent, the result adds up to a judicial judgment that evidence from the accused should not be used against him in any way, whether compelled or not. This is the not so subtle overtone of the opinion -- that it is inherently wrong for the police to gather evidence from the accused himself. And this is precisely the nub of this dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional, in the police's asking a suspect whom they have reasonable cause to arrest whether or not he killed his wife, or in confronting him with the evidence on which the arrest was based, at least where he has been plainly advised that he may remain completely silent, see Escobedo v. Illinois , 378 U. S. 478 , 499 (dissenting opinion). Until today, "the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence." Brown v. Walker , 161 U. S. 591 , 596; see also Hopt v. Utah , 110 U. S. 574 , 584-585. Particularly when corroborated, as where the police have confirmed the accused's disclosure of the hiding place of implements or fruits of the crime, such confessions have the highest reliability, and significantly contribute to the certitude with which we may believe the accused is guilty. Moreover, it is by no means certain that the process of confessing is injurious to the accused. To the contrary, it may provide psychological relief, and enhance the prospects for rehabilitation. This is not to say that the value of respect for the inviolability of the accused's individual personality should be accorded no weight, or that all confessions should be indiscriminately admitted. This Court has long read the Constitution to proscribe compelled confessions, a salutary rule from which there should be no retreat. But I see no sound basis, factual or otherwise, and the Court gives none, for concluding that the present rule against the receipt of coerced confessions is inadequate for the [539 ] task of sorting out inadmissible evidence, and must be replaced by the per se rule which is now imposed. Even if the new concept can be said to have advantages of some sort over the present law, they are far outweighed by its likely undesirable impact on other very relevant and important interests. The most basic function of any government is to provide for the security of the individual and of his property. Lanzetta v. New Jersey , 306 U. S. 451 , 455. These ends of society are served by the criminal laws which for the most part are aimed at the prevention of crime. Without the reasonably effective performance of the task of preventing private violence and retaliation, it is idle to talk about human dignity and civilized values. The modes by which the criminal laws serve the interest in general security are many. First, the murderer who has taken the life of another is removed from the streets, deprived of his liberty, and thereby prevented from repeating his offense. In view of the statistics on recidivism in this country, [ Footnote 4 ] and of the number of instances [540 ] in which apprehension occurs only after repeated offenses, no one can sensibly claim that this aspect of the criminal law does not prevent crime or contribute significantly to the personal security of the ordinary citizen. Secondly, the swift and sure apprehension of those who refuse to respect the personal security and dignity of their neighbor unquestionably has its impact on others who might be similarly tempted. That the criminal law is wholly or partly ineffective with a segment of the population or with many of those who have been apprehended and convicted is a very faulty basis for concluding that it is not effective with respect to the great bulk of our citizens, or for thinking that, without the criminal laws, [541 ] or in the absence of their enforcement, there would be no increase in crime. Arguments of this nature are not borne out by any kind of reliable evidence that I have seen to this date. Thirdly, the law concerns itself with those whom it has confined. The hope and aim of modern penology, fortunately, is as soon as possible to return the convict to society a better and more law-abiding man than when he left. Sometimes there is success, sometimes failure. But at least the effort is made, and it should be made to the very maximum extent of our present and future capabilities. The rule announced today will measurably weaken the ability of the criminal law to perform these tasks. It is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions and pleas of guilty, and to increase the number of trials. [ Footnote 5 ] Criminal trials, no [542 ] matter how efficient the police are, are not sure bets for the prosecution, nor should they be if the evidence is not forthcoming. Under the present law, the prosecution fails to prove its case in about 30% of the criminal cases actually tried in the federal courts. See Federal Offenders: 1964, supra , note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders: 1963, supra , note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra , note 4, at 2 (Table 1). But it is something else again to remove from the ordinary criminal case all those confessions which heretofore have been held to be free and voluntary acts of the accused, and to thus establish a new constitutional barrier to the ascertainment of truth by the judicial process. There is, in my view, every reason to believe that a good many criminal defendants who otherwise would have been convicted on what this Court has previously thought to be the most satisfactory kind of evidence will now, under this new version of the Fifth Amendment, either not be tried at all or will be acquitted if the State's evidence, minus the confession, is put to the test of litigation. I have no desire whatsoever to share the responsibility for any such impact on the present criminal process. In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined. There is, of [543 ] course, a saving factor: the next victims are uncertain, unnamed and unrepresented in this case. Nor can this decision do other than have a corrosive effect on the criminal law as an effective device to prevent crime. A major component in its effectiveness in this regard is its swift and sure enforcement. The easier it is to get away with rape and murder, the less the deterrent effect on those who are inclined to attempt it. This is still good common sense. If it were not, we should post-haste liquidate the whole law enforcement establishment as a useless, misguided effort to control human conduct. And what about the accused who has confessed or would confess in response to simple, noncoercive questioning and whose guilt could not otherwise be proved? Is it so clear that release is the best thing for him in every case? Has it so unquestionably been resolved that, in each and every case, it would be better for him not to confess, and to return to his environment with no attempt whatsoever to help him? I think not. It may well be that, in many cases, it will be no less than a callous disregard for his own welfare, as well as for the interests of his next victim. There is another aspect to the effect of the Court's rule on the person whom the police have arrested on probable cause. The fact is that he may not be guilty at all, and may be able to extricate himself quickly and simply if he were told the circumstances of his arrest and were asked to explain. This effort, and his release, must now await the hiring of a lawyer or his appointment by the court, consultation with counsel, and then a session with the police or the prosecutor. Similarly, where probable cause exists to arrest several suspects, as where the body of the victim is discovered in a house having several residents, compare Johnson v. State , 238 Md. 140, 207 A.2d 643 (1965), cert. denied , 382 U.S. 1013, it will often [544 ] be true that a suspect may be cleared only through the results of interrogation of other suspects. Here too, the release of the innocent may be delayed by the Court's rule. Much of the trouble with the Court's new rule is that it will operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved. It applies to every defendant, whether the professional criminal or one committing a crime of momentary passion who is not part and parcel of organized crime. It will slow down the investigation and the apprehension of confederates in those cases where time is of the essence, such as kidnapping, see Brinegar v. United States , 338 U. S. 160 , 183 (Jackson, J., dissenting); People v. Modesto , 62 Cal. 2d 436 , 446, 398 P.2d 753, 759 (1965), those involving the national security, see United States v. Drummond , 354 F.2d 132, 147 (C.A.2d Cir.1965) (en banc) (espionage case), pet. for cert. pending , No. 1203, Misc., O.T. 1965; cf. Gessner v. United States , 354 F.2d 726, 730, n. 10 (C.A. 10th Cir.1965) (upholding, in espionage case, trial ruling that Government need not submit classified portions of interrogation transcript), and some of those involving organized crime. In the latter context, the lawyer who arrives may also be the lawyer for the defendant's colleagues, and can be relied upon to insure that no breach of the organization's security takes place even though the accused may feel that the best thing he can do is to cooperate. At the same time, the Court's per se approach may not be justified on the ground that it provides a "bright line" permitting the authorities to judge in advance whether interrogation may safely be pursued without jeopardizing the admissibility of any information obtained as a consequence. Nor can it be claimed that judicial time and effort, assuming that is a relevant consideration, [545 ] will be conserved because of the ease of application of the new rule. Today's decision leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, and whether nontestimonial evidence introduced at trial is the fruit of statements made during a prohibited interrogation, all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution. For all these reasons, if further restrictions on police interrogation are desirable at this time, a more flexible approach makes much more sense than the Court's constitutional straitjacket, which forecloses more discriminating treatment by legislative or rulemaking pronouncements. Applying the traditional standards to the cases before the Court, I would hold these confessions voluntary. I would therefore affirm in Nos. 759, 760, and 761, and reverse in No. 584. Footnotes [ Footnote 1 ] Compare United States v. Childress , 347 F.2d 448 (C.A. 7th Cir.1965), with Collins v. Beto , 348 F.2d 823 (C.A. 5th Cir.1965). Compare People v. Dorado , 62 Cal. 2d 338 , 398 P.2d 361, 42 Cal. Rptr. 169 (1964), with People v. Hartgraves , 31 Ill. 2d 375 , 202 N.E.2d 33 (1964). [ Footnote 2 ] See, e.g. , Enker & Elsen, Counsel for the Suspect: Massiah v. United States and Escobedo v. Illinois , 49 Minn.L.Rev. 47 (1964); Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449 (1964); Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1 (1965); Dowling, Escobedo and Beyond: The Need for a Fourteenth Amendment Code of Criminal Procedure, 56 J.Crim.L., C. & P. S. 143, 156 (1965). The complex problems also prompted discussions by jurists. Compare Bazelon, Law, Morality, and Civil Liberties, 12 U.C.L.A.L.Rev. 13 (1964), with Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929 (1965). [ Footnote 3 ] For example, the Los Angeles Police Chief stated that, "If the police are required . . . to . . . establish that the defendant was apprised of his constitutional guarantees of silence and legal counsel prior to the uttering of any admission or confession, and that he intelligently waived these guarantees . . . a whole Pandora's box is opened as to under what circumstances . . . can a defendant intelligently waive these rights. . . . Allegations that modern criminal investigation can compensate for the lack of a confession or admission in every criminal case is totally absurd!" Parker, 40 L.A.Bar Bull. 603, 607, 642 (1965). His prosecutorial counterpart, District Attorney Younger, stated that "[I]t begins to appear that many of these seemingly restrictive decisions are going to contribute directly to a more effective, efficient and professional level of law enforcement." L.A. Times, Oct. 2, 1965, p. 1. The former Police Commissioner of New York, Michael J. Murphy, stated of Escobedo: "What the Court is doing is akin to requiring one boxer to fight by Marquis of Queensbury rules while permitting the other to butt, gouge and bite." N.Y. Times, May 14, 1965, p. 39. The former United States Attorney for the District of Columbia, David C. Acheson, who is presently Special Assistant to the Secretary of the Treasury (for Enforcement), and directly in charge of the Secret Service and the Bureau of Narcotics, observed that "Prosecution procedure has, at most, only the most remote causal connection with crime. Changes in court decisions and prosecution procedure would have about the same effect on the crime rate as an aspirin would have on a tumor of the brain." Quoted in Herman, supra , n 2, at 500, n. 270. Other views on the subject in general are collected in Weisberg, Police Interrogation of Arrested Persons: A Skeptical View, 52 J.Crim.L., C. & P.S. 21 (1961). [ Footnote 4 ] This is what we meant in Escobedo when we spoke of an investigation which had focused on an accused. [ Footnote 5 ] See, for example , IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement (1931) [Wickersham Report]; Booth, Confessions, and Methods Employed in Procuring Them, 4 So. Calif.L.Rev. 83 (1930); Kauper, Judicial Examination of the Accused -- A Remedy for the Third Degree, 30 Mich.L.Rev. 1224 (1932). It is significant that instances of third-degree treatment of prisoners almost invariably took place during the period between arrest and preliminary examination. Wickersham Report, at 169; Hall, The Law of Arrest in Relation to Contemporary Social Problems, 3 U.Chi.L.Rev. 345, 357 (1936). See also Foote, Law and Police Practice: Safeguards in the Law of Arrest, 52 Nw.U.L.Rev. 16 (1957). [ Footnote 6 ] Brown v. Mississippi , 297 U. S. 278 (1936); Chambers v. Florida , 309 U. S. 227 (1940); Canty v. Alabama , 309 U.S. 629 (1940); White v. Texas , 310 U. S. 530 (1940); Vernon v. Alabama , 313 U.S. 547 (1941); Ward v. Texas , 316 U. S. 547 (1942); Ashcraft v. Tennessee , 322 U. S. 143 (1944); Malinski v. New York , 324 U. S. 401 (1945); Leyra v. Denno , 347 U. S. 556 (1954). See also Williams v. United States , 341 U. S. 97 (1951). [ Footnote 7 ] In addition, see People v. Wakat , 415 Ill. 610 , 114 N.E.2d 706 (1953); Wakat v. Harlib , 253 F.2d 59 (C.A. 7th Cir.1958) (defendant suffering from broken bones, multiple bruises and injuries sufficiently serious to require eight months' medical treatment after being manhandled by five policemen); Kier v. State , 213 Md. 556, 132 A.2d 494 (1957) (police doctor told accused, who was strapped to a chair completely nude, that he proposed to take hair and skin scrapings from anything that looked like blood or sperm from various parts of his body); Bruner v. People , 113 Colo.194, 156 P.2d 111 (1945) (defendant held in custody over two months, deprived of food for 15 hours, forced to submit to a lie detector test when he wanted to go to the toilet); People v. Matlock , 51 Cal. 2d 682 , 336 P.2d 505 (1959) (defendant questioned incessantly over an evening's time, made to lie on cold board and to answer questions whenever it appeared he was getting sleepy). Other cases are documented in American Civil Liberties Union, Illinois Division, Secret Detention by the Chicago Police (1959); Potts, The Preliminary Examination and "The Third Degree," 2 Baylor L.Rev. 131 (1950); Sterling, Police Interrogation and the Psychology of Confession, 14 J.Pub.L. 25 (1965). [ Footnote 8 ] The manuals quoted in the text following are the most recent and representative of the texts currently available. Material of the same nature appears in Kidd, Police Interrogation (1940); Mulbar, Interrogation (1951); Dienstein, Technics for the Crime Investigator 97-115 (1952). Studies concerning the observed practices of the police appear in LaFave, Arrest: The Decision To Take a Suspect Into Custody 244-437, 490-521 (1965); LaFave, Detention for Investigation by the Police: An Analysis of Current Practices, 1962 Wash.U.L.Q. 331; Barrett, Police Practices and the Law -- From Arrest to Release or Charge, 50 Calif.L.Rev. 11 (1962); Sterling, supra , n 7, at 47-65. [ Footnote 9 ] The methods described in Inbau & Reid, Criminal Interrogation and Confessions (1962), are a revision and enlargement of material presented in three prior editions of a predecessor text, Lie Detection and Criminal Interrogation (3d ed.1953). The authors and their associates are officers of the Chicago Police Scientific Crime Detection Laboratory, and have had extensive experience in writing, lecturing and speaking to law enforcement authorities over a 20-year period. They say that the techniques portrayed in their manuals reflect their experiences, and are the most effective psychological stratagems to employ during interrogations. Similarly, the techniques described in O'Hara, Fundamentals of Criminal Investigation (1956), were gleaned from long service as observer, lecturer in police science, and work as a federal criminal investigator. All these texts have had rather extensive use among law enforcement agencies and among students of police science, with total sales and circulation of over 44,000. [ Footnote 10 ] Inbau & Reid, Criminal Interrogation and Confessions (1962), at 1. [ Footnote 11 ] O'Hara, supra , at 99. [ Footnote 12 ] Inbau & Reid, supra , at 34-43, 87. For example, in Leyra v. Denno , 347 U. S. 556 (1954), the interrogator-psychiatrist told the accused, "We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things we aren't really responsible for," id. at 562, and again, "We know that morally, you were just in anger. Morally, you are not to be condemned," id. at 582. [ Footnote 13 ] Inbau Reid, supra , at 43-55. [ Footnote 14 ] O'Hara, supra , at 112. [ Footnote 15 ] Inbau & Reid, supra , at 40. [ Footnote 16 ] Ibid. [ Footnote 17 ] O'Hara, supra , at 104, Inbau & Reid, supra , at 58-59. See Spano v. New York , 360 U. S. 315 (1959). A variant on the technique of creating hostility is one of engendering fear. This is perhaps best described by the prosecuting attorney in Malinski v. New York , 324 U. S. 401 , 407 (1945): "Why this talk about being undressed? Of course, they had a right to undress him to look for bullet scars, and keep the clothes off him. That was quite proper police procedure. That is some more psychology -- let him sit around with a blanket on him, humiliate him there for a while; let him sit in the corner, let him think he is going to get a shellacking." [ Footnote 18 ] O'Hara, supra , at 105-106. [ Footnote 19 ] Id. at 106. [ Footnote 20 ] Inbau & Reid, supra , at 111. [ Footnote 21 ] Ibid. [ Footnote 22 ] Inbau & Reid, supra , at 112. [ Footnote 23 ] Inbau & Reid, Lie Detection and Criminal Interrogation 185 (3d ed.1953). [ Footnote 24 ] Interrogation procedures may even give rise to a false confession. The most recent conspicuous example occurred in New York, in 1964, when a Negro of limited intelligence confessed to two brutal murders and a rape which he had not committed. When this was discovered, the prosecutor was reported as saying: "Call it what you want -- brainwashing, hypnosis, fright. They made him give an untrue confession. The only thing I don't believe is that Whitmore was beaten." N.Y. Times, Jan. 28, 1965, p. 1, col. 5. In two other instances, similar events had occurred. N.Y. Times, Oct. 20, 1964, p. 22, col. 1; N.Y. Times, Aug. 25, 1965, p. 1, col. 1. In general, see Borchard, Convicting the Innocent (1932); Frank & Frank, Not Guilty (1957). [ Footnote 25 ] In the fourth confession case decided by the Court in the 1962 Term, Fay v. Noia , 372 U. S. 391 (1963), our disposition made it unnecessary to delve at length into the facts. The facts of the defendant's case there, however, paralleled those of his codefendants, whose confessions were found to have resulted from continuous and coercive interrogation for 27 hours, with denial of requests for friends or attorney. See United States v. Murphy , 222 F.2d 698 (C.A.2d Cir.1955) (Frank, J.); People v. Bonino , 1 N.Y.2d 752, 135 N.E.2d 51 (1956). [ Footnote 26 ] The absurdity of denying that a confession obtained under these circumstances is compelled is aptly portrayed by an example in Professor Sutherland's recent article, Crime and Confession, 79 Harv.L.Rev. 21, 37 (1965): "Suppose a well-to-do testatrix says she intends to will her property to Elizabeth. John and James want her to bequeath it to them instead. They capture the testatrix, put her in a carefully designed room, out of touch with everyone but themselves and their convenient 'witnesses,' keep her secluded there for hours while they make insistent demands, weary her with contradictions of her assertions that she wants to leave her money to Elizabeth, and finally induce her to execute the will in their favor. Assume that John and James are deeply and correctly convinced that Elizabeth is unworthy, and will make base use of the property if she gets her hands on it, whereas John and James have the noblest and most righteous intentions. Would any judge of probate accept the will so procured as the 'voluntary' act of the testatrix?" [ Footnote 27 ] Thirteenth century commentators found an analogue to the privilege grounded in the Bible. "To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree." Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 116, III Yale Judaica Series 52-53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhah, 5 Judaism 53 (Winter 1956). [ Footnote 28 ] See Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 9-11 (1949); 8 Wigmore, Evidence 289-295 (McNaughton rev.1961). See also Lowell, The Judicial Use of Torture, Parts I and II, 11 Harv.L.Rev. 220, 290 (1897). [ Footnote 29 ] See Pittman, The Colonial and Constitutional History of the Privilege Against Self-Incrimination in America, 21 Va.L.Rev. 763 (1935); Ullmann v. United States , 350 U. S. 422 , 445-449 (1956) (DOUGLAS, J., dissenting). [ Footnote 30 ] Compare Brown v. Walker , 161 U. S. 591 (1896); Quinn v. United States , 349 U. S. 155 (1955). [ Footnote 31 ] Brief for the United States, p. 28. To the same effect, see Brief for the United States, pp. 40-49, n. 44, Anderson v. United States , 318 U. S. 350 (1943); Brief for the United States, pp. 17-18, McNabb v. United States , 318 U. S. 332 (1943). [ Footnote 32 ] Our decision today does not indicate in any manner, of course, that these rules can be disregarded. When federal officials arrest an individual, they must as always comply with the dictates of the congressional legislation and cases thereunder. See generally Hogan & Snee, The McNabb-Mallory Rule: Its Rise, Rationale and Rescue, 47 Geo.L.J. 1 (1958). [ Footnote 33 ] The decisions of this Court have guaranteed the same procedural protection for the defendant whether his confession was used in a federal or state court. It is now axiomatic that the defendant's constitutional rights have been violated if his conviction is based, in whole or in part, on an involuntary confession, regardless of its truth or falsity. Rogers v. Richmond , 365 U. S. 534 , 544 (1961); Wan v. United States , 266 U. S. 1 (1924). This is so even if there is ample evidence aside from the confession to support the conviction, e.g., Malinski v. New York , 324 U. S. 401 , 404 (1945); Bram v. United States , 168 U. S. 532 , 540-542 (1897). Both state and federal courts now adhere to trial procedures which seek to assure a reliable and clear-cut determination of the voluntariness of the confession offered at trial, Jackson v. Denno , 378 U. S. 368 (1964); United States v. Carignan , 342 U. S. 36 , 38 (1951); see also Wilson v. United States , 162 U. S. 613 , 624 (1896). Appellate review is exacting, see Haynes v. Washington , 373 U. S. 503 (1963); Blackburn v. Alabama , 361 U. S. 199 (1960). Whether his conviction was in a federal or state court, the defendant may secure a post-conviction hearing based on the alleged involuntary character of his confession, provided he meets the procedural requirements, Fay v. Noia , 372 U. S. 391 (1963); Townsend v. Sain , 372 U. S. 293 (1963). In addition, see Murphy v. Waterfront Comm'n , 378 U. S. 52 (1964). [ Footnote 34 ] See Lisenba v. California , 314 U. S. 219 , 241 (1941); Ashcraft v. Tennessee , 322 U. S. 143 (1944); Malinski v. New York , 324 U. S. 401 (1945); Spano v. New York , 360 U. S. 315 (1959); Lynumn v. Illinois , 372 U. S. 528 (1963); Haynes v. Washington , 373 U. S. 503 (1963). [ Footnote 35 ] The police also prevented the attorney from consulting with his client. Independent of any other constitutional proscription, this action constitutes a violation of the Sixth Amendment right to the assistance of counsel, and excludes any statement obtained in its wake. See People v. Donovan , 13 N.Y.2d 148, 193 N.E.2d 628, 243 N.Y.S.2d 841 (1963) (Fuld, J.) [ Footnote 36 ] In re Groban , 352 U. S. 330 , 340-352 (1957) (BLACK, J., dissenting); Note, 73 Yale L.J. 1000, 1048-1051 (1964); Comment, 31 U.Chi.L.Rev. 313, 320 (1964) and authorities cited. [ Footnote 37 ] See p. 454, supra. Lord Devlin has commented: "It is probable that, even today, when there is much less ignorance about these matters than formerly, there is still a general belief that you must answer all questions put to you by a policeman, or at least that it will be the worse for you if you do not." Devlin, The Criminal Prosecution in England 32 (1958). In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California , 380 U. S. 609 (1965); Malloy v. Hogan , 378 U. S. 1 , 8 (1964); Comment, 31 U.Chi.L.Rev. 556 (1964); Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 1041-1044 (1966). See also Bram v. United States , 168 U. S. 532 , 562 (1897). [ Footnote 38 ] Cf. Betts v. Brady , 316 U. S. 455 (1942), and the recurrent inquiry into special circumstances it necessitated. See generally Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 Mich.L.Rev. 219 (1962). [ Footnote 39 ] See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 440, 480 (1964). [ Footnote 40 ] Estimates of 50-90% indigency among felony defendants have been reported. Pollock, Equal Justice in Practice, 45 Minn.L.Rev. 737, 738-739 (1961); Birzon, Kasanof & Forma, The Right to Counsel and the Indigent Accused in Courts of Criminal Jurisdiction in New York State, 14 Buffalo L.Rev. 428, 433 (1965). [ Footnote 41 ] See Kamisar, Equal Justice in the Gatehouses and Mansions of American Criminal Procedure, in Criminal Justice in Our Time 1, 64-81 (1965). As was stated in the Report of the Attorney General's Committee on Poverty and the Administration of Federal Criminal Justice 9 (1963): "When government chooses to exert its powers in the criminal area, its obligation is surely no less than that of taking reasonable measures to eliminate those factors that are irrelevant to just administration of the law, but which, nevertheless, may occasionally affect determinations of the accused's liability or penalty. While government may not be required to relieve the accused of his poverty, it may properly be required to minimize the influence of poverty on its administration of justice." [ Footnote 42 ] Cf. United States ex rel. Brown v. Fay , 242 F. Supp. 273 , 277 (D.C.S.D.N.Y.1965); People v. Witenski , 15 N.Y.2d 392, 207 N.E.2d 358, 259 N.Y.S.2d 413 (1965). [ Footnote 43 ] While a warning that the indigent may have counsel appointed need not be given to the person who is known to have an attorney or is known to have ample funds to secure one, the expedient of giving a warning is too simple, and the rights involved too important, to engage in ex post facto inquiries into financial ability when there is any doubt at all on that score. [ Footnote 44 ] If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements. [ Footnote 45 ] Although this Court held in Rogers v. United States , 340 U. S. 367 (1951), over strong dissent, that a witness before a grand jury may not in certain circumstances decide to answer some questions and then refuse to answer others, that decision has no application to the interrogation situation we deal with today. No legislative or judicial factfinding authority is involved here, nor is there a possibility that the individual might make self-serving statements of which he could make use at trial while refusing to answer incriminating statements. [ Footnote 46 ] The distinction and its significance has been aptly described in the opinion of a Scottish court: "In former times, such questioning, if undertaken, would be conducted by police officers visiting the house or place of business of the suspect and there questioning him, probably in the presence of a relation or friend. However convenient the modern practice may be, it must normally create a situation very unfavourable to the suspect." Chalmer v. H. M. Advocate , [1954] Sess.Cas. 66, 78 (J.C.). [ Footnote 47 ] See People v. Dorado , 62 Cal. 2d 338 , 354, 398 P.2d 361, 371 42 Cal. Rptr. 169, 179 (1965). [ Footnote 48 ] In accordance with our holdings today and in Escobedo v. Illinois , 378 U. S. 478 , 492, Crooker v. California , 357 U. S. 433 (1958) and Cicenia v. Lagay , 357 U. S. 504 (1958), are not to be followed. [ Footnote 49 ] In quoting the above from the dissenting opinion of Mr. Justice Brandeis we, of course, do not intend to pass on the constitutional questions involved in the Olmstead case. [ Footnote 50 ] Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 26 (1956). [ Footnote 51 ] Miranda, Vignera, and Westover were identified by eyewitnesses. Marked bills from the bank robbed were found in Westover's car. Articles stolen from the victim as well as from several other robbery victims were found in Stewart's home at the outset of the investigation. [ Footnote 52 ] Dealing as we do here with constitutional standards in relation to statements made, the existence of independent corroborating evidence produced at trial is, of course, irrelevant to our decisions. Haynes v. Washington , 373 U. S. 503 , 518-519 (1963); Lynumn v. Illinois , 372 U. S. 528 , 537-538 (1963); Rogers v. Richmond , 365 U. S. 534 , 541 (1961); Blackburn v. Alabama , 361 U. S. 199 , 206 (1960). [ Footnote 53 ] See, e.g. , Report and Recommendations of the [District of Columbia] Commissioners' Committee on Police Arrests for Investigation (1962); American Civil Liberties Union, Secret Detention by the Chicago Police (1959). An extreme example of this practice occurred in the District of Columbia in 1958. Seeking three "stocky" young Negroes who had robbed a restaurant, police rounded up 90 persons of that general description. Sixty-three were held overnight before being released for lack of evidence. A man not among the 90 arrested was ultimately charged with the crime. Washington Daily News, January 21, 1958, p. 5, col. 1; Hearings before a Subcommittee of the Senate Judiciary Committee on H.R. 11477, S. 2970, S. 3325, and S. 3355, 85th Cong., 2d Sess. (July 1958), pp. 40, 78. [ Footnote 54 ] In 1952, J. Edgar Hoover, Director of the Federal Bureau of Investigation, stated: "Law enforcement, however, in defeating the criminal, must maintain inviolate the historic liberties of the individual. To turn back the criminal, yet, by so doing, destroy the dignity of the individual, would be a hollow victory." " * * * *" "We can have the Constitution, the best laws in the land, and the most honest reviews by courts -- but unless the law enforcement profession is steeped in the democratic tradition, maintains the highest in ethics, and makes its work a career of honor, civil liberties will continually -- and without end -- be violated. . . . The best protection of civil liberties is an alert, intelligent and honest law enforcement agency. There can be no alternative." " * * * *" ". . . Special Agents are taught that any suspect or arrested person, at the outset of an interview, must be advised that he is not required to make a statement and that any statement given can be used against him in court. Moreover, the individual must be informed that, if he desires, he may obtain the services of an attorney of his own choice." Hoover, Civil Liberties and Law Enforcement: The Role of the FBI, 37 Iowa L.Rev. 175, 177-182 (1952). [ Footnote 55 ] We agree that the interviewing agent must exercise his judgment in determining whether the individual waives his right to counsel. Because of the constitutional basis of the right, however, the standard for waiver is necessarily high. And, of course, the ultimate responsibility for resolving this constitutional question lies with the courts. [ Footnote 56 ] Among the crimes within the enforcement jurisdiction of the FBI are kidnapping, 18 U.S.C. § 1201 (1964 ed.), white slavery, 18 U.S.C. §§ 2421-2423 (1964 ed.), bank robbery, 18 U.S.C. § 2113 (1964 ed.), interstate transportation and sale of stolen property, 18 U.S.C. §§ 2311-2317 (1964 ed.), all manner of conspiracies, 18 U.S.C. § 371 (1964 ed.), and violations of civil rights 18 U.S.C. §§ 241-242 (1964 ed.). See also 18 U.S.C. § 1114 (1964 ed.) (murder of officer or employee of the United States). [ Footnote 57 ] [1964] Crim.L.Rev. at 166-170. These Rules provide in part: "II. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cautioned before putting to him any questions, or further questions, relating to that offence." "The caution shall be in the following terms: " " You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given in evidence." "When, after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present." "III . . . " " * * * * ." "(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted." " * * * *" "IV. All written statements made after caution shall be taken in the following manner: " "(a) If a person says that he wants to make a statement, he shall be told that it is intended to make a written record of what he says." "He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write, or that he would like someone to write it for him, a police officer may offer to write the statement for him. . . ." "(b) Any person writing his own statement shall be allowed to do so without any prompting, as distinct from indicating to him what matters are material." " * * * *" "(d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him." The prior Rules appear in Devlin, The Criminal Prosecution in England 137-141 (1958). Despite suggestions of some laxity in enforcement of the Rules, and despite the fact some discretion as to admissibility is invested in the trial judge, the Rules are a significant influence in the English criminal law enforcement system. See, e.g. , [1964] Crim.L.Rev. at 182, and articles collected in [1960] Crim.L.Rev. at 298-356. [ Footnote 58 ] The introduction to the Judges' Rules states in part: "These Rules do not affect the principles" " * * * *" "(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that, in such a case, no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so. . . ." [1964] Crim.L.Rev. at 166-167. [ Footnote 59 ] As stated by the Lord Justice General in Chalmers v. H.M Advocate , [1954] Sess.Cas. 66, 78 (J.C.): "The theory of our law is that, at the stage of initial investigation, the police may question anyone with a view to acquiring information which may lead to the detection of the criminal; but that, when the stage has been reached at which suspicion, or more than suspicion, has in their view centered upon some person as the likely perpetrator of the crime, further interrogation of that person becomes very dangerous, and, if carried too far, e.g. , to the point of extracting a confession by what amounts to cross-examination, the evidence of that confession will almost certainly be excluded. Once the accused has been apprehended and charged, he has the statutory right to a private interview with a solicitor and to be brought before a magistrate with all convenient speed so that he may, if so advised, emit a declaration in presence of his solicitor under conditions which safeguard him against prejudice." [ Footnote 60 ] "No confession made to a police officer shall be proved as against a person accused of any offence." Indian Evidence Act § 25. "No confession made by any person whilst he is in the custody of a police officer unless it be made in the immediate presence of a Magistrate, shall be proved as against such person." Indian Evidence Act § 26. See 1 Ramaswami & Rajagopalan, Law of Evidence in India 553-569 (1962). To avoid any continuing effect of police pressure or inducement, the Indian Supreme Court has invalidated a confession made shortly after police brought a suspect before a magistrate, suggesting: "[I]t would, we think, be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession." Sarwan Singh v. State of Punjab , 44 All India Rep. 1957, Sup.Ct. 637, 644. [ Footnote 61 ] I Legislative Enactments of Ceylon 211 (1958). [ Footnote 62 ] 10 U.S.C. § 831(b) (1964 ed.) [ Footnote 63 ] United States v. Rose , 24 CMR 251 (1957); United States v. Gunnels , 23 CMR 354 (1957). [ Footnote 64 ] Although no constitution existed at the time confessions were excluded by rule of evidence in 1872, India now has a written constitution which includes the provision that "No person accused of any offence shall be compelled to be a witness against himself." Constitution of India, Article 20(3). See Tope, The Constitution of India 63-67 (1960). [ Footnote 65 ] Brief for United States in No. 761, Westover v. United States , pp. 44-47; Brief for the State of New York as amicus curiae , pp. 35-39. See also Brief for the National District Attorneys Association as amicus curiae , pp. 23-26. [ Footnote 66 ] Miranda was also convicted in a separate trial on an unrelated robbery charge not presented here for review. A statement introduced at that trial was obtained from Miranda during the same interrogation which resulted in the confession involved here. At the robbery trial, one officer testified that, during the interrogation, he did not tell Miranda that anything he said would be held against him or that he could consult with an attorney. The other officer stated that they had both told Miranda that anything he said would be used against him and that he was not required by law to tell them anything. [ Footnote 67 ] One of the officers testified that he read this paragraph to Miranda. Apparently, however, he did not do so until after Miranda had confessed orally. [ Footnote 68 ] Vignera thereafter successfully attacked the validity of one of the prior convictions, Vignera v. Wilkins , Civ. 9901 (D.C.W.D.N.Y. Dec. 31, 1961) (unreported), but was then resentenced as a second-felony offender to the same term of imprisonment as the original sentence. R. 31-33. [ Footnote 69 ] The failure of defense counsel to object to the introduction of the confession at trial, noted by the Court of Appeals and emphasized by the Solicitor General, does not preclude our consideration of the issue. Since the trial was held prior to our decision in Escobedo and, of course, prior to our decision today making the objection available, the failure to object at trial does not constitute a waiver of the claim. See, e.g., United States ex rel. Angelet v. Fay , 333 F.2d 12, 16 (C.A.2d Cir.1964), aff'd , 381 U. S. 654 (1965). Cf. Ziffrin, Inc. v. United States , 318 U. S. 73 , 78 (1943). [ Footnote 70 ] Because of this disposition of the case, the California Supreme Court did not reach the claims that the confession was coerced by police threats to hold his ailing wife in custody until he confessed, that there was no hearing as required by Jackson v. Denno , 378 U. S. 368 (1964), and that the trial judge gave an instruction condemned by the California Supreme Court's decision in People v. Morse , 60 Cal. 2d 631 , 388 P.2d 33, 36 Cal. Rptr. 201 (1964). [ Footnote 71 ] After certiorari was granted in this case, respondent moved to dismiss on the ground that there was no final judgment from which the State could appeal, since the judgment below directed that he be retried. In the event respondent was successful in obtaining an acquittal on retrial, however, under California law the State would have no appeal. Satisfied that, in these circumstances, the decision below constituted a final judgment under 28 U.S.C. § 1257(3) (1964 ed.), we denied the motion. 383 U.S. 903. [ Footnote 1 ] E.g. , Inbau & Reid, Criminal Interrogation and Confessions (196); O'Hara, Fundamentals Of Criminal Investigation (1956); Dienstein, Technics for the Crime Investigator (1952); Mulbar, Interrogation (1951); Kidd, Police Interrogation (1940). [ Footnote 2 ] As developed by my Brother HARLAN, post pp. 506-514, such cases, with the exception of the long-discredited decision in Bram v. United States , 168 U. S. 532 (1897), were adequately treated in terms of due process. [ Footnote 3 ] The Court points to England, Scotland, Ceylon and India as having equally rigid rules. As in Brother HARLAN points out, post , pp. 521-523, the Court is mistaken in this regard, for it overlooks counterbalancing prosecutorial advantages. Moreover, the requirements of the Federal Bureau of Investigation do not appear from the Solicitor General's letter, ante , pp. 484-46, to be as strict as those imposed today in at least two respects: (1) The offer of counsel is articulated only as "a right to counsel"; nothing is said about a right to have counsel present at the custodial interrogation. ( See also the examples cited by the Solicitor General, Westover v. United States , 342 F.2d 684, 685 (1965) ("right to consult counsel"); Jackson v. United States , 337 F.2d 136, 138 (1964) (accused "entitled to an attorney").) Indeed, the practice is that, whenever the suspect "decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point. . . . When counsel appears in person, he is permitted to confer with his client in private." This clearly indicates that the FBI does not warn that counsel may be present during custodial interrogation. (2) The Solicitor General's letter states: "[T]hose who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, [are advised] of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge." So phrased, this warning does not indicate that the agent will secure counsel. Rather, the statement may well be interpreted by the suspect to mean that the burden is placed upon himself, and that he may have counsel appointed only when brought before the judge or at trial -- but not at custodial interrogation. As I view the FBI practice, it is not as broad as the one laid down today by the Court. [ Footnote 4 ] In my view, there is "no significant support" in our cases for the holding of the Court today that the Fifth Amendment privilege, in effect, forbids custodial interrogation. For a discussion of this point, see the dissenting opinion of my Brother WHITE, post pp. 526-531. [ Footnote 1 ] My discussion in this opinion is directed to the main questions decided by the Court and necessary to its decision; in ignoring some of the collateral points, I do not mean to imply agreement. [ Footnote 2 ] The case was Bram v. United States , 168 U. S. 532 (quoted ante p. 461). Its historical premises were afterwards disproved by Wigmore, who concluded "that no assertions could be more unfounded." 3 Wigmore, Evidence § 823, at 250, n. 5 (3d ed.1940). The Court in United States v. Carignan , 342 U. S. 36 , 41, declined to choose between Bram and Wigmore, and Stein v. New York , 346 U. S. 156 , 191, n. 35, cast further doubt on Bram. There are, however, several Court opinions which assume in dicta the relevance of the Fifth Amendment privilege to confessions. Burdeau v. McDowell , 256 U. S. 465 , 475; see Shotwell Mfg. Co. v. United States , 371 U. S. 341 , 347. On Bram and the federal confession cases generally, see Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 959-961 (1966). [ Footnote 3 ] Comment, 31 U.Chi.L.Rev. 313 & n. 1 (1964), states that, by the 1963 Term, 33 state coerced confession cases had been decided by this Court, apart from per curiams. Spano v. New York , 360 U. S. 315 , 321, n. 2, collects 28 cases. [ Footnote 4 ] Bator & Vorenberg, Arrest, Detention, Interrogation and the Right to Counsel, 66 Col.L.Rev. 62, 73 (1966): "In fact, the concept of involuntariness seems to be used by the courts as a shorthand to refer to practices which are repellent to civilized standards of decency or which, under the circumstances, are thought to apply a degree of pressure to an individual which unfairly impairs his capacity to make a rational choice." See Herman, The Supreme Court and Restrictions on Police Interrogation, 25 Ohio St.L.J. 449, 452-458 (1964); Developments, supra , n. 2, at 964-984. [ Footnote 5 ] See the cases synopsized in Herman, supra , n. 4, at 456, nn. 36-39. One not too distant example is Stroble v. California , 343 U. S. 181 , in which the suspect was kicked and threatened after his arrest, questioned a little later for two hours, and isolated from a lawyer trying to see him; the resulting confession was held admissible. [ Footnote 6 ] Among the examples given in 8 Wigmore, Evidence § 2266, at 401 (McNaughton rev.1961), are these: the privilege applies to any witness, civil or criminal, but the confession rule protects only criminal defendants; the privilege deals only with compulsion, while the confession rule may exclude statements obtained by trick or promise, and where the privilege has been nullified -- as by the English Bankruptcy Act -- the confession rule may still operate. [ Footnote 7 ] Additionally, there are precedents and even historical arguments that can be arrayed in favor of bringing extra-legal questioning within the privilege. See generally Maguire, Evidence of Guilt § 2.03, at 15-16 (1959). [ Footnote 8 ] This, of course, is implicit in the Court's introductory announcement that "[o]ur decision in Malloy v. Hogan , 378 U. S. 1 (1964) [extending the Fifth Amendment privilege to the States] necessitates an examination of the scope of the privilege in state cases as well." Ante , p. 463. It is also inconsistent with Malloy itself, in which extension of the Fifth Amendment to the States rested in part on the view that the Due Process Clause restriction on state confessions has, in recent years, been "the same standard" as that imposed in federal prosecutions assertedly by the Fifth Amendment. 378 U.S. at 7. [ Footnote 9 ] I lay aside Escobedo itself; it contains no reasoning or even general conclusions addressed to the Fifth Amendment, and indeed its citation in this regard seems surprising in view of Escobedo's primary reliance on the Sixth Amendment. [ Footnote 10 ] Since the Court conspicuously does not assert that the Sixth Amendment itself warrants its new police interrogation rules, there is no reason now to draw out the extremely powerful historical and precedential evidence that the Amendment will bear no such meaning. See generally Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 9'9, 943-948 (1965). [ Footnote 11 ] See supra , n. 4, and text. Of course, the use of terms like voluntariness involves questions of law and terminology quite as much as questions of fact. See Collins v. Beto , 348 F.2d 823, 832 (concurring opinion); Bator & Vorenberg, supra , n. 4, at 72-73. [ Footnote 12 ] The Court's vision of a lawyer "mitigat[ing] the dangers of untrustworthiness" ( ante , p. 470) by witnessing coercion and assisting accuracy in the confession is largely a fancy; for if counsel arrives, there is rarely going to be a police station confession. Watt v. Indiana , 338 U. S. 49 , 59 (separate opinion of Jackson, J.): "[A]ny lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances." See Enker & Elsen, Counsel for the Suspect, 49 Minn.L.Rev. 47, 66-68 (1964). [ Footnote 13 ] This need is, of course, what makes so misleading the Court's comparison of a probate judge readily setting aside as involuntary the will of an old lady badgered and beleaguered by the new heirs. Ante , pp. 457-458, n. 26. With wills, there is no public interest save in a totally free choice; with confessions, the solution of crime is a countervailing gain however the balance is resolved. [ Footnote 14 ] See, e.g. , the voluminous citations to congressional committee testimony and other sources collected in Culombe v. Connecticut , 367 U. S. 568 , 578-579 (Frankfurter, J., announcing the Court's judgment and an opinion). [ Footnote 15 ] In Westover , a seasoned criminal was practically given the Court's full complement of warnings, and did not heed them. The Stewart case, on the other hand, involves long detention and successive questioning. In Vignera , the facts are complicated, and the record somewhat incomplete. [ Footnote 16 ] "[J]ustice, though due to the accused, is due to the accuser also. The concept of fairness must not be strained till it is narrowed to a filament. We are to keep the balance true." Snyder v. Massachusetts , 291 U. S. 97 , 122 (Cardozo, J.). [ Footnote 17 ] A narrow reading is given in: United States v. Robinson , 354 F.2d 109 (C.A.2d Cir.); Davis v. North Carolina , 339 F.2d 770 (C.A.4th Cir.); Edwards v. Holman , 342 F.2d 679 (C.A. 5th Cir.); United States ex rel. Townsend v. Ogilvie , 334 F.2d 837 (C.A. 7th Cir.); People v. Hartgraves , 31 Ill. 2d 375 , 202 N.E.2d 33 ; State v. Fox , ___ Iowa ___, 131 N.W.2d 684 ; Rowe v. Commonwealth , 394 S.W.2d 751 (Ky.); Parker v. Warden , 236 Md. 236, 203 A.2d 418; State v. Howard , 383 S.W.2d 701 (Mo.); Bean v. State , ___ Nev. ___, 398 P.2d 251 ; State v. Hodgson , 44 N.J. 151, 207 A.2d 542 ; People v. Gunner , 15 N.Y.2d 226, 205 N.E.2d 852; Commonwealth ex rel. Linde v. Maroney , 416 Pa. 331, 206 A.2d 288; Browne v. State , 24 Wis.2d 491, 131 N.W.2d 169. An ample reading is given in: United States ex rel. Russo v. New Jersey , 351 F.2d 429 (C.A.3d Cir.); Wright v. Dickson , 336 F.2d 878 (C.A. 9th Cir.); People v. Dorado , 62 Cal. 2d 338 , 398 P.2d 361; State v. Dufour , ___ R.I. ___, 206 A.2d 82 ; State v. Neely , 239 Ore. 487, 395 P.2d 557, modified , 398 P.2d 482 . The cases in both categories are those readily available; there are certainly many others. [ Footnote 18 ] For instance, compare the requirements of the catalytic case of People v. Dorado , 62 Cal. 2d 338 , 398 P.2d 361, with those laid down today. See also Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U.Chi.L.Rev. 657, 670. [ Footnote 19 ] The Court's obiter dictum notwithstanding, ante p. 486, there is some basis for believing that the staple of FBI criminal work differs importantly from much crime within the ken of local police. The skill and resources of the FBI may also be unusual. [ Footnote 20 ] For citations and discussion covering each of these points, see Developments, supra , n. 2, at 1091-1097, and Enker & Elsen, supra , n. 12, at 80 & n. 94. [ Footnote 21 ] On comment, see Hardin, Other Answers: Search and Seizure, Coerced Confession, and Criminal Trial in Scotland, 113 U.Pa.L.Rev. 165, 181 and nn. 96-97 (1964). Other examples are less stringent search and seizure rules and no automatic exclusion for violation of them, id. at 167-169; guilt based on majority jury verdicts, id. at 185, and pretrial discovery of evidence on both sides, id. at 175. [ Footnote 22 ] Of particular relevance is the ALI's drafting of a Model Code of Pre-Arraignment Procedure, now in its first tentative draft. While the ABA and National Commission studies have wider scope, the former is lending its advice to the ALI project and the executive director of the latter is one of the reporters for the Model Code. [ Footnote 23 ] See brief for the United States in Westover , p. 45. The N.Y. Times, June 3, 1966, p. 41 (late city ed.) reported that the Ford Foundation has awarded $1,100,000 for a five-year study of arrests and confession in New York. [ Footnote 24 ] The New York Assembly recently passed a bill to require certain warnings before an admissible confession is taken, though the rules are less strict than are the Court's. N.Y. Times, May 24, 1966, p. 35 (late city ed.). [ Footnote 25 ] The Court waited 12 years after Wolf v. Colorado , 338 U. S. 25 , declared privacy against improper state intrusions to be constitutionally safeguarded before it concluded, in Mapp v. Ohio , 367 U. S. 643 , that adequate state remedies had not been provided to protect this interest, so the exclusionary rule was necessary. [ Footnote 1 ] Of course, the Court does not deny that it is departing from prior precedent; it expressly overrules Crooker and Cicenia, ante at 479, n. 48, and it acknowledges that, in the instant "cases, we might not find the defendants' statements to have been involuntary in traditional terms," ante at 457. [ Footnote 2 ] In fact, the type of sustained interrogation described by the Court appears to be the exception, rather than the rule. A survey of 399 cases in one city found that, in almost half of the cases, the interrogation lasted less than 30 minutes. Barrett, Police Practices and the Law -- From Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41-45 (1962). Questioning tends to be confused and sporadic, and is usually concentrated on confrontations with witnesses or new items of evidence as these are obtained by officers conducting the investigation. See generally LaFave, Arrest: The Decision to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment Procedure, Commentary § 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966). [ Footnote 3 ] By contrast, the Court indicates that, in applying this new rule, it "will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given." Ante at 468. The reason given is that assessment of the knowledge of the defendant based on information as to age, education, intelligence, or prior contact with authorities can never be more than speculation, while a warning is a clear-cut fact. But the officers' claim that they gave the requisite warnings may be disputed, and facts respecting the defendant's prior experience may be undisputed, and be of such a nature as to virtually preclude any doubt that the defendant knew of his rights. See United States v. Bolden , 355 F.2d 453 (C.A. 7th Cir.1965), petition for cert. pending , No. 1146, O.T. 1965 (Secret Service agent); People v. Du Bont , 235 Cal. App. 2d 844 , 45 Cal. Rptr. 717, pet. for cert. pending No. 1053, Misc., O.T. 1965 (former police officer). [ Footnote 4 ] Precise statistics on the extent of recidivism are unavailable, in part because not all crimes are solved and in part because criminal records of convictions in different jurisdictions are not brought together by a central data collection agency. Beginning in 1963, however, the Federal Bureau of Investigation began collating data on "Careers in Crime," which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed in 1963 and 1964, 76% had a prior arrest record on some charge. Over a period of 10 years, the group had accumulated 434,000 charges. FBI, Uniform Crime Reports -- 1964, 27-28. In 1963 and 1964, between 23% and 25% of all offenders sentenced in 88 federal district courts (excluding the District Court for the District of Columbia) whose criminal records were reported had previously been sentenced to a term of imprisonment of 13 months or more. Approximately an additional 40% had a prior record less than prison (juvenile record, probation record, etc.). Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative Office of the United States Courts, Federal Offenders in the United States District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders: 1963). During the same two years in the District Court for the District of Columbia, between 28% and 35% of those sentenced had prior prison records, and from 37% to 40% had a prior record less than prison. Federal Offenders: 1964, xii, 64, 66; Administrative Office of the United States Courts, Federal Offenders in the United States District Court for the District of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963). A similar picture is obtained if one looks at the subsequent records of those released from confinement. In 1964, 12.3% of persons on federal probation had their probation revoked because of the commission of major violations (defined as one in which the probationer has been committed to imprisonment for a period of 90 days or more, been placed on probation for over one year on a new offense, or has absconded with felony charges outstanding). Twenty-three and two-tenths percent of parolees and 16.9% of those who had been mandatorily released after service of a portion of their sentence likewise committed major violations. Reports of the Proceedings of the Judicial Conference of the United States and Annual Report of the Director of the Administrative Office of the United States Courts: 1965, 138. See also Mandel et al. , Recidivism Studied and Defined, 56 J.Crim.L., C. & P. S. 59 (1965) (within five years of release, 62.33% of sample had committed offenses placing them in recidivist category). [ Footnote 5 ] Eighty-eight federal district courts (excluding the District Court for the District of Columbia) disposed of the cases of 33,381 criminal defendants in 1964. Only 12.5% of those cases were actually tried. Of the remaining cases, 89.9% were terminated by convictions upon pleas of guilty and 10.1% were dismissed. Stated differently, approximately 90% of all convictions resulted from guilty pleas. Federal Offenders: 1964, supra , note 4, 3-6. In the District Court for the District of Columbia, a higher percentage, 27%, went to trial, and the defendant pleaded guilty in approximately 78% of the cases terminated prior to trial. Id. at 58-59. No reliable statistics are available concerning the percentage of cases in which guilty pleas are induced because of the existence of a confession or of physical evidence unearthed as a result of a confession. Undoubtedly the number of such cases is substantial. Perhaps of equal significance is the number of instances of known crimes which are not solved. In 1964, only 388,946, or 23.9%, of 1,626,574 serious known offenses were cleared. The clearance rate ranged from 89.8% for homicides to 18.7% for larceny. FBI, Uniform Crime Reports -- 1964, 20-22, 101. Those who would replace interrogation as an investigatorial tool by modern scientific investigation techniques significantly overestimate the effectiveness of present procedures, even when interrogation is included.

Here is a summary of the key points from the case: * The case of Miranda v. Arizona deals with the admissibility of statements made during custodial police interrogation and the protection of the individual's Fifth Amendment privilege against self-incrimination. * The Court builds on its previous decision in Escobedo v. Illinois, where it held that statements obtained without effectively informing the individual of their right to remain silent and to consult an attorney were constitutionally inadmissible. * The Court granted certiorari in these cases to explore further the application of the privilege against self-incrimination during custodial interrogation and to provide concrete constitutional guidelines for law enforcement and courts. * The Court emphasizes that its holding is not an innovation but an application of long-recognized principles in American criminal jurisprudence. * The case discusses the impact of confessions obtained during interrogation and the potential for inducing guilty pleas or influencing the outcome of known crimes that remain unsolved. * The Court's decision in this case will have significant implications for law enforcement practices and the protection of individuals' constitutional rights during custodial interrogation.

Miranda Rights

Michigan v. Moseley

https://supreme.justia.com/cases/federal/us/423/96/

U.S. Supreme Court Michigan v. Moseley, 423 U.S. 96 (1975) Michigan v. Moseley No. 74-653 Argued October 6, 1975 Decided December 9, 1975 423 U.S. 96 CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN Syllabus Respondent, who had been arrested in connection with certain robberies and advised by a detective in accordance with Miranda v. Arizona, 384 U. S. 436 , that he was not obliged to answer any questions and that he could remain silent if he wished, and having made oral and written acknowledgment of the Miranda warnings, declined to discuss the robberies, whereupon the detective ceased the interrogation. More than two hours later, after giving Miranda warnings, another detective questioned respondent solely about an unrelated murder. Respondent made an inculpatory statement, which was later used in his trial for murder, which resulted in his conviction. The appellate court reversed on the ground that Miranda mandated a cessation of all interrogation after respondent had declined to answer the first detective's questions. Held: The admission in evidence of respondent's incriminating statement did not violate Miranda principles. Respondent's right to cut off questioning was scrupulously honored, the police having immediately ceased the robbery interrogation after respondent's refusal to answer and having commenced questioning about the murder only after a significant time lapse and after a fresh set of warnings had been given respondent. Westover v. United States, 384 U. S. 436 , distinguished. Pp. 423 U. S. 99 -107. 51 Mich.App. 105, 214 N.W.2d 564, vacated and remanded. STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed an opinion concurring in the result, post, p. 423 U. S. 107 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 423 U. S. 111 . Page 423 U. S. 97 MR. JUSTICE STEWART delivered the opinion of the Court. The respondent, Richard Bert Mosley, was arrested in Detroit, Mich., in the early afternoon of April 8, 1971, in connection with robberies that had recently occurred at the Blue Goose Bar and the White Tower Restaurant on that city's lower east side. The arresting officer, Detective James Cowie of the Armed Robbery Section of the Detroit Police Department, was acting on a tip implicating Mosley and three other men in the robberies. [ Footnote 1 ] After effecting the arrest, Detective Cowie brought Mosley to the Robbery, Breaking and Entering Bureau of the Police Department, located on the fourth floor of the departmental headquarters building. The officer advised Mosley of his rights under this Court's decision in Miranda v. Arizona, 384 U. S. 436 , and had him read and sign the department's constitutional rights notification certificate. After filling out the necessary arrest papers, Cowie began questioning Mosley about the robbery of the White Tower Restaurant. When Mosley said he did not want to answer any questions about the robberies, Cowie promptly ceased the interrogation. The completion of the arrest papers and the questioning of Mosley together took approximately 20 minutes. At no time during the questioning did Mosley indicate a desire to consult with a lawyer, and there is no claim that the procedures followed to this point did not fully comply with the strictures of the Miranda opinion. Mosley was then taken to a ninth-floor cell block. Shortly after 6 p.m., Detective Hill of the Detroit Page 423 U. S. 98 Police Department Homicide Bureau brought Mosley from the cell block to the fifth-floor office of the Homicide Bureau for questioning about the fatal shooting of a man named Leroy Williams. Williams had been killed on January 9, 1971, during a holdup attempt outside the 101 Ranch Bar in Detroit. Mosley had not been arrested on this charge or interrogated about it by Detective Cowie. [ Footnote 2 ] Before questioning Mosley about this homicide, Detective Hill carefully advised him of his " Miranda rights." Mosley read the notification form both silently and aloud, and Detective Hill then read and explained the warnings to him and had him sign the form. Mosley at first denied any involvement in the Williams murder, but after the officer told him that Anthony Smith had confessed to participating in the slaying and had named him as the "shooter," Mosley made a statement implicating himself in the homicide. [ Footnote 3 ] The interrogation by Detective Hill lasted approximately 15 minutes, and at no time during its course did Mosley ask to consult with a lawyer or indicate that he did not want to discuss the homicide. In short, there is no claim that the procedures followed during Detective Hill's interrogation of Mosley, standing alone, did not fully comply with the strictures of the Miranda opinion.. [ Footnote 4 ] Mosley was subsequently charged in a one-count information with first-degree murder. Before the trial, he moved to suppress his incriminating statement on a number of grounds, among them the claim that, under the doctrine of the Miranda case, it was constitutionally Page 423 U. S. 99 impermissible for Detective Hill to question him about the Williams murder after he had told Detective Cowie that he did not want to answer any questions about the robberies. [ Footnote 5 ] The trial court denied the motion to suppress after an evidentiary hearing, and the incriminating statement was subsequently introduced in evidence against Mosley at his trial. The jury convicted Mosley of first-degree murder, and the court imposed a mandatory sentence of life imprisonment. On appeal to the Michigan Court of Appeals, Mosley renewed his previous objections to the use of his incriminating statement in evidence. The appellate court reversed the judgment of conviction, holding that Detective Hill's interrogation of Mosley had been a per se violation of the Miranda doctrine. Accordingly, without reaching Mosley's other contentions, the Court remanded the case for a new trial with instructions that Mosley's statement be suppressed as evidence. 51 Mich.App. 105, 214 N.W.2d 564. After further appeal was denied by the Michigan Supreme Court, 392 Mich. 764, the State filed a petition for certiorari here. We granted the writ because of the important constitutional question presented. 419 U.S. 1119. In the Miranda case, this Court promulgated a set of safeguards to protect the there-delineated constitutional rights of persons subjected to custodial police interrogation. In sum, the Court held in that case that, unless law enforcement officers give certain specified warnings before Page 423 U. S. 100 questioning a person in custody, [ Footnote 6 ] and follow certain specified procedures during the course of any subsequent interrogation, any statement made by the person in custody cannot over his objection be admitted in evidence against him as a defendant at trial, even though the statement may, in fact, be wholly voluntary. See Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 443 . Neither party in the present case challenges the continuing validity of the Miranda decision, or of any of the so-called guidelines it established to protect what the Court there said was a person's constitutional privilege against compulsory self-incrimination. The issue in this case, rather, is whether the conduct of the Detroit police that led to Mosley's incriminating statement did, in fact, violate the Miranda "guidelines," so as to render the statement inadmissible in evidence against Mosley at his trial. Resolution of the question turns almost entirely on the interpretation of a single passage in the Miranda opinion, upon which the Michigan appellate court relied in finding a per se violation of Miranda: "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody Page 423 U. S. 101 interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." 384 U.S. at 384 U. S. 473 -474. [ Footnote 7 ] This passage states that "the interrogation must cease" when the person in custody indicates that "he wishes to remain silent." It does not state under what circumstances, if any, a resumption of questioning is permissible. [ Footnote 8 ] The passage could be literally read to mean that Page 423 U. S. 102 a person who has invoked his "right to silence" can never again be subjected to custodial interrogation by any police officer at any time or place on any subject. Another possible construction of the passage would characterize "any statement taken after the person invokes his privilege" as "the product of compulsion," and would therefore mandate its exclusion from evidence, even if it were volunteered by the person in custody without any further interrogation whatever. Or the passage could be interpreted to require only the immediate cessation of questioning, and to permit a resumption of interrogation after a momentary respite. It is evident that any of these possible literal interpretations would lead to absurd and unintended results. To permit the continuation of custodial interrogation after a momentary cessation would clearly frustrate the purposes of Miranda by allowing repeated rounds of questioning to undermine the will of the person being questioned. At the other extreme, a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests. Clearly, therefore, neither this passage nor any other passage in the Miranda opinion can sensibly be read to create a per se proscription of indefinite duration upon any further questioning by any Page 423 U. S. 103 police officer on any subject, once the person in custody has indicated a desire to remain silent. [ Footnote 9 ] A reasonable and faithful interpretation of the Miranda opinion must rest on the intention of the Court in that case to adopt "fully effective means . . . to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored. . . ." 384 U.S. at 384 U. S. 479 . The critical safeguard identified in the passage at issue is a person's "right to cut off questioning." Id. at 384 U. S. 474 . Through the exercise of his option to terminate questioning, he can control the time at Page 423 U. S. 104 which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting. We therefore conclude that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his "right to cut off questioning" was "scrupulously honored." [ Footnote 10 ] A review of the circumstances leading to Mosley's confession reveals that his "right to cut off questioning" was fully respected in this case. Before his initial interrogation, Mosley was carefully advised that he was under no obligation to answer any questions and could remain silent if he wished. He orally acknowledged that he understood the Miranda warnings, and then signed a printed notification-of-rights form. When Mosley stated that he did not want to discuss the robberies, Detective Cowie immediately ceased the interrogation, and did not try either to resume the questioning or in any way to persuade Mosley to reconsider his position. After an interval of more than two hours, Mosley was questioned by another police officer at another location about an unrelated holdup murder. He was given full and complete Miranda warnings at the outset of the second interrogation. He was thus reminded again that he could remain silent and could consult with a lawyer, Page 423 U. S. 105 and was carefully given a full and fair opportunity to exercise these options. The subsequent questioning did not undercut Mosley's previous decision not to answer Detective Cowie's inquiries. Detective Hill did not resume the interrogation about the White Tower Restaurant robbery or inquire about the Blue Goose Bar robbery, but instead focused exclusively on the Leroy Williams homicide, a crime different in nature and in time and place of occurrence from the robberies for which Mosley had been arrested and interrogated by Detective Cowie. Although it is not clear from the record how much Detective Hill knew about the earlier interrogation, his questioning of Mosley about an unrelated homicide was quite consistent with a reasonable interpretation of Mosley's earlier refusal to answer any questions about the robberies. [ Footnote 11 ] This is not a case, therefore, where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to Page 423 U. S. 106 wear down his resistance and make him change his mind. In contrast to such practices, the police here immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation. The Michigan Court of Appeals viewed this case as factually similar to Westover v. United States, 384 U. S. 436 , a companion case to Miranda. But the controlling facts of the two cases are strikingly different. In Westover, the petitioner was arrested by the Kansas City police at 9:45 p.m. and taken to the police station. Without giving any advisory warnings of any kind to Westover, the police questioned him that night and throughout the next morning about various local robberies. At noon, three FBI agents took over, gave advisory warnings to Westover, and proceeded to question him about two California bank robberies. After two hours of questioning, the petitioner confessed to the California crimes. The Court held that the confession obtained by the FBI was inadmissible because the interrogation leading to the petitioner's statement followed on the heels of prolonged questioning that was commenced and continued by the Kansas City police without preliminary warnings to Westover of any kind. The Court found that "the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation," and that the belated warnings given by the federal officers were "not sufficient to protect" Westover, because, from his point of view, "the warnings came at the end of the interrogation process." Id. at 384 U. S. 497 , 384 U. S. 496 . Here, by contrast, the police gave full " Miranda warnings" to Mosley at the very outset of each interrogation, subjected him to only a brief period of initial questioning, Page 423 U. S. 107 and suspended questioning entirely for a significant period before beginning the interrogation that led to his incriminating statement. The cardinal fact of Westover -- the failure of the police officers to give any warnings whatever to the person in their custody before embarking on an intense and prolonged interrogation of him -- was simply not present in this case. The Michigan Court of Appeals was mistaken, therefore, in believing that Detective Hill's questioning of Mosley was "not permitted" by the Westover decision. 51 Mich.App. at 108, 214 N.W.2d at 566. For these reasons, we conclude that the admission in evidence of Mosley's incriminating statement did not violate the principles of Miranda v. Arizona. Accordingly, the judgment of the Michigan Court of Appeals is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] The officer testified that information supplied by an anonymous caller was the sole basis for his arrest of Mosley. [ Footnote 2 ] The original tip to Detective Cowie had, however, implicated Mosley in the Williams murder. [ Footnote 3 ] During cross-examination by Mosley's counsel at the evidentiary hearing, Detective Hill conceded that Smith, in fact, had not confessed, but had "denied a physical participation in the robbery." [ Footnote 4 ] But see n 5, infra. [ Footnote 5 ] In addition to the claim that Detective Hill's questioning violated Miranda, Mosley contended that the statement was the product of an illegal arrest, that the statement was inadmissible because he had not been taken before a judicial officer without unnecessary delay, and that it had been obtained through trickery and promises of leniency. He argued that these circumstances, either independently or in combination, required the suppression of his incriminating statement. [ Footnote 6 ] The warnings must inform the person in custody "that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U.S. at 384 U. S. 444 . [ Footnote 7 ] The present case does not involve the procedures to be followed if the person in custody asks to consult with a lawyer, since Mosley made no such request at any time. Those procedures are detailed in the Miranda opinion as follows: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." "This does not mean, as some have suggested, that each police station must have a 'station house lawyer' present at all times to advise prisoners. It does mean, however, that, if police propose to interrogate a person, they must make known to him that he is entitled to a lawyer and that, if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time." Id. at 384 U. S. 474 . [ Footnote 8 ] The Court did state in a footnote: "If an individual indicates his desire to remain silent, but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements." Id. at 384 U. S. 474 n. 44. This footnote in the Miranda opinion is not relevant to the present case, since Mosley did not have an attorney present at the time he declined to answer Detective Cowie's questions, and the officer did not continue to question Mosley, but instead ceased the interrogation in compliance with Miranda's dictates. [ Footnote 9 ] It is instructive to note that the vast majority of federal and state courts presented with the issue have concluded that the Miranda opinion does not create a per se proscription of any further interrogation once the person being questioned has indicated a desire to remain silent. See Hill v. Whealon, 490 F.2d 629, 630, 635 (CA6 1974); United States v. Collins, 462 F.2d 792, 802 (CA2 1972) (en banc); Jennings v. United States, 391 F.2d 512, 515-516 (CA5 1968); United States v. Choice, 392 F. Supp. 460 , 466-467 (ED Pa.1975); McIntyre v. New York, 329 F. Supp. 9 , 13-14 (EDNY 1971); People v. Naranjo, 181 Colo. 273, 277-278, 509 P.2d 1235 , 1237 (1973); People v. Pittman, 55 Ill. 2d 39 , 54-56, 302 N.E.2d 7 , 16-17 (1973); State v. McClelland, 164 N.W.2d 189 , 192-196 (Iowa 1969); State v. Law, 214 Kan. 643, 647-649, 522 P.2d 320 , 324-325 (1974); Conway v. State, 7 Md.App. 400, 405-411, 256 A.2d 178 , 181-184 (1969); State v. O'Neill, 299 Minn. 60, 70-71, 216 N.W.2d 822 , 829 (1974); State v. Godfrey, 182 Neb. 451, 454-457, 155 N.W.2d 438 , 440-442 (1968); People v. Gar, 31 N.Y.2d 68, 69-70, 286 N.E.2d 263, 264 (197.2); State v. Bishop, 272 N.C. 283, 296-297, 158 S.E.2d 511 , 520 (1968); Commonwealth v. Grandison, 449 Pa. 231, 233-234, 296 A.2d 730, 731 (1972); State v. Robinson, 87 S.D. 375, 378, 209 N.W.2d 374 , 375-377 (1973); Hill v. State, 429 S.W.2d 481 , 486-487 (Tex.Crim.App. 1968); State v. Estrada, 63 Wis.2d 476, 486-488, 217 N.W.2d 359 , 365-366 (1974). See also People v. Fioritto, 68 Cal. 2d 714 , 717-720, 441 P.2d 625, 626-628 (1968) (permitting the suspect but not the police to initiate further questioning). Citation of the above cases does not imply a view of the merits of any particular decision. [ Footnote 10 ] The dissenting opinion asserts that Miranda established a requirement that, once a person has indicated a desire to remain silent, questioning may be resumed only when counsel is present. Post at 423 U. S. 116 -117. But clearly the Court in Miranda imposed no such requirement, for it distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney and directed that "the interrogation must cease until an attorney is present" only "[i]f the individual states that he wants an attorney." 384 U.S. at 384 U. S. 474 . [ Footnote 11 ] Detective Cowie gave the only testimony at the suppression hearing concerning the scope of Mosley's earlier refusal to answer his questions: "A. I think at that time he declined to answer whether he had been involved." "Q. He declined to answer?" "A. Yes. Anything about the robberies." At the suppression hearing, Mosley did not in any way dispute Cowie's testimony. Not until trial, after the judge had denied the motion to suppress the incriminating statement, did Mosley offer a somewhat different version of his earlier refusal to answer Detective Cowie's questions. The briefs submitted by Mosley's counsel to the Michigan Court of Appeals and to this Court accepted Detective Cowie's account of the interrogation as correct, and the Michigan Court of Appeals decided the case on that factual premise. At oral argument before this Court, both counsel discussed the case solely in terms of Cowie's description of the events. MR. JUSTICE WHITE, concurring in the result. I concur in the result and in much of the majority's reasoning. However, it appears to me that, in an effort to make only a limited holding in this case, the majority has implied that some custodial confessions will be suppressed even though they follow an informed and voluntary waiver of the defendant's rights. The majority seems to say that a statement obtained within some unspecified time after an assertion by an individual of his "right to silence" is always inadmissible, even if it was the result of an informed and voluntary decision -- following, for example, a disclosure to such an individual of a piece of information bearing on his waiver decision which the police had failed to give him prior to his assertion of the privilege but which they gave him immediately thereafter. Indeed, ante at 423 U. S. 102 , the majority characterizes Page 423 U. S. 108 as "absurd" any contrary rule. I disagree. I do not think the majority's conclusion is compelled by Miranda v. Arizona, 384 U. S. 436 (1966), and I suspect that, in the final analysis, the majority will adopt voluntariness as the standard by which to judge the waiver of the right to silence by a properly informed defendant. I think the Court should say so now. Miranda holds that custody creates an inherent compulsion on an individual to incriminate himself in response to questions, and that statements obtained under such circumstances are therefore obtained in violation of the Fifth Amendment privilege against compelled testimonial self-incrimination unless the privilege is "knowingly and intelligently waived." Id. at 384 U. S. 471 , 384 U. S. 475 . It also holds that an individual will not be deemed to have made a knowing and intelligent waiver of his "right to silence" unless the authorities have first informed him, inter alia, of that right -- "the threshold requirement for an intelligent decision as to its exercise." Id. at 384 U. S. 468 . I am no more convinced that Miranda was required by the United States Constitution than I was when it was decided. However, there is at least some support in the law both before and after Miranda for the proposition that some rights will never be deemed waived unless the defendant is first expressly advised of their existence. E.g., Carnley v. Cochran, 369 U. S. 506 (1962); Boykin v. Alabama, 395 U. S. 238 (1969); Fed.Rules Crim.Proc. 11, 32(a)(2). There is little support in the law or in common sense for the proposition that an informed waiver of a right may be ineffective even where voluntarily made. Indeed, the law is exactly to the contrary, e.g., Tollett v. Henderson, 411 U. S. 258 (1973); Brady v. United States, 397 U. S. 742 (1970); McMann v. Richardson, 397 U. S. 759 (1970); Parker v. North Carolina, 397 U. S. 790 (1970). Unless an individual is Page 423 U. S. 109 incompetent, we have in the past rejected any paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case; Faretta v. California, 422 U. S. 806 (1975). To do so would be to "imprison a man in his privileges," [ Footnote 2/1 ] Adams v. United States ex rel. McCann, 317 U. S. 269 , 317 U. S. 280 (1942), and to disregard " that respect for the individual which is the lifeblood of the law,'" Faretta v. California, supra at 422 U. S. 834 . I am very reluctant to conclude that Miranda stands for such a proposition. The language of Miranda no more compels such a result than does its basic rationale. As the majority points out, the statement in Miranda, 384 U.S. at 384 U. S. 474 , requiring interrogation to cease after an assertion of the "right to silence" tells us nothing, because it does not indicate how soon this interrogation may resume. The Court showed in the very next paragraph, moreover, that, when it wanted to create a per se rule against further interrogation after assertion of a right, it knew how to do so. The Court there said "[i]f the individual states that he Page 423 U. S. 110 wants an attorney, the interrogation must cease until an attorney is present. " Ibid. [ Footnote 2/2 ] However, when the individual indicates that he will decide unaided by counsel whether or not to assert his "right to silence" the situation is different. In such a situation, the Court in Miranda simply said: "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 384 U. S. 475 . Apparently, although placing a heavy burden on the government, Miranda intended waiver of the "right to silence" to be tested by the normal standards. In any event, insofar as the Miranda decision might be read to require interrogation to cease for some magical and unspecified period of time following an assertion of the "right to silence," and to reject voluntariness as the standard by which to judge informed waivers of that right, it should be disapproved as inconsistent with otherwise uniformly applied legal principles. In justifying the implication that questioning must inevitably cease for some unspecified period of time following an exercise of the "right to silence," the majority Page 423 U. S. 111 says only that such a requirement would be necessary to avoid "undermining" "the will of the person being questioned." Yet surely a waiver of the "right to silence" obtained by "undermining the will" of the person being questioned would be considered an involuntary waiver. Thus, in order to achieve the majority's only stated purpose, it is sufficient to exclude all confessions which are the result of involuntary waivers. To exclude any others is to deprive the factfinding process of highly probative information for no reason at all. The "repeated rounds" of questioning following an assertion of the privilege, which the majority is worried about, would, of course, count heavily against the State in any determination of voluntariness -- particularly if no reason (such as new facts communicated to the accused or a new incident being inquired about) appeared for repeated questioning. There is no reason, however, to rob the accused of the choice to answer questions voluntarily for some unspecified period of time following his own previous contrary decision. The Court should now so state. [ Footnote 2/1 ] The majority's rule may cause an accused injury. Although a recently arrested individual may have indicated an initial desire not to answer questions, he would nonetheless want to know immediately -- if it were true -- that his ability to explain a particular incriminating fact or to supply an alibi for a particular time period would result in his immediate release. Similarly, he might wish to know -- if it were true -- that (1) the case against him was unusually strong and that (2) his immediate cooperation with the authorities in the apprehension and conviction of others or in the recovery of property would redound to his benefit in the form of a reduced charge. Certainly the individual's lawyer, if he had one, would be interested in such information, even if communication of such information followed closely on an assertion of the "right to silence." Where the individual has not requested counsel and has chosen instead to make his own decisions regarding his conversations with the authorities, he should not be deprived even temporarily of any information relevant to the decision. [ Footnote 2/2 ] The question of the proper procedure following expression by an individual of his desire to consult counsel is not presented in this case. It is sufficient to note that the reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates instead that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism. MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, dissenting. The Court focuses on the correct passage from Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 473 -474 (1966) (footnote omitted): "Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to Page 423 U. S. 112 cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." But the process of eroding Miranda rights, begun with Harris v. New York, 401 U. S. 222 (1971), continues with today's holding that police may renew the questioning of a suspect who has once exercised his right to remain silent, provided the suspect's right to cut off questioning has been "scrupulously honored." Today's distortion of Miranda's constitutional principles can be viewed only as yet another step in the erosion, and, I suppose, ultimate overruling, of Miranda's enforcement of the privilege against self-incrimination. The Miranda guidelines were necessitated by the inherently coercive nature of in-custody questioning. As in Escobedo v. Illinois, 378 U. S. 478 (1964), "we sought a protective device to dispel the compelling atmosphere of the interrogation." 384 U.S. at 384 U. S. 465 . We "concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 384 U. S. 467 . [ Footnote 3/1 ] To assure safeguards that promised to dispel the "inherently compelling pressures" of in-custody interrogation, a prophylactic rule was fashioned to supplement the traditional determination of voluntariness on the facts of each case. Miranda held that any confession obtained when not preceded by the required warnings Page 423 U. S. 113 or an adequate substitute safeguard was per se inadmissible in evidence. Id. at 384 U. S. 468 -469, 384 U. S. 479 . Satisfaction of this prophylactic rule, therefore, was necessary, though not sufficient, for the admission of a confession. Certiorari was expressly granted in Miranda "to give concrete constitutional guidelines for law enforcement agencies and courts to follow," id. at 384 U. S. 441 -442, that is, clear, objective standards that might be applied to avoid the vagaries of the traditional voluntariness test. The task that confronts the Court in this case is to satisfy the Miranda approach by establishing "concrete constitutional guidelines" governing the resumption of questioning a suspect who, while in custody, has once clearly and unequivocally "indicate[d] . . . that he wishes to remain silent. . . ." As the Court today continues to recognize, under Miranda, the cost of assuring voluntariness by procedural tests, independent of any actual inquiry into voluntariness, is that some voluntary statements will be excluded. Ante at 423 U. S. 99 -100. Thus, the consideration in the task confronting the Court is not whether voluntary statements will be excluded, but whether the procedures approved will be sufficient to assure with reasonable certainty that a confession is not obtained under the influence of the compulsion inherent in interrogation and detention. The procedures approved by the Court today fail to provide that assurance. We observed in Miranda: "Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances, the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion Page 423 U. S. 114 of a voluntary relinquishment of the privilege." 384 U.S. at 384 U. S. 476 . And, as that portion of Miranda which the majority finds controlling observed, "the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." Id. at 384 U. S. 474 . Thus, as to statements which are the product of renewed questioning, Miranda established a virtually irrebuttable presumption of compulsion, see id. at 384 U. S. 474 n. 44, and that presumption stands strongest where, as in this case, a suspect, having initially determined to remain silent, is subsequently brought to confess his crime. Only by adequate procedural safeguards could the presumption be rebutted. In formulating its procedural safeguard, the Court skirts the problem of compulsion, and thereby fails to join issue with the dictates of Miranda. The language which the Court finds controlling in this case teaches that renewed questioning itself is part of the process which invariably operates to overcome the will of a suspect. That teaching is embodied in the form of a proscription on any further questioning once the suspect has exercised his right to remain silent. Today's decision uncritically abandons that teaching. The Court assumes, contrary to the controlling language, that "scrupulously honoring" an initial exercise of the right to remain silent preserves the efficaciousness of initial and future warnings despite the fact that the suspect has once been subjected to interrogation and then has been detained for a lengthy period of time. Observing that the suspect can control the circumstances of interrogation "[t]hrough the exercise of his option to terminate questioning," the Court concludes "that the admissibility of statements obtained after the person in custody has decided to remain silent depends . . . Page 423 U. S. 115 on whether his 'right to cut off questioning' was 'scrupulously honored.'" Ante at 423 U. S. 103 , 423 U. S. 104 . But scrupulously honoring exercises of the right to cut off questioning is only meaningful insofar as the suspect's will to exercise that right remains wholly unfettered. The Court's formulation thus assumes the very matter at issue here: whether renewed questioning following a lengthy period of detention acts to overbear the suspect's will, irrespective of giving the Miranda warnings a second time (and scrupulously honoring them), thereby rendering inconsequential any failure to exercise the right to remain silent. For the Court, it is enough conclusorily to assert that "[t]he subsequent questioning did not undercut Mosley's previous decision not to answer Detective Cowie's inquiries." Ante at 423 U. S. 105 . Under Miranda, however, Mosley's failure to exercise the right upon renewed questioning is presumptively the consequence of an overbearing in which detention and that subsequent questioning played central roles. I agree that Miranda is not to be read, on the one hand, to impose an absolute ban on resumption of questioning "at any time or place on any subject," ante at 423 U. S. 102 , or, on the other hand, "to permit a resumption of interrogation after a momentary respite," ibid. But this surely cannot justify adoption of a vague and ineffective procedural standard that falls somewhere between those absurd extremes, for Miranda, in flat and unambiguous terms, requires that questioning "cease" when a suspect exercises the right to remain silent. Miranda's terms, however, are not so uncompromising as to preclude the fashioning of guidelines to govern this case. Those guidelines must, of course, necessarily be sensitive to the reality that, "[a]s a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, Page 423 U. S. 116 where there are often impartial observers to guard against intimidation or trickery." 384 U.S. at 384 U. S. 461 (footnote omitted). The fashioning of guidelines for this case is an easy task. Adequate procedures are readily available. Michigan law requires that the suspect be arraigned before a judicial officer "without unnecessary delay," [ Footnote 3/2 ] certainly not a burdensome requirement. Alternatively, a requirement that resumption of questioning should await appointment and arrival of counsel for the suspect would be an acceptable and readily satisfied precondition to resumption. [ Footnote 3/3 ] Miranda expressly held that "[t]he presence of counsel . . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege [against self-incrimination]." Id. at 384 U. S. 466 . The Court expediently bypasses this alternative in its search for circumstances where renewed questioning would be permissible. [ Footnote 3/4 ] Indeed, language in Miranda suggests that the Page 423 U. S. 117 presence of counsel is the only appropriate alternative. In categorical language, we held in Miranda: "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Id. at 384 U. S. 473 -474. We then immediately observed: "If an individual indicates his desire to remain silent but has an attorney present, there may be some circumstances in which further questioning would be permissible. In the absence of evidence of overbearing, statements then made in the presence of counsel might be free of the compelling influence of the interrogation process and might fairly be construed as a waiver of the privilege for purposes of these statements." Id. at 384 U. S. 474 n. 44 (emphasis added). This was the only circumstance in which we at all suggested that questioning could be resumed, and, even then, further questioning was not permissible in all such circumstances, for compulsion was still the presumption not easily dissipated. [ Footnote 3/5 ] Page 423 U. S. 118 These procedures would be wholly consistent with the Court's rejection of a " per se proscription of indefinite duration," ante at 423 U. S. 102 , a rejection to which I fully subscribe. Today's decision, however, virtually empties Miranda of principle, for plainly the decision encourages police asked to cease interrogation to continue the suspect's detention until the police station's coercive atmosphere does its work, and the suspect responds to resumed questioning. [ Footnote 3/6 ] Today's rejection of that reality of life contrasts sharply with the Court's acceptance only two years ago that, "[i]n Miranda, the Court found that the techniques of police questioning and the nature of custodial surroundings produce an inherently coercive situation." Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 247 (1973). I can only conclude that today's decision signals rejection of Miranda's basic premise. My concern with the Court's opinion does not end with its treatment of Miranda, but extends to its treatment of the facts in this case. The Court's effort to have the Williams homicide appear as "an unrelated holdup murder," ante at 423 U. S. 104 , is patently unsuccessful. The anonymous tip received by Detective Cowie, conceded by the Court to be the sole basis for Mosley's arrest, ante at 423 U. S. 97 n. 1, embraced both the robberies covered in Cowie's interrogation Page 423 U. S. 119 and the robbery-murder of Williams, ante at 423 U. S. 98 n. 2, about which Detective Hill questioned Mosley. Thus, when Mosley was apprehended, Cowie suspected him of being involved in the Williams robbery-murder in addition to the robberies about which he tried to examine Mosley. On another matter, the Court treats the second interrogation as being "at another location," ante at 423 U. S. 104 . Yet the fact is that it was merely a different floor of the same building, ante at 423 U. S. 97 -98. [ Footnote 3/7 ] I also find troubling the Court's finding that Mosley never indicated that he did not want to discuss the robbery-murder, see ante at 423 U. S. 104 -106. I cannot read Cowie's testimony as the Court does. Cowie testified that Mosley Page 423 U. S. 120 declined to answer " [a]nything about the robberies,'" ante at 423 U. S. 105 n. 11. That can be read only against the background of the anonymous tip that implicated Mosley in the Williams incident. Read in that light, it may reasonably be inferred that Cowie understood "[a]nything" to include the Williams episode, since the anonymous tip embraced that episode. More than this, the Court's reading of Cowie's testimony is not even faithful to the standard it articulates here today. "Anything about the robberies" may more than reasonably be interpreted as comprehending the Williams murder, which occurred during a robbery. To interpret Mosley's alleged statement to the contrary, therefore, hardly honors "scrupulously" the suspect's rights. In light of today's erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U. S. 714 , 420 U. S. 719 (1975); [ Footnote 3/8 ] Lego v. Twomey, 404 U. S. 477 , 404 U. S. 489 (1972); Cooper v. California, 386 U. S. 58 , 386 U. S. 62 (1967). A decision particularly bearing upon the question of the adoption of Miranda as state law is Commonwealth v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). There, the Pennsylvania Supreme Court adopted an aspect of Miranda as state law. This Court, on March 20, Page 423 U. S. 121 1972, granted the Commonwealth's petition for certiorari to review that decision. 405 U.S. 987. A month later, however, the error of the grant having been made apparent, the Court vacated the order of March 20, "it appearing that the judgment below rests upon an adequate state ground." 406 U.S. 910. Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court. See, e.g., State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (rejecting Harris v. New York, 401 U. S. 222 (1971)); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), cert. denied, post, p. 878 (rejecting United States v. White, 401 U. S. 745 (1971)); State v. Johnson, 68 N.J. 349, 346 A.2d 66 (1975) (rejecting Schneckloth v. Bustamonte, 412 U. S. 218 (1973)); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969 (1974) (adopting "same transaction or occurrence" view of Double Jeopardy Clause). I note that Michigan's Constitution has its own counterpart to the privilege against self-incrimination. Mich.Const., Art. 1, § 17; see State v. Johnson, supra. [ Footnote 3/1 ] The Court said further: "Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." 384 U.S. at 384 U. S. 458 . [ Footnote 3/2 ] Mich.Comp.Laws §§ 764.13, 764.26 (1970); Mich.Stat.Ann. §§ 28.871(1), 28.885 (1972). Detective Cowie's testimony indicated that a judge was available across the street from the police station in which Mosley was held from 2:15 p.m. until 4 p.m. or 4:30 p.m. App. 13. The actual interrogation of Mosley, however, covered only 15 or 20 minutes of this time. Id. at 14. The failure to comply with a simple state law requirement in these circumstances is totally at odds with the holding that the police "scrupulously honored" Mosley's rights. [ Footnote 3/3 ] In addition, a break in custody for a substantial period of time would permit -- indeed it would require -- law enforcement officers to give Miranda warnings a second time. [ Footnote 3/4 ] I do not mean to imply that counsel may be forced on a suspect who does not request an attorney. I suggest only that either arraignment or counsel must be provided before resumption of questioning to eliminate the coercive atmosphere of in-custody interrogation. The Court itself apparently proscribes resuming questioning until counsel is present if an accused has exercised the right to have an attorney present at questioning. Ante at 423 U. S. 101 n. 7. [ Footnote 3/5 ] The Court asserts that this language is not relevant to the present case, for "Mosley did not have an attorney present at the time he declined to answer Detective Cowie's questions." Ante at 423 U. S. 102 n. 8. The language, however, does not compel a reading that it is applicable only if counsel is present when the suspect initially exercises his right to remain silent. Even if it did, this would only indicate that Miranda placed even stiffer limits on the circumstances when questioning may be resumed than I suggest here. Moreover, since the concern in Miranda was with assuring the absence of compulsion upon renewed questioning, it makes little difference whether counsel is initially present. Thus, even if the language does not specifically address the situation where counsel is not initially present, it certainly contemplates that situation. The Court also asserts that Miranda "directed that the interrogation must cease until an attorney is present' only `[i]f the individual states that he wants an attorney.'" Ante at 423 U. S. 104 n. 10 (quoting 384 U.S. at 384 U. S. 474 ). This is patently inaccurate. The language from the quoted portion of Miranda actually reads: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." [ Footnote 3/6 ] I do not suggest that the Court's opinion is to be read as permitting unreasonably lengthy detention without arraignment so long as any exercise of rights by a suspect is "scrupulously honored." The question of whether there is some constitutional limitation on the length of time police may detain a suspect without arraignment, cf. Gerstein v. Pugh, 420 U. S. 103 (1975); Mallory v. United States, 354 U. S. 449 (1957); McNabb v. United States, 318 U. S. 332 (1943), is an open one, and is not now before the Court. [ Footnote 3/7 ] See Westover v. United States, 384 U. S. 436 , 384 U. S. 494 (1966), where Westover confessed after being turned over to the FBI following questioning by local police. We said: "Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. . . ." "We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station -- in the same compelling surroundings. Thus, in obtaining a confession from Westover, the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances, the giving of warnings alone was not sufficient to protect the privilege." Id. at 384 U. S. 496 -497. It is no answer to say that the questioning was resumed by a second police officer. Surely Santobello v. New York, 404 U. S. 257 , 404 U. S. 262 (1971), requires that the case be decided as if it involved two interrogation sessions by a single law enforcement officer. [ Footnote 3/8 ] Although my Brother MARSHALL correctly argued in Hass, 420 U.S. at 420 U. S. 728 (dissenting), that we should have remanded for the state court to clarify whether it was relying on state or federal law, such a disposition is not required here. In Hass, the state court cited both federal and state authority; in this case, Mosley's counsel has conceded that the self-incrimination argument in the state court was based solely on the Fifth Amendment to the Federal Constitution. Tr. of Oral Arg. 44.

Here is a summary of the case: The Supreme Court ruled that the police did not violate Richard Bert Mosley's Miranda rights when they questioned him about an unrelated murder after he had previously declined to answer questions about robberies. The Court found that Mosley's right to cut off questioning was "scrupulously honored" as the police immediately ceased the robbery interrogation and waited a significant amount of time before questioning him about the murder, and only after providing a fresh set of Miranda warnings. The Court distinguished this case from Westover v. United States, where the defendant confessed after being questioned by different law enforcement authorities without a break or change in surroundings. The Court also noted that there may be constitutional limits on how long the police can detain a suspect without arraignment, but that issue was not relevant to this case.

Miranda Rights

Rhode Island v. Innis

https://supreme.justia.com/cases/federal/us/446/291/

U.S. Supreme Court Rhode Island v. Innis, 446 U.S. 291 (1980) Rhode Island v. Innis No. 78-1076 Argued October 30, 1979 Decided May 12, 1980 446 U.S. 291 CERTIORARI TO THE SUPREME COURT OF RHODE ISLAND Syllabus Shortly after a taxicab driver, who had been robbed by a man wielding a sawed-off shotgun, identified a picture of respondent as that of his assailant, a Providence, R.I., patrolman spotted respondent, who was unarmed, on the street, arrested him, and advised him of his rights under Miranda v. Arizona, 384 U. S. 436 . When other police officers arrived at the arrest scene, respondent was twice again advised of his Miranda rights, and he stated that he understood his rights and wanted to speak with a lawyer. Respondent was then placed in a police car to be driven to the central station in the company of three officers, who were instructed not to question respondent or intimidate him in any way. While en route to the station, two of the officers engaged in a conversation between themselves concerning the missing shotgun. One of the officers stated that there were "a lot of handicapped children running around in this area" because a school for such children was located nearby, and "God forbid one of them might find a weapon with shells and they might hurt themselves." Respondent interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. Upon returning to the scene of the arrest where a search for the shotgun was in progress, respondent was again advised of his Miranda rights, replied that he understood those rights, but that he "wanted to get the gun out of the way because of the kids in the area in the school," and then led the police to the shotgun. Before trial on charges of kidnaping, robbery, and murder of another taxicab driver, the trial court denied respondent's motion to suppress the shotgun and the statement he had made to the police regarding its discovery, ruling that respondent had waived his Miranda rights, and respondent was subsequently convicted. The Rhode Island Supreme Court set aside the conviction and held that respondent was entitled to a new trial, concluding that respondent had invoked his Miranda right to counsel and that, contrary to Miranda 's mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had "interrogated" respondent without a valid waiver of his right to counsel. Held: Respondent was not "interrogated" in violation of his right under Miranda to remain silent until he had consulted with a lawyer. Pp. 446 U. S. 297 -303. Page 446 U. S. 292 (a) The Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Pp. 446 U. S. 298 -302. (b) Here, there was no express questioning of respondent; the conversation between the two officers was, at least in form, nothing more than a dialogue between them to which no response from respondent was invited. Moreover, respondent was not subjected to the "functional equivalent" of questioning, since it cannot be said that the officers should have known that their conversation was reasonably likely to elicit an incriminating response from respondent. There is nothing in the record to suggest that the officers were aware that respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children, or that the police knew that respondent was unusually disoriented or upset at the time of his arrest. Nor does the record indicate that, in the context of a brief conversation, the officers should have known that respondent would suddenly be moved to make a self-incriminating response. While it may be said that respondent was subjected to "subtle compulsion," it must also be established that a suspect's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response, which was not established here. Pp. 446 U. S. 302 -303. 120 R.I. ___, 391 A.2d 1158 , vacated and remanded. STEWART, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 446 U. S. 304 . BURGER, C.J., filed an opinion concurring in the judgment, post, p. 446 U. S. 304 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 446 U. S. 305 . STEVENS, J., filed a dissenting opinion, post, p. 446 U. S. 307 . Page 446 U. S. 293 MR. JUSTICE STEWART delivered the opinion of the Court. In Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 474 , the Court held that, once a defendant in custody asks to speak with a lawyer, all interrogation must cease until a lawyer is present. The issue in this case is whether the respondent was "interrogated" in violation of the standards promulgated in the Miranda opinion. I On the night of January 12, 1975, John Mulvaney, a Providence, R.I., taxicab driver, disappeared after being dispatched to pick up a customer. His body was discovered four days later buried in a shallow grave in Coventry, R.I. He had died from a shotgun blast aimed at the back of his head. On January 17, 1975, shortly after midnight, the Providence police received a telephone call from Gerald Aubin, also a taxicab driver, who reported that he had just been robbed by a man wielding a sawed-off shotgun. Aubin further reported that he had dropped off his assailant near Rhode Island College in a section of Providence known as Mount Pleasant. While at the Providence police station waiting to give a statement, Aubin noticed a picture of his assailant on a bulletin board. Aubin so informed one of the police officers present. The officer prepared a photo array, and again Aubin identified a picture of the same person. That person was the respondent. Shortly thereafter, the Providence police began a search of the Mount Pleasant area. At approximately 4:30 a.m. on the same date, Patrolman Lovell, while cruising the streets of Mount Pleasant in a patrol Page 446 U. S. 294 car, spotted the respondent standing in the street facing him. When Patrolman Lovell stopped his car, the respondent walked towards it. Patrolman Lovell then arrested the respondent, who was unarmed, and advised him of his so-called Miranda rights. While the two men waited in the patrol car for other police officers to arrive, Patrolman Lovell did not converse with the respondent other than to respond to the latter's request for a cigarette. Within minutes, Sergeant Sears arrived at the scene of the arrest, and he also gave the respondent the Miranda warnings. Immediately thereafter, Captain Leyden and other police officers arrived. Captain Leyden advised the respondent of his Miranda rights. The respondent stated that he understood those rights and wanted to speak with a lawyer. Captain Leyden then directed that the respondent be placed in a "caged wagon," a four-door police car with a wire screen mesh between the front and rear seats, and be driven to the central police station. Three officers, Patrolmen Gleckman, Williams, and McKenna, were assigned to accompany the respondent to the central station. They placed the respondent in the vehicle and shut the doors. Captain Leyden then instructed the officers not to question the respondent or intimidate or coerce him in any way. The three officers then entered the vehicle, and it departed. While en route to the central station, Patrolman Gleckman initiated a conversation with Patrolman McKenna concerning the missing shotgun. [ Footnote 1 ] As Patrolman Gleckman later testified: "A. At this point, I was talking back and forth with Patrolman McKenna, stating that I frequent this area while on patrol, and [that, because a school for handicapped children is located nearby,] there's a lot of handicapped children running around in this area, and God Page 446 U. S. 295 forbid one of them might find a weapon with shells and they might hurt themselves." App. 43-44. Patrolman McKenna apparently shared his fellow officer's concern: "A. I more or less concurred with him [Gleckman] that it was a safety factor, and that we should, you know, continue to search for the weapon and try to find it." Id. at 53. While Patrolman Williams said nothing, he overheard the conversation between the two officers: "A. He [Gleckman] said it would be too bad if the little -- I believe he said a girl -- would pick up the gun, maybe kill herself." Id. at 59. The respondent then interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located. At this point, Patrolman McKenna radioed back to Captain Leyden that they were returning to the scene of the arrest, and that the respondent would inform them of the location of the gun. At the time the respondent indicated that the officers should turn back, they had traveled no more than a mile, a trip encompassing only a few minutes. The police vehicle then returned to the scene of the arrest, where a search for the shotgun was in progress. There, Captain Leyden again advised the respondent of his Miranda rights. The respondent replied that he understood those rights, but that he "wanted to get the gun out of the way because of the kids in the area in the school." The respondent then led the police to a nearby field, where he pointed out the shotgun under some rocks by he side of the road. On March 20, 1975, a grand jury returned an indictment charging the respondent with the kidnaping, robbery, and murder of John Mulvaney. Before trial, the respondent moved to suppress the shotgun and the statements he had Page 446 U. S. 296 made to the police regarding it. After an evidentiary hearing at which the respondent elected not to testify, the trial judge found that the respondent had been "repeatedly and completely advised of his Miranda rights." He further found that it was "entirely understandable that [the officers in the police vehicle] would voice their concern [for the safety of the handicapped children] to each other." The judge then concluded that the respondent's decision to inform the police of the location of the shotgun was "a waiver, clearly, and on the basis of the evidence that I have heard, and [ sic ] intelligent waiver, of his [ Miranda ] right to remain silent." Thus, without passing on whether the police officers had, in fact, "interrogated" the respondent, the trial court sustained the admissibility of the shotgun and testimony related to its discovery. That evidence was later introduced at the respondent's trial, and the jury returned a verdict of guilty on all counts. On appeal, the Rhode Island Supreme Court, in a 3-2 decision, set aside the respondent's conviction. 120 R.I. ___, 391 A.2d 1158 . Relying at least in part on this Court's decision in Brewer v. Williams, 430 U. S. 387 , the court concluded that the respondent had invoked his Miranda right to counsel, and that, contrary to Miranda's mandate that, in the absence of counsel, all custodial interrogation then cease, the police officers in the vehicle had "interrogated" the respondent without a valid waiver of his right to counsel. It was the view of the state appellate court that, even though the police officers may have been genuinely concerned about the public safety, and even though the respondent had not been addressed personally by the police officers, the respondent nonetheless had been subjected to "subtle coercion" that was the equivalent of "interrogation" within the meaning of the Miranda opinion. Moreover, contrary to the holding of the trial court, the appellate court concluded that the evidence was insufficient to support a finding of waiver. Having Page 446 U. S. 297 concluded that both the shotgun and testimony relating to its discovery were obtained in violation of the Miranda standards, and therefore should not have been admitted into evidence, the Rhode Island Supreme Court held that the respondent was entitled to a new trial. We granted certiorari to address for the first time the meaning of "interrogation" under Miranda v. Arizona, 440 U.S. 934. II In its Miranda opinion, the Court concluded that, in the context of "custodial interrogation," certain procedural safeguards are necessary to protect a defendant's Fifth and Fourteenth Amendment privilege against compulsory self-incrimination. More specifically, the Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 384 U. S. 444 . Those safeguards included the now familiar Miranda warnings -- namely, that the defendant be informed "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires" -- or their equivalent. Id. at 384 U. S. 479 . The Court in the Miranda opinion also outlined in some detail the consequences that would result if a defendant sought to invoke those procedural safeguards. With regard to the right to the presence of counsel, the Court noted: "Once warnings have been given, the subsequent procedure is clear. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to Page 446 U. S. 298 have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id. at 384 U. S. 473 -474. In the present case, the parties are in agreement that the respondent was fully informed of his Miranda rights, and that he invoked his Miranda right to counsel when he told Captain Leyden that he wished to consult with a lawyer. It is also uncontested that the respondent was "in custody" while being transported to the police station. The issue, therefore, is whether the respondent was "interrogated" by the police officers in violation of the respondent's undisputed right under Miranda to remain silent until he had consulted with a lawyer. [ Footnote 2 ] In resolving this issue, we first define the term "interrogation" under Miranda, before turning to a consideration of the facts of this case. A The starting point for defining "interrogation" in this context is, of course, the Court's Miranda opinion. There the Court observed that, "[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 384 U. S. 44 (emphasis added). This passage and other references throughout the opinion to "questioning" might suggest that the Miranda rules were to apply only to those police interrogation practices that involve express questioning of a defendant while in custody. Page 446 U. S. 299 We do not, however, construe the Miranda opinion so narrowly. The concern of the Court in Miranda was that the "interrogation environment" created by the interplay of interrogation and custody would "subjugate the individual to the will of his examiner," and thereby undermine the privilege against compulsory self-incrimination. Id. at 384 U. S. 457 -458. The police practices that evoked this concern included several that did not involve express questioning. For example, one of the practices discussed in Miranda was the use of lineups in which a coached witness would pick the defendant as the perpetrator. This was designed to establish that the defendant was, in fact, guilty as a predicate for further interrogation. Id. at 384 U. S. 453 . A variation on this theme discussed in Miranda was the so-called "reverse line-up" in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime, with the object of inducing him to confess to the actual crime of which he was suspected in order to escape the false prosecution. Ibid. The Court in Miranda also included in its survey of interrogation practices the use of psychological ploys, such as to "posi[t]" "the guilt of the subject," to "minimize the moral seriousness of the offense," and "to cast blame on the victim or on society." Id. at 384 U. S. 450 . It is clear that these techniques of persuasion, no less than express questioning, were thought, in a custodial setting, to amount to interrogation. [ Footnote 3 ] This is not to say, however, that all statements obtained by the police after a person has been taken into custody are to be considered the product of interrogation. As the Court in Miranda noted: "Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without Page 446 U. S. 300 any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today." Id. at 384 U. S. 478 (emphasis added). It is clear, therefore, that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. "Interrogation," as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself. [ Footnote 4 ] We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express Page 446 U. S. 301 questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response [ Footnote 5 ] from the suspect. [ Footnote 6 ] The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. [ Footnote 7 ] But, since the police surely Page 446 U. S. 302 cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [ Footnote 8 ] B Turning to the facts of the present case, we conclude that the respondent was not "interrogated" within the meaning of Miranda. It is undisputed that the first prong of the definition of "interrogation" was not satisfied, for the conversation between Patrolmen Gleckman and McKenna included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited. Moreover, it cannot be fairly concluded that the respondent was subjected to the "functional equivalent" of questioning. It cannot be said, in short, that Patrolmen Gleckman and McKenna should have known that their conversation was reasonably likely to elicit an incriminating response from the respondent. There is nothing in the record to suggest that the officers were aware that the respondent was peculiarly susceptible to an appeal to his conscience concerning the safety of handicapped children. Nor is there anything in the Page 446 U. S. 303 record to suggest that the police knew that the respondent was unusually disoriented or upset at the time of his arrest. [ Footnote 9 ] The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off-hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent's contention that, under the circumstances, the officers' comments were particularly "evocative." It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him. The Rhode Island Supreme Court erred, in short, in equating "subtle compulsion" with interrogation. That the officers' comments struck a responsive chord is readily apparent. Thus, it may be said, as the Rhode Island Supreme Court did say, that the respondent was subjected to "subtle compulsion." But that is not the end of the inquiry. It must also be established that a suspect's incriminating response was the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response. [ Footnote 10 ] This was not established in the present case. Page 446 U. S. 304 For the reasons stated, the judgment of the Supreme Court of Rhode Island is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Although there was conflicting testimony about the exact seating arrangements, it is clear that everyone in the vehicle heard the conversation. [ Footnote 2 ] Since we conclude that the respondent was not "interrogated" for Miranda purposes, we do not reach the question whether the respondent waived his right under Miranda to be free from interrogation until counsel was present. [ Footnote 3 ] To limit the ambit of Miranda to express questioning would "place a premium on the ingenuity of the police to devise methods of indirect interrogation, rather than to implement the plain mandate of Miranda. " Commonwealth v. Hamilton, 945 Pa. 292, 297, 285 A.2d 172, 175. [ Footnote 4 ] There is language in the opinion of the Rhode Island Supreme Court in this case suggesting that the definition of "interrogation" under Miranda is informed by this Court's decision in Brewer v. Williams, 430 U. S. 387 . 120 R.I. ___, 391 A.2d 1158 , 1161-1162. This suggestion is erroneous. Our decision in Brewer rested solely on the Sixth and Fourteenth Amendment right to counsel. 430 U.S. at 430 U. S. 397 -399. That right, as we held in Massiah v. United States, 377 U. S. 201 , 377 U. S. 206 , prohibits law enforcement officers from "deliberately elicit[ing]" incriminating information from a defendant in the absence of counsel after a formal charge against the defendant has been filed. Custody in such a case is not controlling; indeed, the petitioner in Massiah was not in custody. By contrast, the right to counsel at issue in the present case is based not on the Sixth and Fourteenth Amendments, but rather on the Fifth and Fourteenth Amendments as interpreted in the Miranda opinion. The definitions of "interrogation" under the Fifth and Sixth Amendments, if indeed the term "interrogation" is even apt in the Sixth Amendment context, are not necessarily interchangeable, since the policies underlying the two constitutional protections are quite distinct. See Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 41-55 (1978). [ Footnote 5 ] By "incriminating response" we refer to any response -- whether inculpatory or exculpatory -- that the prosecution may seek to introduce at trial. As the Court observed in Miranda: "No distinction can be drawn between statements which are direct confessions and statements which amount to 'admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely 'exculpatory.' If a statement made were, in fact, truly exculpatory, it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation, and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word, and may not be used without the full warnings and effective waiver required for any other statement." 384 U. S. 476 -477. [ Footnote 6 ] One of the dissenting opinions seems totally to misapprehend this definition in suggesting that it "will almost certainly exclude every statement [of the police] that is not punctuated with a question mark." Post at 446 U. S. 312 . [ Footnote 7 ] This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect. [ Footnote 8 ] Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect. [ Footnote 9 ] The record in no way suggests that the officers' remarks were designed to elicit a response. See n 7, supra. It is significant that the trial judge, after hearing the officers' testimony, concluded that it was "entirely understandable that [the officers] would voice their concern [for the safety of the handicapped children] to each other." [ Footnote 10 ] By way of example, if the police had done no more than to drive past the site of the concealed weapon while taking the most direct route to the police station, and if the respondent, upon noticing for the first time the proximity of the school for handicapped children, had blurted out that he would show the officers where the gun was located, it could not seriously be argued that this "subtle compulsion" would have constituted "interrogation" within the meaning of the Miranda opinion. MR. JUSTICE WHITE, concurring. I would prefer to reverse the judgment for the reasons stated in my dissenting opinion in Brewer v. Williams, 430 U. S. 387 (1977); but, given that judgment and the Court's opinion in Brewer, I join the opinion of the Court in the present case. MR. CHIEF JUSTICE BURGER, concurring in the judgment. Since the result is not inconsistent with Miranda v. Arizona, 384 U. S. 436 (1966), I concur in the judgment. The meaning of Miranda has become reasonably clear, and law enforcement practices have adjusted to its strictures; I would neither overrule Miranda, disparage it, nor extend it at this late date. I fear, however, that the rationale in Parts 446 U. S. S. 302|>II-B of the Court's opinion will not clarify the tension between this holding and Brewer v. Williams, 430 U. S. 387 (1977), and our other cases. It may introduce new elements of uncertainty; under the Court's test, a police officer, in the brief time available, apparently must evaluate the suggestibility and susceptibility of an accused. See, e.g., ante at 446 U. S. 302 , n. 8. Few, if any, police officers are competent to make the kind of evaluation seemingly contemplated; even a psychiatrist, asked to express an expert opinion on these aspects of a suspect in custody, would very likely employ extensive questioning and observation to make the judgment now charged to police officers. Page 446 U. S. 305 Trial judges have enough difficulty discerning the boundaries and nuances flowing from post- Miranda opinions, and we do not clarify that situation today. * * That we may well be adding to the confusion is suggested by the problem dealt with in California v. Braeseke, 444 U. S. 1309 (1980) (REHNQUIST, J., in chambers) (difficulty of determining whether a defendant has waived his Miranda rights), and cases cited therein. MR JUSTICE MARSHALL, with whom MR JUSTICE BRENNAN joins, dissenting. I am substantially in agreement with the Court's definition of "interrogation" within the meaning of Miranda v. Arizona, 384 U. S. 436 (1966). In my view, the Miranda safeguards apply whenever police conduct is intended or likely to produce a response from a suspect in custody. As I read the Court's opinion, its definition of "interrogation" for Miranda purposes is equivalent, for practical purposes, to my formulation, since it contemplates that, "where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect." Ante at 446 U. S. 302 , n. 7. Thus, the Court requires an objective inquiry into the likely effect of police conduct on a typical individual, taking into account any special susceptibility of the suspect to certain kinds of pressure of which the police know or have reason to know. I am utterly at a loss, however, to understand how this objective standard, as applied to the facts before us, can rationally lead to the conclusion that there was no interrogation. Innis was arrested at 4:30 a.m., handcuffed, searched, advised of his rights, and placed in the back seat of a patrol car. Within a short time, he had been twice more advised of his rights and driven away in a four-door sedan with three police officers. Two officers sat in the front seat, and one sat beside Innis in the back seat. Since the car traveled no more than a mile before Innis agreed to point out the location of Page 446 U. S. 306 the murder weapon, Officer Gleckman must have begun almost immediately to talk about the search for the shotgun. The Court attempts to characterize Gleckman's statements as "no more than a few off-hand remarks" which could not reasonably have been expected to elicit a response. Ante at 446 U. S. 303 . If the statements had been addressed to respondent, it would be impossible to draw such a conclusion. The simple message of the "talking back and forth" between Gleckman and McKenna was that they had to find the shotgun to avert a child's death. One can scarcely imagine a stronger appeal to the conscience of a suspect -- any suspect -- than the assertion that, if the weapon is not found, an innocent person will be hurt or killed. And not just any innocent person, but an innocent child -- a little girl -- a helpless, handicapped little girl on her way to school. The notion that such an appeal could not be expected to have any effect unless the suspect were known to have some special interest in handicapped children verges on the ludicrous. As a matter of fact, the appeal to a suspect to confess for the sake of others, to "display some evidence of decency and honor," is a classic interrogation technique. See, e.g., F. Inbau & J. Reid, Criminal Interrogation and Confessions 60-62 (2d ed.1967). Gleckman's remarks would obviously have constituted interrogation if they had been explicitly directed to respondent, and the result should not be different because they were nominally addressed to McKenna. This is not a case where police officers, speaking among themselves, are accidentally overheard by a suspect. These officers were "talking back and forth" in close quarters with the handcuffed suspect,* traveling past the very place where they believed the weapon was located. They knew respondent would hear and attend to their conversation, and they are chargeable with knowledge Page 446 U. S. 307 of and responsibility for the pressures to speak which they created. I firmly believe that this case is simply an aberration, and that, in future cases, the Court will apply the standard adopted today in accordance with its plain meaning. * Gleckman may even have been sitting in the back seat beside respondent. See App. 50, 52, 56; but see id. 39, 43, 47, 58. MR JUSTICE STEVENS, dissenting. An original definition of an old term coupled with an original finding of fact on a cold record makes it possible for this Court to vacate the judgment of the Supreme Court of Rhode Island. That court, on the basis of the facts in the record before it, concluded that members of the Providence, R.I., police force had interrogated respondent, who was clearly in custody at the time, in the absence of counsel after he had requested counsel. In my opinion, the state court's conclusion that there was interrogation rests on a proper interpretation of both the facts and the law; thus, its determination that the products of the interrogation were inadmissible at trial should be affirmed. The undisputed facts can be briefly summarized. Based on information that respondent, armed with a sawed-off shotgun, had just robbed a cab driver in the vicinity of Rhode Island College, a number of Providence police officers began a thorough search of the area in the early morning of January 17, 1975. One of them arrested respondent without any difficulty at about 4:30 a.m. Respondent did not then have the shotgun in his possession, and presumably had abandoned it, or hidden it, shortly before he was arrested. Within a few minutes, at least a dozen officers were on the scene. App. 37. It is fair to infer that an immediate search for the missing weapon was a matter of primary importance. When a police captain arrived, he repeated the Miranda warnings that a patrolman and a sergeant had already given to respondent, and respondent said he wanted an attorney. The captain then ordered two officers who were assigned to Page 446 U. S. 308 a "caged wagon" to transport respondent to the central station, and ordered a third officer to ride in the back seat with respondent. While the wagon was en route to the station, one of the officers, Officer Gleckman, stated that there was a school for handicapped children in the vicinity and, "God forbid," one of them should find the shotgun and hurt herself. [ Footnote 2/1 ] As a result of this statement, respondent told the officers that he was willing to show them where the gun was hidden. [ Footnote 2/2 ] The wagon returned to the scene, and respondent helped the officers locate the gun. After a suppression hearing, the trial court assumed, without deciding, that Officer Gleckman's statement constituted interrogation. The court nevertheless allowed the shotgun and testimony concerning respondent's connection to it into evidence on the ground that respondent had waived his Miranda rights when he consented to help police locate the gun. On appeal from respondent's conviction for kidnaping, robbery and murder, the Rhode Island Supreme Court held that Officer Gleckman's statement constituted impermissible interrogation, and rejected the trial court's waiver analysis. It therefore reversed respondent's conviction and remanded for a new trial. Today, the Court reverses the Rhode Island court's resolution of the interrogation issue, creating a new definition of that term and holding, as a matter of law, that the statement at issue in this case did not constitute interrogation. Page 446 U. S. 309 I As the Court recognizes, Miranda v. Arizona, 384 U. S. 436 , makes it clear that, once respondent requested an attorney, he had an absolute right to have any type of interrogation cease until an attorney was present. [ Footnote 2/3 ] As it also recognizes, Miranda requires that the term "interrogation" be broadly construed to include "either express questioning or its functional equivalent." Ante at 446 U. S. 300 -301. [ Footnote 2/4 ] In my view, any statement that would normally be understood by the average listener as calling for a response is the functional equivalent of a direct question, whether or not it is punctuated by a question mark. The Court, however, takes a much narrower view. It holds that police conduct is not the "functional equivalent" of direct questioning unless the police should have known that what they were saying or doing was likely to elicit an incriminating response from the suspect. [ Footnote 2/5 ] This holding represents a plain departure from the principles set forth in Miranda. Page 446 U. S. 310 In Miranda, the Court required the now-familiar warnings to be given to suspects prior to custodial interrogation in order to dispel the atmosphere of coercion that necessarily accompanies such interrogations. In order to perform that function effectively, the warnings must be viewed by both the police and the suspect as a correct and binding statement of their respective rights. [ Footnote 2/6 ] Thus, if, after being told that he has a right to have an attorney present during interrogation, a suspect chooses to cut off questioning until counsel can be obtained, his choice must be "scrupulously honored" by the police. See Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 104 ; id. at 423 U. S. 110 , n. 2 (WHITE, J., concurring in result). At the least, this must mean that the police are prohibited from making deliberate attempts to elicit statements from the suspect. [ Footnote 2/7 ] Yet the Court is unwilling to characterize all such attempts as "interrogation," noting only that, "where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police Page 446 U. S. 311 should have known was reasonably likely to have that effect. [ Footnote 2/8 ]" Ante at 446 U. S. 302 , n. 7. From the suspect's point of view, the effectiveness of the warnings depends on whether it appears that the police are scrupulously honoring his rights. Apparent attempts to elicit information from a suspect after he has invoked his right to cut off questioning necessarily demean that right and tend to reinstate the imbalance between police and suspect that the Miranda warnings are designed to correct. [ Footnote 2/9 ] Thus, if the rationale for requiring those warnings in the first place is to be respected, any police conduct or statements that would appear to a reasonable person in the suspect's position to call for a response must be considered "interrogation." [ Footnote 2/10 ] In short, in order to give full protection to a suspect's right to be free from any interrogation at all, the definition of "interrogation" must include any police statement or conduct that has the same purpose or effect as a direct question. Statements that appear to call for a response from the suspect, as well as those that are designed to do so, should be considered interrogation. By prohibiting only those relatively few statements or actions that a police officer should know are likely to elicit an incriminating response, the Court today accords a suspect Page 446 U. S. 312 considerably less protection. Indeed, since I suppose most suspects are unlikely to incriminate themselves even when questioned directly, this new definition will almost certainly exclude every statement that is not punctuated with a question mark from the concept of "interrogation." [ Footnote 2/11 ] The difference between the approach required by a faithful adherence to Miranda and the stinted test applied by the Court today can be illustrated by comparing three different ways in which Officer Gleckman could have communicated his fears about the possible dangers posed by the shotgun to handicapped children. He could have: "(1) directly asked Innis:" "Will you please tell me where the shotgun is so we can protect handicapped schoolchildren from danger?" "(2) announced to the other officers in the wagon:" "If the man sitting in the back seat with me should decide to tell us where the gun is, we can protect handicapped children from danger." "or (3) stated to the other officers:" "It would be too bad if a little handicapped girl would pick up the gun that this man left in the area, and maybe kill herself." In my opinion, all three of these statements should be considered interrogation, because all three appear to be designed to elicit a response from anyone who in fact knew where the gun was located. [ Footnote 2/12 ] Under the Court's test, on the other hand, Page 446 U. S. 313 the form of the statements would be critical. The third statement would not be interrogation because in the Court's view there was no reason for Officer Gleckman to believe that Innis was susceptible to this type of an implied appeal, ante at 446 U. S. 302 ; therefore, the statement would not be reasonably likely to elicit an incriminating response. Assuming that this is true, see infra at 446 U. S. 314 -315, then it seems to me that the first two statements, which would be just as unlikely to elicit such a response, should also not be considered interrogation. But because the first statement is clearly an express question, it would be considered interrogation under the Court's test. The second statement, although just as clearly a deliberate appeal to Innis to reveal the location of the gun, would presumably not be interrogation because (a) it was not in form a direct question, and (b) it does not fit within the "reasonably likely to elicit an incriminating response" category that applies to indirect interrogation. As this example illustrates, the Court's test creates an incentive for police to ignore a suspect's invocation of his rights in order to make continued attempts to extract information from him. If a suspect does not appear to be susceptible to a particular type of psychological pressure, [ Footnote 2/13 ] the police are apparently free to exert that pressure on him despite his request for counsel, so long as they are careful not to punctuate their statements with question marks. And if, contrary to all reasonable expectations, the suspect makes an Page 446 U. S. 314 incriminating statement, that statement can be used against him at trial. The Court thus turns Miranda's unequivocal rule against any interrogation at all into a trap in which unwary suspects may be caught by police deception. II Even if the Court's new definition of the term "interrogation" provided a proper standard for deciding this case, I find it remarkable that the Court should undertake the initial task of applying its new standard to the facts of the present case. As noted above, the trial judge did not decide whether Officer Gleckman had interrogated respondent. Assuming, arguendo, that he had, the judge concluded that respondent had waived his request for counsel by offering to help find the gun. The Rhode Island Supreme Court disagreed on the waiver questions, [ Footnote 2/14 ] and expressly concluded that interrogation had occurred. Even if the Rhode Island court might have reached a different conclusion under the Court's new definition, I do not believe we should exclude it from participating in a review of the actions taken by the Providence police. Indeed, given the creation of a new standard of decision at this stage of the litigation, the proper procedure would be to remand to the trial court for findings on the basis of evidence directed at the new standard. In any event, I think the Court is clearly wrong in holding, as a matter of law, that Officer Gleckman should not have realized that his statement was likely to elicit an incriminating Page 446 U. S. 315 response. The Court implicitly assumes that, at least in the absence of a lengthy harangue, a criminal suspect will not be likely to respond to indirect appeals to his humanitarian impulses. It then goes on to state that the officers in this case had no reason to believe that respondent would be unusually susceptible to such appeals. Ante at 446 U. S. 302 . Finally, although the significance of the officer's intentions is not clear under its objective test, the Court states in a footnote that the record "in no way suggests" that Officer Gleckman's remarks were designed to elicit a response. Ante at 446 U. S. 303 , n. 9. The Court's assumption that criminal suspects are not susceptible to appeals to conscience is directly contrary to the teachings of police interrogation manuals, which recommend appealing to a suspect's sense of morality as a standard and often successful interrogation technique. [ Footnote 2/15 ] Surely the practical experience embodied in such manuals should not be ignored in a case such as this, in which the record is devoid of any evidence -- one way or the other -- as to the susceptibility of suspects in general or of Innis in particular. Moreover, there is evidence in the record to support the view that Officer Gleckman's statement was intended to elicit a response from Innis. Officer Gleckman, who was not regularly assigned to the caged wagon, was directed by a police captain to ride with respondent to the police station. Although there is a dispute in the testimony, it appears that Gleckman may well have been riding in the back seat with Innis. [ Footnote 2/16 ] The record does not explain why, notwithstanding Page 446 U. S. 316 the fact that respondent was handcuffed, unarmed, and had offered no resistance when arrested by an officer acting alone, the captain ordered Officer Gleckman to ride with respondent. [ Footnote 2/17 ] It is not inconceivable that two professionally trained police officers concluded that a few well chosen remarks might induce respondent to disclose the whereabouts of the shotgun. [ Footnote 2/18 ] This conclusion becomes even more plausible in light of the emotionally charged words chosen by Officer Gleckman ("God forbid" that a "little girl" should find the gun and hurt herself). [ Footnote 2/19 ] III Under my view of the correct standard, the judgment of the Rhode Island Supreme Court should be affirmed because the Page 446 U. S. 317 statements made within Innis' hearing were as likely to elicit a response as a direct question. However, even if I were to agree with the Court's much narrower standard, I would disagree with its disposition of this particular case, because the Rhode Island courts should be given an opportunity to apply the new standard to the facts of this case. [ Footnote 2/1 ] Although the testimony is not entirely clear as to the exact wording of Officer Gleckman's statement, it appears that he talked about the possible danger being to a little girl. App. 59. [ Footnote 2/2 ] After he returned to the scene, respondent told the police captain that he wanted to help them locate the shotgun because he "wanted to get the gun out of the way because of the kids in the area in the school." Id. at 39. Given the timing of respondent's statement and the absence of any evidence that he knew about the school prior to Officer Gleckman's statement, it is clear that respondent's statement was the direct product of the conversation in the police wagon. [ Footnote 2/3 ] Ante at 446 U. S. 293 , 446 U. S. 297 -298. In Miranda, the Court explicitly stated: "If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 384 U. S. 474 . [ Footnote 2/4 ] As the Court points out, ante at 446 U. S. 299 , the Court in Miranda was acutely aware of the fact that police interrogation techniques are not limited to direct questioning. [ Footnote 2/5 ] "That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Ante at 446 U. S. 301 . In limiting its test to police statements "likely to elicit an incriminating response," the Court confuses the scope of the exclusionary rule with the definition of "interrogation." Of course, any incriminating statement as defined in Miranda, quoted ante at 446 U. S. 301 , n. 5, must be excluded from evidence if it is the product of impermissible interrogation. But I fail to see how this rule helps in deciding whether a particular statement or tactic constitutes "interrogation." After all, Miranda protects a suspect in Innis' position not simply from interrogation that is likely to be successful, but from any interrogation at all. [ Footnote 2/6 ] "We have concluded that, without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights, and the exercise of those rights must be fully honored." 384 U.S. at 384 U. S. 467 . [ Footnote 2/7 ] In Brewer v. Williams, 430 U. S. 387 , 430 U. S. 398 399, the Court applied the "deliberately elicited" standard in determining that statements were extracted from Williams in violation of his Sixth Amendment right to counsel. Although this case involves Fifth Amendment rights and the Miranda rules designed to safeguard those rights, respondent's invocation of his right to counsel makes the two cases indistinguishable. In both cases the police had an unqualified obligation to refrain from trying to elicit a response from the suspect in the absence of his attorney. See Kamisar, Brewer v. Williams, Massiah and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 73 (1978). [ Footnote 2/8 ] This factual assumption is extremely dubious. I would assume that police often interrogate suspects without any reason to believe that their efforts are likely to be successful, in the hope that a statement will nevertheless be forthcoming. [ Footnote 2/9 ] See White, Police Trickery in Inducing Confessions, 127 U.Pa.L.Rev. 581, 609-611 (1979). As MR. JUSTICE WHITE pointed out in his opinion concurring in the result in Michigan v. Mosley, 423 U. S. 96 , when a suspect invokes his right to an attorney, he is expressing "his own view that he is not competent to deal with the authorities without legal advice." Id. at 423 U. S. 110 , n. 2. Under these circumstances, continued interrogation is likely to produce the same type of coercive atmosphere that the Miranda warnings are supposed to dispel. [ Footnote 2/10 ] I would use an objective standard both to avoid the difficulties of proof inherent in a subjective standard and to give police adequate guidance in their dealings with suspects who have requested counsel. [ Footnote 2/11 ] The Court's suggestion, ante at 446 U. S. 301 , n. 6, that I totally misapprehend the import of its definition is belied by its application of the new standard to the facts of this case. [ Footnote 2/12 ] See White, Rhode Island v. Innis: The Significance of a Suspect's Assertion of His Right to Counsel, 17 Am.Crim.L.Rev. 53, 68 (1979), where the author proposes the same test and applies it to the facts of this case, stating: "Under the proposed objective standard, the result is obvious. Since the conversation indicates a strong desire to know the location of the shotgun, any person with knowledge of the weapon's location would be likely to believe that the officers wanted him to disclose its location. Thus, a reasonable person in Innis's position would believe that the officers were seeking to solicit precisely the type of response that was given." [ Footnote 2/13 ] As THE CHIEF JUSTICE points out in his concurring opinion, "[f]ew, if any, police officers are competent to make the kind of evaluation seemingly contemplated [by the Court's opinion]" except by close and careful observation. Ante at 446 U. S. 304 . Under these circumstances, courts might well find themselves deferring to what appeared to be good faith judgments on the part of the police. [ Footnote 2/14 ] Like the Rhode Island Supreme Court, I think it takes more than a prisoner's answer to a question to waive his right not to have the question asked in the first place. See Brewer v. Williams, 430 U.S. at 430 U. S. 404 ; Michigan v. Mosley, 423 U.S. at 423 U. S. 110 , n. 2 (WHITE, J., concurring in result) ("[T]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism"). See also People v Cunningham, 49 N.Y.2d 203, 210, 400 N.E.2d 360, 364-365 (1980). [ Footnote 2/15 ] See, e.g., F. Inbau & J. Reid, Criminal Interrogation and Confessions 661 (2d ed.1967). Under the heading "Urge the Subject to Tell the Truth for the Sake of His Own Conscience, Mental Relief, or Moral Well-being, as Well as 'for the Sake of Everybody Concerned," and Also Because It Is "the Only Decent and Honorable Thing to Do, the authors advise interrogators to "challenge . . . the offender to display some evidence of decency and honor" by appealing to his religious or moral sensibilities. [ Footnote 2/16 ] Officer Gleckman testified that he was riding in the front seat with the driver. App. 46. However, Officer McKenna, who had also ridden in the wagon, and the police captain both testified that Gleckman rode in the back seat with the suspect. Id. at 50-52, 55-56, 339. Thereafter, the third officer in the wagon corroborated Gleckman's testimony. Id. at 58. [ Footnote 2/17 ] This was apparently a somewhat unusual procedure. Officer McKenna testified: "If I remember correctly, the vehicle -- Innis was placed in it and the vehicle door was closed, and we were waiting for instructions from Captain Leyden. . . . At that point, Captain Leyden instructed Patrolman Gleckman to accompany us. There's usually two men assigned to the wagon, but, in this particular case, he wanted a third man to accompany us, and Gleckman got in the rear seat. In other words, the door was closed. Gleckman opened the door and got in the vehicle with the subject. Myself, I went over to the other side and got in the passenger's side in the front." Id. 55-56. [ Footnote 2/18 ] Although Officer Gleckman testified that the captain told him not to interrogate, intimidate or coerce respondent on the way back, id. at 46, this does not rule out the possibility that either or both af them thought an indirect psychological ploy would be permissible. [ Footnote 2/19 ] In his article quoted in 446 U.S. 291 fn2/12|>n. 12, supra, Professor White also points out that the officers were probably aware that the chances of a handicapped child's finding the weapon at a time when police were not present were relatively slim. Thus, he concluded that it was unlikely that the true purpose of the conversation was to voice a genuine concern over the children's welfare. See 17 Am.Crim.L.Rev. at 68.

The Supreme Court case of Rhode Island v. Innis (1980) dealt with the interpretation of "interrogation" under Miranda v. Arizona. The Court held that the Miranda safeguards apply when a person in custody is subjected to express questioning or its functional equivalent, but found that the respondent was not "interrogated" in violation of his right to remain silent. The case centered around a conversation between two officers in a police car transporting the respondent, who had previously invoked his right to counsel, about the missing shotgun related to the crime. The officers' discussion of the potential danger to handicapped children in the area if they found the gun prompted the respondent to interrupt and offer to show them where the gun was located. The Court concluded that this indirect conversation did not amount to "interrogation" and that the respondent had voluntarily waived his Miranda rights by initiating the conversation and leading the police to the shotgun.

Miranda Rights

Fare v. Michael C.

https://supreme.justia.com/cases/federal/us/442/707/

U.S. Supreme Court Fare v. Michael C., 442 U.S. 707 (1979) Fare v. Michael C. No. 78-334 Argued February 27, 1979 Decided June 20, 1979 442 U.S. 707 CERTIORARI TO THE SUPREME COURT OF CALIFORNIA Syllabus Respondent, at the time 16 1/2 years old, was taken into custody by Van Nuys, Cal., police on suspicion of murder. Before being questioned at the station house, he was fully advised of his rights under Miranda v. Arizona, 384 U. S. 436 . At the outset of the questioning, respondent, who was on probation to the Juvenile Court, had served a term in a youth corrections camp, and had a record of prior offenses, asked to see his probation officer. But when the police denied this request, respondent stated he would talk without consulting an attorney, and he then proceeded to make statements and draw sketches implicating him in the murder. Upon being charged in Juvenile Court with the murder, he moved to suppress the incriminating statements and sketches on the ground that they had been obtained in violation of Miranda in that his request to see his probation officer constituted an invocation of his Fifth Amendment right to remain silent, just as if he had requested the assistance of an attorney. The court denied the motion, holding that the facts showed that respondent had waived his right to remain silent, notwithstanding his request to see his probation officer. The California Supreme Court reversed, holding that respondent's request for his probation officer was a per se invocation of his Fifth Amendment rights in the same way the request for an attorney was found in Miranda to be, regardless of what the interrogation otherwise might reveal. This holding was based on the court's view that a probation officer occupies a position as a trusted guardian figure in a juvenile's life that would make it normal for the juvenile to turn to the officer when apprehended by the police, and was also based on the state law requirement that the officer represent the juvenile's interests. Held: 1. The California Supreme Court erred in finding that respondent's request for his probation officer was a per se invocation of his Fifth Amendment rights under Miranda, and therefore also erred in holding that, because the police did not cease interrogating respondent the statements and sketches made during the interrogation should have been suppressed. Pp. 442 U. S. 716 -724. Page 442 U. S. 708 (a) The rule in Miranda that, if an accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, was based on the unique role the lawyer plays in the adversary system of criminal justice. A probation officer is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation that a lawyer can offer. Pp. 442 U. S. 719 -722. (b) The fact that a relationship of trust and cooperation might exist between a probation officer and a juvenile does not indicate that the officer is capable of rendering effective legal advice sufficient to protect the juvenile's rights during police interrogation, or of providing the other services rendered by a lawyer. Similarly, the fact that the probation officer has a statutory duty to protect the juvenile's interests does not make the officer any more capable of rendering legal assistance to the juvenile or of protecting his legal rights, especially where the officer also has a statutory duty to report wrongdoing by the juvenile and serve the ends of the juvenile court system. Pp. 442 U. S. 722 -723. (c) A juvenile's request to speak with his probation officer does not constitute a per se request to remain silent, nor is it tantamount to a request for an attorney. Pp. 442 U. S. 723 -724. 2. Whether the incriminating statements and sketches were admissible on the basis of waiver was a question to be resolved on the totality of the circumstances surrounding the interrogation. On the basis of the record, it is clear that respondent voluntarily and knowingly waived his Fifth Amendment rights and consented to continued interrogation, and that the statements and sketches obtained from him were voluntary, and hence their admission in the Juvenile Court proceeding was correct. Pp. 442 U. S. 724 -727. 21 Cal. 3d 471 , 579 P.2d 7, reversed and remanded. BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 442 U. S. 728 . POWELL, J., filed a dissenting opinion, post, p. 442 U. S. 732 . Page 442 U. S. 709 MR. JUSTICE BLACKMUN delivered the opinion of the Court. In Miranda v. Arizona, 384 U. S. 436 (1966), this Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. The Court specified, among other things, that, if the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial. Id. at 384 U. S. 444 -445, 473-474 In this case, the State of California, in the person of its acting chief probation officer, attacks the conclusion of the Supreme Court of California that a juvenile's request, made while undergoing custodial interrogation, to see his probation officer is per se an invocation of the juvenile's Fifth Amendment rights as pronounced in Miranda. I Respondent Michael C. was implicated in the murder of Robert Yeager. The murder occurred during a robbery of the victim's home on January 19, 1976. A small truck registered in the name of respondent's mother was identified as having been near the Yeager home at the time of the killing, and a young man answering respondent's description was seen by witnesses near the truck and near the home shortly before Yeager was murdered. Page 442 U. S. 710 On the basis of this information, Van Nuys, Cal., police took respondent into custody at approximately 6:30 p.m. on February 4. Respondent then was 16 1/2 years old, and on probation to the Juvenile Court. He had been on probation since the age of 12. Approximately one year earlier, he had served a term in a youth corrections camp under the supervision of the Juvenile Court. He had a record of several previous offenses, including burglary of guns and purse snatching, stretching back over several years. Upon respondent's arrival at the Van Nuys station house, two police officers began to interrogate him. The officers and respondent were the only persons in the room during the interrogation. The conversation was tape-recorded. One of the officers initiated the interview by informing respondent that he had been brought in for questioning in relation to a murder. The officer fully advised respondent of his Miranda rights. The following exchange then occurred, as set out in the opinion of the California Supreme Court, In re Michael C., 21 Cal. 3d 471 , 473-474, 579 P.2d 7, 8 (1978) (emphasis added by that court): "Q. . . . Do you understand all of these rights as I have explained them to you?" "A. Yeah." "Q. Okay, do you wish to give up your right to remain silent and talk to us about this murder?" "A. What murder? I don't know about no murder." "Q. I'll explain to you which one it is if you want to talk to us about it." "A. Yeah, I might talk to you." "Q. Do you want to give up your right to have an attorney present here while we talk about it?" "A. Can I have my probation officer here? " "Q. Well I can't get a hold of your probation officer right now. You have the right to an attorney." "A. How I know you guys won't pull no police officer in and tell me he's an attorney? " Page 442 U. S. 711 "Q. Huh?" "A. [How I know you guys won't pull no police officer in and tell me he's an attorney?]" "Q. Your probation officer is Mr. Christiansen." "A. Yeah." "Q. Well I'm not going to call Mr. Christiansen tonight. There's a good chance we can talk to him later, but I'm not going to call him right now. If you want to talk to us without an attorney present, you can. If you don't want to, you don't have to. But if you want to say something, you can, and if you don't want to say something, you don't have to. That's your right. You understand that right?" "A. Yeah." "Q. Okay, will you talk to us without an attorney present?" "A. Yeah I want to talk to you." Respondent thereupon proceeded to answer questions put to him by the officers. He made statements and drew sketches that incriminated him in the Yeager murder. Largely on the basis of respondent's incriminating statements, probation authorities filed a petition in Juvenile Court alleging that respondent had murdered Robert Yeager, in violation of Cal.Penal Code Ann. § 187 (West Supp. 1979), and that respondent therefore should be adjudged a ward of the Juvenile Court, pursuant to Cal.Welf. & Inst. Code Ann. § 602 (West Supp. 1979). [ Footnote 1 ] App. 4-5. Respondent thereupon moved to suppress the statements and sketches he gave the police during the interrogation. He alleged that the statements had been obtained in violation of Miranda in that Page 442 U. S. 712 his request to see his probation officer at the outset of the questioning constituted an invocation of his Fifth Amendment right to remain silent, just as if he had requested the assistance of an attorney. Accordingly, respondent argued that, since the interrogation did not cease until he had a chance to confer with his probation officer, the statements and sketches could not be admitted against him in the Juvenile Court proceedings. In so arguing, respondent relied by analogy on the decision in People v. Burton, 6 Cal. 3d 375 , 491 P.2d 793 (1971), where the Supreme Court of California had held that a minor's request, made during custodial interrogation, to see his parents constituted an invocation of the minor's Fifth Amendment rights. In support of his suppression motion, respondent called his probation officer, Charles P. Christiansen, as a witness. Christiansen testified that he had instructed respondent that, if at any time he had "a concern with his family," or ever had "a police contact," App. 27, he should get in touch with his probation officer immediately. The witness stated that, on a previous occasion, when respondent had had a police contact and had failed to communicate with Christiansen, the probation officer had reprimanded him. Id. at 28. This testimony, respondent argued, indicated that, when he asked for his probation officer, he was in fact asserting his right to remain silent in the face of further questioning. In a ruling from the bench, the court denied the motion to suppress. Id. at 41-42. It held that the question whether respondent had waived his right to remain silent was one of fact to be determined on a case-by-case basis, and that the facts of this case showed a "clear waiver" by respondent of that right. Id. at 42. The court observed that the transcript of the interrogation revealed that respondent specifically had told the officers that he would talk with them, and that this waiver had come at the outset of the interrogation, and not after prolonged questioning. The court noted that Page 442 U. S. 713 respondent was a "16 and a half year old minor who has been through the court system before, has been to [probation] camp, has a probation officer, [and is not] a young, naive minor with no experience with the courts." Ibid. Accordingly, it found that, on the facts of the case, respondent had waived his Fifth Amendment rights, notwithstanding the request to see his probation officer. [ Footnote 2 ] On appeal, the Supreme Court of California took the case by transfer from the California Court of Appeal and, by a divided vote, reversed. In re Michael C., 21 Cal. 3d 471 , 579 P.2d 7 (1978). The court held that respondent's "request to see his probation officer at the commencement of interrogation negated any possible willingness on his part to discuss his case with the police, [and] thereby invoked his Fifth Amendment privilege." Id. at 474, 579 P.2d at 8. The court based this conclusion on its view that, because of the juvenile court system's emphasis on the relationship between a probation officer and the probationer, the officer was "a trusted guardian figure who exercises the authority of the state as parens patriae and whose duty it is to implement Page 442 U. S. 714 the protective and rehabilitative powers of the juvenile court." Id. at 476, 579 P.2d at 10. As a consequence, the court found that a minor's request for his probation officer was the same as a request to see his parents during interrogation, and thus, under the rule of Burton, constituted an invocation of the minor's Fifth Amendment rights. The fact that the probation officer also served as a peace officer, and, whenever a proceeding against a juvenile was contemplated, was charged with a duty to file a petition alleging that the minor had committed an offense, did not alter, in the court's view, the fact that the officer, in the eyes of the juvenile, was a trusted guardian figure to whom the minor normally would turn for help when in trouble with the police. 21 Cal. 3d at 476, 579 P.2d at 10. Relying on Burton, the court ruled that it would unduly restrict Miranda to limit its reach in a case involving a minor to a request by the minor for an attorney, since it would be "'fatuous to assume that a minor in custody will be in a position to call an attorney for assistance and it is unrealistic to attribute no significance to his call for help from the only person to whom he normally looks -- a parent or guardian.'" 21 Cal. 3d at 475-476, 579 P.2d at 9, quoting People v. Burton, 6 Cal 3d at 382, 491 P.2d at 797-798. The court dismissed the concern expressed by the State that a request for a probation officer could not be distinguished from a request for one's football coach, music teacher, or clergyman on the ground that the probation officer, unlike those other figures in the juvenile's life, was charged by statute to represent the interests of the juvenile. 21 Cal. 3d at 477, 579 P.2d at 10. The court accordingly held that the probation officer would act to protect the minor's Fifth Amendment rights in precisely the way an attorney would act if called for by the accused. In so holding, the court found the request for a probation officer to be a per se invocation of Fifth Amendment rights in the same way the request for an attorney was found Page 442 U. S. 715 in Miranda to be, regardless of what the interrogation otherwise might reveal. In rejecting a "totality of the circumstances" inquiry, the court stated: "Here, however, we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination. Thus our question turns not on whether the [respondent] had the ability, capacity or willingness to give a knowledgeable waiver, and hence whether he acted voluntarily, but whether, when he called for his probation officer, he exercised his Fifth Amendment privilege. We hold that, in doing so, he no less invoked the protection against self-incrimination than if he asked for the presence of an attorney." Ibid., 579 P.2d at 111. See also id. at 478 n. 4, 579 P.2d at 11 n. 4. The court went on to conclude that, since the State had not met its "burden of proving that a minor who requests to see his probation officer does not intend to assert his Fifth Amendment privilege," id. at 478, 579 P.2d at 11, the trial court should not have admitted the confessions obtained after respondent had requested his probation officer. [ Footnote 3 ] Page 442 U. S. 716 The State of California petitioned this Court for a writ of certiorari, MR. JUSTICE REHNQUIST, as Circuit Justice, stayed the execution of the mandate of the Supreme Court of California, 439 U. S. 1310 (1978). Because the California judgment extending the per se aspects of Miranda presents an important question about the reach of that case, we thereafter issued the writ, 439 U.S. 925 (1978), II We note at the outset that it is clear that the judgment of Page 442 U. S. 717 the California Supreme Court rests firmly on that court's interpretation of federal law. This Court, however, has not heretofore extended the per se aspects of the Miranda safeguards beyond the scope of the holding in the Miranda case itself. [ Footnote 4 ] We therefore must examine the California court's decision to determine whether that court's conclusion so to extend Miranda is in harmony with Miranda's underlying principles. For it is clear that "a State may not impose . . . greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." Oregon v. Hass, 420 U. S. 714 , 420 U. S. 719 (1975) (emphasis in original). See North Carolina v. Butler, 441 U. S. 369 (1979). The rule the Court established in Miranda is clear. In order to be able to use statements obtained during custodial interrogation of the accused, the State must warn the accused prior to such questioning of his right to remain silent and of his right to have counsel, retained or appointed, present during interrogation. 384 U.S. at 384 U. S. 473 . "Once [such] warnings have been given, the subsequent procedure is clear." Ibid. "If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point, he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . . If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the Page 442 U. S. 718 individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent." Id. at 384 U. S. 473 -474 (footnote omitted). Any statements obtained during custodial interrogation conducted in violation of these rules may not be admitted against the accused, at least during the State's case in chief. Id. at 384 U. S. 479 . Cf. Harris v. New York, 401 U. S. 222 , 401 U. S. 224 (1971). Whatever the defects, if any, of this relatively rigid requirement that interrogation must cease upon the accused's request for an attorney, Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis. See Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 443 -446 (1974). The California court in this case, however, significantly has extended this rule by providing that a request by a juvenile for his probation officer has the same effect as a request for an attorney. Based on the court's belief that the probation officer occupies a position as a trusted guardian figure in the minor's life that would make it normal for the minor to turn to the officer when apprehended by the police, and based as well on the state law requirement that the officer represent the interest of the juvenile, the California decision found that consultation with a probation officer fulfilled the role for the juvenile that consultation with an attorney does in general, Page 442 U. S. 719 acting as a " protective [device] . . . to dispel the compulsion inherent in custodial surroundings.'" 21 Cal. 3d at 477, 579 P.2d at 10, quoting Miranda v. Arizona, 384 U.S. at 384 U. S. 458 . The rule in Miranda, however, was based on this Court's perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that "the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system" established by the Court. Id. at 384 U. S. 469 . Moreover, the lawyer's presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence. Id. at 384 U. S. 470 . The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country. Whether it is a minor or an adult who stands accused, the lawyer is the one person to whom society as a whole looks as the protector of the legal rights of that person in his dealings with the police and the courts. For this reason, the Court fashioned in Miranda the rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease. A probation officer is not in the same posture with regard to either the accused or the system of justice as a whole. Often he is not trained in the law, and so is not in a position to advise the accused as to his legal rights. Neither is he a trained advocate, skilled in the representation of the interests of his client before both police and courts. He does not assume the power to act on behalf of his client by virtue of his status as adviser, nor are the communications of the accused to the probation officer shielded by the lawyer-client privilege. Page 442 U. S. 720 Moreover, the probation officer is the employee of the State which seeks to prosecute the alleged offender. He is a peace officer, and as such is allied, to a greater or lesser extent, with his fellow peace officers. He owes an obligation to the State, notwithstanding the obligation he may also owe the juvenile under his supervision. In most cases, the probation officer is duty bound to report wrongdoing by the juvenile when it comes to his attention, even if by communication from the juvenile himself. Indeed, when this case arose, the probation officer had the responsibility for filing the petition alleging wrongdoing by the juvenile and seeking to have him taken into the custody of the Juvenile Court. It was respondent's probation officer who filed the petition against him, and it is the acting chief of probation for the State of California, a probation officer, who is petitioner in this Court today. [ Footnote 5 ] Page 442 U. S. 721 In these circumstances, it cannot be said that the probation officer is able to offer the type of independent advice that an accused would expect from a lawyer retained or assigned to assist him during questioning. Indeed, the probation officer's duty to his employer in many, if not most, cases would conflict sharply with the interests of the juvenile. For where an attorney might well advise his client to remain silent in the face of interrogation by the police, and in doing so would be "exercising [his] good professional judgment . . . to protect to the extent of his ability the rights of his client," Miranda v. Arizona, 384 U.S. at 384 U. S. 480 -481, a probation officer would be bound to advise his charge to cooperate with the police. The justices who concurred in the opinion of the California Supreme Court in this case aptly noted: "Where a conflict between the minor and the law arises, the probation officer can be neither neutral nor in the minor's corner." 21 Cal. 3d at 479, 579 P.2d at 12. It thus is doubtful that a general rule can be established that a juvenile, in every case, looks to his probation officer as a "trusted guardian figure," rather than as an officer of the court system that imposes punishment. By the same token, a lawyer is able to protect his client's rights by learning the extent, if any, of the client's involvement in the crime under investigation, and advising his client accordingly. Page 442 U. S. 722 To facilitate this, the law rightly protects the communications between client and attorney from discovery. We doubt, however, that similar protection will be afforded the communications between the probation officer and the minor. Indeed, we doubt that a probation officer, consistent with his responsibilities to the public and his profession, could withhold from the police or the courts facts made known to him by the juvenile implicating the juvenile in the crime under investigation. We thus believe it clear that the probation officer is not in a position to offer the type of legal assistance necessary to protect the Fifth Amendment rights of an accused undergoing custodial interrogation that a lawyer can offer. The Court in Miranda recognized that "the attorney plays a vital role in the administration of criminal justice under our Constitution." 384 U.S. at 384 U. S. 481 . It is this pivotal role of legal counsel that justifies the per se rule established in Miranda, and that distinguishes the request for counsel from the request for a probation officer, a clergyman, or a close friend. A probation officer simply is not necessary, in the way an attorney is, for the protection of the legal rights of the accused, juvenile or adult. He is significantly handicapped by the position he occupies in the juvenile system from serving as an effective protector of the rights of a juvenile suspected of a crime. The California Supreme Court, however, found that the close relationship between juveniles and their probation officers compelled the conclusion that a probation officer, for purposes of Miranda, was sufficiently like a lawyer to justify extension of the per se rule. 21 Cal. 3d at 476, 579 P.2d at 10. The fact that a relationship of trust and cooperation between a probation officer and a juvenile might exist, however, does not indicate that the probation officer is capable of rendering effective legal advice sufficient to protect the juvenile's rights during interrogation by the police, or of providing the other services rendered by a lawyer. To find otherwise Page 442 U. S. 723 would be "an extension of the Miranda requirements [that] would cut this Court's holding in that case completely loose from its own explicitly stated rationale." Beckwith v. United States, 425 U. S. 341 , 425 U. S. 345 (1976). Such an extension would impose the burdens associated with the rule of Miranda on the juvenile justice system and the police without serving the interests that rule was designed simultaneously to protect. If it were otherwise, a juvenile's request for almost anyone he considered trustworthy enough to give him reliable advice would trigger the rigid rule of Miranda. Similarly, the fact that the State has created a statutory duty on the part of the probation officer to protect the interests of the juvenile does not render the probation officer any more capable of rendering legal assistance to the juvenile or of protecting his legal rights, especially in light of the fact that the State has also legislated a duty on the part of the officer to report wrongdoing by the juvenile and serve the ends of the juvenile court system. The State cannot transmute the relationship between probation officer and juvenile offender into the type of relationship between attorney and client that was essential to the holding of Miranda simply by legislating an amorphous "duty to advise and care for the juvenile defendant." 21 Cal. 3d at 477, 579 P.2d at 10. Though such a statutory duty might serve to distinguish to some degree the probation officer from the coach and the clergyman, it does not justify the extension of Miranda to requests to see probation officers. If it did, the State could expand the class of persons covered by the Miranda per se rule simply by creating a duty to care for the juvenile on the part of other persons, regardless of whether the logic of Miranda would justify that extension. Nor do we believe that a request by a juvenile to speak with his probation officer constitutes a per se request to remain silent. As indicated, since a probation officer does not fulfill the important role in protecting the rights of the accused Page 442 U. S. 724 juvenile that an attorney plays, we decline to find that the request for the probation officer is tantamount to the request for an attorney. And there is nothing inherent in the request for a probation officer that requires us to find that a juvenile's request to see one necessarily constitutes an expression of the juvenile's right to remain silent. As discussed below, courts may take into account such a request in evaluating whether a juvenile in fact had waived his Fifth Amendment rights before confessing. But, in other circumstances, such a request might well be consistent with a desire to speak with the police. In the absence of further evidence that the minor intended in the circumstances to invoke his Fifth Amendment rights by such a request, we decline to attach such overwhelming significance to this request. We hold, therefore, that it was error to find that the request by respondent to speak with his probation officer per se constituted an invocation of respondent's Fifth Amendment right to be free from compelled self-incrimination. It therefore was also error to hold that, because the police did not then cease interrogating respondent, the statements he made during interrogation should have been suppressed. III Miranda further recognized that, after the required warnings are given the accused, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." 384 U.S. at 384 U. S. 475 . We noted in North Carolina v. Butler, 441 U.S. at 441 U. S. 373 , that the question whether the accused waived his rights "is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." Thus, the determination whether statements obtained during custodial Page 442 U. S. 725 interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel. Miranda v. Arizona, 384 U.S. at 384 U. S. 475 -477. This "totality of the circumstances" approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits -- indeed, it mandates -- inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights. See North Carolina v. Butler, supra. Courts repeatedly must deal with these issues of waiver with regard to a broad variety of constitutional rights. There is no reason to assume that such courts -- especially juvenile courts, with their special expertise in this area -- will be unable to apply the "totality of the circumstances" analysis so as to take into account those special concerns that are present when young persons, often with limited experience and education and with immature judgment, are involved. Where the age and experience of a juvenile indicate that his request for his probation officer or his parents is, in fact, an invocation of his right to remain silent, the totality approach will allow the court the necessary flexibility to take this into account in making a waiver determination. At the same time, that approach refrains from imposing rigid restraints on police and courts in dealing with an experienced older juvenile with an extensive prior record who knowingly and intelligently waives Page 442 U. S. 726 his Fifth Amendment rights and voluntarily consents to interrogation. In this case, we conclude that the California Supreme Court should have determined the issue of waiver on the basis of all the circumstances surrounding the interrogation of respondent. The Juvenile Court found that, under this approach, respondent in fact had waived his Fifth Amendment rights and consented to interrogation by the police after his request to see his probation officer was denied. Given its view of the case, of course, the California Supreme Court did not consider this issue, though it did hold that the State had failed to prove that, notwithstanding respondent's request to see his probation officer, respondent had not intended to invoke his Fifth Amendment rights. We feel that the conclusion of the Juvenile Court was correct. The transcript of the interrogation reveals that the police officers conducting the interrogation took care to ensure that respondent understood his rights. They fully explained to respondent that he was being questioned in connection with a murder. They then informed him of all the rights delineated in Miranda, and ascertained that respondent understood those rights. There is no indication in the record that respondent failed to understand what the officers told him. Moreover, after his request to see his probation officer had been denied, and after the police officer once more had explained his rights to him, respondent clearly expressed his willingness to waive his rights and continue the interrogation. Further, no special factors indicate that respondent was unable to understand the nature of his actions. He was a 16 1/2-year-old juvenile with considerable experience with the police. He had a record of several arrests. He had served time in a youth camp, and he had been on probation for several years. He was under the full-time supervision of probation authorities. There is no indication that he was of insufficient intelligence to understand the rights he was waiving, or what the consequences of that waiver would be. He was not Page 442 U. S. 727 worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. On these facts, we think it clear that respondent voluntarily and knowingly waived his Fifth Amendment rights. Respondent argues, however, that any statements he made during interrogation were coerced. Specifically, respondent alleges that the police made threats and promises during the interrogation to pressure him into cooperating in the hope of obtaining leniency for his cooperative attitude. He notes also that he repeatedly told the officers during his interrogation that he wished to stop answering their questions, but that the officers ignored his pleas. He argues further that the record reveals that he was afraid that the police would coerce him, and that this fear caused him to cooperate. He points out that, at one point, the transcript revealed that he wept during the interrogation. Review of the entire transcript reveals that respondent's claims of coercion are without merit. As noted, the police took care to inform respondent of his rights and to ensure that he understood them. The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda. See 384 U.S. at 384 U. S. 445 -455. The police did indeed indicate that a cooperative attitude would be to respondent's benefit, but their remarks in this regard were far from threatening or coercive. And respondent's allegation that he repeatedly asked that the interrogation cease goes too far: at some points, he did state that he did not know the answer to a question put to him or that he could not, or would not, answer the question, but these statements were not assertions of his right to remain silent. IV We hold, in short, that the California Supreme Court erred in finding that a juvenile's request for his probation officer was a per se invocation of that juvenile's Fifth Amendment Page 442 U. S. 728 rights under Miranda. We conclude, rather, that whether the statements obtained during subsequent interrogation of a juvenile who has asked to see his probation officer, but who has not asked to consult an attorney or expressly asserted his right to remain silent, are admissible on the basis of waiver remains a question to be resolved on the totality of the circumstances surrounding the interrogation. On the basis of the record in this case, we hold that the Juvenile Court's findings that respondent voluntarily and knowingly waived his rights and consented to continued interrogation, and that the statements obtained from him were voluntary, were proper, and that the admission of those statements in the proceeding against respondent in Juvenile Court was correct. The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] The petition also alleged that respondent had participated in an attempted armed robbery earlier on the same evening Yeager was murdered. The Juvenile Court, however, held that the evidence was insufficient to support this charge, and it was dismissed. App. 6. No issue relating to this second charge is before the Court. [ Footnote 2 ] The California Court of Appeal, in an opinion reported and then vacated, affirmed. In re Michael C., 135 Cal. Rptr. 762 (1977). That court noted that, since the Juvenile Court's findings of fact resolved against respondent his contention that the confession had been coerced from him by threats and promises, it would have to "conclude that there was a knowing and intelligent waiver of the minor's Miranda rights unless it can be said that the request to speak to a probation officer was, in and of itself, sufficient to invoke" respondent's Fifth Amendment privilege. Id. at 765-766 (footnote omitted). It refused to extend the rule of People v. Burton, 6 Cal. 3d 375 , 491 P.2d 793 (1971), to include a request for a probation officer, finding it difficult to distinguish such a request from a request to see "one's football coach, music teacher or clergyman." 135 Cal. Rptr. at 766. Even if the Burton rule were applicable, the court held, there was sufficient evidence of an affirmative waiver of his rights by respondent to distinguish Burton, where the California Supreme Court had noted that there was "nothing in the way of affirmative proof that defendant did not intend to assert his privilege." 6 Cal. 3d at 383, 491 P.2d at 798. [ Footnote 3 ] Two justices concurred in the court's opinion and judgment. 21 Cal. 3d at 478, 579 P.2d at 11. They expressed concern that a probation officer's public responsibilities would make it difficult for him to offer legal advice to a minor implicated in a crime, and that a minor advised to cooperate with the police, perhaps even to confess, justifiably could complain later "that he had been subjected to a variation of the Mutt-and-Jeff technique criticized in Miranda: initial interrogating by overbearing officers, then comforting by a presumably friendly and gentle peace officer in the guise of a probation officer." Id. at 479, 579 P.2d at 12. Two justices dissented. Id. at 48, 579 P.2d at 12. They would have affirmed respondent's conviction on the basis of the finding of the Juvenile Court that, in light of all the circumstances surrounding the interrogation of respondent, there was sufficient affirmative proof that respondent had waived his privilege. The dissenters pointed out that the opinion of the court was confusing in holding, on the one hand, that the request for a probation officer was per se an invocation of the minor's Fifth Amendment rights, and, on the other, that reversal was required because the State had not carried its burden of proving that respondent, by requesting his probation officer, did not intend thereby to assert his Fifth Amendment privilege. Ibid., 579 P.2d at 12-13. There may well be ambiguity in this regard. See id. at 477-478, 579 P.2d at 11. On the basis of that ambiguity, respondent argues that the California court did not establish a per se rule, but held only that, on the facts here, respondent's request to see his probation officer constituted an invocation of his Fifth Amendment rights. The decision in People v. Randall, 1 Cal. 3d 948 , 464 P.2d 114 (1970), upon which the California court relied in both Burton and the present case, however, indicates that the court did indeed establish a per se rule in this case. In Randall, the court stated that, even though a suspect might have invoked his Fifth Amendment rights by asking for counsel or by stating he wished to remain silent, it might be possible that subsequent voluntary statements of the accused, not prompted by custodial interrogation, would be admissible if the State could show that they were the product of the voluntary decision of the accused to waive the rights he had asserted. People v. Randall, 1 Cal. 3d at 956, and n. 7, 464 P.2d at 119, and n. 7. Randall thus indicates that the per se language employed by the California Supreme Court in this case is compatible with the finding that the State could have negated the per se effect of the request for a probation officer by showing that, notwithstanding his per se invocation of his rights, respondent later voluntarily decided to waive those rights and volunteer statements. In light of Randall, and in light of the strong per se language used by the California Supreme Court in its opinion in this case, see, e.g., 21 Cal. 3d at 477, 579 P.2d at 10-11, we think that any ambiguity in that opinion must be resolved in favor of a conclusion that the court did, in fact, establish a per se rule. [ Footnote 4 ] Indeed, this Court has not yet held that Miranda applies with full force to exclude evidence obtained in violation of its proscriptions from consideration in juvenile proceedings, which, for certain purposes, have been distinguished from formal criminal prosecutions. See McKeiver v. Pennsylvania, 403 U. S. 528 , 403 U. S. 540 -541 (1971) (plurality opinion). We do not decide that issue today. In view of our disposition of this case, we assume, without deciding, that the Miranda principles were fully applicable to the present proceedings. [ Footnote 5 ] When this case arose, a California statute provided that a proceeding in juvenile court to declare a minor a ward of the court was to be commenced by the filing of a petition by a probation officer. Cal.Welf. & Inst.Code Ann. § 650 (West 1972). This provision since has been amended to provide that most such petitions are to be filed by the prosecuting attorney. 1976 Cal.Stats., ch. 1071, § 20. Respondent argues that, whatever the status of the probation officer as a peace officer at the time this case arose, the amendment of § 650 indicates that in the future a probation officer is not to be viewed as a legal adversary of the accused juvenile. Consequently, respondent believes that any holding of this Court with regard to respondent's 1976 request for a probation officer will be mere dictum with regard to a juvenile's similar request today. Brief for Respondent 9-10, and n. 4. We disagree. The fact that a California probation officer in 1976 was responsible for initiating a complaint is only one factor in our analysis. The fact remains that a probation officer does not fulfill the role in our system of criminal justice that an attorney does, regardless of whether he acts merely as a counselor or has significant law enforcement duties. And in California, as in many States, the other duties of a probation officer are incompatible with the view that he may act as a counselor to a juvenile accused of crime. The very California statute that imposes upon the probation officer the duty to represent the interests of the juvenile also provides: "It shall be the duty of the probation officer to prepare for every hearing [of criminal charges against a juvenile] a social study of the minor, containing such matters as may be relevant to a proper disposition of the case." Cal.Welf. & Inst. Code Ann. § 280 (West Supp. 1979). Similarly, a probation officer is required, upon the order of the juvenile court or the Youth Authority, to investigate the circumstances surrounding the charge against the minor and to file written reports and recommendations. §§ 281, 284. And a probation officer in California continues to have the powers and authority of a peace officer in connection with any violation of a criminal statute that is discovered by the probation officer in the course of his probation activities. § 283; Cal.Penal Code Ann. § 830.5 (West 1970). The duties of a peace officer, like the investigative and reporting duties of probation officers, are incompatible with the role of legal adviser to a juvenile accused of crime. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, dissenting. In Miranda v. Arizona, 384 U. S. 436 (1966), this Court sought to ensure that the inherently coercive pressures of custodial interrogation would not vitiate a suspect's privilege against self-incrimination. Noting that these pressures "can operate very quickly to overbear the will of one merely made aware of his privilege," id. at 384 U. S. 469 , the Court held: "If [a suspect in custody] indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. . . . If the individual states that he wants an attorney, the interrogation Page 442 U. S. 729 must cease until an attorney is present." Id. at 384 U. S. 473 -474 (footnote omitted). See also id. at 384 U. S. 444 -445. As this Court has consistently recognized, the coerciveness of the custodial setting is of heightened concern where, as here, a juvenile is under investigation. In Haley v. Ohio, 332 U. S. 596 (1948), the plurality reasoned that, because a 15 1/2-year-old minor was particularly susceptible to overbearing interrogation tactics, the voluntariness of his confession could not "be judged by the more exacting standards of maturity." Id. at 332 U. S. 599 . The Court reiterated this point in Gallegos v. Colorado, 370 U. S. 49 , 370 U. S. 54 (1962), observing that a 14-year-old suspect could not "be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions." The juvenile defendant, in the Court's view, required "the aid of more mature judgment as to the steps he should take in the predicament in which he found himself. A lawyer or an adult relative or friend could have given the petitioner the protection which his own immaturity could not." Ibid. And, in In re Gault, 387 U. S. 1 , 387 U. S. 55 (1967), the Court admonished that "the greatest care must be taken to assure that [a minor's] admission was voluntary." It is therefore critical in the present context that we construe Miranda's prophylactic requirements broadly to accomplish their intended purpose -- "dispel[ling] the compulsion inherent in custodial surroundings." 384 U.S. at 384 U. S. 458 . To effectuate this purpose, the Court must ensure that the "protective device" of legal counsel, id. at 384 U. S. 465 -466, 469, be readily available, and that any intimation of a desire to preclude questioning be scrupulously honored. Thus, I believe Miranda requires that interrogation cease whenever a juvenile requests an adult who is obligated to represent his interests. Such a Page 442 U. S. 730 request, in my judgment, constitutes both an attempt to obtain advice and a general invocation of the right to silence. For, as the California Supreme Court recognized, " [i]t is fatuous to assume that a minor in custody will be in a position to call an attorney for assistance,'" 21 Cal. 3d 471 , 475-476, 579 P.2d 7, 9 (1978), quoting People v. Burton, 6 Cal. 3d 375 , 382, 491 P.2d 793, 797 (1971), or that he will trust the police to obtain a lawyer for him. [ Footnote 2/1 ] A juvenile in these circumstances will likely turn to his parents, or another adult responsible for his welfare, as the only means of securing legal counsel. Moreover, a request for such adult assistance is surely inconsistent with a present desire to speak freely. Requiring a strict verbal formula to invoke the protections of Miranda would "protect the knowledgeable accused from stationhouse coercion while abandoning the young person who knows no more than to ask for the . . . person he trusts." Chaney v. Wainwright, 561 F.2d 1129, 1134 (CA5 1977) (Goldberg, J., dissenting) . On my reading of Miranda, a California juvenile's request for his probation officer should be treated as a per se assertion of Fifth Amendment rights. The California Supreme Court determined that probation officers have a statutory duty to represent minors' interests and, indeed, are "trusted guardian figure[s]" to whom a juvenile would likely turn for assistance. 21 Cal. 3d at 476, 579 P.2d at 10. In addition, the court found, probation officers are particularly well suited to assist a juvenile "on such matters as to whether or not he should obtain an attorney" and "how to conduct himself with police." Id. at 476, 477, 579 P.2d at 10. Hence, a juvenile's request Page 442 U. S. 731 for a probation officer may frequently be an attempt to secure protection from the coercive aspects of custodial questioning. [ Footnote 2/2 ] This Court concludes, however, that, because probation officer has law enforcement duties, juveniles generally would not call upon him to represent their interests, and if they did, would not be well served. Ante at 442 U. S. 721 -722. But that conclusion ignores the California Supreme Court's express determination that the officer's responsibility to initiate juvenile proceedings did not negate his function as personal adviser to his wards. [ Footnote 2/3 ] I decline to second-guess that court's assessment of state law. See Murdock v. Memphis , 20 Wall. 590, 87 U. S. 626 (1875); General Trading Co. v. State Tax Comm'n, 322 U. S. 335 , 322 U. S. 337 (1944); Scripto, Inc. v. Carson, 362 U. S. 207 , 362 U. S. 210 (1960). [ Footnote 2/4 ] Further, although the majority here speculates Page 442 U. S. 732 that probation officers have a duty to advise cooperation with the police, ante at 442 U. S. 721 -- a proposition suggested only in the concurring opinion of two justices blow, 21 Cal. 3d at 479, 579 P.2d at 11-12 (Mosk, J., joined by Bird, C.J., concurring) -- respondent's probation officer instructed all his charges "not to go and admit openly to an offense, [but rather] to get some type of advice from . . . parents or a lawyer." App. 30. Absent an explicit statutory provision or judicial holding, the officer's assessment of the obligations imposed by state law is entitled to deference by this Court. Thus, given the role of probation officers under California law, a juvenile's request to see his officer may reflect a desire for precisely the kind of assistance Miranda guarantees an accused before he waives his Fifth Amendment rights. At the very least, such a request signals a desire to remain silent until contact with the officer is made. Because the Court's contrary determination withdraws the safeguards of Miranda from those most in need of protection, I respectfully dissent. [ Footnote 2/1 ] The facts of the instant case are illustrative. When the police offered to obtain an attorney for respondent, he replied: "How I know you guys won't pull no police officer in and tell me he's an attorney?" Ante at 442 U. S. 710 . Significantly, the police made no attempt to allay that concern. See 21 Cal. 3d at 476 n. 3, 579 P.2d at 10 n. 3. [ Footnote 2/2 ] The Court intimates that construing a request for a probation officer as an invocation of the Fifth Amendment privilege would undermine the specificity of Miranda's prophylactic rules. Ante at 442 U. S. 718 . Yet the Court concedes that the statutory duty to "advise and care for the juvenile defendant," 21 Cal. 3d at 477, 579 P.2d at 10, distinguishes probation officers from other adults, such as coaches and clergymen. Ante at 442 U. S. 723 . Since law enforcement officials should be on notice of such legal relationships, they would presumably have no difficulty determining whether a suspect has asserted his Fifth Amendment rights. Although I agree with my Brother POWELL that, on the facts here, respondent was not "subjected to a fair interrogation free from inherently coercive circumstances," post at 442 U. S. 734 , I do not believe a case-by-case approach provides police sufficient guidance, or affords juveniles adequate protection. [ Footnote 2/3 ] In filing the petition and performing the other functions enumerated ante at 442 U. S. 720 -721, n. 5, the probation officer must act in the best interests of the minor. See In re Steven C., 9 Cal. App. 3d 255 , 264-265, 88 Cal. Rptr. 97, 101-102 (1970). [ Footnote 2/4 ] One thing is certain. The California Supreme Court is more familiar with the duties and performance of its probation officers than we are. Of course, "[i]t is peculiarly within the competence of the highest court of a State to determine that in its jurisdiction the police should be subject to more stringent rules than are required as a federal constitutional minimum." Oregon v. Hass, 420 U. S. 714 , 420 U. S. 728 (1975) (MARSHALL, J., dissenting). See also People v. Disbrow, 16 Cal. 3d 101 , 545 P.2d 272 (1976) (refusing to follow Harris v. New York, 401 U. S. 222 (1971)); Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv.L.Rev. 489 (1977). MR. JUSTICE POWELL, dissenting. Although I agree with the Court that the Supreme Court of California misconstrued Miranda v. Arizona, 384 U. S. 436 (1966), [ Footnote 3/1 ] I would not reverse the California court's judgment. This Court repeatedly has recognized that "the greatest care" must be taken to assure that an alleged confession of a juvenile was voluntary. See, e.g., In re Gault, 387 U. S. 1 , 387 U. S. 55 Page 442 U. S. 733 (1967); Gallegos v. Colorado, 370 U. S. 49 , 370 U. S. 54 (1962); Haley v. Ohio, 332 U. S. 596 , 332 U. S. 599 -600 (1948) (plurality opinion). Respondent was a young person, 16 years old at the time of his arrest and the subsequent prolonged interrogation at the station house. Although respondent had had prior brushes with the law, and was under supervision by a probation officer, the taped transcript of his interrogation -- as well as his testimony at the suppression hearing -- demonstrates that he was immature, emotional, [ Footnote 3/2 ] and uneducated, and therefore was likely to be vulnerable to the skillful, two-on-one, repetitive style of interrogation to which he was subjected. App. 54-82. When given Miranda warnings and asked whether he desired an attorney, respondent requested permission to "have my probation officer here," a request that was refused. Id. at 55. That officer testified later that he had communicated frequently with respondent, that respondent had serious and "extensive" family problems, and that the officer had instructed respondent to call him immediately "at any time he has a police contact, even if they stop him and talk to him on the street." Id. at 26-31. [ Footnote 3/3 ] The reasons given by the probation officer for having so instructed his charge were substantially the same reasons that prompt this Court to examine with special care the circumstances under which a minor's alleged confession was obtained. After stating that respondent had been "going through problems," the officer observed that "many times the kids don't understand what is going on, and what they are supposed to do relative to police. . . ." Id. at 29. This view of the limited understanding of the average 16-year-old was borne out by respondent's question when, Page 442 U. S. 734 during interrogation, he was advised of his right to an attorney: "How I know you guys won't pull no police officer in and tell me he's an attorney?" Id. at 55. It was during this part of the interrogation that the police had denied respondent's request to "have my probation officer here." Ibid. The police then proceeded, despite respondent's repeated denial of any connection to the murder under investigation, see id. at 56-60, persistently to press interrogation until they extracted a confession. In In re Gault, in addressing police interrogation of detained juveniles, the Court stated: "If counsel was not present for some permissible reason when an admission was obtained [from a child], the greatest care must be taken to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair." 387 U.S. at 387 U. S. 55 . It is clear that the interrogating police did not exercise "the greatest care" to assure that respondent's "admission was voluntary." [ Footnote 3/4 ] In the absence of counsel, and having refused to call the probation officer, they nevertheless engaged in protracted interrogation. Although I view the case as close, I am not satisfied that this particular 16-year-old boy, in this particular situation, was subjected to a fair interrogation free from inherently coercive circumstances. For these reasons, I would affirm the judgment of the Supreme Court of California. [ Footnote 3/1 ] The California Supreme Court, purporting to apply Miranda v. Arizona, stated: "Here . . . we face conduct which, regardless of considerations of capacity, coercion or voluntariness, per se invokes the privilege against self-incrimination." 21 Cal. 3d 471 , 477, 579 P.2d 7, 10 (1978). I agree with the Court's opinion today that Miranda cannot be read as support for any such per se rule. [ Footnote 3/2 ] The Juvenile Court Judge observed that he had "heard the tapes" of the interrogation, and was "aware of the fact that Michael [respondent] was crying at the time he talked to the police officers." App. 53. [ Footnote 3/3 ] The Supreme Court of California stated that a "probation officer is an official appointed pursuant to legislative enactment 'to represent the interests' of the juvenile [and] . . . has borne the duty to advise and care for the juvenile defendant." 21 Cal. 3d at 477, 579 P.2d at 10. [ Footnote 3/4 ] Minors who become embroiled with the law range from the very young up to those on the brink of majority. Some of the older minors become fully "street-wise," hardened criminals, deserving no greater consideration than that properly accorded all persons suspected of crime. Other minors are more of a child than an adult. As the Court indicated in In re Gault, 387 U. S. 1 (1967), the facts relevant to the care to be exercised in a particular case vary widely. They include the minor's age, actual maturity, family environment, education, emotional and mental stability, and, of course, any prior record he might have.

The Supreme Court of the United States ruled that a minor's request to speak to their probation officer is not an automatic invocation of their Fifth Amendment right to remain silent, unlike a request for an attorney. The Court held that a probation officer cannot offer the same legal protection as an attorney during police interrogation. Therefore, the minor's statements and sketches implicating them in a murder were admissible, as they had voluntarily waived their right to remain silent.

Miranda Rights

Doyle v. Ohio

https://supreme.justia.com/cases/federal/us/426/610/

U.S. Supreme Court Doyle v. Ohio, 426 U.S. 610 (1976) Doyle v. Ohio No. 75-5014 Argued February 23, 1976 Decided June 17, 1976 426 U.S. 610 ast|>* 426 U.S. 610 CERTIORARI TO THE COURT OF APPEALS OF OHIO, TUSCARAWAS COUNTY Syllabus During the course of their state criminal trials petitioners, who, after arrest, were given warnings in line with Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 -473, took the stand and gave an exculpatory story that they had not previously told to the police or the prosecutor. Over their counsel's objection, they were cross-examined as to why they had not given the arresting officer the exculpatory explanations. Petitioners were convicted, and their convictions were upheld on appeal. Held: The use for impeachment purposes of petitioners' silence, at the time of arrest and after they received Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. Post-arrest silence following such warnings is insolubly ambiguous; moreover, it would be fundamentally unfair to allow an arrestee's silence to be used to impeach an explanation subsequently given at trial after he had been impliedly assured, by the Miranda warnings, that silence would carry no penalty. Pp. 426 U. S. 616 -620. Reversed and remanded. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 426 U. S. 620 . Page 426 U. S. 611 MR. JUSTICE POWELL delivered the opinion of the Court. The question in these consolidated cases is whether a state prosecutor may seek to impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story after receiving Miranda warnings [ Footnote 1 ] at the time of his arrest. We conclude that use of the defendant's post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners. I Petitioners Doyle and Wood were arrested together and charged with selling 10 pounds of marihuana to a local narcotics bureau informant. They were convicted in the Common Pleas Court of Tuscarawas County, Ohio, in separate trials held about one week apart. The evidence at their trials was identical in all material respects. The State's witnesses sketched a picture of a routine marihuana transaction. William Bonnell, a well known "street person" with a long criminal record, offered to assist the local narcotics investigation unit in setting up drug "pushers" in return for support in his efforts to receive lenient treatment in his latest legal problems. The narcotics agents agreed. A short time later, Bonnell advised the unit that he had arranged a "buy" of 10 pounds of marihuana and needed $1,750 to pay for it. Since the banks were closed and time was short, the agents were able to collect only $1,320. Bonnell took this money and left for the rendezvous, under surveillance by four narcotics agents in two cars. As planned, he met petitioners in a bar in Dover, Ohio. From there, he and petitioner Wood drove in Bonnell's Page 426 U. S. 612 pickup truck to the nearby town of New Philadelphia, Ohio, while petitioner Doyle drove off to obtain the marihuana and then meet them at a prearranged location in New Philadelphia. The narcotics agents followed the Bonnell truck. When Doyle arrived at Bonnell's waiting truck in New Philadelphia, the two vehicles proceeded to a parking lot, where the transaction took place. Bonnell left in his truck, and Doyle and Wood departed in Doyle's car. They quickly discovered that they had been paid $430 less than the agreed-upon price, and began circling the neighborhood looking for Bonnell. They were stopped within minutes by New Philadelphia police acting on radioed instructions from the narcotics agents. One of those agents, Kenneth Beamer, arrived on the scene promptly, arrested petitioners, and gave them Miranda warnings. A search of the car, authorized by warrant, uncovered the $1,320. At both trials, defense counsel's cross-examination of the participating narcotics agents was aimed primarily at establishing that, due to a limited view of the parking lot, none of them had seen the actual transaction but had seen only Bonnell standing next to Doyle's car with a package under his arm, presumably after the transaction. [ Footnote 2 ] Each petitioner took the stand at his trial and admitted practically everything about the State's case except the most crucial point: who was Page 426 U. S. 613 selling marihuana to whom. According to petitioners, Bonnell had framed them. The arrangement had been for Bonnell to sell Doyle 10 pounds of marihuana. Doyle had left the Dover bar for the purpose of borrowing the necessary money, but, while driving by himself, had decided that he only wanted one or two pounds, instead of the agreed-upon 10 pounds. When Bonnell reached Doyle's car in the New Philadelphia parking lot, with the marihuana under his arm, Doyle tried to explain his change of mind. Bonnell grew angry, threw the $1,320 into Doyle's car, and took all 10 pounds of the marihuana back to his truck. The ensuing chase was the effort of Wood and Doyle to catch Bonnell to find out what the $1,320 was all about. Petitioners' explanation of the events presented some difficulty for the prosecution, as it was not entirely implausible and there was little if any direct evidence to contradict it. [ Footnote 3 ] As part of a wide-ranging cross-examination for impeachment purposes, and in an effort to undercut the explanation, the prosecutor asked each petitioner at his respective trial why he had not told the frame-up story to Agent Beamer when he arrested petitioners. In the first trial, that of petitioner Wood, the following colloquy occurred: [ Footnote 4 ] "Q. [By the prosecutor.] Mr. Beamer did arrive on the scene?" "A. [By Wood.] Yes, he did." "Q. And I assume you told him all about what happened to you?" " * * * *" "A. No. " Page 426 U. S. 614 "Q. You didn't tell Mr. Beamer?" " * * * *" "A. No." "Q. You didn't tell Mr. Beamer this guy put $1,300 in your car?" "A. No, sir." "Q. And we can't understand any reason why anyone would put money in your car and you were chasing him around town and trying to give it back?" "A. I didn't understand that." "Q. You mean you didn't tell him that?" "A. Tell him what?" "Q. Mr. Wood, if that is all you had to do with this and you are innocent, when Mr. Beamer arrived on the scene, why didn't you tell him?" " * * * *" "Q But, in any event, you didn't bother to tell Mr. Beamer anything about this?" "A. No, sir." Defense counsel's timely objections to the above questions of the prosecutor were overruled. The cross-examination of petitioner Doyle at his trial contained a similar exchange, and again defense counsel's timely objections were overruled. [ Footnote 5 ] Page 426 U. S. 615 Each petitioner appealed to the Court of Appeals, Fifth District, Tuscarawas County, alleging, inter alia, that the trial court erred in allowing the prosecutor to cross-examine the petitioner at his trial about his post-arrest silence. The Court of Appeals affirmed the convictions, stating as to the contentions about the post-arrest silence: "This was not evidence offered by the state in its case in chief as confession by silence or as substantive evidence of guilt, but rather cross examination Page 426 U. S. 616 of a witness as to why he had not told the same story earlier at his first opportunity." "We find no error in this. It goes to credibility of the witness." The Supreme Court of Ohio denied further review. We granted certiorari to decide whether impeachment use of a defendant's post-arrest silence violates any provision of the Constitution, [ Footnote 6 ] a question left open last Term in United States v. Hale, 422 U. S. 171 (1975), and on which the Federal Courts of Appeals are in conflict. See id. at 422 U. S. 173 n. 2. II The State pleads necessity as justification for the prosecutor's action in these cases. It argues that the discrepancy between an exculpatory story at trial and silence at time of arrest gives rise to an inference that the story was fabricated somewhere along the way, perhaps to fit within the seams of the State's case as it was developed at pretrial hearings. Noting that the prosecution usually has little else with which to counter such an exculpatory story, the State seeks only the right to cross-examine a defendant as to post-arrest silence for the limited purpose of impeachment. In support of its position, the State emphasizes the importance of cross-examination Page 426 U. S. 617 in general, see Brown v. United States, 356 U. S. 148 , 356 U. S. 154 -155 (1958), and relies upon those cases in which this Court has permitted use for impeachment purposes of post-arrest statements that were inadmissible as evidence of guilt because of an officer's failure to follow Miranda's dictates. Harris v. New York, 401 U. S. 222 (1971); Oregon v. Hass, 420 U. S. 714 (1975); see also Walder v. United States, 347 U. S. 62 (1954). Thus, although the State does not suggest petitioners' silence could be used as evidence of guilt, it contends that the need to present to the jury all information relevant to the truth of petitioners' exculpatory story fully justifies the cross-examination that is at issue. Despite the importance of cross-examination, [ Footnote 7 ] we have concluded that the Miranda decision compels rejection of the State's position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 443 -444 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee's exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. [ Footnote 8 ] See United States v. Hale, supra, Page 426 U. S. 618 at 422 U. S. 177 . Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial. [ Footnote 9 ] Page 426 U. S. 619 MR. JUSTICE WHITE, concurring in the judgment in United States v. Hale, supra at 422 U. S. 182 -183, put it very well: "[W] hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that, because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony. . . . Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case. [ Footnote 10 ]" We hold that the use for impeachment purposes of petitioners' silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment. [ Footnote 11 ] The State has not Page 426 U. S. 620 claimed that such use in the circumstances of this case might have been harmless error. Accordingly, petitioners' convictions are reversed and their causes remanded to the state courts for further proceedings not inconsistent with this opinion. So ordered. * Together with No. 75-5015, Wood v. Ohio, also on certiorari to the same court. [ Footnote 1 ] Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 -473 (1966). [ Footnote 2 ] Defense counsel's efforts were not totally successful. One of the four narcotics agents testified at both trials that he had seen the package passed through the window of Doyle's car to Bonnell. In an effort to impeach that testimony, defense counsel played a tape of the preliminary hearing at which the same agent had testified only to seeing the package under Bonnell's arm. The agent did not retract his trial testimony, and both he and the prosecutor explained the apparent inconsistency by noting that the examination at the preliminary hearing had not focused upon whether anyone had seen the package pass to Bonnell. [ Footnote 3 ] See n 2; supra. [ Footnote 4 ] Trial transcript in Ohio v. Wood, No. 10657, Common Pleas Court, Tuscaravas County, Ohio (hereafter Wood Tr.), 465-470. [ Footnote 5 ] Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Tr.), 504-507. "Q. [By the prosecutor.] . . . You are innocent?" "A. [By Doyle.] I am innocent. Yes Sir." "Q. That's why you told the police department and Kenneth Beamer when they arrived -- " " * * * *" "(Continuing.) -- about your innocence?" " * * * *" "A. . . . I didn't tell them about my innocence. No." "Q. You said nothing at all about how you had been set up?" " * * * *" "Q. Did Mr. Wood?" "A. Not that I recall, Sir." " * * * *" "Q. As a matter of fact, if I recall your testimony correctly, you said, instead of protesting your innocence, as you do today, you said, in response to a question of Mr. Beamer, -- 'I don't know what you are talking about.'" "A. I believe what I said, -- 'What's this all about?' If I remember, that's the only thing I said." " * * * *" "A. I was questioning, you know, what it was about. That's what I didn't know. I knew that I was trying to buy, which was wrong, but I didn't know what was going on. I didn't know that Bill Bonnell was trying to frame me, or what-have-you." " * * * *" "Q. All right, -- But you didn't protest your innocence at that time?" " * * * *" "A. Not until I knew what was going on." In addition, the court in both trials permitted the prosecutor, over more objections, to argue petitioners' post-arrest silence to the jury. Closing Argument of Prosecutor 13-14, supplementing Wood Tr.; Doyle Tr. 515, 526. [ Footnote 6 ] Petitioners also claim constitutional error because each of them was cross-examined by the prosecutor as to why he had not told the exculpatory story at the preliminary hearing or any other time prior to the trials. In addition, error of constitutional dimension is asserted because each petitioner was cross-examined as to post-arrest, preliminary hearing, and general pretrial silence when he testified as a defense witness at the other petitioner's trial. These averments of error present different considerations from those implicated by cross-examining petitioners as defendants as to their silence after receiving Miranda warnings at the time of arrest. In view of our disposition of this case, we find it unnecessary to reach these additional issues. [ Footnote 7 ] We recognize, of course, that, unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination, some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge. See generally Fitzpatrick v. United States, 178 U. S. 304 , 178 U. S. 315 (1900). [ Footnote 8 ] The dissent by MR. JUSTICE STEVENS expresses the view that the giving of Miranda warnings does not lessen the "probative value of [a defendant's] silence. . . ." Post at 426 U. S. 621 . But in United States v. Hale, 422 U. S. 171 , 422 U. S. 177 (1975), we noted that silence at the time of arrest may be inherently ambiguous even apart from the effect of Miranda warnings, for, in a given case, there may be several explanations for the silence that are consistent with the existence of an exculpatory explanation. In Hale, we exercised our supervisory powers over federal courts. The instant cases, unlike Hale, come to us from a state court, and thus provide no occasion for the exercise of our supervisory powers. Nor is it necessary, in view of our holding above, to express an opinion on the probative value for impeachment purposes of petitioners' silence. We note only that the Hale court considered silence at the time of arrest likely to be ambiguous, and thus of dubious probative value. [ Footnote 9 ] A somewhat analogous situation was presented in Johnson v. United States, 318 U. S. 189 (1943). A defendant who testified at his trial was permitted by the trial judge to invoke the Fifth Amendment privilege against self-incrimination in response to certain questions on cross-examination. This Court assumed that it would not have been error for the trial court to have denied the privilege in the circumstances, see id. at 318 U. S. 196 , in which case a failure to answer would have been a proper basis for adverse inferences and a proper subject for prosecutorial comment. But because the privilege had been granted, even if erroneously, "the requirements of fair trial" made it error for the trial court to permit comment upon the defendant's silence. Ibid. "An accused having the assurance of the court that his claim of privilege would be granted might well be entrapped if his assertion of the privilege could then be used against him. His real choice might then be quite different from his apparent one. . . . Elementary fairness requires that an accused should not be misled on that score." Id. at 318 U. S. 197 . Johnson was decided under this Court's supervisory powers over the federal courts. But the necessity for elementary fairness is not unique to the federal criminal system. Cf. Raley v. Ohio, 360 U. S. 423 , 360 U. S. 437 -440 (1959). [ Footnote 10 ] The dissenting opinion relies on the fact that petitioners in this case, when cross-examined about their silence, did not offer reliance on Miranda warnings as a justification. But the error we perceive lies in the cross-examination on this question, thereby implying an inconsistency that the jury might construe as evidence of guilt. After an arrested person is formally advised by an officer of the law that he has a right to remain silent, the unfairness occurs when the prosecution, in the presence of the jury, is allowed to undertake impeachment on the basis of what may be the exercise of that right. [ Footnote 11 ] It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation, the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant's testimony as to his behavior following arrest. Cf. United States v. Fairchild, 505 F.2d 1378, 1383 (CA5 1975). MR. JUSTICE STEVENS, with whom MR. JUSTICE BLACKMUN and MR. JUSTICE REHNQUIST join, dissenting. Petitioners assert that the prosecutor's cross-examination about their failure to mention the purported "frame" until they testified at trial violated their constitutional right to due process and also their constitutional privilege against self-incrimination. I am not persuaded by the first argument; though there is merit in a portion of the second, I do not believe it warrants reversal of these state convictions. I The Court's due process rationale has some of the characteristics of an estoppel theory. If (a) the defendant is advised that he may remain silent, and (b) he does remain silent, then we (c) presume that his decision was made in reliance on the advice, and (d) conclude that it is unfair in certain cases, though not others, [ Footnote 2/1 ] to use his silence to impeach his trial testimony. The key to the Court's analysis is apparently a concern that the Miranda warning, which is intended to increase the probability Page 426 U. S. 621 that a person's response to police questioning will be intelligent and voluntary, will actually be deceptive unless we require the State to honor an unstated promise not to use the accused's silence against him. In my judgment, there is nothing deceptive or prejudicial to the defendant in the Miranda warning. [ Footnote 2/2 ] Nor do I believe that the fact that such advice was given to the defendant lessens the probative value of his silence, or makes the prosecutor's cross-examination about his silence any more unfair than if he had received no such warning. This is a case in which the defendants' silence at the time of their arrest was graphically inconsistent with their trial testimony that they were the unwitting victim of a "frame-up" in which the police did not participate. If defendants had been framed, their failure to mention that fact at the time of their arrest is almost Page 426 U. S. 622 inexplicable; for that reason, under accepted rules of evidence, their silence is tantamount to a prior inconsistent statement, and admissible for purposes of impeachment. [ Footnote 2/3 ] Indeed, there is irony in the fact that the Miranda warning provides the only plausible explanation for their silence. If it were the true explanation, I should think that they would have responded to the questions on cross-examination about why they had remained silent by stating that they relied on their understanding of the advice given by the arresting officers. Instead, however, they gave quite a different jumble of responses. [ Footnote 2/4 ] Those Page 426 U. S. 623 responses negate the Court's presumption that their silence was induced by reliance on deceptive advice. Since the record requires us to put to one side the Page 426 U. S. 624 Court' presumption that the defendants' silence was the product of reliance on the Miranda warning, the Court's entire due process rationale collapses. For without reliance Page 426 U. S. 625 on the waiver, the case is no different than if no warning had been given, and nothing in the Court's opinion suggests that there would be any unfairness in Page 426 U. S. 626 using petitioners' prior inconsistent silence for impeachment purposes in such a case. Indeed, as a general proposition, if we assume the defendant's silence would be admissible for impeachment purposes if no Miranda warning had been given, I should think that the warning would have a tendency to salvage the defendant's credibility as a witness. If the defendant is a truthful witness, and if his silence is the consequence of his understanding of the Miranda warning, he may explain that fact when he is on the stand. Even if he is untruthful, the availability of that explanation puts him in a better position than if he had received no warning. In my judgment, the risk that a truthful defendant will be deceived by the Miranda warning and also will be unable to explain his honest misunderstanding is so much less than the risk that exclusion of the evidence will merely provide a shield for perjury that I cannot accept the Court's due process rationale. Accordingly, if we assume that the use of a defendant's silence for impeachment purposes would be otherwise unobjectionable, I find no merit in the notion that he is denied due process of law because he received a Miranda warning. II Petitioners argue that the State violated their Fifth Amendment privilege against self-incrimination by asking the jury to draw an inference of guilt from their constitutionally protected silence. They challenge both the prosecutor's cross-examination and his closing argument. A Petitioners claim that the cross-examination was improper because it referred to their silence at the time of Page 426 U. S. 627 their arrest, to their failure to testify at the preliminary hearing, and to their failure to reveal the "frame" prior to trial. Their claim applies to the testimony of each defendant at his own trial, and also to the testimony each gave as a witness at the trial of the other. Since I think it quite clear that a defendant may not object to the violation of another person's privilege, [ Footnote 2/5 ] I shall only discuss the argument that a defendant may not be cross-examined about his own prior inconsistent silence. In support of their objections to the cross-examination about their silence at the time of arrest, petitioners primarily rely on the statement in Miranda v. Arizona, 384 U. S. 436 , that the prosecution may not use at trial the fact that the defendant stood mute or claimed the privilege in the face of accusations during custodial interrogation. [ Footnote 2/6 ] There are two reasons why that statement does not adequately support petitioners' argument. First, it is not accurate to say that the petitioners "stood mute or claimed the privilege in the face of accusations." Neither petitioner claimed the privilege, and Page 426 U. S. 628 petitioner Doyle did not even remain silent. [ Footnote 2/7 ] The case is not one in which a description of the actual conversation between the defendants and the Police would give rise to any inference of guilt if it were not so flagrantly inconsistent with their trial testimony. Rather than a claim of privilege, we simply have a failure to advise the police of a "frame" at a time when it most surely would have been mentioned if petitioners' trial testimony were true. That failure gave rise to an inference of guilt only because it belied their trial testimony. Second, the dictum in the footnote in Miranda relies primarily upon Griffin v. California, 380 U. S. 609 , which held that the Fifth Amendment, as incorporated in the Fourteenth, prohibited the prosecution's use of the defendant's silence in its case in chief. But as long ago as Raffel v. United States, 271 U. S. 494 , this Court recognized the distinction between the prosecution's affirmative use of the defendant's prior silence and the use of prior silence for impeachment purposes. Raffel expressly held that the defendant's silence at a prior trial was admissible for purposes of impeachment despite the application in federal prosecutions of the prohibition that Griffin found in the Fifth Amendment. Raffel, supra at 271 U. S. 496 -497. Moreover, Mr. Chief Justice Warren, the author of the Court's opinion in Miranda, joined the opinion in Walder v. United States, 347 U. S. 62 , which squarely held that a valid constitutional objection to the admissibility of evidence as part of the Government's case in chief did not bar the use of that evidence to impeach the defendant's trial testimony. The availability of an objection to the affirmative use of improper evidence does not provide the defendant "with a shield against contradiction of his untruths." Id. at 347 U. S. 65 . The need to ensure the integrity Page 426 U. S. 629 of the truth-determining function of the adversary trial process has provided the predicate for an unbroken line of decisions so holding. [ Footnote 2/8 ] Page 426 U. S. 630 Although I have no doubt concerning the propriety of the cross-examination about petitioners' failure to mention the purported "frame" at the time of their arrest, a more difficult question is presented by their objection to the questioning about their failure to testify at the preliminary hearing and their failure generally to mention the "frame" before trial. [ Footnote 2/9 ] Unlike the failure Page 426 U. S. 631 to make the kind of spontaneous comment that discovery of a "frame" would be expected to prompt, there is no significant inconsistency between petitioners' trial testimony Page 426 U. S. 632 and their adherence to counsel's advice not to take the stand at the preliminary hearing; moreover, the decision not to divulge their defense prior to trial is probably attributable to counsel rather than to petitioners. [ Footnote 2/10 ] Nevertheless, unless and until this Court overrules Raffel v. United States, 271 U. S. 494 , [ Footnote 2/11 ] I think a state court is Page 426 U. S. 633 free to regard the defendant's decision to take the stand as a waiver of his objection to the use of his failure to testify at an earlier proceeding or his failure to offer his version of the events prior to trial. B In my judgment, portions of the prosecutor's argument to the jury overstepped permissible bounds. In each trial, he commented upon the defendant's silence not only as inconsistent with his testimony that he had been "framed," Page 426 U. S. 634 but also as inconsistent with the defendant's innocence. [ Footnote 2/12 ] Comment on the lack of credibility of the defendant is plainly proper; it is not proper, however, for the prosecutor Page 426 U. S. 635 to ask the jury to draw a direct inference of guilt from silence -- to argue, in effect, that silence is inconsistent with innocence. But since the two inferences -- perjury Page 426 U. S. 636 and guilt -- are inextricably intertwined, because they have a common source, it would be unrealistic to permit comment on the former but to find reversible error in the slightest reference to the latter. In the context of the entire argument and the entire trial, I am not persuaded that the rather sophisticated distinction between permissible comment on credibility and impermissible comment on an inference of guilt justifies a reversal of these state convictions. [ Footnote 2/13 ] Accordingly, although I have some doubt concerning the propriety of the cross-examination about the preliminary hearing and consider a portion of the closing argument improper, I would affirm these convictions. [ Footnote 2/1 ] As the Court acknowledges, the "fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest." Ante at 426 U. S. 619 and this page, n. 11. [ Footnote 2/2 ] At Wood's trial, the arresting officer described the warning he gave petitioners: "I told Mr. Wood and Mr. Doyle of the Miranda warning rights -- they had the right to remain silent, anything they said could and would be used against them in a court of law, and they had the right to an attorney and didn't have to say anything without an attorney being present, and, if they couldn't afford one, the court would appoint them one at the proper time." Trial transcript in Ohio v. Wood, No. 10657, Common Pleas Court, Tuscarawas County, Ohio (hereafter Wood Tr.), 126. At the Doyle trial, he, testified that he "gave them their rights" and gave them a " Miranda Warning.'" Trial transcript in Ohio v. Doyle, No. 10656, Common Pleas Court, Tuscarawas County, Ohio (hereafter Doyle Tr.), 269. Miranda v. Arizona, 384 U. S. 436 , requires the following warning: "[The suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires." Id. at 384 U. S. 479 . [ Footnote 2/3 ] 3A J. Wigmore, Evidence § 1042 (Chadbourn rev.1970). [ Footnote 2/4 ] Petitioner Doyle gave the following testimony on direct and cross-examination at his trial: "Q. [By defense counsel.] And you were placed under arrest at that time?" "A. [By Doyle.] Yes. I asked what for, and he said, -- 'For the sale of marijuana.' I told him, -- I didn't know what he was talking about." "Q. [By the prosecutor.] As a matter of fact, if I recall your testimony correctly, you said, instead of protesting your innocence, as you do today, you said in response to a question of Mr. Beamer, -- 'I don't know what you are talking about.'" "A. [By Doyle.] I believe what I said, -- 'What's this all about?' If I remember, that's the only thing I said." "Q. You testified on direct." "A. If I did, then I didn't understand." ". . . I was questioning, you know, what it was about. That's what I didn't know. I knew that I was trying to buy, which was wrong, but I didn't know what was going on. I didn't know that Bill Bonnell was trying to frame me, or what-have-you." " * * * *" "Q. All right -- But you didn't protest your innocence at that time?" " * * * *" "A. Not until I knew what was going on." Doyle Tr. 479, 506-507. At Wood's trial, Doyle gave a somewhat different explanation of his silence at the time of arrest: "Q. [By the prosecutor.] Why didn't [Wood] tell [the police officers] about Mr. Bonnell?" "A. [By Doyle.] Because we didn't know what was going on, and wanted to find out." "Q. So he hid the money under the mat?" "A. The police officers said they stopped us for a red light. I wanted to get my hands on Bill Bonnell." "Q. It wasn't because you were guilty, was it?" "A. Because I wanted to get my hands on Bill Bonnell because I suspected he was trying . . ." "Q. Why didn't you tell the police that Bill Bonnell just set you up?" "A. Because I would rather have my own hands on him." " * * * *" "Q. When Mr. Beamer arrived?" "A. . . . [W]hen Mr. Beamer got there, I said to Mr. Beamer, what the hell is all this about, and he said, you are under arrest for the suspicion of selling marijuana, and I said, you got to be crazy. I was pretty upset." " * * * *" "So, on the night of April 29, you felt that you were being framed like you are being framed today?" "A. I was so confused that night, the night of the arrest." "Q. How about Mr. Wood?" "A. Mr. Wood didn't know what was going on." " * * * *" "Q. . . . Are you as mad and upset today as you were that night?" "A. I can't answer that question." "Q. Did you feel the same way about what happened to you?" "A. That night, I felt like I couldn't believe what was happening." "Q. You didn't like being framed?" "A. That is right. I didn't like someone putting me in a spot like that." "Q. Didn't it occur to you to try to protect yourself?" "A. Yes, at this time, I felt like I wasn't talking to nobody but John James, who was the attorney at that time." "Q. But you felt . . ." "A. The man walked up and didn't ask me anything." "Q. You didn't talk to a soul about how rotten it was because you were framed?" " * * * *" "A. I will answer the question, sir, the best I can. I didn't know what to say. I was stunned about what was going on, and I was asked questions, and I answered the questions as simply as I could, because I didn't have nobody there to help me answer the questions." "Q. Wouldn't that have been a marvelous time to protest your innocence?" " * * * *" "A. I don't know if it would or not." "Q. Do you remember having a conversation with Kenneth Beamer?" "A. Yes, sir." "Q. What was said?" " * * * *" "A. Kenneth Beamer said I want to know where you stash -- where your hide out is, where you are keeping the dope, and I said I don't know what you are talking about. I believe the question was asked in front of you." "Q. Where did this conversation take place?" "A. Took place during the search." " * * * *" "Q. So, anyway, you didn't tell anyone how angry you were that night?" " * * * *" "A. I was very angry." "Q. But you didn't tell anyone?" "A. That is right. If I started, I don't know where I would have stopped. I was upset." Wood Tr. 424-430. Petitioner Wood testified on cross-examination at his trial as follows: "Q. [By the prosecutor.] Jefferson Doyle said he was confused, angry and upset [at the time of the arrest]. Were you confused, angry and upset?" " * * * *" "A. [By Wood.] Upset and confused." "Q. Why were you upset?" "A. Because I didn't know what was going on most of the time." "Q. Why would you be upset? Because you found $1300 in your back seat?" "A. Mainly because the person that was in the car, Jeff [Doyle], was upset confused and angry and . . ." "Q. What has that to do with you?" "A. I am in the car. That is what it has to do with me." " * * * *" "Q. You are innocent?" "A. Yes." "Q. Of anything?" "A. I don't know about anything." "Q. This particular incident, you were placed under arrest, weren't you?" "A. Yes, innocent of this incident." "Q. Innocent of the entire transaction?" "A. Yes, sir." "Q. Or even any knowledge of the entire transaction?" "A. Up to a point, sir." " * * * *" "Q. Mr. Wood, if that is all you had to do with this and you are innocent, when Mr. Beamer arrived on the scene, why didn't you tell him?" " * * * *" "A. Mr. Cunningham, in the last eight months to a year, there has been so many implications, etc. in the paper and law enforcement that are setting people up and busting them for narcotics and stuff." Wood Tr. 467-469. [ Footnote 2/5 ] See Massiah v. United States, 377 U. S. 201 , 377 U. S. 206 -207; 8 J. Wigmore, Evidence § 2270, pp. 416-417 (McNaughton rev. 1961); cf. Alderman v. United States, 394 U. S. 165 , 394 U. S. 174 . Cross-examination and comment upon a witness' prior silence does not raise any inference prejudicial to the defendant, and indeed does not even raise any inference that the defendant remained silent. [ Footnote 2/6 ] "In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation. Cf. Griffin v. California, 380 U. S. 609 (1965); Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 (1964); Comment, 31 U.Chi.L.Rev. 556 (1964); Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 1041-1044 (1966). See also Bram v. United States, 168 U. S. 532 , 168 U. S. 562 (1897)." 384 U.S. at 384 U. S. 468 n. 37. [ Footnote 2/7 ] See 426 U.S. 610 fn2/4|>n. 4, supra. [ Footnote 2/8 ] As the Court recently recognized in a most carefully considered opinion, an adversary system can maintain neither the reality nor the appearance of efficacy without the assurance that its judgments rest upon a complete illumination of a case, rather than upon "a partial or speculative presentation of the facts." United States v. Nixon, 418 U. S. 683 , 418 U. S. 709 . The necessity of insuring a complete presentation of all relevant evidence has led to the rule that a criminal defendant who voluntarily forgoes his privilege not to testify, and presents exculpatory or mitigating evidence, thereby subjects himself to relevant cross-examination without the right to reclaim Fifth Amendment protection on a selective basis. Fitzpatrick v. United States, 178 U. S. 304 , 178 U. S. 315 . "If he takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. '[H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.'" Brown v. United States, 356 U. S. 148 , 356 U. S. 154 -155 (citation omitted). One need not impute perjury to an entire class to acknowledge that a testifying defendant has more to gain and less to lose than an ordinary witness from fabrications upon the witness stand. Cf. Reagan v. United States, 157 U. S. 301 , 157 U. S. 304 -311; Taylor v. United States, 390 F.2d 278, 284-285 (CA8 1968) (Blackmun, J.). As the Court notes today: "Unless prosecutors are allowed wide leeway in the scope of impeachment cross-examination some defendants would be able to frustrate the truth-seeking function of a trial by presenting tailored defenses insulated from effective challenge." Ante at 426 U. S. 617 n. 7. In recognition of this fact, this Court has allowed evidence to be used for impeachment purposes that would be inadmissible as evidence of guilt. In Walder v. United States, 347 U. S. 62 , evidence of narcotics unlawfully seized in connection with an aborted earlier case against a defendant was held admissible for the limited purpose of impeaching the defendant's testimony that he never had been associated with narcotics, although such evidence clearly was inadmissible for any purpose in the prosecution's case in chief. In Harris v. New York, 401 U. S. 222 , the Court held admissible for the purpose of impeaching a defendant's testimony certain partially inconsistent post-arrest statements which, although voluntary, were unavailable for the prosecution's case because they had been given by the defendant without benefit of Miranda warnings. And last Term, in a decision closely analogous to Harris, the Court held admissible for impeachment purposes post-arrest statements of a defendant made after he had received Miranda warnings and exercised his right to request a lawyer, but before he had been furnished with counsel as Miranda requires in such circumstances. Oregon v. Hass, 420 U. S. 714 . In each of these cases involving impeachment cross-examination, the need to insure the integrity of the trial by the "traditional truth-testing devices of the adversary process," Harris v. New York, supra at 401 U. S. 225 , was deemed to outweigh the policies underlying the relevant exclusionary rules. [ Footnote 2/9 ] Petitioner Doyle was cross-examined as follows at his trial: "Q. [By the prosecutor.] All right. Do you remember the Preliminary Hearing in this case?" "A. [By Doyle.] Yes Sir. I remember it." "Q. And that was prior to your indictment for this offense, was it not?" "A. Yes sir. I believe, -- Yes Sir, it was before I was indicted." "Q. Arraignment. Is that what you mean?" "A. Yes. The next day after the arrest." "Q. Yes, when evidence was presented and you had the opportunity to hear the testimony of the witnesses against you. Remember that?" "A. Yes Sir." "Q. Mr. Bonnell testified; Captain Griffin testified; Deputy -- Chief Deputy White testified?" "A. Yes Sir." "Q. Kenneth Beamer testified?" "A. Yes Sir." "Q. You were there, weren't you?" "A. Yes Sir." "Q. And your lawyer was there, -- Mr. James?" "A. Yes Sir." "Q. Tape recording was made of the transcript?" "A. Yes Sir." "Q. Did you protest your innocence at that proceeding?" " * * * *" "A. I didn't -- everything that was done with that was done with my attorney. My attorney did it." "Q. All right. The first time that you gave this version of the fact was in the trial of Richard Wood, -- was it not?" " * * * *" "A. Yes Sir. It was the first time I was asked." "Q. All the time, you being innocent?" "A. Yes Sir." Doyle Tr. 50-508. Petitioner Wood was subjected to similar cross-examination at his trial: "Q. [By the prosecutor.] As a matter of fact you never told anyone that you had been set up until today?" " * * * *" "A. [By Wood.] Yes, I believe I did, sir." "Q. I assume you discussed it with your lawyer?" "A. Yes, I discussed it with my lawyer." "Q. And you heard the testimony and witnesses against you?" "A. Yes, sir." "Q. And were you aware Mr. James was able to obtain a tape transcript of the proceedings?" "A. Yes." "Q. And you no doubt listened to those?" "A. I believe I did one time to Mr. Beamer." "Q. When might that have been?" "A. When in the hail house." "Q. So you protested your innocence?" "A. In a little room. I believe he asked us how do you let people get away with people setting up friends like this. He said Bill Bonnell is not your friend and I said no, but I figured he was a good enough acquaintance he would do that." "Q. Where was that?" "A. Little room there." "Q. Ever been there before?" "A. Yes, sir." "Q. When?" " * * * *" "Q. Did you see me there?" "A. I didn't know who you were at the time. I believe you were in and out of there." "Q. You didn't say anything to me, did you?" "A. No, I didn't know who you were then." Wood Tr. 470-472. [ Footnote 2/10 ] Under Ohio law, the preliminary hearing determines only whether the defendant should be held for trial. The prosecution need establish, at most, that a crime has been committed and that there is "probable and reasonable cause" to hold the defendant for trial, and the court need only find "substantial credible evidence" of the charge against the defendant. Ohio Rev.Code Ann. §§ 2937.12, 2937.13 (Supp. 1973). Indeed, if a defendant has been indicated, no hearing need be held. State v. Morris, 42 Ohio St.2d 307, 326, 329 N.E.2d 85, 97 (1975). Defense counsel thus will have no incentive to divulge the defendant's case at the preliminary hearing if the prosecution has presented substantial evidence of guilt. Since that was the case here, no significant impeaching inference may be drawn from petitioners' silence at that proceeding. Petitioners' failure to refer to the "frame" at any time between arrest and trial is somewhat more probative; for if the "frame" story were true, one would have expected counsel to try to persuade the prosecution to dismiss the charges in advance of trial. [ Footnote 2/11 ] Raffel was the last decision of this Court to address the constitutionality of admitting evidence of a defendant's prior silence to impeach his testimony upon direct examination. Raffel had been charged with conspiracy to violate the National Prohibition Act. An agent testified at his first trial that he had admitted ownership of a drinking place; Raffel did not take the stand. The trial ended in a hung jury, and upon retrial, the agent testified as before. Raffel elected to testify and denied making the statement, but he was cross-examined on his failure to testify in the first trial. This Court held that the evidence was admissible because Raffel had completely waived the privilege against self-incrimination by deciding to testify. 271 U.S. at 271 U. S. 499 . Subsequent cases, decided in the exercise of this Court's supervisory powers, have diminished the force of Raffel in the federal courts. United States v. Hale, 422 U. S. 171 ; Stewart v. United States, 366 U. S. 1 ; Grunewald v. United States, 353 U. S. 391 . All three of these cases held that the defendant's prior silence or prior claim of the privilege was inadmissible for purposes of impeachment; all three distinguished Raffel on the ground that the Court there assumed that the defendant's prior silence was significantly inconsistent with his testimony on direct examination. Hale, supra at 422 U. S. 175 -176; Stewart, supra at 366 U. S. 5 -7; Grunewald, supra at 353 U. S. 418 -424. Two of the three cases relied upon the need to protect the defendant's exercise of the privilege against self-incrimination from unwarranted inferences of guilt, a rationale that is not easily reconciled with the reasoning in Raffel that the decision to testify constitutes a complete waiver of the protection afforded by the privilege. Compare Hale, supra at 422 U. S. 180 and n. 7, and Grunewald, supra at 353 U. S. 423 -424, with Raffel, 271 U.S. at 271 U. S. 499 . [ Footnote 2/12 ] At Doyle's trial, the prosecutor made the following arguments to the jury: "Diffuse what the true facts are; obscure the facts and prosecute the prosecution." "A typical and classic defense, but keep in mind, when you are considering the testimony of the law enforcement officers involved, that not until, Ladies and Gentlemen, not until the trial of this case and prior to this case, the trial of Richard Wood's case, that anybody connected with the prosecution in this case had any idea what stories would be told by Jefferson Doyle and Richard Wood. Not the foggiest idea. Both of them told you on the witness stand that neither one of them said a word to the law enforcement officials on the scene --" " * * * *" "(continuing) on the scene at the point of their arrest, at the Preliminary Hearing before Indictment in this case. Not a word that they were innocent; that this was their position; that somehow, they had been 'set-up.'" "So, when you evaluate the testimony of the Law Enforcement Officials, consider --" " * * * *" "(continuing) -- what they had to deal with on the night in question and the months subsequent to that." " * * * *" "Then they decide that they have been 'had' somehow. They have been framed." "Now, remember, this fits with the facts as observed by the law enforcement officers except the basic, crucial facts. Somehow, they have been framed. So, if you can believe this, Ladies and Gentlemen, they take off, chase Bill Bonnell around to give his money back to him or ask him what he did to them, yet they don't bother to tell the Law Enforcement Officers." "It is unbelievable. I think, when you go to the Jury Room, Ladies and Gentlemen, you are going to decide what really happened." " * * * *" "We have the Fifth Amendment. I agree with it. It is fundamental to our sense and system of fairness, but if you are innocent --" " * * * *" "(continuing) -- if you are innocent, Ladies and Gentlemen, if you have been framed, if you have been set-on, etc. etc. etc., as we heard in Court these last days, you don't say, when the law enforcement officer says, 'You are under arrest,' -- you don't say, -- 'I don't know what you are talking about.' You tell the truth. You tell them what happened, and you go from there. You don't say, -- 'I don't know what you are talking about,' -- and demand to see your lawyer and refuse to permit a search of you vehicle, forcing the law enforcement agents to get a search warrant." "If you're innocent, you just don't do it." Doyle Tr. 515-516, 519, 526. At Wood's trial, he made similar arguments: "The defense in this case was very careful to make no statements at all until they had the benefit of hearing all the evidence against them and had time to ascertain what they would admit and what they would deny and how they could fit their version of the story with the state's case. During none of this time did we ever hear any business about a set-up or frame, or anything else. All right." "Yes, it is the law of our land, and rightfully so, ladies and gentlemen, that nobody must be compelled to incriminate themselves. It is the 5th Amendment. No one can be forced to give testimony against themselves where criminal action charges are pending. It is a very fundamental right, and I am glad we have it." "The idea was nobody can convict himself out of his own mouth, and it grew out of the days when they used to whip and beat and extract statements from the defendants and get them to convict themselves out of their own mouth, and I am glad we have that right." "But ladies and gentlemen, there is one statement I am going to make. If you are innocent, if you are innocent, if you have been framed, if you have been set up as claimed in this case, when do you tell it? When do you tell the policemen that?" " * * * *" "Think about it. After months -- after various proceedings and for the first time? I am not going to say any more about that, but I want you to think about it." Closing Argument of the Prosecutor 12-14, supplementing Wood Tr. [ Footnote 2/13 ] Petitioner Doyle also argues that he was erroneously cross-examined at his trial on his failure to consent to a search of the car he was driving at the time of the arrest. Petitioner Wood appears to raise the similar claim that testimony of other witnesses that he failed to consent to a search of the car was erroneously admitted at his trial. The parties have not argued these issues separately from the questions whether prior silence in various circumstances may be admitted to impeach a defendant or a defense witness. It is apparent, however, that these questions implicate Fourth Amendment issues that merit independent examination. Accordingly, like the Court, I do not address them.

The Supreme Court held that it is a violation of the Fourteenth Amendment's Due Process Clause to use a defendant's post-arrest silence, after receiving Miranda warnings, for impeachment purposes at trial. The Court found that such silence is "insolubly ambiguous" and that it would be unfair to imply that the defendant's silence can be used against them, as the Miranda warnings assure them of their right to remain silent without penalty.

Miranda Rights

New York v. Quarles

https://supreme.justia.com/cases/federal/us/467/649/

U.S. Supreme Court New York v. Quarles, 467 U.S. 649 (1984) New York v. Quarles No. 82-1213 Argued January 18, 1984 Decided June 12, 1984 467 U.S. 649 CERTIORARI TO THE COURT OF APPEALS OF NEW YORK Syllabus Respondent was charged in a New York state court with criminal possession of a weapon. The record showed that a woman approached two police officers who were on road patrol, told them that she had just been raped, described her assailant, and told them that the man had just entered a nearby supermarket and was carrying a gun. While one of the officers radioed for assistance, the other (Officer Kraft) entered the store and spotted respondent, who matched the description given by the woman. Respondent ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun, but lost sight of him for several seconds. Upon regaining sight of respondent, Officer Kraft ordered him to stop and put his hands over his head; frisked him and discovered that he was wearing an empty shoulder holster; and, after handcuffing him, asked him where the gun was. Respondent nodded toward some empty cartons and responded that "the gun is over there." Officer Kraft then retrieved the gun from one of the cartons, formally arrested respondent, and read him his rights under Miranda v. Arizona, 384 U. S. 436 . Respondent indicated that he would answer questions without an attorney being present and admitted that he owned the gun and had purchased it in Florida. The trial court excluded respondent's initial statement and the gun because the respondent had not yet been given the Miranda warnings, and also excluded respondent's other statements as evidence tainted by the Miranda violation. Both the Appellate Division of the New York Supreme Court and the New York Court of Appeals affirmed. Held: The Court of Appeals erred in affirming the exclusion of respondent's initial statement and the gun because of Officer Kraft's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, it also erred in affirming the exclusion of respondent's subsequent statements as illegal fruits of the Miranda violation. This case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. Pp. 467 U. S. 653 -660. (a) Although respondent was in police custody when he made his statements and the facts come within the ambit of Miranda, nevertheless, on these facts, there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted Page 467 U. S. 650 into evidence, and the availability of that exception does not depend upon the motivation of the individual officers involved. The doctrinal underpinnings of Miranda do not require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. In this case, so long as the gun was concealed somewhere in the supermarket, it posed more than one danger to the public safety: an accomplice might make use of it, or a customer or employee might later come upon it. Pp. 467 U. S. 655 -657. (b) Procedural safeguards that deter a suspect from responding, and increase the possibility of fewer convictions, were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege against compulsory self-incrimination. However, if Miranda warnings had deterred responses to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting respondent. An answer was needed to insure that future danger to the public did not result from the concealment of the gun in a public area. P. 467 U. S. 657 . (c) The narrow exception to the Miranda rule recognized here will to some degree lessen the desirable clarity of that rule. However, the exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. Police officers can and will distinguish almost instinctively between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. Pp. 467 U. S. 658 -659. 58 N.Y.2d 664, 444 N.E.2d 984, reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, and POWELL, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 467 U. S. 660 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 467 U. S. 674 . Page 467 U. S. 651 JUSTICE REHNQUIST delivered the opinion of the Court. Respondent Benjamin Quarles was charged in the New York trial court with criminal possession of a weapon. The trial court suppressed the gun in question, and a statement made by respondent, because the statement was obtained by police before they read respondent his " Miranda rights." That ruling was affirmed on appeal through the New York Court of Appeals. We granted certiorari, 461 U.S. 942 (1983), and we now reverse. [ Footnote 1 ] We conclude that, under the circumstances involved in this case, overriding considerations of public safety justify the officer's failure to provide Miranda warnings before he asked questions devoted to locating the abandoned weapon. On September 11, 1980, at approximately 12:30 a. m., Officer Frank Kraft and Officer Sal Scarring were on road patrol in Queens, N.Y. when a young woman approached their car. She told them that she had just been raped by a black male, approximately six feet tall, who was wearing a black jacket with the name "Big Ben" printed in yellow letters on the back. She told the officers that the man had just entered Page 467 U. S. 652 an A & P supermarket located nearby, and that the man was carrying a gun. The officers drove the woman to the supermarket, and Officer Kraft entered the store while Officer Scarring radioed for assistance. Officer Kraft quickly spotted respondent, who matched the description given by the woman, approaching a checkout counter. Apparently upon seeing the officer, respondent turned and ran toward the rear of the store, and Officer Kraft pursued him with a drawn gun. When respondent turned the corner at the end of an aisle, Officer Kraft lost sight of him for several seconds, and upon regaining sight of respondent, ordered him to stop and put his hands over his head. Although more than three other officers had arrived on the scene by that time, Officer Kraft was the first to reach respondent. He frisked him and discovered that he was wearing a shoulder holster which was then empty. After handcuffing him, Officer Kraft asked him where the gun was. Respondent nodded in the direction of some empty cartons and responded, "the gun is over there." Officer Kraft thereafter retrieved a loaded .38-caliber revolver from one of the cartons, formally placed respondent under arrest, and read him his Miranda rights from a printed card. Respondent indicated that he would be willing to answer questions without an attorney present. Officer Kraft then asked respondent if he owned the gun and where he had purchased it. Respondent answered that he did own it and that he had purchased it in Miami, Fla. In the subsequent prosecution of respondent for criminal possession of a weapon, [ Footnote 2 ] the judge excluded the statement, "the gun is over there," and the gun because the officer had not given respondent the warnings required by our decision in Miranda v. Arizona, 384 U. S. 436 (1966), before asking Page 467 U. S. 653 him where the gun was located. The judge excluded the other statements about respondent's ownership of the gun and the place of purchase, as evidence tainted by the prior Miranda violation. The Appellate Division of the Supreme Court of New York affirmed without opinion. 85 App.Div.2d 936, 44 N.Y.S.2d 84 (1981). The Court of Appeals granted leave to appeal, and affirmed by a 4-3 vote. 58 N.Y.2d 664, 444 N.E.2d 984 (1982). It concluded that respondent was in "custody" within the meaning of Miranda during all questioning, and rejected the State's argument that the exigencies of the situation justified Officer Kraft's failure to read respondent his Miranda rights until after he had located the gun. The court declined to recognize an exigency exception to the usual requirements of Miranda because it found no indication from Officer Kraft's testimony at the suppression hearing that his subjective motivation in asking the question was to protect his own safety or the safety of the public. 58 N.Y.2d at 666, 444 N.E.2d at 985. For the reasons which follow, we believe that this case presents a situation where concern for public safety must be paramount to adherence to the literal language of the prophylactic rules enunciated in Miranda. [ Footnote 3 ] Page 467 U. S. 654 The Fifth Amendment guarantees that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." In Miranda, this Court for the first time extended the Fifth Amendment privilege against compulsory self-incrimination to individuals subjected to custodial interrogation by the police. 384 U.S. at 384 U. S. 460 -461, 384 U. S. 467 . The Fifth Amendment itself does not prohibit all incriminating admissions; "[a]bsent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions." United States v. Washington, 431 U. S. 181 , 431 U. S. 187 (1977) (emphasis added). The Miranda Court, however, presumed that interrogation in certain custodial circumstances [ Footnote 4 ] is inherently coercive, and held that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are "not themselves rights protected by the Constitution, but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected." Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974); see Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides "practical reinforcement" for the Fifth Amendment right. Michigan v. Tucker, supra, at 417 U. S. 444 . In this case, we have before us no claim that respondent's statements were actually compelled by police conduct which overcame his will to resist. See Beckwith v. United States, 425 U. S. 341 , 425 U. S. 347 -348 (1976); Davis v. North Carolina, 384 U. S. 737 (1966). Thus, the only issue before us is whether Page 467 U. S. 655 Officer Kraft was justified in failing to make available to respondent the procedural safeguards associated with the privilege against compulsory self-incrimination since Miranda. [ Footnote 5 ] The New York Court of Appeals was undoubtedly correct in deciding that the facts of this case come within the ambit of the Miranda decision as we have subsequently interpreted it. We agree that respondent was in police custody, because we have noted that "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest," California v. Beheler, 463 U. S. 1121 , 463 U. S. 1125 (1983) (per curiam), quoting Oregon v. Mathiason, 429 U. S. 492 , 429 U. S. 495 (1977) (per curiam). Here, Quarles was surrounded by at least four police officers, and was handcuffed when the questioning at issue took place. As the New York Court of Appeals observed, there was nothing to suggest that any of the officers were any longer concerned for their own physical safety. 58 N.Y.2d at 666, 444 N.E.2d at 985. The New York Court of Appeals' majority declined to express an opinion as to whether there might be an exception to the Miranda rule if the police had been acting to protect the public, because the lower courts in New York had made no factual determination that the police had acted with that motive. Ibid. We hold that, on these facts, there is a "public safety" exception to the requirement that Miranda warnings be given before a suspect's answers may be admitted into evidence, Page 467 U. S. 656 and that the availability of that exception does not depend upon the motivation of the individual officers involved. In a kaleidoscopic situation such as the one confronting these officers, where spontaneity, rather than adherence to a police manual, is necessarily the order of the day, the application of the exception which we recognize today should not be made to depend on post hoc findings at a suppression hearing concerning the subjective motivation of the arresting officer. [ Footnote 6 ] Undoubtedly most police officers, if placed in Officer Kraft's position, would act out of a host of different, instinctive, and largely unverifiable motives -- their own safety, the safety of others, and perhaps as well the desire to obtain incriminating evidence from the suspect. Whatever the motivation of individual officers in such a situation, we do not believe that the doctrinal underpinnings of Miranda require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety. The Miranda decision was based in large part on this Court's view that the warnings which it required police to give to suspects in custody would reduce the likelihood that the suspects would fall victim to constitutionally impermissible practices of police interrogation in the presumptively coercive environment of the station house. 384 U.S. at 384 U. S. 455 -458. The dissenters warned that the requirement of Miranda warnings would have the effect of decreasing the number of suspects who respond to police questioning. Id. at 384 U. S. 504 , 384 U. S. 516 -517 (Harlan, J., joined by Stewart and WHITE, JJ., dissenting). The Miranda majority, however, apparently felt that, whatever the Page 467 U. S. 657 cost to society in terms of fewer convictions of guilty suspects, that cost would simply have to be borne in the interest of enlarged protection for the Fifth Amendment privilege. The police in this case, in the very act of apprehending a suspect, were confronted with the immediate necessity of ascertaining the whereabouts of a gun which they had every reason to believe the suspect had just removed from his empty holster and discarded in the supermarket. So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it. In such a situation, if the police are required to recite the familiar Miranda warnings before asking the whereabouts of the gun, suspects in Quarles' position might well be deterred from responding. Procedural safeguards which deter a suspect from responding were deemed acceptable in Miranda in order to protect the Fifth Amendment privilege; when the primary social cost of those added protections is the possibility of fewer convictions, the Miranda majority was willing to bear that cost. Here, had Miranda warnings deterred Quarles from responding to Officer Kraft's question about the whereabouts of the gun, the cost would have been something more than merely the failure to obtain evidence useful in convicting Quarles. Officer Kraft needed an answer to his question not simply to make his case against Quarles, but to insure that further danger to the public did not result from the concealment of the gun in a public area. We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination. We decline to place officers such as Officer Kraft in the untenable position of having to consider, often in a matter of seconds, whether it best serves society for them to ask the necessary questions without the Miranda warnings and render whatever probative Page 467 U. S. 658 evidence they uncover inadmissible, or for them to give the warnings in order to preserve the admissibility of evidence they might uncover but possibly damage or destroy their ability to obtain that evidence and neutralize the volatile situation confronting them. [ Footnote 7 ] In recognizing a narrow exception to the Miranda rule in this case, we acknowledge that, to some degree, we lessen the desirable clarity of that rule. At least in part in order to preserve its clarity, we have over the years refused to sanction attempts to expand our Miranda holding. See, e.g., Minnesota v. Murphy, 465 U. S. 420 (1984) (refusal to extend Miranda requirements to interviews with probation officers); Fare v. Michael C., 442 U. S. 707 (1979) (refusal to equate request to see a probation officer with request to see a lawyer for Miranda purposes); Beckwith v. United States, 425 U. S. 341 (1976) (refusal to extend Miranda requirements to questioning in noncustodial circumstances). As we have in other contexts, we recognize here the importance of a workable rule "to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront." Dunaway v. New York, 442 U. S. 200 , 442 U. S. 213 -214 (1979). But as we have pointed out, we believe that the exception which we recognize today lessens the necessity of that on-the-scene balancing process. The exception will not be difficult for police officers to apply, because, in each case, it will be circumscribed by the exigency which justifies it. We think police officers can and will distinguish almost instinctively Page 467 U. S. 659 between questions necessary to secure their own safety or the safety of the public and questions designed solely to elicit testimonial evidence from a suspect. The facts of this case clearly demonstrate that distinction and an officer's ability to recognize it. Officer Kraft asked only the question necessary to locate the missing gun before advising respondent of his rights. It was only after securing the loaded revolver and giving the warnings that he continued with investigatory questions about the ownership and place of purchase of the gun. The exception which we recognize today, far from complicating the thought processes and the on-the-scene judgments of police officers, will simply free them to follow their legitimate instincts when confronting situations presenting a danger to the public safety. [ Footnote 8 ] We hold that the Court of Appeals in this case erred in excluding the statement, "the gun is over there," and the gun because of the officer's failure to read respondent his Miranda rights before attempting to locate the weapon. Accordingly, Page 467 U. S. 660 we hold that it also erred in excluding the subsequent statements as illegal fruits of a Miranda violation. [ Footnote 9 ] We therefore reverse and remand for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] Although respondent has yet to be tried in state court, the suppression ruling challenged herein is a "final judgment" within the meaning of 28 U.S.C. § 1257(3), and we have jurisdiction over this case. In Cox Broadcasting Corp. v. Cohn, 420 U. S. 469 , 420 U. S. 477 (1975), we identified four categories of cases where the Court will treat a decision of the highest state court as final for § 1257 purposes even though further proceedings are anticipated in the lower state courts. This case, which comes to this Court in the same posture as Michigan v. Clifford, 464 U. S. 287 (1984), decided earlier this Term, falls within the category which includes "those situations where the federal claim has been finally decided . . . but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case." 420 U.S. at 420 U. S. 481 . In this case, should the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial, the State will be precluded from pressing its federal claim again on appeal. See California v. Stewart, 384 U. S. 436 , 384 U. S. 498 , n. 71 (1966) (decided with Miranda v. Arizona ). [ Footnote 2 ] The State originally charged respondent with rape, but the record provides no information as to why the State failed to pursue that charge. [ Footnote 3 ] We have long recognized an exigent circumstances exception to the warrant requirement in the Fourth Amendment context. See, e.g., Michigan v. Tyler, 436 U. S. 499 , 436 U. S. 509 (1978); Warden v. Hayden, 387 U. S. 294 , 387 U. S. 298 -300 (1967); Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 -15 (1948). We have found the warrant requirement of the Fourth Amendment inapplicable in cases where the "'exigencies of the situation' make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment." Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 394 (1978), quoting McDonald v. United States, 335 U. S. 451 , 335 U. S. 456 (1948). Although "the Fifth Amendment's strictures, unlike the Fourth's, are not removed by showing reasonableness," Fisher v. United States, 425 U. S. 391 , 425 U. S. 400 (1976), we conclude today that there are limited circumstances where the judicially imposed strictures of Miranda are inapplicable. [ Footnote 4 ] Miranda, on its facts, applies to station house questioning, but we have not so limited it in our subsequent cases, often over strong dissent. See, e.g., Rhode Island v. Innis, 446 U. S. 291 (1980) (police car); Orozco v. Texas, 394 U. S. 324 (1969) (defendant's bedroom); Mathis v. United States, 391 U. S. 1 (1968) (prison cell during defendant's sentence for an unrelated offense); but see Orozco v. Texas, supra, at 394 U. S. 328 -331 (WHITE, J., dissenting). [ Footnote 5 ] The dissent curiously takes us to task for "endors[ing] the introduction of coerced self-incriminating statements in criminal prosecutions," post at 467 U. S. 674 , and for "sanction[ing] sub silentio criminal prosecutions based on compelled self-incriminating statements." Post at 467 U. S. 686 . Of course our decision today does nothing of the kind. As the Miranda Court itself recognized, the failure to provide Miranda warnings, in and of itself, does not render a confession involuntary, Miranda v. Arizona, 384 U.S. at 384 U. S. 457 , and respondent is certainly free on remand to argue that his statement was coerced under traditional due process standards. Today we merely reject the only argument that respondent has raised to support the exclusion of his statement, that the statement must be presumed compelled because of Officer Kraft's failure to read him his Miranda warnings. [ Footnote 6 ] Similar approaches have been rejected in other contexts. See Rhode Island v. Innis, supra, at 446 U. S. 301 (officer's subjective intent to incriminate not determinative of whether "interrogation" occurred); United States v. Mendenhall, 446 U. S. 544 , 446 U. S. 554 , and n. 6 (1980) (opinion of Stewart, J.) (officer's subjective intent to detain not determinative of whether a "seizure" occurred within the meaning of the Fourth Amendment); United States v. Robinson, 414 U. S. 218 , 414 U. S. 236 , and n. 7 (1973) (officer's subjective fear not determinative of necessity for "search incident to arrest" exception to the Fourth Amendment warrant requirement). [ Footnote 7 ] The dissent argues that a public safety exception to Miranda is unnecessary because, in every case, an officer can simply ask the necessary questions to protect himself or the public, and then the prosecution can decline to introduce any incriminating responses at a subsequent trial. Post at 467 U. S. 686 . But absent actual coercion by the officer, there is no constitutional imperative requiring the exclusion of the evidence that results from police inquiry of this kind; and we do not believe that the doctrinal underpinnings of Miranda require us to exclude the evidence, thus penalizing officers for asking the very questions which are the most crucial to their efforts to protect themselves and the public. [ Footnote 8 ] Although it involves police questions in part relating to the whereabouts of a gun, Orozco v. Texas, 394 U. S. 324 (1969), is in no sense inconsistent with our disposition of this case. In Orozco, four hours after a murder had been committed at a restaurant, four police officers entered the defendant's boardinghouse and awakened the defendant, who was sleeping in his bedroom. Without giving him Miranda warnings, they began vigorously to interrogate him about whether he had been present at the scene of the shooting and whether he owned a gun. The defendant eventually admitted that he had been present at the scene and directed the officers to a washing machine in the back room of the boardinghouse where he had hidden the gun. We held that all the statements should have been suppressed. In Orozco, however, the questions about the gun were clearly investigatory; they did not in any way relate to an objectively reasonable need to protect the police or the public from any immediate danger associated with the weapon. In short, there was no exigency requiring immediate action by the officers beyond the normal need expeditiously to solve a serious crime. Rhode Island v. Innis, 446 U. S. 291 (1980), also involved the whereabouts of a missing weapon, but our holding in that case depended entirely on our conclusion that no police interrogation took place so as to require consideration of the applicability of the Miranda prophylactic. [ Footnote 9 ] Because we hold that there is no violation of Miranda in this case, we have no occasion to reach arguments made by the State and the United States as amicus curiae that the gun is admissible either because it is nontestimonial or because the police would inevitably have discovered it absent their questioning. JUSTICE O'CONNOR, concurring in the judgment in part and dissenting in part. In Miranda v. Arizona, 384 U. S. 436 (1966), the Court held unconstitutional, because inherently compelled, the admission of statements derived from in-custody questioning not preceded by an explanation of the privilege against self-incrimination and the consequences of forgoing it. Today, the Court concludes that overriding considerations of public safety justify the admission of evidence -- oral statements and a gun -- secured without the benefit of such warnings. Ante at 467 U. S. 657 -658. In so holding, the Court acknowledges that it is departing from prior precedent, see ante at 467 U. S. 653 , and that it is "lessen[ing] the desirable clarity of [the Miranda ] rule," ante at 467 U. S. 658 . Were the Court writing from a clean slate, I could agree with its holding. But Miranda is now the law and, in my view, the Court has not provided sufficient justification for departing from it or for blurring its now clear strictures. Accordingly, I would require suppression of the initial statement taken from respondent in this case. On the other hand, nothing in Miranda or the privilege itself requires exclusion of nontestimonial evidence derived from informal custodial interrogation, and I therefore agree with the Court that admission of the gun in evidence is proper. [ Footnote 2/1 ] Page 467 U. S. 661 I Prior to Miranda, the privilege against self-incrimination had not been applied to an accused's statements secured during custodial police interrogation. In these circumstances, the issue of admissibility turned not on whether the accused had waived his privilege against self-incrimination, but on whether his statements were "voluntary" within the meaning of the Due Process Clause. See, e.g., Haynes v. Washington, 373 U. S. 503 (1963); Payne v. Arkansas, 356 U. S. 560 (1958); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U. S. 278 (1936). Under this approach, the "totality of the circumstances" were assessed. If the interrogation was deemed unreasonable or shocking, or if the accused clearly did not have an opportunity to make a rational or intelligent choice, the statements received would be inadmissible. The Miranda Court for the first time made the Self-Incrimination Clause applicable to responses induced by informal custodial police interrogation, thereby requiring suppression of many admissions that, under traditional due process principles, would have been admissible. More specifically, the Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of Page 467 U. S. 662 procedural safeguards effective to secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. at 384 U. S. 444 . Those safeguards included the now-familiar Miranda warnings -- namely, that the defendant must be informed "that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that, if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires." Id. at 384 U. S. 479 . The defendant could waive these rights, but any waiver had to be made "knowingly and intelligently," id. at 384 U. S. 475 , and the burden was placed on the prosecution to prove that such a waiver had voluntarily been made. Ibid. If the Miranda warnings were not properly administered or if no valid waiver could be shown, then all responses to interrogation made by the accused "while in custody . . . or otherwise deprived of his freedom of action in any significant way" were to be presumed coerced and excluded from evidence at trial. Id. at 384 U. S. 476 , 384 U. S. 479 . The Miranda Court itself considered objections akin to those raised by the Court today. In dissent, JUSTICE WHITE protested that the Miranda rules would "operate indiscriminately in all criminal cases, regardless of the severity of the crime or the circumstances involved." Id. at 384 U. S. 544 . But the Miranda Court would not accept any suggestion that "society's need for interrogation [could] outweig[h] the privilege." To that Court, the privilege against self-incrimination was absolute, and therefore could not be "abridged." Id. at 384 U. S. 479 . Since the time Miranda was decided, the Court has repeatedly refused to bend the literal terms of that decision. To be sure, the Court has been sensitive to the substantial burden Page 467 U. S. 663 the Miranda rules place on local law enforcement efforts, and consequently has refused to extend the decision or to increase its strictures on law enforcement agencies in almost any way. See, e.g., California v. Beheler, 463 U. S. 1121 (1983) (per curiam); Oregon v. Mathiason, 429 U. S. 492 (1977); Beckwith v. United States, 425 U. S. 341 (1976); Michigan v. Mosley, 423 U. S. 96 (1975); but cf. Edwards v. Arizona, 451 U. S. 477 (1981). Similarly, where "statements taken in violation of the Miranda principles [have] not be[en] used to prove the prosecution's case at trial," the Court has allowed evidence derived from those statements to be admitted. Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 445 (1974). But wherever an accused has been taken into "custody" and subjected to "interrogation" without warnings, the Court has consistently prohibited the use of his responses for prosecutorial purposes at trial. See, e.g., Estelle v. Smith, 451 U. S. 454 (1981); Orozco v. Texas, 394 U. S. 324 (1969); Mathis v. United States, 391 U. S. 1 (1968); cf. Harris v. New York, 401 U. S. 222 (1971) (statements may be used for impeachment purposes). As a consequence, the "meaning of Miranda has become reasonably clear, and law enforcement practices have adjusted to its strictures." Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 304 (1980) (BURGER, C.J., concurring); see generally Stephens, Flanders, & Cannon, Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements, 39 Tenn.L.Rev. 407 (1972). In my view, a "public safety" exception unnecessarily blurs the edges of the clear line heretofore established, and makes Miranda's requirements more difficult to understand. In some cases, police will benefit because a reviewing court will find that an exigency excused their failure to administer the required warnings. But in other cases, police will suffer because, though they thought an exigency excused their noncompliance, a reviewing court will view the "objective" circumstances differently, and require exclusion of admissions thereby obtained. The end result will be a finespun new Page 467 U. S. 664 doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence. "While the rigidity of the prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court, . . . that rigidity [has also been called a] strength of the decision. It [has] afforded police and courts clear guidance on the manner in which to conduct a custodial investigation: if it was rigid, it was also precise. . . . [T]his core virtue of Miranda would be eviscerated if the prophylactic rules were freely [ignored] by . . . courts under the guise of [reinterpreting] Miranda. . . ." Fare v. Michael C., 439 U. S. 1310 , 439 U. S. 1314 (1978) (REHNQUIST, J., in chambers on application for stay). The justification the Court provides for upsetting the equilibrium that has finally been achieved -- that police cannot and should not balance considerations of public safety against the individual's interest in avoiding compulsory testimonial self-incrimination -- really misses the critical question to be decided. See ante at 467 U. S. 657 -658. Miranda has never been read to prohibit the police from asking questions to secure the public safety. Rather, the critical question Miranda addresses is who shall bear the cost of securing the public safety when such questions are asked and answered: the defendant or the State. Miranda, for better or worse, found the resolution of that question implicit in the prohibition against compulsory self-incrimination, and placed the burden on the State. When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled, and that they be excluded from evidence at trial. See Michigan v. Tucker, supra, at 417 U. S. 445 , 417 U. S. 447 -448, 417 U. S. 451 , 417 U. S. 452 , and n. 26; Orozco v. Texas, supra, at 3 394 U. S. 26 . The Court concedes, as it must, both that respondent was in "custody" and subject to "interrogation" and that his statement "the gun is over there" was compelled within the meaning of our precedent. See ante at 467 U. S. 654 -655. In my view, Page 467 U. S. 665 since there is nothing about an exigency that makes custodial interrogation any less compelling, a principled application of Miranda requires that respondent's statement be suppressed. II The court below assumed, without discussion, that the privilege against self-incrimination required that the gun derived from respondent's statement also be suppressed, whether or not the State could independently link it to him. [ Footnote 2/2 ] That conclusion was, in my view, incorrect. A Citizens in our society have a deeply rooted social obligation "to give whatever information they may have to aid in law enforcement." Miranda v. Arizona, 384 U.S. at 384 U. S. 478 . Page 467 U. S. 666 Except where a recognized exception applies, "the criminal defendant, no less than any other citizen, is obliged to assist the authorities." Roberts v. United States, 445 U. S. 552 , 445 U. S. 558 (1980). The privilege against compulsory self-incrimination is one recognized exception, but it is an exception nonetheless. Only the introduction of a defendant's own testimony is proscribed by the Fifth Amendment's mandate that no person "shall be compelled in any criminal case to be a witness against himself." That mandate does not protect an accused from being compelled to surrender nontestimonial evidence against himself. See Fisher v. United States, 425 U. S. 391 , 425 U. S. 408 (1976). The distinction between testimonial and nontestimonial evidence was explored in some detail in Schmerber v. California, 384 U. S. 757 (1966), a decision this Court handed down a week after deciding Miranda. The defendant in Schmerber had argued that the privilege against self-incrimination barred the State from compelling him to submit to a blood test, the results of which would be used to prove his guilt at trial. The State, on the other hand, had urged that the privilege prohibited it only from compelling the accused to make a formal testimonial statement against himself in an official legal proceeding. This Court rejected both positions. It favored an approach that protected the "accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." 384 U.S. at 384 U. S. 761 . The blood tests were admissible because they were neither testimonial nor communicative in nature. Id. at 384 U. S. 765 . In subsequent decisions, the Court relied on Schmerber in holding the privilege inapplicable to situations where the accused was compelled to stand in a lineup and utter words that allegedly had been spoken by the robber, see United States v. Wade, 388 U. S. 218 , 388 U. S. 221 -223 (1967), to provide handwriting samples, see Gilbert v. California, 388 U. S. 263 , 388 U. S. 265 -266 (1967), and to supply voice exemplars. See United States v. Dionisio, 410 U. S. 1 , 410 U. S. 5 -7 (1973); see also United States v. Page 467 U. S. 667 Mara, 410 U. S. 1 9, 410 U. S. 21 -22 (1973). "The distinction which . . . emerged [in these cases], often expressed in different ways, [was] that the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Schmerber v. California, supra, at 384 U. S. 764 . B The gun respondent was compelled to supply is clearly evidence of the "real or physical" sort. What makes the question of its admissibility difficult is the fact that, in asking respondent to produce the gun, the police also "compelled" him, in the Miranda sense, to create an incriminating testimonial response. In other words, the case is problematic because police compelled respondent not only to provide the gun, but also to admit that he knew where it was and that it was his. It is settled that Miranda did not itself determine whether physical evidence obtained in this manner would be admissible. See Michigan v. Tucker, 417 U.S. at 417 U. S. 445 -446, 417 U. S. 447 , 417 U. S. 452 , and n. 26. But the Court in Schmerber, with Miranda fresh on its mind, did address the issue. In concluding that the privilege did not require suppression of compelled blood tests, the Court noted: "This conclusion would not necessarily govern had the State tried to show that the accused had incriminated himself when told that he would have to be tested. Such incriminating evidence may be an unavoidable byproduct of the compulsion to take the test, especially for an individual who fears the extraction or opposes it on religious grounds. If it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test -- products which would fall within the privilege." 384 U.S. at 384 U. S. 765 , and n. 9 (emphasis in original). Page 467 U. S. 668 Thus, Schmerber resolved the dilemma by allowing admission of the nontestimonial, but not the testimonial, products of the State's compulsion. The Court has applied this bifurcated approach in its subsequent cases as well. For example, in United States v. Wade, 388 U. S. 218 , 388 U. S. 223 (1967), where admission of a lineup identification was approved, the Court emphasized that no question was presented as to the admissibility of anything said or done at the lineup. Likewise, in Michigan v. Tucker, where evidence derived from a technical Miranda violation was admitted, the Court noted that no statement taken without Miranda warnings was being admitted into evidence. See 417 U.S. at 417 U. S. 445 ; cf. California v. Byers, 402 U. S. 424 , 402 U. S. 431 -433 (1971) (opinion of BURGER, C.J.). Thus, based on the distinction first articulated in Schmerber, "a strong analytical argument can be made for an intermediate rule whereby[,] although [the police] cannot require the suspect to speak by punishment or force, the nontestimonial [evidence derived from] speech that is [itself] excludable for failure to comply with the Miranda code could still be used." H. Friendly, Benchmarks 280 (1967). To be sure, admission of nontestimonial evidence secured through informal custodial interrogation will reduce the incentives to enforce the Miranda code. But that fact simply begs the question of how much enforcement is appropriate. There are some situations, as the Court's struggle to accommodate a "public safety" exception demonstrates, in which the societal cost of administering the Miranda warnings is very high indeed. [ Footnote 2/3 ] The Miranda decision quite practically does not express any societal interest in having those warnings Page 467 U. S. 669 administered for their own sake. Rather, the warnings and waiver are only required to ensure that "testimony" used against the accused at trial is voluntarily given. Therefore, if the testimonial aspects of the accused's custodial communications are suppressed, the failure to administer the Miranda warnings should cease to be of concern. Cf. Weatherford v. Bursey, 429 U. S. 545 (1977) (where interference with assistance of counsel has no effect on trial, no Sixth Amendment violation lies). The harm caused by failure to administer Miranda warnings relates only to admission of testimonial self-incriminations, and the suppression of such incriminations should, by itself, produce the optimal enforcement of the Miranda rule. C There are, of course, decisions of this Court which suggest that the privilege against self-incrimination requires suppression not only of compelled statements but also of all evidence derived therefrom. See, e.g., Maness v. Meyers, 419 U. S. 449 (1975); Kastigar v. United States, 406 U. S. 441 (1972); McCarthy v. Arndstein, 266 U. S. 34 (1924); Counselman v. Hitchcock, 142 U. S. 547 (1892). In each of these cases, however, the Court was responding to the dilemma that confronts persons asserting their Fifth Amendment privilege to a court or other tribunal vested with the contempt power. In each instance, the tribunal can require witnesses to appear without any showing of probable cause to believe they have committed an offense or that they have relevant information to convey, and require the witnesses to testify even if they have formally and expressly asserted a privilege of silence. Individuals in this situation are faced with what Justice Goldberg once described as "the cruel trilemma of self-accusation, perjury, or contempt." Murphy v. Waterfront Comm'n, 378 U. S. 52 , 378 U. S. 55 (1964). If the witness' invocation of the privilege at trial is not to be defeated by the State's refusal to let him remain silent at an earlier proceeding, the witness has to Page 467 U. S. 670 be protected "against the use of his compelled answers and evidence derived therefrom in any subsequent criminal case. . . ." Lefkowitz v. Turley, 414 U. S. 70 , 414 U. S. 78 (1973). By contrast, suspects subject to informal custodial police interrogation of the type involved in this case are not in the same position as witnesses required to appear before a court, grand jury, or other such formal tribunal. Where independent evidence leads police to a suspect, and probable cause justifies his arrest, the suspect cannot seriously urge that the police have somehow unfairly infringed on his right "to a private enclave where he may lead a private life." Murphy v. Waterfront Comm'n, supra, at 378 U. S. 55 . Moreover, when a suspect interjects not the privilege itself, but a post hoc complaint that the police failed to administer Miranda warnings, he invokes only an irrebuttable presumption that the interrogation was coercive. He does not show that a privilege was raised and that the police actually or overtly coerced him to provide testimony and other evidence to be used against him at trial. See Johnson v. New Jersey, 384 U. S. 719 , 384 U. S. 730 (1966). He could have remained silent and the interrogator could not have punished him for refusing to speak. Indeed, the accused is in the unique position of seeking the protection of the privilege without having timely asserted it. Cf. United States v. Kordel, 397 U. S. 1 , 397 U. S. 10 (1970) (failure to assert waives right to complain about testimonial compulsion). The person in police custody surely may sense that he is in "trouble," Oregon v. Hass, 420 U. S. 714 , 420 U. S. 722 (1975), but he is in no position to protest that he faced the Hobson's choice of self-accusation, perjury, or contempt. He therefore has a much less sympathetic case for obtaining the benefit of a broad suppression ruling. See Michigan v. Tucker, 417 U.S. at 417 U. S. 444 -451; cf. New Jersey v. Portash, 440 U. S. 450 , 440 U. S. 458 -459 (1979). Indeed, whatever case can be made for suppression evaporates when the statements themselves are not admitted, given the rationale of the Schmerber line of cases. Certainly Page 467 U. S. 671 interrogation which provides leads to other evidence does not offend the values underlying the Fifth Amendment privilege any more than the compulsory taking of blood samples, fingerprints, or voice exemplars, all of which may be compelled in an "attempt to discover evidence that might be used to prosecute [a defendant] for a criminal offense." Schmerber v. California, 384 U.S. at 384 U. S. 761 . Use of a suspect's answers "merely to find other evidence establishing his connection with the crime [simply] differs only by a shade from the permitted use for that purpose of his body or his blood." H. Friendly, Benchmarks 280 (1967). The values underlying the privilege may justify exclusion of an unwarned person's out-of-court statements, as perhaps they may justify exclusion of statements and derivative evidence compelled under the threat of contempt. But when the only evidence to be admitted is derivative evidence such as a gun derived not from actual compulsion but from a statement taken in the absence of Miranda warnings -- those values simply cannot require suppression, at least no more so than they would for other such nontestimonial evidence. [ Footnote 2/4 ] Page 467 U. S. 672 On the other hand, if a suspect is subject to abusive police practices and actually or overtly compelled to speak, it is reasonable to infer both an unwillingness to speak and a perceptible assertion of the privilege. See Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 396 -402 (1978). Thus, when the Miranda violation consists of a deliberate and flagrant abuse of the accused's constitutional rights, amounting to a denial of due process, application of a broader exclusionary rule is warranted. Of course, "a defendant raising [such] a coerced confession claim . . . must first prevail in a voluntariness hearing before his confession and evidence derived from it [will] become inadmissible." Kastigar v. United States, 406 U.S. at 406 U. S. 462 . By contrast, where the accused proves only that the police failed to administer the Miranda warnings, exclusion of the statement itself is all that will and should be required. [ Footnote 2/5 ] Limitation of the Miranda prohibition to testimonial use of the statements themselves adequately serves the purposes of the privilege against self-incrimination. III In Miranda, the Court looked to the experience of countries like England, India, Scotland, and Ceylon in developing its code to regulate custodial interrogations. See Miranda Page 467 U. S. 673 v. Arizona, 384 U.S. at 384 U. S. 486 -489. Those countries had also adopted procedural rules to regulate the manner in which police secured confessions to be used against accused persons at trial. See Note, Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 1090-1114 (1966). Confessions induced by trickery or physical abuse were never admissible at trial, and any confession secured without the required procedural safeguards could, in the courts' discretion, be excluded on grounds of fairness or prejudice. See Gotlieb, Confirmation by Subsequent Facts, 72 L.Q.Rev. 209, 223-224 (1956). But nontestimonial evidence derived from all confessions "not blatantly coerced" was and still is admitted. Friendly, supra, at 282; see also Commissioners of Customs and Excise v. Harz, 1 All E.R. 177, 182 (1967); King v. Warickshall, 1 Leach 262, 168 Eng.Rep. 234 (K.B. 1783). Admission of nontestimonial evidence of this type is based on the very sensible view that procedural errors should not cause entire investigations and prosecutions to be lost. See Enker & Elsen, Counsel For the Suspect: Massiah v. United States and Escobedo v. Illinois, 49 Minn.L.Rev. 47, 80 (1964). The learning of these countries was important to development of the initial Miranda rule. It therefore should be of equal importance in establishing the scope of the Miranda exclusionary rule today. [ Footnote 2/6 ] I would apply that learning in this case, and adhere to our precedents requiring that statements elicited in the absence of Miranda warnings be suppressed. But because nontestimonial evidence such as the gun should not be suppressed, I join in that part of the Court's judgment Page 467 U. S. 674 that reverses and remands for further proceedings with the gun admissible as evidence against the accused. [ Footnote 2/1 ] As to the statements elicited after the Miranda warnings were administered, admission should turn solely on whether the answers received were voluntary. See Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 475 (1966). In this case, the state courts made no express finding concerning the voluntariness of the statements made, because they thought the answers received had to be suppressed as "fruit" of the initial failure to administer Miranda warnings. App. 43a-44a; 58 N.Y.2d 644, 666, 444 N.E.2d 984, 985 (1982). Whether the mere failure to administer Miranda warnings can "taint" subsequent admissions is an open question, compare United States v. Toral, 536 F.2d 893, 896-897 (CA9 1976), with Oregon v. Elstad, 61 Ore.App. 673, 658 P.2d 552 (1983), cert. granted, 465 U.S. 1078 (1984), but a proper inquiry must focus at least initially, if not exclusively, on whether the subsequent confession is itself free of actual coercion. See Lyons v. Oklahoma, 322 U. S. 596 , 322 U. S. 603 (1944). I would reverse and remand for further factual findings on this issue. [ Footnote 2/2 ] Respondent contends that the separate admissibility of the gun is not preserved for our review. Brief for Respondent 45-51. This contention is meritless. Respondent's motion to suppress and supporting affidavit asked that the gun be excluded because it was obtained in contravention of his privilege under the Fifth Amendment. See App. 5a, 7a-8a. The State clearly opposed this motion, contending that admission of the statements and the gun would not violate respondent's rights under the Constitution. Id. at 9a. Both the Supreme Court of the State of New York and the New York Court of Appeals required the gun, as well as the statements, to be suppressed because respondent was not given the warnings to which they thought he was constitutionally entitled. Id. at 43a (Supreme Court); 58 N.Y.2d at 666, 444 N.E.2d at 985 (Court of Appeals). The issue whether the failure to administer warnings, by itself, constitutionally requires exclusion of the gun was therefore clearly contested, passed on, and preserved for this Court's review. See Illinois v. Gates, 462 U. S. 213 , 462 U. S. 217 -224 (1983). Respondent also contends that, under New York law, there is an "independent and adequate state ground" on which the Court of Appeals' judgment can rest. Brief for Respondent 51-55. This may be true, but it is also irrelevant. Both the trial and appellate courts of New York relied on Miranda to justify exclusion of the gun; they did not cite or expressly rely on any independent state ground in their decisions. In these circumstances, this Court has jurisdiction. See Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1040 -1041 (1983). [ Footnote 2/3 ] The most obvious example, first suggested by Judge Henry Friendly, involves interrogation directed to the discovery and termination of an ongoing criminal activity such as kidnaping or extortion. See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 949 (1965). [ Footnote 2/4 ] In suggesting that Wong Sun v. United States, 371 U. S. 471 (1963), requires exclusion of the gun, see post at 467 U.S. 688 -689, JUSTICE MARSHALL fails to acknowledge this Court's holding in Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 445 -446 (1974). In Tucker, the Court very clearly held that Wong Sun is inapplicable in cases involving mere departures from Miranda. Wong Sun and its "fruit of the poisonous tree" analysis lead to exclusion of derivative evidence only where the underlying police misconduct infringes a "core" constitutional right. See 417 U.S. at 417 U. S. 445 -446. Failure to administer Miranda warnings violates only a nonconstitutional prophylactic. Ibid. Nix v. Williams, ante p. 467 U. S. 431 , is not to the contrary. In Nix, the Court held that evidence which inevitably would have been discovered need not be excluded at trial because of independent police misconduct. The Court in Nix discusses Wong Sun and its "fruit of the poisonous tree" analysis only to show that, even assuming a "core" violation of the Fourth, Fifth, or Sixth Amendment, evidence with a separate causal link need not be excluded at trial. Thus, Nix concludes that only "where 'the subsequent trial [cannot] cure a[n otherwise] one-sided confrontation between prosecuting authorities and the uncounseled defendant,'" ante at 467 U. S. 447 (quoting from United States v. Ash, 413 U. S. 300 , 413 U. S. 315 (1973)), should derivative evidence be excluded. Cf. Brewer v. Williams, 430 U. S. 387 , 430 U. S. 406 -407, and n. 12 (1977) (leaving open question whether any evidence beyond the incriminating statements themselves must be excluded); Massiah v. United States, 377 U. S. 201 , 377 U. S. 207 (1964) (same). [ Footnote 2/5 ] Respondent has not previously contended that his confession was so blatantly coerced as to constitute a violation of due process. He has argued only that police failed to administer Miranda warnings. He has proved, therefore, only that his statement was presumptively compelled. In any event, that is a question for the trial court on remand to decide in the first instance, not for this Court to decide on certiorari review. [ Footnote 2/6 ] Interestingly, the trend in these other countries is to admit the improperly obtained statements themselves, if nontestimonial evidence later corroborates, in whole or in part, the admission. See Note, Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 1094-1095, 1100, 1104, 1108-1109 (1966); see also Queen v. Ramasamy, [1965] A.C. 1, 12-15 (P. C.). JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE STEVENS join, dissenting. The police in this case arrested a man suspected of possessing a firearm in violation of New York law. Once the suspect was in custody and found to be unarmed, the arresting officer initiated an interrogation. Without being advised of his right not to respond, the suspect incriminated himself by locating the gun. The majority concludes that the State may rely on this incriminating statement to convict the suspect of possessing a weapon. I disagree. The arresting officers had no legitimate reason to interrogate the suspect without advising him of his rights to remain silent and to obtain assistance of counsel. By finding on these facts justification for unconsented interrogation, the majority abandons the clear guidelines enunciated in Miranda v. Arizona, 384 U. S. 436 (1966), and condemns the American judiciary to a new era of post hoc inquiry into the propriety of custodial interrogations. More significantly, and in direct conflict with this Court's longstanding interpretation of the Fifth Amendment, the majority has endorsed the introduction of coerced self-incriminating statements in criminal prosecutions. I dissent. I Shortly after midnight on September 11, 1980, Officer Kraft and three other policemen entered an A & P supermarket in search of respondent Quarles, a rape suspect who was reportedly armed. After a brief chase, the officers cornered Quarles in the back of the store. As the other officers trained their guns on the suspect, Officer Kraft frisked Quarles and discovered an empty shoulder holster. Officer Kraft then handcuffed Quarles, and the other officers holstered their guns. With Quarles' hands manacled behind Page 467 U. S. 675 his back and the other officers standing close by, Officer Kraft questioned Quarles: "Where is the gun?" Gesturing towards a stack of liquid-soap cartons a few feet away, Quarles responded: "The gun is over there." Behind the cartons, the police found a loaded revolver. The State of New York subsequently failed to prosecute the alleged rape, and charged Quarles on a solitary count of criminal possession of a weapon in the third degree. [ Footnote 3/1 ] As proof of the critical element of the offense, the State sought to introduce Quarles' response to Officer Kraft's question, as well as the revolver found behind the cartons. The Criminal Term of the Supreme Court of the State of New York ordered both Quarles' statement and the gun suppressed. The suppression order was affirmed first by the Appellate Division, 85 App.Div.2d 936, 447 N.Y.S.2d 84 (1981), and again by the New York Court of Appeals, 58 N.Y.2d 664, 444 N.E.2d 984 (1982) (mem.). The majority's entire analysis rests on the factual assumption that the public was at risk during Quarles' interrogation. This assumption is completely in conflict with the facts as found by New York's highest court. Before the interrogation began, Quarles had been "reduced to a condition of physical powerlessness." Id. at 667, 444 N.E.2d at 986. Contrary to the majority's speculations, ante at 467 U. S. 657 , Quarles was not believed to have, nor did he in fact have, an accomplice to come to his rescue. When the questioning began, the arresting officers were sufficiently confident of their safety to put away their guns. As Officer Kraft acknowledged at the suppression hearing, "the situation was under control." App. 35a. Based on Officer Kraft's own testimony, the New York Court of Appeals found: "Nothing Page 467 U. S. 676 suggests that any of the officers was by that time concerned for his own physical safety." 58 N.Y.2d at 666, 444 N.E.2d at 985. The Court of Appeals also determined that there was no evidence that the interrogation was prompted by the arresting officers' concern for the public's safety. Ibid. The majority attempts to slip away from these unambiguous findings of New York's highest court by proposing that danger be measured by objective facts, rather than the subjective intentions of arresting officers. Ante at 467 U. S. 655 -656. Though clever, this ploy was anticipated by the New York Court of Appeals: "[T]here is no evidence in the record before us that there were exigent circumstances posing a risk to the public safety. . . ." 58 N.Y.2d at 666, 444 N.E.2d at 985. The New York court's conclusion that neither Quarles nor his missing gun posed a threat to the public's safety is amply supported by the evidence presented at the suppression hearing. Again contrary to the majority's intimations, ante at 467 U. S. 657 , no customers or employees were wandering about the store in danger of coming across Quarles' discarded weapon. Although the supermarket was open to the public, Quarles' arrest took place during the middle of the night, when the store was apparently deserted except for the clerks at the check-out counter. The police could easily have cordoned off the store and searched for the missing gun. Had they done so, they would have found the gun forthwith. The police were well aware that Quarles had discarded his weapon somewhere near the scene of the arrest. As the State acknowledged before the New York Court of Appeals: "After Officer Kraft had handcuffed and frisked the defendant in the supermarket, he knew with a high degree of certainty that the defendant's gun was within the immediate vicinity of the encounter. He undoubtedly would have searched for it in the carton a few feet away without the defendant having looked in that direction and saying that it was there." Brief for Appellant in No. 2512/80 (N.Y.Ct.App.), p. 11 (emphasis added). Page 467 U. S. 677 Earlier this Term, four Members of the majority joined an opinion stating: "[Q]uestions of historical fact . . . must be determined, in the first instance, by state courts and deferred to, in the absence of 'convincing evidence' to the contrary, by the federal courts." Rushen v. Spain, 464 U. S. 114 , 464 U. S. 120 (1983) (per curiam). In this case, there was convincing, indeed almost overwhelming, evidence to support the New York court's conclusion that Quarles' hidden weapon did not pose a risk either to the arresting officers or to the public. The majority ignores this evidence and sets aside the factual findings of the New York Court of Appeals. More cynical observers might well conclude that a state court's findings of fact "deserv[e] a high measure of deference,'" ibid. (quoting Sumner v. Mata, 455 U. S. 591 , 455 U. S. 598 (1982)), only when deference works against the interests of a criminal defendant. II The majority's treatment of the legal issues presented in this case is no less troubling than its abuse of the facts. Before today's opinion, the Court had twice concluded that, under Miranda v. Arizona, 384 U. S. 436 (1966), police officers conducting custodial interrogations must advise suspects of their rights before any questions concerning the whereabouts of incriminating weapons can be asked. Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 298 -302 (1980) (dicta); Orozco v. Texas, 394 U. S. 324 (1969) (holding). [ Footnote 3/2 ] Now the majority departs from these cases and rules that police may withhold Page 467 U. S. 678 Miranda warnings whenever custodial interrogations concern matters of public safety. [ Footnote 3/3 ] The majority contends that the law, as it currently stands, places police officers in a dilemma whenever they interrogate a suspect who appears to know of some threat to the public's safety. Ante at 467 U. S. 657 . If the police interrogate the suspect without advising him of his rights, the suspect may reveal information that the authorities can use to defuse the threat, but the suspect's statements will be inadmissible at trial. If, on the other hand, the police advise the suspect of his rights, the suspect may be deterred from responding to the police's questions, and the risk to the public may continue unabated. According to the majority, the police must now choose between establishing the suspect's guilt and safeguarding the public from danger. The majority proposes to eliminate this dilemma by creating an exception to Miranda v. Arizona for custodial interrogations concerning matters of public safety. Ante at 467 U. S. 658 -659. Under the majority's exception, police would be permitted to interrogate suspects about such matters before the suspects have been advised of their constitutional rights. Without being "deterred" by the knowledge that they have a constitutional right not to respond, these suspects will be likely to answer the questions. Should the answers also be incriminating, the State would be free to introduce them as evidence in a criminal prosecution. Through this "narrow exception to the Miranda rule," ante at 467 U. S. 658 , the majority proposes to protect the public's safety without jeopardizing the prosecution of criminal defendants. I find in this reasoning an unwise and unprincipled departure from our Fifth Amendment precedents. Page 467 U. S. 679 Before today's opinion, the procedures established in Miranda v. Arizona had "the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible." Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979); see Harryman v. Estelle, 616 F.2d 870, 873-874 (CA5 1980) (en banc), cert. denied, 449 U.S. 860 (1980). In a chimerical quest for public safety, the majority has abandoned the rule that brought 18 years of doctrinal tranquility to the field of custodial interrogations. As the majority candidly concedes, ante at 467 U. S. 658 , a public safety exception destroys forever the clarity of Miranda for both law enforcement officers and members of the judiciary. The Court's candor cannot mask what a serious loss the administration of justice has incurred. This case is illustrative of the chaos the "public safety" exception will unleash. The circumstances of Quarles' arrest have never been in dispute. After the benefit of briefing and oral argument, the New York Court of Appeals, as previously noted, concluded that there was "no evidence in the record before us that there were exigent circumstances posing a risk to the public safety." 58 N.Y.2d at 666, 444 N.E.2d at 985. Upon reviewing the same facts and hearing the same arguments, a majority of this Court has come to precisely the opposite conclusion: "So long as the gun was concealed somewhere in the supermarket, with its actual whereabouts unknown, it obviously posed more than one danger to the public safety. . . ." Ante at 467 U. S. 657 . If, after plenary review, two appellate courts so fundamentally differ over the threat to public safety presented by the simple and uncontested facts of this case, one must seriously question how law enforcement officers will respond to the majority's new rule in the confusion and haste of the real world. As THE CHIEF JUSTICE wrote in a similar context: "Few, if any, police officers are competent to make the kind Page 467 U. S. 680 of evaluation seemingly contemplated. . . ." Rhode Island v. Innis, 446 U.S. at 446 U. S. 304 (concurring in judgment). Not only will police officers have to decide whether the objective facts of an arrest justify an unconsented custodial interrogation, they will also have to remember to interrupt the interrogation and read the suspect his Miranda warnings once the focus of the inquiry shifts from protecting the public's safety to ascertaining the suspect's guilt. Disagreements of the scope of the "public safety" exception and mistakes in its application are inevitable. [ Footnote 3/4 ] The end result, as JUSTICE O'CONNOR predicts, will be "a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence." Ante at 467 U. S. 663 -664. In the meantime, the courts will have to dedicate themselves to spinning this new web of doctrines, and the country's law enforcement agencies will have to suffer patiently through the frustrations of another period of constitutional uncertainty. III Though unfortunate, the difficulty of administering the "public safety" exception is not the most profound flaw in the majority's decision. The majority has lost sight of the fact that Miranda v. Arizona and our earlier custodial interrogation cases all implemented a constitutional privilege against self-incrimination. The rules established in these cases were designed to protect criminal defendants against prosecutions based on coerced self-incriminating statements. The majority today turns its back on these constitutional considerations, Page 467 U. S. 681 and invites the government to prosecute through the use of what necessarily are coerced statements. A The majority's error stems from a serious misunderstanding of Miranda v. Arizona and of the Fifth Amendment upon which that decision was based. The majority implies that Miranda consisted of no more than a judicial balancing act in which the benefits of "enlarged protection for the Fifth Amendment privilege" were weighed against "the cost to society in terms of fewer convictions of guilty suspects." Ante at 467 U. S. 656 -657. Supposedly because the scales tipped in favor of the privilege against self-incrimination, the Miranda Court erected a prophylactic barrier around statements made during custodial interrogations. The majority now proposes to return to the scales of social utility to calculate whether Miranda's prophylactic rule remains cost-effective when threats to the public's safety are added to the balance. The results of the majority's "test" are announced with pseudoscientific precision: "We conclude that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Ante at 467 U. S. 657 . The majority misreads Miranda. Though the Miranda dissent prophesized dire consequences, see 384 U.S. at 384 U. S. 504 , 384 U. S. 516 -517 (Harlan, J., dissenting), the Miranda Court refused to allow such concerns to weaken the protections of the Constitution: "A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government Page 467 U. S. 682 when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged." Id. at 384 U. S. 479 (citation omitted). Whether society would be better off if the police warned suspects of their rights before beginning an interrogation or whether the advantages of giving such warnings would outweigh their costs did not inform the Miranda decision. On the contrary, the Miranda Court was concerned with the proscriptions of the Fifth Amendment, and, in particular, whether the Self-Incrimination Clause permits the government to prosecute individuals based on statements made in the course of custodial interrogations. Miranda v. Arizona was the culmination of a century-long inquiry into how this Court should deal with confessions made during custodial interrogations. Long before Miranda, the Court had recognized that the Federal Government was prohibited from introducing at criminal trials compelled confessions, including confessions compelled in the course of custodial interrogations. In 1924, Justice Brandeis was reciting settled law when he wrote: "[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise." Wan v. United States, 266 U. S. 1 , 266 U. S. 14 -15 (citing Bram v. United States, 168 U. S. 532 (1897)). Prosecutors in state courts were subject to similar constitutional restrictions. Even before Malloy v. Hogan, 378 U. S. 1 (1964), formally applied the Self-Incrimination Clause of the Fifth Amendment to the States, the Due Process Clause constrained the States from extorting confessions from criminal defendants. Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U. S. 278 (1936). Indeed, by the time of Malloy, the constraints of the Due Process Clause were almost as stringent as the requirements of the Fifth Amendment itself. 378 U.S. at 378 U. S. 6 -7; see, e.g., Haynes v. Washington, 373 U. S. 503 (1963). Page 467 U. S. 683 When Miranda reached this Court, it was undisputed that both the States and the Federal Government were constitutionally prohibited from prosecuting defendants with confessions coerced during custodial interrogations. [ Footnote 3/5 ] As a theoretical matter, the law was clear. In practice, however, the courts found it exceedingly difficult to determine whether a given confession had been coerced. Difficulties of proof and subtleties of interrogation technique made it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled. Courts around the country were spending countless hours reviewing the facts of individual custodial interrogations. See Note, Developments in the Law -- Confessions, 79 Harv.L.Rev. 935 (1966). Miranda dealt with these practical problems. After a detailed examination of police practices and a review of its previous decisions in the area, the Court in Miranda determined that custodial interrogations are inherently coercive. The Court therefore created a constitutional presumption that statements made during custodial interrogations are compelled in violation of the Fifth Amendment, and are thus inadmissible in criminal prosecutions. As a result of the Court's decision in Miranda, a statement made during a custodial interrogation may be introduced as proof of a defendant's guilt only if the prosecution demonstrates that the defendant knowingly and intelligently waived his constitutional rights before making the statement. [ Footnote 3/6 ] The Page 467 U. S. 684 now-familiar Miranda warnings offer law enforcement authorities a clear, easily administered device for ensuring that criminal suspects understand their constitutional rights well enough to waive them and to engage in consensual custodial interrogation. In fashioning its "public safety" exception to Miranda, the majority makes no attempt to deal with the constitutional presumption established by that case. The majority does not argue that police questioning about issues of public safety is any less coercive than custodial interrogations into other matters. The majority's only contention is that police officers could more easily protect the public if Miranda did not apply to custodial interrogations concerning the public's safety. [ Footnote 3/7 ] But Miranda was not a decision about public safety; it was a decision about coerced confessions. Without establishing that interrogations concerning the public's safety are less likely to be coercive than other interrogations, the majority cannot endorse the "public safety" exception and remain faithful to the logic of Miranda v. Arizona. B The majority's avoidance of the issue of coercion may not have been inadvertent. It would strain credulity to contend Page 467 U. S. 685 that Officer Kraft's questioning of respondent Quarles was not coercive. [ Footnote 3/8 ] In the middle of the night and in the back of an empty supermarket, Quarles was surrounded by four armed police officers. His hands were handcuffed behind his back. The first words out of the mouth of the arresting officer were: "Where is the gun?" In the majority's phrase, the situation was "kaleidoscopic." Ante at 467 U. S. 656 . Police and suspect were acting on instinct. Officer Kraft's abrupt and pointed question pressured Quarles in precisely the way that the Miranda Court feared the custodial interrogations would coerce self-incriminating testimony. That the application of the "public safety" exception in this case entailed coercion is no happenstance. The majority's ratio decidendi is that interrogating suspects about matters of public safety will be coercive. In its cost-benefit analysis, the Court's strongest argument in favor of a "public safety" exception to Miranda is that the police would be better able to protect the public's safety if they were not always required to give suspects their Miranda warnings. The crux of this argument is that, by deliberately withholding Miranda warnings, the police can get information out of suspects who would refuse to respond to police questioning were they advised of their constitutional rights. The "public safety" exception is efficacious precisely because it permits police officers to coerce criminal defendants into making involuntary statements. Indeed, in the efficacy of the "public safety" exception lies a fundamental and constitutional defect. Until today, this Court could truthfully state that the Fifth Amendment is given "broad scope" "[w]here there has been genuine compulsion Page 467 U. S. 686 of testimony." Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 440 (1974). Coerced confessions were simply inadmissible in criminal prosecutions. The "public safety" exception departs from this principle by expressly inviting police officers to coerce defendants into making incriminating statements, and then permitting prosecutors to introduce those statements at trial. Though the majority's opinion is cloaked in the beguiling language of utilitarianism, the Court has sanctioned sub silentio criminal prosecutions based on compelled self-incriminating statements. I find this result in direct conflict with the Fifth Amendment's dictate that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." The irony of the majority's decision is that the public's safety can be perfectly well protected without abridging the Fifth Amendment. If a bomb is about to explode or the public is otherwise imminently imperiled, the police are free to interrogate suspects without advising them of their constitutional rights. Such unconsented questioning may take place not only when police officers act on instinct, but also when higher faculties lead them to believe that advising a suspect of his constitutional rights might decrease the likelihood that the suspect would reveal life-saving information. If trickery is necessary to protect the public, then the police may trick a suspect into confessing. While the Fourteenth Amendment sets limits on such behavior, nothing in the Fifth Amendment or our decision in Miranda v. Arizona proscribes this sort of emergency questioning. All the Fifth Amendment forbids is the introduction of coerced statements at trial. Cf. Weatherford v. Bursey, 429 U. S. 545 (1977) (Sixth Amendment violated only if trial affected). To a limited degree, the majority is correct that there is a cost associated with the Fifth Amendment's ban on introducing coerced self-incriminating statements at trial. Without a "public safety" exception, there would be occasions when a defendant incriminated himself by revealing a threat to the Page 467 U. S. 687 public, and the State was unable to prosecute because the defendant retracted his statement after consulting with counsel and the police cannot find independent proof of guilt. Such occasions would not, however, be common. The prosecution does not always lose the use of incriminating information revealed in these situations. After consulting with counsel, a suspect may well volunteer to repeat his statement in hopes of gaining a favorable plea bargain or more lenient sentence. The majority thus overstates its case when it suggests that a police officer must necessarily choose between public safety and admissibility. [ Footnote 3/9 ] But however frequently or infrequently such cases arise, their regularity is irrelevant. The Fifth Amendment prohibits compelled self-incrimination. [ Footnote 3/10 ] As the Court has explained on numerous occasions, this prohibition is the mainstay of our adversarial system of criminal justice. Not only does it protect us against the inherent unreliability of compelled testimony, but it also ensures that criminal investigations will be conducted with integrity, and that the judiciary will avoid the taint of official lawlessness. See Murphy Page 467 U. S. 688 v. Waterfront Comm'n, 378 U. S. 52 , 378 U. S. 55 (1964). The policies underlying the Fifth Amendment's privilege against self-incrimination are not diminished simply because testimony is compelled to protect the public's safety. The majority should not be permitted to elude the Amendment's absolute prohibition simply by calculating special costs that arise when the public's safety is at issue. Indeed, were constitutional adjudication always conducted in such an ad hoc manner, the Bill of Rights would be a most unreliable protector of individual liberties. IV Having determined that the Fifth Amendment renders inadmissible Quarles' response to Officer Kraft's questioning, I have no doubt that our precedents require that the gun discovered as a direct result of Quarles' statement must be presumed inadmissible as well. The gun was the direct product of a coercive custodial interrogation. In Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920), and Wong Sun v. United States, 371 U. S. 471 (1963), this Court held that the Government may not introduce incriminating evidence derived from an illegally obtained source. This Court recently explained the extent of the Wong Sun rule: "Although Silverthorne and Wong Sun involved violations of the Fourth Amendment, the 'fruit of the poisonous tree' doctrine has not been limited to cases in which there has been a Fourth Amendment violation. The Court has applied the doctrine where the violations were of the Sixth Amendment, see United States v. Wade, 388 U. S. 218 (1967), as well as of the Fifth Amendment." Nix v. Williams, ante at 467 U. S. 442 (footnote omitted). Accord, United States v. Crews, 445 U. S. 463 , 445 U. S. 470 (1980). [ Footnote 3/11 ] When they ruled on the issue, the New York courts were Page 467 U. S. 689 entirely correct in deciding that Quarles' gun was the tainted fruit of a nonconsensual interrogation, and therefore was inadmissible under our precedents. However, since the New York Court of Appeals issued its opinion, the scope of the Wong Sun doctrine has changed. In Nix v. Williams, supra, this Court construed Wong Sun to permit the introduction into evidence of constitutionally tainted "fruits" that inevitably would have been discovered by the government. In its briefs before this Court and before the New York courts, petitioner has argued that the "inevitable discovery" rule, if applied to this case, would permit the admission of Quarles' gun. Although I have not joined the Court's opinion in Nix, and although I am not wholly persuaded that New York law would permit the application of the "inevitable discovery" rule to this case, [ Footnote 3/12 ] Page 467 U. S. 690 I believe that the proper disposition of the matter is to vacate the order of the New York Court of Appeals to the extent that it suppressed Quarles' gun and remand the matter to the New York Court of Appeals for further consideration in light of Nix v. Williams. Accordingly, I would affirm the order of the Court of Appeals to the extent that it found Quarles' incriminating statement inadmissible under the Fifth Amendment, would vacate the order to the extent that it suppressed Quarles' gun, and would remand the matter for reconsideration in light of Nix v. Williams. [ Footnote 3/1 ] Under New York law, any person who possesses a loaded firearm outside of his home or place of business is guilty of criminal possession of a weapon in the third degree. N.Y. Penal Law § 265.02(4) (McKinney 1980). [ Footnote 3/2 ] The majority attempts to distinguish Orozco by stressing the fact that the interrogation in this case immediately followed Quarles' arrest, whereas the interrogation in Orozco occurred some four hours after the crime and was investigatory. Ante at 467 U. S. 655 , n. 5. I fail to comprehend the distinction. In both cases, a group of police officers had taken a suspect into custody and questioned the suspect about the location of a missing gun. In both cases, a dangerous weapon was missing, and in neither case was there any direct evidence where the weapon was hidden. [ Footnote 3/3 ] Although the majority stresses the exigencies of Quarles' arrest, it is undisputed that Quarles was in custody when Officer Kraft's questioning began, ante at 467 U. S. 655 , and there is nothing in the majority's rationale -- save the instincts of police officers -- to prevent it from applying to all custodial interrogations. [ Footnote 3/4 ] One of the peculiarities of the majority's decision is its suggestion that police officers can "distinguish almost instinctively" questions tied to public safety and questions designed to elicit testimonial evidence. Ante at 467 U. S. 658 . Obviously, these distinctions are extraordinary difficult to draw. In many cases -- like this one -- custodial questioning may serve both purposes. It is therefore wishful thinking for the majority to suggest that the intuitions of police officers will render its decision self-executing. [ Footnote 3/5 ] There was, of course, still considerable confusion over whether the Sixth Amendment or the Fifth Amendment provided the basis for this prohibition. See Escobedo v. Illinois, 378 U. S. 478 (1964). But the matter was undeniably of constitutional magnitude. [ Footnote 3/6 ] Until today, the Court has consistently adhered to Miranda's holding that, absent informed waiver, statements made during a custodial interrogation cannot be used to prove a defendant's guilt. Admittedly, in Harris v. New York, 401 U. S. 222 (1971), the Court permitted such statements to be introduced to impeach a defendant, but their introduction was tolerated only because the jury had been instructed to consider the statements "only in passing on [the defendant's] credibility and not as evidence of guilt." Id. at 401 U. S. 223 . [ Footnote 3/7 ] The majority elsewhere attempts to disguise its decision as an effort to cut back on the overbreadth of Miranda's prophylactic standard. Ante at 467 U. S. 654 -655. The disguise is transparent. Although Miranda was overbroad in that its application excludes some statements made during custodial interrogations that are not in fact coercive, the majority is not dealing with a class of cases affected by Miranda's overbreadth. The majority is exempting from Miranda's prophylactic rule incriminating statements that were elicited to safeguard the public's safety. As is discussed below, see infra, at 467 U. S. 685 -686, the majority supports the "public safety" exception because "public safety" interrogations can be coercive. In this respect, the Court's decision differs greatly from Michigan v. Tucker, 417 U. S. 433 (1974), in which the Court sanctioned the admission of the fruits of a Miranda violation, but only because the violation was technical and the interrogation itself noncoercive. [ Footnote 3/8 ] The majority's reliance on respondent's failure to claim that his testimony was compelled by police conduct can only be disingenuous. Before today's opinion, respondent had no need to claim actual compulsion. Heretofore, it was sufficient to demonstrate that the police had conducted nonconsensual custodial interrogation. But now that the law has changed, it is only fair to examine the facts of the case to determine whether coercion probably was involved. [ Footnote 3/9 ] I also seriously question how often a statement linking a suspect to the threat to the public ends up being the crucial and otherwise unprovable element of a criminal prosecution. The facts of the current case illustrate this point. The police arrested respondent Quarles not because he was suspected of carrying a gun, but because he was alleged to have committed rape. Ante at 467 U. S. 651 -652. Had the State elected to prosecute on the rape count alone, respondent's incriminating statement about the gun would have had no role in the prosecution. Only because the State dropped the rape count and chose to proceed to trial solely on the criminal possession charge did respondent's answer to Officer Kraft's question become critical. [ Footnote 3/10 ] In this sense, the Fifth Amendment differs fundamentally from the Fourth Amendment, which only prohibits unreasonable searches and seizures. See Fisher v. United States, 425 U. S. 391 , 425 U. S. 400 (1976). Accordingly, the various exceptions to the Fourth Amendment permitting warrantless searches under various circumstances should have no analogy in the Fifth Amendment context. Curiously, the majority accepts this point, see ante at 467 U. S. 652 , n. 2, but persists in limiting the protections of the Fifth Amendment . [ Footnote 3/11 ] As our decisions in Nix and Crews reveal, the treatment of derivative evidence proposed in JUSTICE O'CONNOR's opinion concurring in the judgment in part and dissenting in part, ante p. 467 U. S. 660 , represents a much more radical departure from precedent than that opinion acknowledges. Although I have serious doubts about the wisdom of her proposal, I will not discuss them here. Petitioner never raised this novel theory of federal constitutional law before any New York court, see Brief for Appellant in No. 2512/80 (N.Y.Ct.App.); Brief for Appellant in No. 2512-80 (N.Y.App.Div.), and no New York court considered the theory sua sponte. The matter was therefore "not pressed or passed on in the courts below." McGoldrick v. Compagnie Generale Transatlantique, 309 U. S. 430 , 309 U. S. 434 (1940). Since petitioner's derivative evidence theory is of considerable constitutional importance, it would be inconsistent with our precedents to permit petitioner to raise it for the first time now. See Illinois v. Gates, 462 U. S. 213 , 462 U. S. 217 -223 (1983). An independent reason for declining to rule on petitioner's derivative evidence theory is that petitioner may have been barred by New York procedures from raising this theory before the New York Court of Appeals. See 467 U.S. 649 fn3/12|>n. 12, infra. Even if the claim were properly presented, it would be injudicious for the Court to embark on a new theory of derivative evidence when the gun in question might be admissible under the construction of Wong Sun just enunciated by the Court in Nix v. Williams. See infra this page and 467 U. S. 690 . [ Footnote 3/12 ] At least two procedural hurdles could prevent petitioner from making use of the "inevitable discovery" exception on remand. First, petitioner did not claim inevitable discovery at the suppression hearing. This case therefore contains no record on the issue, and it is unclear whether the question is preserved under New York's procedural law. People v. Martin, 50 N.Y.2d 1029, 409 N.E.2d 1363 (1980); People v. Tutt, 38 N.Y.2d 1011, 348 N.E.2d 920 (1976). Second, the New York Rules of Criminal Procedure have codified the "fruit-of-the-poisonous-tree" doctrine. N.Y.Crim.Proc.Law § 710.20(4) (McKinney 1980 and Supp.1983-1984). Even after Nix v. Williams, Quarles' gun may still be suppressed under state law. These issues, of course, are matters of New York law, which could be disposed of by the New York courts on remand.

Here is a summary of the case: The US Supreme Court case New York v. Quarles (1984) dealt with a situation where a police officer's failure to read Miranda rights was excused due to public safety concerns. The case began when a woman approached police officers, claiming she had been raped and that her assailant, carrying a gun, had entered a nearby supermarket. An officer entered the store, spotted the respondent (matching the description), and pursued him. The officer lost sight of the respondent but then ordered him to stop and frisked him, finding an empty shoulder holster. Before reading Miranda rights, the officer asked about the gun's location, and the respondent replied. The Court held that while the respondent was in police custody and Miranda usually applied, a "public safety" exception existed in this case. The officer's question about the gun was reasonably prompted by concern for public safety, and so the respondent's initial statement and the gun were admissible as evidence, as well as his subsequent statements. The Court's decision prioritized public safety over the strict application of Miranda rules.

Miranda Rights

Edwards v. Arizona

https://supreme.justia.com/cases/federal/us/451/477/

U.S. Supreme Court Edwards v. Arizona, 451 U.S. 477 (1981) Edwards v. Arizona No. 79-5269 Argued November 5, 1980 Decided May 18, 1981 451 U.S. 477 CERTIORARI TO THE SUPREME COURT OF ARIZONA Syllabus After being arrested on a state criminal charge, and after being informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 , petitioner was questioned by the police on January 19, 1976, until he said that he wanted an attorney. Questioning then ceased, but on January 20, police officers came to the jail and, after stating that they wanted to talk to him and again informing petitioner of his Miranda rights, obtained his confession when he said that he was willing to talk. The trial court ultimately denied petitioner's motion to suppress his confession, finding the statement to be voluntary, and he was thereafter convicted. The Arizona Supreme Court held that, during the January 20 meeting, he waived his right to remain silent and his right to counsel when he voluntarily gave his statement after again being informed of his rights. Held: The use of petitioner's confession against him at his trial violated his right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, supra. Having exercised his right on January 19 to have counsel present during interrogation, petitioner did not validly waive that right on the 20th. Pp. 451 U. S. 481 -487. (a) A waiver of the right to counsel, once invoked, not only must be voluntary, but also must constitute a knowing and intelligent relinquishment of a known right or privilege. Here, however, the state courts applied an erroneous standard for determining waiver by focusing on the voluntariness of petitioner's confession, rather than on whether he understood his right to counsel and intelligently and knowingly relinquished it. Pp. 451 U. S. 482 -84. (b) When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to police-initiated interrogation after being again advised of his rights. An accused, such as petitioner, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused has himself initiated further communication, exchanges, or conversations with the police. Here, the interrogation of petitioner on January 20 was at the instance Page 451 U. S. 478 of the authorities, and his confession, made without having had access to counsel, did not amount to a valid waiver, and hence was inadmissible. Pp. 451 U. S. 484 -487. 122 Ariz. 206, 594 P.2d 72 , reversed. WHITE, J., delivered the opinion of the Court, in which BRENNAN, STEWART, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 487. POWELL, J., filed an opinion concurring in the result, in which REHNQUIST, J., joined, post, p. 488. JUSTICE WHITE delivered the opinion of the Court. We granted certiorari in this case, 446 U.S. 950 (1980), limited to Question 1 presented in the petition, which in relevant part was "whether the Fifth, sixth, and Fourteenth Amendments require suppression of a post-arrest confession, which was obtained after Edwards had invoked his right to consult counsel before further interrogation. . . ." I On January 19, 1976, a sworn complaint was filed against Edwards in Arizona state court charged him with robbery, burglary, and first-degree murder. [ Footnote 1 ] An arrest warrant was issued pursuant to the complaint, and Edwards was arrested at his home later that same day. At the police station, he was informed of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966). Petitioner stated that he understood his rights, and was willing to submit to questioning. After Page 451 U. S. 479 being told that another suspect already in custody had implicated him in the crime, Edwards denied involvement and gave a taped statement presenting an alibi defense. He then sought to "make a deal." The interrogating officer told him that he wanted a statement, but that he did not have the authority to negotiate a deal. The officer provided Edwards with the telephone number of a county attorney. Petitioner made the call, but hung up after a few moments. Edwards then said: "I want an attorney before making a deal." At that point, questioning ceased and Edwards was taken to county jail. At 9 :15 the next morning, two detectives, colleagues of the officer who had interrogated Edwards the previous night, came to the jail and asked to see Edwards. When the detention officer informed Edwards that the detectives wished to speak with him, he replied that he did not want to talk to anyone. The guard told him that "he had" to talk, and then took him to meet with the detectives. The officers identified themselves, stated they wanted to talk to him, and informed him of his Miranda rights. Edwards was willing to talk, but he first wanted to hear the taped statement of the alleged accomplice who had implicated him. [ Footnote 2 ] After listening to the tape for several minutes, petitioner said that he would make a statement so long as it was not tape-recorded. The detectives informed him that the recording was irrelevant, since they could testify in court concerning whatever he said. Edwards replied: "I'll tell you anything you want to know, but I don't want it on tape." He thereupon implicated himself in the crime. Prior to trial, Edwards moved to suppress his confession on the ground that his Miranda rights had been violated when the officers returned to question him after he had invoked his right to counsel. The trial court initially granted Page 451 U. S. 480 the motion to suppress, [ Footnote 3 ] but reversed its ruling when presented with a supposedly controlling decision of a higher Arizona court. [ Footnote 4 ] The court stated without explanation that it found Edwards' statement to be voluntary. Edwards was tried twice and convicted. [ Footnote 5 ] Evidence concerning his confession was admitted at both trials. On appeal, the Arizona Supreme Court held that Edwards had invoked both his right to remain silent and his right to counsel during the interrogation conducted on the night of January 19. [ Footnote 6 ] 122 Ariz. 206, 594 P.2d 72 . The court then went on to determine, however, that Edwards had waived both rights during the January 20 meeting when he voluntarily gave his statement to the detectives after again being informed that he need not answer questions and that he need not answer without the advice of counsel: "The trial court's finding that the waiver and confession were voluntarily and knowingly made is upheld." Id. at 212, 594 P.2d at 78. Because the use of Edward's confession against him at his trial violated his rights under the Fifth and Fourteenth Amendments as construed in Miranda v. Arizona, supra, we reverse the judgment of the Arizona Supreme Court. [ Footnote 7 ] Page 451 U. S. 481 II In Miranda v. Arizona, the Court determined that the Fifth and Fourteenth Amendments' prohibition against compelled self-incrimination required that custodial interrogation be Page 451 U. S. 482 preceded by advice to the putative defendant that he has the right to remain silent and also the right to the presence of an attorney. 384 U.S. at 384 U. S. 479 . The Court also indicated the procedures to be followed subsequent to the warnings. If the accused indicates that he wishes to remain silent, "the interrogation must cease." If he requests counsel, "the interrogation must cease until an attorney is present." Id. at 384 U. S. 474 . Miranda thus declared that an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation. Here, the critical facts as found by the Arizona Supreme Court are that Edwards asserted his right to counsel and his right to remain silent on January 19, but that the police, without furnishing him counsel, returned the next morning to confront him and as a result of the meeting secured incriminating oral admissions. Contrary to the holdings of the state courts, Edwards insists that, having exercised his right on the 19th to have counsel present during interrogation, he did not validly waive that right on the 20th. For the following reasons, we agree. First, the Arizona Supreme Court applied an erroneous standard for determining waiver where the accused has specifically invoked his right to counsel. It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case "upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938). See Faretta v. California, 422 U. S. 806 , 422 U. S. 835 (1975); North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 374 -375 (1979); Brewer v. Williams , 430 U. S. 387 , Page 451 U. S. 483 430 U. S. 404 (1977); Fare v. Michael C., 442 U. S. 707 , 442 U. S. 724 -725 (1979). Considering the proceedings in the state courts in the light of this standard, we note that, in denying petitioner's motion to suppress, the trial court found the admission to have been "voluntary," App. 3, 95, without separately focusing on whether Edwards had knowingly and intelligently relinquished his right to counsel. The Arizona Supreme Court, in a section of its opinion entitled "Voluntariness of Waiver," stated that, in Arizona, confessions are prima facie involuntary, and that the State had the burden of showing by a preponderance of the evidence that the confession was freely and voluntarily made. The court stated that the issue of voluntariness should be determined based on the totality of the circumstances as it related to whether an accused's action was "knowing and intelligent and whether his will [was] overborne." 122 Ariz. at 212, 594 P.2d at 78. Once the trial court determines that "the confession is voluntary, the finding will not be upset on appeal absent clear and manifest error." Ibid. The court then upheld the trial court's finding that the "waiver and confession were voluntarily and knowingly made." Ibid. In referring to the necessity to find Edwards' confession knowing and intelligent, the State Supreme Court cited Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 226 (1973). Yet, it is clear that Schneckloth does not control the issue presented in this case. T he issue in Schneckloth was under what conditions an individual could be found to have consented to a search and thereby waived his Fourth Amendment rights. The Court declined to impose the "intentional relinquishment or abandonment of a known right or privilege" standard, and required only that the consent be voluntary under the totality of the circumstances. The Court specifically noted that the right to counsel was a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard, id. at 412 U. S. 241 , but held that "[t]he considerations Page 451 U. S. 484 that informed the Court's holding in Miranda are simply inapplicable in the present case." Id. at 412 U. S. 246 . Schneckloth itself thus emphasized that the voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries. Here, however sound the conclusion of the state courts as to the voluntariness of Edwards' admission may be, neither the trial court nor the Arizona Supreme Court undertook to focus on whether Edwards understood his right to counsel and intelligently and knowingly relinquished it. It is thus apparent that the decision below misunderstood the requirement for finding a valid waiver of the right to counsel, once invoked. Second, although we have held that, after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, at 441 U. S. 372 -376, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. [ Footnote 8 ] We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available Page 451 U. S. 485 to him unless the accused himself initiates further communication, exchanges, or conversations with the police. Miranda itself indicated that the assertion of the right to counsel was a significant event, and that, once exercised by the accused, "the interrogation must cease until an attorney is present." 384 U.S. at 384 U. S. 474 . Our later cases have not abandoned that view. In Michigan v. Mosley, 423 U. S. 96 (1975), the Court noted that Miranda had distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney, and had required that interrogation cease until an attorney was present only if the individual stated that he wanted counsel. 423 U.S. at 423 U. S. 104 , n. 10; see also id. at 423 U. S. 109 -111 (WHITE, J., concurring). In Fare v. Michael C., supra, at 442 U. S. 719 , the Court referred to Miranda's "rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease." And just last Term, in a case where a suspect in custody had invoked his Miranda right to counsel, the Court again referred to the "undisputed right" under Miranda to remain silent and to be free of interrogation "until he had consulted with a lawyer." Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 298 (1980). We reconfirm these views and, to lend them substance, emphasize that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel. In concluding that the fruits of the interrogation initiated by the police on January 20 could not be used against Edwards, we do not hold or imply that Edwards was powerless to countermand his election or that the authorities could in no event use any incriminating statements made by Edwards prior to his having access to counsel. Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial. The Fifth Amendment right Page 451 U. S. 486 identified in Miranda is the right to have counsel present at any custodial interrogation. Absent such interrogation, there would have been no infringement of the right that Edwards invoked, and there would be no occasion to determine whether there had been a valid waiver. Rhode Island v. Innis, supra, makes this sufficiently clear. 446 U.S. at 446 U. S. 298 , n. 2. [ Footnote 9 ] But this is not what the facts of this case show. Here, the officers conducting the interrogation on the evening of January Page 451 U. S. 487 19 ceased interrogation when Edwards requested counsel as he had been advised he had the right to do. The Arizona Supreme Court was of the opinion that this was a sufficient invocation of his Miranda rights, and we are in accord. It is also clear that, without making counsel available to Edwards, the police returned to him the next day. This was not at his suggestion or request. Indeed, Edwards informed the detention officer that he did not want to talk to anyone. At the meeting, the detectives told Edwards that they wanted to talk to him, and again advised him of his Miranda rights. Edwards stated that he would talk, but what prompted this action does not appear. He listened at his own request to part of the taped statement made by one of his alleged accomplices and then made an incriminating statement, which was used against him at his trial. We think it is clear that Edwards was subjected to custodial interrogation on January 20 within the meaning of Rhode Island v. Innis, supra, and that this occurred at the instance of the authorities. His statement, made without having had access to counsel, did not amount to a valid waiver, and hence was inadmissible. [ Footnote 10 ] Accordingly, the holding of the Arizona Supreme Court that Edwards had waived his right to counsel was infirm, and the judgment of that court is reversed. So ordered. [ Footnote 1 ] The facts stated in text are for the most part taken from the opinion of the Supreme Court of Arizona. [ Footnote 2 ] It appears from the record that the detectives had brought the tape-recording with them. [ Footnote 3 ] The trial judge emphasized that the detectives had met with Edwards on January 20 without being requested by Edwards to do so, and concluded that they had ignored his request for counsel made the previous evening. App. 91-93. [ Footnote 4 ] The case was State v. Travis, 26 Ariz.App. 24, 545 P.2d 986 (1976). [ Footnote 5 ] The jury in the first trial was unable to reach a verdict. [ Footnote 6 ] This issue was disputed by the State. The court, while finding that the question was arguable, held that Edwards' request for an attorney to assist him in negotiating a deal was "sufficiently clear" within the context of the interrogation that it "must be interpreted as a request for counsel and as a request to remain silent until counsel was present." 122 Ariz. at 211, 594 P.2d at 77. [ Footnote 7 ] We thus need not decide Edwards' claim that the State deprived him of his right to counsel under the Sixth and Fourteenth Amendments as construed and applied in Massiah v. United States, 377 U. S. 201 (1964). In that case, the Court held that the Sixth Amendment right to counsel arises whenever an accused has been indicted or adversary criminal proceedings have otherwise begun, and that this right is violated when admissions are subsequently elicited from the accused in the absence of counsel. While initially conceding in its opening brief on the merits that Edwards' right to counsel under Massiah attached immediately after he was formally charged, the State in its supplemental brief and during oral argument took the position that under Kirby v. Illinois, 406 U. S. 682 , 406 U. S. 689 -690 (1972), and Moore v. Illinois, 434 U. S. 220 , 434 U. S. 226 227 (1977), the filing of the formal complaint did not constitute the "adversary judicial criminal proceedings" necessary to trigger the Sixth Amendment right to counsel. Under the State Constitution, "[n]o person shall be prosecuted criminally in any court of record for felony or misdemeanor, otherwise than by information or indictment; no person shall be prosecuted for felony by information without having had a preliminary examination before a magistrate or having waived such preliminary examination." Ariz.Const., Art. 2, § 30. The State contends that the Sixth Amendment right to counsel does not attach until either the constitutionally required indictment or information is filed or at least no earlier than the preliminary hearing to which a defendant is entitled if the matter proceeds by complaint. Under Arizona law, a felony prosecution may be commenced by way of a complaint, Ariz.Rule of Criminal Procedure 2.2. The complaint is a "written statement of the essential facts constituting a public offense, made upon oath before a magistrate," Rule 2.3, upon which the magistrate either issues an arrest warrant or dismisses the complaint. Rule 2.4. Once arrested, the accused must be taken before the magistrate for a hearing. Rule 4.1. At that hearing, the magistrate ascertains the accused's true name and address, and informs him of the charges against him, his right to counsel, his right to remain silent, and his right to a preliminary hearing if charged via complaint. Rule 4.2. Unless waived, the preliminary hearing must take place no later than 10 days after the defendant is placed in custody. Rule 5.1. The purpose of the hearing is to determine whether probable cause exists to hold the defendant for trial. Rule 5.3. Against this background and in support of its position, the State relies on Moore v. Illinois, supra, where, after recognizing that, under Illinois law, "[t]he prosecution in this case was commenced . . . when the victim's complaint was filed in court," we noted that "adversary judicial criminal proceedings" were initiated when the ensuing preliminary hearing occurred. Moore, supra, at 434 U. S. 228 . Cf. United States v. Duvall, 537 F.2d 15, 20-22 (CA2) (the filing of a complaint and the issuance of an arrest warrant does not trigger the right to counsel under the Sixth Amendment, that right accruing only upon further proceedings), cert denied, 426 U.S. 950 (1976). The Arizona Supreme Court did not address the Sixth Amendment question, nor do we. [ Footnote 8 ] In Brewer v. Williams, 430 U. S. 387 (1977), where, as in Massiah v. United States, 377 U. S. 201 (1964), the Sixth Amendment right to counsel had accrued, the Court held that a valid waiver of counsel rights should not be inferred from the mere response by the accused to overt or more subtle forms of interrogation -- or other efforts to elicit incriminating information. In Massiah and Brewer, counsel had been engaged or appointed and the admissions in question were elicited in his absence. But in McLeod v. Ohio, 381 U. S. 356 (1965), we summarily reversed a decision that the police could elicit information after indictment even though counsel had not yet been appointed. [ Footnote 9 ] If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not wholly one-sided, it is likely that the officers will say or do something that clearly would be "interrogation." In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities. Various decisions of the Courts of Appeals are to the effect that a valid waiver of an accused's previously invoked Fifth Amendment right to counsel is possible. See, e.g., White v. Finkbeiner, 611 F.2d 186, 191 (CA7 1979) ("in certain instances, for various reasons, a person in custody who has previously requested counsel may knowingly and voluntarily decide that he no longer wishes to be represented by counsel"), cert. pending, No. 79-6601; Kennedy v. Fairman, 618 F.2d 1242 (CA7 1980); United States v. Rodriguez-Gastelum, 569 F.2d 482, 486 (CA9) (en banc) (stating that it makes no sense to hold that, once an accused has requested counsel, "[he] may never, until he has actually talked with counsel, change his mind and decide to speak with the police without an attorney being present"), cert. denied, 436 U.S. 919 (1978). See generally Cobbs v. Robinson, 528 F.2d 1331, 1342 (CA2 1975); United States v. Grant, 549 F.2d 942 (CA4 1977), vacated on other grounds sub nom. Whitehead v. United States, 435 U.S. 912 (1978); United States v. Hart, 619 F.2d 325 (CA4 1980); United States v. Hauck, 586 F.2d 1296 (CA8 1978). The rule in the Fifth Circuit is that a knowing and intelligent waiver cannot be found once the Fifth Amendment right to counsel has been clearly invoked unless the accused initiates the renewed contact. See, e.g., United States v. Massey, 550 F.2d 300 (1977), United States v. Priest, 409 F.2d 491 (1969). Waiver is possible, however, when the request for counsel is equivocal. Nash v. Estelle, 597 F.2d 513 (CA5 1979) (en banc). See Thompson v. Wainwright, 601 F.2d 768 (CA5 1979). [ Footnote 10 ] We need not decide whether there would have been a valid waiver of counsel had the events of January 20 been the first and only interrogation to which Edwards had been subjected. Cf. North Carolina v. Butler, 441 U. S. 369 (1979). CHIEF JUSTICE BURGER, concurring in the judgment. I concur only in the judgment, because I do not agree that either any constitutional standard or the holding of Miranda v. Arizona, 384 U. S. 436 (1966) -- as distinguished from its dicta -- calls for a special rule as to how an accused in custody may waive the right to be free from interrogation. The extraordinary protections afforded a person in custody suspected of criminal conduct are not without a valid basis, but, Page 451 U. S. 488 as with all "good" things, they can be carried too far. The notion that any "prompting" of a person in custody is somehow evil per se has been rejected. Rhode Island v. Innis, 446 U. S. 291 (1980). For me, the inquiry in this setting is whether resumption of interrogation is a result of a voluntary waiver, and that inquiry should be resolved under the traditional standards established in Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938): "A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver . . . must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Accord, e.g., Fare v. Michael C., 442 U. S. 707 (1979); North Carolina v. Butler, 441 U. S. 369 (1979). In this case, the Supreme Court of Arizona described the situation as follows: "When the detention officer told Edwards that the detectives were there to see him, he told the officer that he did not wish to speak to anyone. The officer told him that he had to. " 122 Ariz. 206, 209, 594 P.2d 72 , 75 (1979) (emphasis added). This is enough for me, and, on this record, the Supreme Court of Arizona erred in holding that the resumption of interrogation was the product of a voluntary waiver, such as I found to be the situation in both Innis, supra, at 446 U. S. 304 (concurring opinion), and Brewer v. Williams, 430 U. S. 387 , 430 U. S. 417 -418 (1977) (dissenting opinion). JUSTICE POWELL, with whom JUSTICE REHNQUIST joins, concurring in the result. Although I agree that the judgment of the Arizona Supreme Court must be reversed, I do not join the Court's opinion, because I am not sure what it means. Page 451 U. S. 489 I can agree with much of the opinion. It states the settled rule: "It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case 'upon the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.' Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938). See Faretta v. California, 422 U. S. 806 , 422 U. S. 835 (1975); North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 374 -375 (1979); Brewer v. Williams, 430 U. S. 387 , 430 U. S. 404 (1977); Fare v. Michael C., 442 U. S. 707 , 442 U. S. 724 -725 (1979)." Ante at 451 U. S. 482 -483. I have thought it settled law, as these cases tell us, that one accused of crime may waive any of the constitutional safeguards -- including the right to remain silent, to jury trial, to call witnesses, to cross-examine one's accusers, to testify in one's own behalf, and -- of course -- to have counsel. Whatever the right, the standard for waiver is whether the actor fully understands the right in question and voluntarily intends to relinquish it. In its opinion today, however, the Court -- after reiterating the familiar principles of waiver -- goes on to say: "We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused [has] himself initiate[d] further communication, exchanges, or conversations with the police. " Ante at 451 U. S. 484 -485 (emphasis added). In view of the emphasis placed on "initiation," see also ante at 451 U. S. 485 -486, and n. 9, I find the Court's opinion unclear. If read to create a new per se rule, requiring a threshold inquiry Page 451 U. S. 490 as to precisely who opened any conversation between an accused and state officials, I cannot agree. I would not superimpose a new element of proof on the established doctrine of waiver of counsel. Perhaps the Court's opinion can be read as not departing from established doctrine. Accepting the formulation quoted above, two questions are identifiable: (i) was there, in fact, "interrogation," see Rhode Island v. Innis, 446 U. S. 291 (1980), and (ii) did the police "initiate" it? Each of these questions is, of course, relevant to the admissibility of a confession. In this case, for example, it is clear that Edwards was taken from his cell against his will and subjected to renewed interrogation. Whether this is described as police-"initiated" interrogation or in some other way, it clearly was questioning under circumstances incompatible with a voluntary waiver of the fundamental right to counsel. But few cases will be as clear as this one. Communications between police and a suspect in custody are commonplace. It is useful to contrast the circumstances of this case with typical, and permissible, custodial communications between police and a suspect who has asked for counsel. For example, police do not impermissibly "initiate" renewed interrogation by engaging in routine conversations with suspects about unrelated matters. And police legitimately may inquire whether a suspect has changed his mind about speaking to them without an attorney. E.g., State v. Turner, 32 Ore.App. 61, 65, 573 P.2d 326 , 327 (1978); see State v. Crisler, 285 N.W.2d 679 , 682 (Minn.1979); State v. Marcum, 24 Wash. App. 441, 445-446, 601 P.2d 975, 978 (1979). It is not unusual for a person in custody who previously has expressed an unwillingness to talk or a desire to have a lawyer to change his mind and even welcome an opportunity to talk. Nothing in the Constitution erects obstacles that preclude police from ascertaining whether a suspect has reconsidered his original decision. As JUSTICE WHITE has observed, this Court consistently has "rejected any paternalistic Page 451 U. S. 491 rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case." Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 109 (1975) (WHITE, J., concurring in result). [ Footnote 2/1 ] In sum, once warnings have been given and the right to counsel has been invoked, the relevant inquiry -- whether the suspect now desires to talk to police without counsel -- is a question of fact to be determined in light of all of the circumstances. Who "initiated" a conversation may be relevant to the question of waiver, but it is not the sine qua non to the inquiry. The ultimate question is whether there was a free and knowing waiver of counsel before interrogation commenced. If the Court's opinion does nothing more than restate these principles, I am in agreement with it. I hesitate to join the opinion only because of what appears to be an undue, and undefined, emphasis on a single element: "initiation." As JUSTICE WHITE has noted, the Court in Miranda v. Arizona, 384 U. S. 436 (1965), Page 451 U. S. 492 imposed a general prophylactic rule that is not manifestly required by anything in the text of the Constitution. Id. at 384 U. S. 526 (WHITE, J., dissenting); see Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 443 -444 (1974). Miranda itself recognized, moreover, that counsel's assistance can be waived. 384 U.S. at 384 U. S. 475 (opinion of Warren, C.J.). Waiver always has been evaluated under the general formulation of the Zerbst standard quoted above. My concern is that the Court's opinion today may be read as "constitutionalizing" not the generalized Zerbst standard, but a single element of fact among the various facts that may be relevant to determining whether there has been a valid waiver. [ Footnote 2/2 ] [ Footnote 2/1 ] JUSTICE WHITE noted in Michigan v. Mosley: "Although a recently arrested individual may have indicated an initial desire not to answer questions, he would nonetheless want to know immediately -- if it were true -- that his ability to explain a particular incriminating fact or to supply an alibi for a particular time period would result in his immediate release. Similarly, he might wish to know -- if it were true -- that (1) the case against him was unusually strong, and that (2) his immediate cooperation with the authorities in the apprehension and conviction of others or in the recovery of property would redound to his benefit in the form of a reduced charge." 423 U.S. at 423 U. S. 109 , n. 1. In Michigan v. Mosley, of course, the question was whether a suspect who had invoked his right to remain silent later could change his mind and speak to police. The facts of Mosley differ somewhat from the present case, because here petitioner had requested counsel. It is nevertheless true in both cases that "a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests." Id. at 423 U. S. 102 (opinion of STEWART, J.). [ Footnote 2/2 ] Such a step should be taken only if it is demonstrably clear that the traditional waiver standard is ineffective. There is no indication, in the multitude of cases that come to us each Term, that Zerbst and its progeny have failed to protect constitutional rights.

Here is a summary of the case: The Supreme Court ruled that a criminal suspect's confession was inadmissible as evidence because the police obtained it through interrogation after the suspect had invoked their right to counsel. The Court held that once a suspect has invoked their right to counsel, they cannot be subjected to further interrogation unless they initiate further communication or have access to an attorney. The Court found that the lower courts applied the wrong standard for determining waiver by focusing on the voluntariness of the confession rather than the suspect's understanding and waiver of their right to counsel. The case establishes the rule that a valid waiver of the right to counsel cannot be established solely by the suspect responding to police-initiated interrogation after being advised of their rights again. The ruling emphasizes the importance of respecting a suspect's invocation of their Miranda rights and the need for a knowing and intelligent waiver of those rights.

Miranda Rights

Oregon v. Bradshaw

https://supreme.justia.com/cases/federal/us/462/1039/

U.S. Supreme Court Oregon v. Bradshaw, 462 U.S. 1039 (1983) Oregon v. Bradshaw No. 81-1857 Argued March 28, 1983 Decided June 23, 1983 462 U.S. 1039 CERTIORARI TO THE COURT OF APPEALS OF OREGON Syllabus During the investigation of the death of a person whose body had been found in his wrecked pickup truck, respondent was questioned at the police station, where he was advised of his Miranda rights, and later arrested for furnishing liquor to the victim, a minor, and again advised of his Miranda rights. Respondent denied his involvement, and asked for an attorney. Subsequently, while being transferred from the police station to a jail, respondent inquired of a police officer, "Well, what is going to happen to me now?" The officer answered that respondent did not have to talk to him, and respondent said he understood. There followed a discussion between respondent and the officer as to where respondent was being taken and the offense with which he would be charged. The officer suggested that respondent take a polygraph examination, which he did, after another reading of his Miranda rights. When the examiner told respondent that he did not believe respondent was telling the truth, respondent recanted his earlier story and admitted that he had been driving the truck in question and that he had consumed a considerable amount of alcohol and had passed out at the wheel of the truck before it left the highway. Respondent was charged with first-degree manslaughter, driving while under the influence of intoxicants, and driving while his license was revoked. His motion to suppress his statements admitting his involvement was denied, and he was found guilty after a bench trial. The Oregon Court of Appeals reversed, holding that the inquiry respondent made of the police officer while being transferred to jail did not "initiate" a conversation with the officer, and that therefore the statements growing out of this conversation should have been excluded from evidence under Edwards v. Arizona, 451 U. S. 477 . Held: The judgment is reversed, and the case is remanded. 54 Ore.App. 949, 636 P.2d 1011 , reversed and remanded. JUSTICE REHNQUIST, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded that respondent's Fifth Amendment rights were not violated. Pp. 462 U. S. 1044 -1047. (a) The Oregon Court of Appeals misapprehended the test laid down in Edwards, where it was held that, after the right to counsel has been asserted by an accused, further interrogation should not take place "unless the accused himself initiates further communication, exchanges, or conversations Page 462 U. S. 1040 with the police." 451 U.S. at 451 U. S. 485 . It was not held in that case that the "initiation" of a conversation by an accused such as respondent would amount to a waiver of a previously invoked right to counsel. The Oregon court erred in thinking that an "initiation" of a conversation by an accused not only satisfied the Edwards rule, but, ex proprio vigore, suffices to show a waiver of the previously asserted right to counsel. Pp. 1044-1045. (b) Here, in asking "Well, what is going to happen to me now?" respondent "initiated" further conversation. His statement evinced a willingness and a desire for a generalized discussion about the investigation, and was not merely a necessary inquiry arising out of the incidents of the custodial relationship. Pp. 462 U. S. 1045 -10466. (c) Since there was no violation of the Edwards rule in this case, the next inquiry is whether, in light of the totality of the circumstances, respondent made a knowing and intelligent waiver of his right to have counsel present. The trial court, based on its firsthand observation of the witnesses, found a waiver; there is no reason to dispute that finding. Pp. 462 U. S. 1046 -1047. JUSTICE POWELL concluded that a two-step analysis is unnecessary. In the circumstances of the case, it is sufficient that respondent knowingly and intelligently waived his right to counsel. Pp. 462 U. S. 1050 -1051. REHNQUIST, J., announced the judgment of the Court and delivered an opinion, in which BURGER, C.J., and WHITE and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, post, p. 462 U. S. 1047 . MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 462 U. S. 1051 . JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR joined. After a bench trial in an Oregon trial court, respondent James Edward Bradshaw was convicted of the offenses of Page 462 U. S. 1041 first-degree manslaughter, driving while under the influence of intoxicants, and driving while his license was revoked. The Oregon Court of Appeals reversed his conviction, holding that an inquiry he made of a police officer at the time he was in custody did not "initiate" a conversation with the officer, and that therefore statements by the respondent growing out of that conversation should have been excluded from evidence under Edwards v. Arizona, 451 U. S. 477 (1981). We granted certiorari to review this determination. 459 U.S. 966 (1982). In September, 1980, Oregon police were investigating the death of one Lowell Reynolds in Tillamook County. Reynolds' body had been found in his wrecked pickup truck, in which he appeared to have been a passenger at the time the vehicle left the roadway, struck a tree and an embankment, and finally came to rest on its side in a shallow creek. Reynolds had died from traumatic injury, coupled with asphyxia by drowning. During the investigation of Reynolds' death, respondent was asked to accompany a police officer to the Rockaway Police Station for questioning. Once at the station, respondent was advised of his rights as required by Miranda v. Arizona, 384 U. S. 436 (1966). Respondent then repeated to the police his earlier account of the events of the evening of Reynolds' death, admitting that he had provided Reynolds and others with liquor for a party at Reynolds' house, but denying involvement in the traffic accident that apparently killed Reynolds. Respondent suggested that Reynolds might have met with foul play at the hands of the assailant who respondent alleged had struck him at the party. At this point, respondent was placed under arrest for furnishing liquor to Reynolds, a minor, and again advised of his Miranda rights. A police officer then told respondent the officer's theory of how the traffic accident that killed Reynolds occurred, a theory which placed respondent behind the wheel of the vehicle. Respondent again denied his involvement, and said "I do want an attorney before it goes very Page 462 U. S. 1042 much further." App. 72. The officer immediately terminated the conversation. Sometime later, respondent was transferred from the Rockaway Police Station to the Tillamook County Jail, a distance of some 10 or 15 miles. Either just before or during his trip from Rockaway to Tillamook, respondent inquired of a police officer, "Well, what is going to happen to me now?" The officer answered by saying: "You do not have to talk to me. You have requested an attorney, and I don't want you talking to me unless you so desire, because anything you say -- because -- since you have requested an attorney, you know, it has to be at your own free will." Id. at 16. See 54 Ore.App. 949, 961, 636 P.2d 1011 , 1011-1012 (1981). Respondent said he understood. There followed a discussion between respondent and the officer concerning where respondent was being taken and the offense with which he would be charged. The officer suggested that respondent might help himself by taking a polygraph examination. Respondent agreed to take such an examination, saying that he was willing to do whatever he could to clear up the matter. The next day, following another reading to respondent of his Miranda rights, and respondent's signing a written waiver of those rights, the polygraph was administered. At its conclusion, the examiner told respondent that he did not believe respondent was telling the truth. Respondent then recanted his earlier story, admitting that he had been at the wheel of the vehicle in which Reynolds was killed, that he had consumed a considerable amount of alcohol, and that he had passed out at the wheel before the vehicle left the roadway and came to rest in the creek. Respondent was charged with first-degree manslaughter, driving while under the influence of intoxicants, and driving while his license was revoked. His motion to suppress the statements described above was denied, and he was found guilty after a bench trial. The Oregon Court of Appeals, relying on our decision in Edwards v. Arizona, supra, reversed, Page 462 U. S. 1043 concluding that the statements had been obtained in violation of respondent's Fifth Amendment rights. 54 Ore.App. 949, 636 P.2d 1011 (1981). We now conclude that the Oregon Court of Appeals misapplied our decision in Edwards. In Edwards, the defendant had voluntarily submitted to questioning, but later stated that he wished an attorney before the discussions continued. The following day, detectives accosted the defendant in the county jail, and when he refused to speak with them, he was told that "he had" to talk. We held that subsequent incriminating statements made without his attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution. In our opinion, we stated: "[A]lthough we have held that, after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, See North Carolina v. Butler , [ 441 U.S. 369 , 441 U. S. 372 -376 (1979)], the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that, when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as [the defendant], having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. " 451 U.S. at 451 U. S. 484 -485 (footnote omitted) (emphasis added). Respondent's question in the present case, "Well, what is going to happen to me now?", admittedly was asked prior to Page 462 U. S. 1044 respondent's being "subject[ed] to further interrogation by the authorities." Id. at 451 U. S. 484 . The Oregon Court of Appeals stated that it did not "construe defendant's question about what was going to happen to him to have been a waiver of his right to counsel, invoked only minutes before. . . ." 54 Ore.App. at 953, 636 P.2d at 1013. The Court of Appeals, after quoting relevant language from Edwards, concluded that, "under the reasoning enunciated in Edwards, defendant did not make a valid waiver of his Fifth Amendment rights, and his statements were inadmissible." Ibid. We think the Oregon Court of Appeals misapprehended the test laid down in Edwards. We did not there hold that the "initiation" of a conversation by a defendant such as respondent would amount to a waiver of a previously invoked right to counsel; we held that, after the right to counsel had been asserted by an accused, further interrogation of the accused should not take place "unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 451 U. S. 485 . This was, in effect, a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was. We recently restated the requirement in Wyrick v. Fields, 459 U. S. 42 , 459 U. S. 46 (1982) (per curiam), to be that, before a suspect in custody can be subjected to further interrogation after he requests an attorney, there must be a showing that the "suspect himself initiates dialogue with the authorities." But even if a conversation taking place after the accused has "expressed his desire to deal with the police only through counsel" is initiated by the accused, where reinterrogation follows, the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation. This is made clear in the following footnote to our Edwards opinion: "If, as frequently would occur in the course of a meeting initiated by the accused, the conversation is not Page 462 U. S. 1045 wholly one-sided, it is likely that the officers will say or do something that clearly would be 'interrogation.' In that event, the question would be whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent, and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." 451 U.S. at 451 U. S. 486 , n. 9 (emphasis added). This rule was reaffirmed earlier this Term in Wyrick v. Fields, supra. Thus, the Oregon Court of Appeals was wrong in thinking that an "initiation" of a conversation or discussion by an accused not only satisfied the Edwards rule but, ex proprio vigore, sufficed to show a waiver of the previously asserted right to counsel. The inquiries are separate, and clarity of application is not gained by melding them together. There can be no doubt in this case that, in asking, "Well, what is going to happen to me now?", respondent "initiated" further conversation in the ordinary dictionary sense of that word. While we doubt that it would be desirable to build a superstructure of legal refinements around the word "initiate" in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to "initiate" any conversation or dialogue. There are some inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation. Such inquiries or statements, by either an accused or a police officer, relating to routine incidents of the custodial relationship, will not generally "initiate" a conversation in the sense in which that word was used in Edwards. Although ambiguous, the respondent's question in this case as to what was going to happen to him evinced a willingness Page 462 U. S. 1046 and a desire for a generalized discussion about the investigation; it was not merely a necessary inquiry arising out of the incidents of the custodial relationship. It could reasonably have been interpreted by the officer as relating generally to the investigation. That the police officer so understood it is apparent from the fact that he immediately reminded the accused that "[y]ou do not have to talk to me," and only after the accused told him that he "understood" did they have a generalized conversation. 54 Ore.App. at 951, 636 P.2d at 1011-1012. On these facts, we believe that there was not a violation of the Edwards rule. Since there was no violation of the Edwards rule in this case, the next inquiry was "whether a valid waiver of the right to counsel and the right to silence had occurred, that is, whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities." Edwards v. Arizona, 451 U.S. at 451 U. S. 486 , n. 9. As we have said many times before, this determination depends upon " the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.'" North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 374 -375 (1979) (quoting Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938)). See also Edwards v. Arizona, supra, at 451 U. S. 482 -483. The state trial court made this inquiry and, in the words of the Oregon Court of Appeals, "found that the police made no threats, promises or inducements to talk, that defendant was properly advised of his rights and understood them, and that, within a short time after requesting an attorney, he changed his mind without any impropriety on the part of the police. The court held that the statements made to the polygraph examiner were voluntary, and the result of a knowing waiver of his right to remain silent." 54 Ore.App. at 952, 636 P.2d at 1012. We have no reason to dispute these conclusions, based as they are upon the trial court's firsthand observation of the Page 462 U. S. 1047 witnesses to the events involved. The judgment of the Oregon Court of Appeals is therefore reversed, and the cause is remanded for further proceedings. It is so ordered. JUSTICE POWELL, concurring in the judgment. The Court's recent decision in Edwards v. Arizona, 451 U. S. 477 (1981), has resulted in disagreement as to whether it announced a new per se rule. [ Footnote 1 ] My hope had been that this case would afford an opportunity to clarify the confusion. As evidenced by the differing readings of Edwards by JUSTICES MARSHALL and REHNQUIST in their respective opinions, my hope has not been fully realized. JUSTICE MARSHALL, and the three Justices who join his opinion, would affirm the Oregon Court of Appeals because it "properly applied Edwards. " Post at 462 U. S. 1053 . JUSTICE REHNQUIST, and the three Justices who join him, would "conclude that the Oregon Court of Appeals misapplied our decision in Edwards. " Ante at 462 U. S. 1043 . In view of the disagreement here, it is not surprising Page 462 U. S. 1048 that courts have differed as to whether Edwards announced a per se rule, and if so, what rule. I joined the judgment in Edwards because, on the facts, "it [was] clear that Edwards [had been] taken from his cell against his will and [improperly] subjected to renewed interrogation." 451 U.S. at 451 U. S. 490 (opinion concurring in result). I did not join the Court's opinion, because I was "not sure what it mean[t]." Id. at 451 U. S. 488 . The opinions today reflect the ambiguity of some of the Edwards language, particularly on the meaning of "initiation." JUSTICE MARSHALL reads Edwards as requiring not only that the accused initiate further communication, but also that the communication be " about the subject matter of the criminal investigation. " Post at 462 U. S. 1053 (emphasis in original). JUSTICE REHNQUIST, however, would require only that the suspect "evinc[e] a willingness and a desire for a generalized discussion about the investigation." Ante at 462 U. S. 1045 -1046. This formulation would include an "initiation" of conversation "in the ordinary dictionary sense" of the word, ante at 462 U. S. 1045 , excluding "inquiries . . . that are so routine that they cannot be fairly said to represent a desire . . . to open up a more generalized discussion relating directly or indirectly to the investigation." ibid. Both Justices agree in one respect. They view the "initiation" question as the first step of a two-step analysis, the second step being the application of the Zerbst standard that requires examination of the "totality of the circumstances." Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938). JUSTICE MARSHALL puts it this way: "If an accused has himself initiated further communication with the police, it is still necessary to establish, as a separate matter, the existence of a knowing and intelligent waiver under Johnson v. Zerbst. . . ." Post at 462 U. S. 1055 , n. 2. JUSTICE REHNQUIST's opinion observes that the initiation and the voluntariness of the waiver under Zerbst "are separate, Page 462 U. S. 1049 and clarity of application is not gained by melding them together." Ante at 462 U. S. 1045 . This bifurcating of the Zerbst standard is not compelled by Edwards or any of our other cases. The inquiry in Edwards did focus on the reopening of communication with the accused by the police -- a reopening that properly was held to be coercive. As there were no other significant facts or circumstances bearing upon the waiver question, there was no occasion for the Court to consider whether a two-step analysis is required in the more customary case. [ Footnote 2 ] An incarcerated person, accused of crime, does not remain silent and speak only when conversation is initiated by others, whether by fellow prisoners, guards, or law enforcement officers. Jail or prison confinements prior to indictment or trial may extend over days and weeks, and numerous conversations customarily occur, often accompanied by collateral facts and circumstances. Rarely can a court properly focus on a particular conversation and intelligently base a judgment on the simplistic inquiry as to who spoke first. In this case, for example, Bradshaw's initiating question ("what is going to happen to me now?") was not an isolated event. It was immediately followed by a renewal of Miranda warnings and additional conversation. The following day, there was further conversation, a third reading of Miranda rights, and finally Bradshaw's signing of a written waiver of those rights. Only then did he confess. JUSTICE MARSHALL would hold that there can be no waiver of the right to counsel unless the accused himself opens a dialogue "about the subject matter of the criminal investigation." Post at 462 U. S. 1054 ; see also post at 462 U. S. 1053 , 462 U. S. 1055 -1056. He states that "unless the accused himself initiates further communication Page 462 U. S. 1050 with the police, a valid waiver of the right to counsel cannot be established." Post at 462 U. S. 1055 , n. 2. Under this view of the two-step analysis, a court never gets to the second step -- however relevant subsequent facts and circumstances may be to a waiver -- unless the accused was the first to speak and to say the right thing. This is illustrated by the reasoning in the dissenting opinion in this case. Since JUSTICE MARSHALL concludes that Bradshaw had not initiated the dialogue, he does not consider the subsequent facts and circumstances that were found by the trial court to satisfy the Zerbst standard. JUSTICE REHNQUIST, however, moves from the first to the second step to conclude that the facts and circumstances, when viewed in their entirety, clearly establish a valid waiver of the right to counsel. To this extent, I agree with his plurality opinion. My concern is that a two-step analysis could confound the confusion evident from the differing views expressed by other courts, see 462 U.S. 1039 fn2/1|>n. 1, supra, and indeed evidenced by the conflicting reading of Edwards by JUSTICES MARSHALL and REHNQUIST. [ Footnote 3 ] The Zerbst standard is one that is widely understood and followed. It also comports with common sense. Fragmenting the standard into a novel two-step analysis -- if followed literally -- often would illustrate justice as well as Page 462 U. S. 1051 common sense. [ Footnote 4 ] Courts should engage in more substantive inquiries than "who said what first." The holding of the Court in Edwards cannot, in my view, fairly be reduced to this. We are unanimous in agreeing in this case, as in Edwards, that "the right to counsel [is] a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard." Edwards, 451 U.S. at 451 U. S. 483 . We also agree that, once the accused has requested counsel, this right requires additional safeguards, particularly against any coercive form of custodial interrogation. But the question of whether a suspect has waived this important right to counsel is uniquely one of fact, and usually must and should be left to the judgment of the trial court, that has had the benefit of hearing the evidence and assessing the weight and credibility of testimony. In the circumstances of this case, I agree that Bradshaw knowingly and intelligently waived his right to counsel, and that the judgment below therefore should be reversed. [ Footnote 1 ] Compare Fields v. Wyrick, 682 F.2d 154, 158 (CA8) ( Edwards "creat[ed] a per se rule"), rev'd and remanded, 459 U. S. 42 (1982) (per curiam); United States v. Thierman, 678 F.2d 1331, 1338 (CA9 1982) (Wallace, J., dissenting) (reading Edwards as applying per se rule); State v. Willie, 410 So. 2d 1019 , 1028 (La.1982) (recognizing per se rule in Edwards ); State v. McCloskey, 90 N.J. 18, 25, 446 A.2d 1201 , 1205 (1982) ( Edwards "established a per se rule"); Giacomazzi v. State, 633 P.2d 218 , 226 (Alaska 1981) (Rabinowitz, C.J., dissenting) ( Edwards "Court fashioned a per se rule"), with Richardson v. State, 274 Ark. 473, 477-478, 625 S.W.2d 504 , 506-507 (1981) (applying "totality of the circumstances" test, rather than per se rule); State v. Acquin, 187 Conn. 647, 671, 448 A.2d 163, 175 (1982) ("we do not read Edwards to prescribe a per se rule"); Leuschner v. State, 49 Md.App. 490, 497, 433 A.2d 1195 , 1199 (1981) ( Edwards does not create per se rule); State v. Scott, 626 S.W.2d 25 , 29 (Tenn.Crim.App.1981) (applying "totality of the circumstances" test, rather than per se rule). See also Wilson v. Zant, 249 Ga. 373, 376, 290 S.E.2d 442 , 446 ("[a]ccepting that [ Edwards ] established a per se exclusionary rule," but expressing reservation), cert. denied, 459 U.S. 1092 (1982); Leuschner, supra, at 497, 433 A.2d at 1199 (recognizing uncertainty whether Edwards created per se rule). [ Footnote 2 ] Perhaps what has caused some confusion is a failure to recognize that the only new element in Edwards was the emphasis on the prosecution's burden of proof in cases where -- in the absence of relevant subsequent facts -- the critical question of waiver focuses on whether the initial communication by the police was proper. [ Footnote 3 ] We recently found it necessary to clarify uncertainty that had resulted from decisions of this Court that had undertaken, in Fourth Amendment cases, to draw lines that were too refined to be applied consistently. Last Term, in United States v. Ross, 456 U. S. 798 (1982), the Court considered it necessary to "reject the precise holding" in Robbins v. California, 453 U. S. 420 (1981), and some of the language in Arkansas v. Sanders, 442 U. S. 753 (1979). 456 U.S. at 456 U. S. 824 . In my concurring opinion in Ross, I said it was "essential to have a Court opinion . . . that provides specific guidance to police and courts in this recurring situation.'" Id. at 456 U. S. 826 (quoting Robbins, supra, at 453 U. S. 435 (POWELL,J., concurring in judgment)). The needed clarification and guidance were undertaken, successfully I think, in JUSTICE STEVENS' opinion for the Court. If the opinions today, when read together, do not provide reasonable clarification for law enforcement officers and courts, we have a duty -- one that I think is compelling -- to provide more specific guidance, much as we did in Ross. [ Footnote 4 ] I therefore prefer to read JUSTICE REHNQUIST's opinion merely as an analytical framework that -- except in a case like Edwards -- would not inhibit courts from a full examination of all relevant facts and circumstances. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting. Because, in my view, the plurality has misapplied Edwards v. Arizona, 451 U. S. 477 (1981), I respectfully dissent. I In Miranda v. Arizona, 384 U. S. 436 (1966), this Court recognized that, "[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice." Id. at 384 U. S. 458 . Access to counsel was held essential to secure the Fifth Amendment privilege against self-incrimination. "If the individual states Page 462 U. S. 1052 that he wants an attorney, the interrogation must cease until an attorney is present. " Id. at 384 U. S. 474 (emphasis added). Miranda thus created a "rigid rule that an accused's request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease." Fare v. Michael C., 442 U. S. 707 , 442 U. S. 719 (1979). The significance of the invocation of the right to counsel is premised in part on a lawyer's "unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation." Ibid. As JUSTICE WHITE has written: "[T]he reasons to keep the lines of communication between the authorities and the accused open when the accused has chosen to make his own decisions are not present when he indicates, instead, that he wishes legal advice with respect thereto. The authorities may then communicate with him through an attorney. More to the point, the accused's having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism." Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 110 , n. 2(1975) (concurring in result). Although an accused may waive his various Miranda rights and submit to interrogation, the Court has recognized that "additional safeguards are necessary when the accused asks for counsel." Edwards v. Arizona, 451 U.S. at 451 U. S. 484 . Edwards held that a valid waiver of the right to counsel cannot be established by showing only that the accused responded to further police-initiated custodial interrogation, even if he had again been advised of his rights. Ibid. An accused who invokes his right to counsel is not subject to further interrogation until counsel has been made available, "unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 451 U. S. 484 -485. Page 462 U. S. 1053 To establish a waiver, it would thus be a " necessary fact that the accused, not the police, reopened the dialogue with the authorities." Id. at 451 U. S. 486 , n. 9 (emphasis added). In this case, respondent invoked his right to have counsel during custodial interrogation. Shortly thereafter, he asked a police officer, "Well, what is going to happen to me now?" The Oregon Court of Appeals concluded that respondent's question was not "a waiver of his right to counsel, invoked only minutes before, or anything other than a normal reaction to being taken from the police station and placed in a police car, obviously for transport to some destination." 54 Ore.App. 949, 953, 636 P.2d 1011 , 1013 (1981). Relying on Edwards, the Oregon court held that respondent had not initiated the subsequent interrogation. The Oregon Court of Appeals properly applied Edwards. [ Footnote 2/1 ] When this Court in Edwards spoke of "initiat[ing] further communication" with the police and "reopen[ing] the dialogue with the authorities," it obviously had in mind communication or dialogue about the subject matter of the criminal investigation. The rule announced in Edwards was designed to ensure that any interrogation subsequent to an invocation of the right to counsel be at the instance of the accused, not the authorities. 451 U.S. at 451 U. S. 485 . Thus, a question or statement Page 462 U. S. 1054 which does not invite further interrogation before an attorney is present cannot qualify as "initiation" under Edwards. To hold otherwise would drastically undermine the safeguards that Miranda and Edwards carefully erected around the right to counsel in the custodial setting The safeguards identified in Edwards hardly pose an insurmountable obstacle to an accused who truly wishes to waive his rights after invoking his right to counsel. A waiver can be established, however, only when the accused himself reopens the dialogue about the subject matter of the criminal investigation. Since our decision in Edwards, the lower courts have had no difficulty in identifying such situations. See, e.g., McCree v. Housewright, 689 F.2d 797 (CA8 1982) (defendant initiated reinterrogation by knocking on cell door and telling police officer that he wanted to make a statement); United States v. Gordon, 655 F.2d 478 (CA2 1981) (defendant reopened dialogue by expressing a desire to provide information about someone else who should also be arrested); State v. Brezee, 66 Haw. 163, 657 P.2d 1044 (1983) (defendant asked detective to come back to his cell and then expressed desire to make a statement); Payne v. State, 424 So. 2d 722 (Ala.Crim.App.1982) (defendant asked for a meeting with police at which statements were made); People v. Thomas, 98 Ill.App.3d 852, 424 N.E.2d 985 (1981) (defendant initiated further communication by inquiring about accomplice's statements linking him to the crime), cert. denied, 456 U.S. 993 (1982); State v. Pittman, 210 Neb. 117, 313 N.W.2d 252 (1981) (defendant initiated further conversation by stating that he was being "railroaded" by his codefendants). [ Footnote 2/2 ] Page 462 U. S. 1055 II I agree with the plurality that, in order to constitute "initiation" under Edwards, an accused's inquiry must demonstrate a desire to discuss the subject matter of the criminal investigation. Cf. ante at 462 U. S. 1045 . I am baffled, however, at the plurality's application of that standard to the facts of this case. The plurality asserts that respondent's question "[W]hat is going to happen to me now?" evinced both "a willingness and a desire for a generalized discussion about the investigation." Ante at 462 U. S. 1045 -1046. If respondent's question had been posed by Jean-Paul Sartre before a class of philosophy students, it might well have evinced a desire for a "generalized" discussion. B ut under the circumstances of this case, it is plain that respondent's only "desire" was to find out where the police were going to take him. As the Oregon Court of Appeals stated, respondent's query came only minutes after his invocation of the right to counsel, and was simply "a normal reaction to being taken from the police station and placed in a police car, obviously for transport to some destination." 54 Ore.App. at 953, 636 P.2d at 1013. [ Footnote 2/3 ] On these facts, I Page 462 U. S. 1056 fail to see how respondent's question can be considered "initiation" of a conversation about the subject matter of the criminal investigation. To hold that respondent's question in this case opened a dialogue with the authorities flies in the face of the basic purpose of the Miranda safeguards. When someone in custody asks, "What is going to happen to me now?", he is surely responding to his custodial surroundings. The very essence of custody is the loss of control over one's freedom of movement. The authorities exercise virtually unfettered control over the accused. To allow the authorities to recommence an interrogation based on such a question is to permit them to capitalize on the custodial setting. Yet Miranda's procedural protections were adopted precisely in order "to dispel the compulsion inherent in custodial surroundings." 384 U.S. at 384 U. S. 458 . Accordingly, I dissent. [ Footnote 2/1 ] In rebuking the Oregon Court of Appeals for failing to distinguish between the initiation of a conversation and a valid waiver of the right to counsel, ante at 462 U. S. 1044 , the plurality is attacking a straw man. Because it concluded that respondent had not initiated any conversation, the Oregon court never even undertook the distinct inquiry into the existence of a knowing and intelligent waiver. Edwards makes clear that, in the absence of "initiation" by an accused, there can be no valid waiver regardless of whatever else the accused may say or do. 451 U.S. at 451 U. S. 484 . Having concluded that respondent did not initiate further conversation, the Oregon court thus stated that there was no valid waiver in this case. This conclusion is entirely consistent with Edwards. Indeed, the Oregon court's decision contains lengthy quotations from Edwards. Unless we are to assume that the state court did not read the very portions of Edwards that it quotes, the plurality's attack is completely unjustified. [ Footnote 2/2 ] In his opinion concurring in the judgment, JUSTICE POWELL suggests that there is confusion as to whether Edwards announced a per se rule. Ante at 462 U. S. 1047 . In my view, Edwards unambiguously established such a rule. See 451 U.S. at 451 U. S. 484 -486, and n. 9. In any event, no confusion on this point can remain after today's decision, for eight Justices manifestly agree that Edwards did create a per se rule. The plurality explicitly refers to the "prophylactic rule" of Edwards. Ante at 462 U. S. 1044 . See also ante at 462 U. S. 1044 -1045 (discussing the " Edwards rule"). The rule is simply stated: unless the accused himself initiates further communication with the police, a valid waiver of the right to counsel cannot be established. If an accused has himself initiated further communication with the police, it is still necessary to establish as a separate matter the existence of a knowing and intelligent waiver under Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938). The only dispute between the plurality and the dissent in this case concerns the meaning of "initiation" for purposes of Edwards' per se rule. [ Footnote 2/3 ] The plurality seems to place some reliance on the police officer's reaction to respondent's question. The officer described his response as follows: "I says, 'You do not have to talk to me. You have requested an attorney, and I don't want you talking to me unless you so desire, because anything you say -- because -- since you have requested an attorney, you know, it has to be at your own free will.' I says, 'I can't prevent you from talking, but you understand where your place -- you know, where your standing is here?' and he agreed. He says 'I understand.'" As the officer's testimony indicates, respondent's statement was, at best, ambiguous. In any event, as the Oregon Court of Appeals noted, the officer clearly took advantage of respondent's inquiry to commence once again his questioning -- a practice squarely at odds with Edwards. See 54 Ore.App. at 953, 636 P.2d at 1013.

Here is a summary of the case: The Supreme Court of the United States reversed the Oregon Court of Appeals' decision in the case of Oregon v. Bradshaw (1983). The case concerned the admissibility of statements made by the respondent, who had previously invoked his right to counsel during police questioning. The respondent, after being advised of his Miranda rights and arrested, asked for an attorney. While being transferred to jail, the respondent asked a police officer what would happen to him. This initiated a conversation in which the respondent eventually admitted to driving a truck involved in a fatal accident and consuming a significant amount of alcohol. The Oregon Court of Appeals held that the respondent's inquiry did not "initiate" a conversation with the officer and that statements made during this conversation should be excluded from evidence under Edwards v. Arizona. However, the U.S. Supreme Court disagreed and concluded that the respondent's Fifth Amendment rights were not violated. They reasoned that the Oregon court misapprehended the test laid down in Edwards, which states that further interrogation should not occur unless the accused themselves initiate further communication. The Court clarified that the "initiation" of a conversation by an accused does not automatically waive their previously invoked right to counsel. Instead, a separate inquiry into the existence of a knowing and intelligent waiver is necessary. In this case, the respondent's question to the officer was ambiguous, but the officer ensured that the respondent understood his rights before continuing the conversation. The Court reversed the Oregon Court of Appeals' decision and remanded the case for further proceedings.

Miranda Rights

Connecticut v. Barrett

https://supreme.justia.com/cases/federal/us/479/523/

U.S. Supreme Court Connecticut v. Barrett, 479 U.S. 523 (1987) Connecticut v. Barrett No. 85-899 Argued December 9, 1986 Decided January 27, 1987 479 U.S. 523 CERTIORARI TO THE SUPREME COURT OF CONNECTICUT Syllabus Respondent, while in custody on suspicion of sexual assault, was three times advised by the police of his Miranda rights. On each occasion, after signing and dating an acknowledgment that he had been given those rights, respondent indicated to the police that he would not make a written statement, but that he was willing to talk about the incident that led to his arrest. On the second and third such occasions, he added that he would not make a written statement outside the presence of counsel, and then orally admitted his involvement in the sexual assault. One of the police officers reduced to writing his recollection of respondent's last such statement, and the confession was introduced into evidence at respondent's trial. The trial court refused to suppress the confession, finding that respondent had fully understood the Miranda warnings and had voluntarily waived his right to counsel. Respondent's conviction of sexual assault, inter alia, was reversed by the Connecticut Supreme Court, which held that his expressed desire for counsel before making a written statement constituted an invocation of his right to counsel for all purposes, that he had not waived that right by initiating further discussion with the police, and that, therefore, the incriminating statement was improperly admitted into evidence under Edwards v. Arizona, 451 U. S. 477 . Held: The Constitution did not require suppression of respondent's incriminating statement. Pp. 479 U. S. 527 -530. (a) Respondent's statements to the police made clear his willingness to talk about the sexual assault, and, there being no evidence that he was "threatened, tricked, or cajoled" into speaking to the police, the trial court properly found that his decision to do so constituted a voluntary waiver of his right to counsel. Although the Miranda rules were designed to protect defendants from being compelled by the government to make statements, they also give defendants the right to choose between speech and silence. Pp. 479 U. S. 527 -529. (b) Respondent's invocation of his right to counsel was limited by its terms to the making of written statements, and did not prohibit all further discussion with police. Requests for counsel must be given broad, all-inclusive effect only when the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, respondent Page 479 U. S. 524 clearly and unequivocally expressed his willingness to speak to police about the sexual assault. Pp. 479 U. S. 529 -530. (c) The distinction drawn by respondent between oral and written statements did not indicate an understanding so incomplete as to render his limited invocation of the right to counsel effective for all purposes. To so hold would contravene his testimony, and the trial court's finding, that he fully understood his Miranda warnings, including the warning that anything he said to police could be used against him. A defendant's ignorance of the full consequences of his decisions does not vitiate their voluntariness. P. 479 U. S. 530 . 197 Conn.60, 496 A.2d 1044, reversed and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 479 U. S. 530 . STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 479 U. S. 536 . Page 479 U. S. 525 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. Respondent William Barrett was convicted after a jury trial of sexual assault, unlawful restraint, and possession of a controlled substance. The Connecticut Supreme Court reversed the convictions. It held that incriminating statements made by Barrett should have been suppressed under our decision in Edwards v. Arizona, 451 U. S. 477 (1981), because Barrett, though stating his willingness to speak to police, had indicated that he would not make a written statement outside the presence of counsel. 197 Conn. 50, 495 A.2d 1044 (1985). We granted certiorari to consider the federal constitutional issues presented by this holding. 476 U.S. 1114 (1986). We reverse. In the early morning of October 24, 1980, Barrett was transported from New Haven, Connecticut, to Wallingford, where he was a suspect in a sexual assault that had occurred the previous evening. Upon arrival at the Wallingford police station, Officer Peter Cameron advised Barrett of his rights, and Barrett signed and dated an acknowledgment that he had received the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). Barrett stated that "he would not give the police any written statements, but he had no problem in talking about the incident." App. 12A. Approximately 30 minutes later, Barrett was questioned by Officer Cameron and Officer John Genovese. Before this questioning, he was again advised of his Miranda rights and signed a card acknowledging that he had been read the rights. Respondent stated that he understood his rights, and told the officers that he would not give a written statement unless his attorney was present, but had "no problem" talking about the incident. Id. at 21A. Barrett then gave an oral statement admitting his involvement in the sexual assault. After discovering that a tape recorder used to preserve the statement had malfunctioned, the police conducted a second Page 479 U. S. 526 interview. For the third time, Barrett was advised of his Miranda rights by the Wallingford police, and once again stated that "he was willing to talk about [the incident] verbally, but he did not want to put anything in writing until his attorney came." Id. at 44A. He then repeated to the police his confession regarding the previous evening's events. When the officers discovered that their tape recorder had again failed to record the statement, Officer Cameron reduced to writing his recollection of respondent's statement. The trial court, after a suppression hearing, held that the confession was admissible. It found that respondent not only indicated that he understood the warnings, but also "offered the statements that he did not need anything explained to him, because he understood. So it was not merely a passive acquiescence. . . ." Id. at 70A. Barrett's decision to make no written statement without his attorney "indicate[d] to the Court that he certainly understood from having his rights read to him that . . . he was under no obligation to give any statement." Ibid. The court held that Barrett had voluntarily waived his right to counsel and thus allowed testimony at trial as to the content of Barrett's statement. Barrett took the stand in his own defense and testified that he had understood his rights as they were read to him. Id. at 130A. He was convicted and sentenced to a prison term of 9 to 18 years. The Connecticut Supreme Court reversed the conviction, holding that respondent had invoked his right to counsel by refusing to make written statements without the presence of his attorney. In the court's view, Barrett's expressed desire for counsel before making a written statement served as an invocation of the right for all purposes: "The fact that the defendant attached his request for counsel to the making of a written statement does not affect the outcome of . . . our inquiry. No particular form of words has ever been required to trigger an individual's fifth amendment protections; nor have requests for Page 479 U. S. 527 counsel been narrowly construed. The defendant's refusal to give a written statement without his attorney present was a clear request for the assistance of counsel to protect his rights in his dealings with the police. Such a request continues to be constitutionally effective despite the defendant's willingness to make oral statements. We conclude, therefore, that the defendant did invoke his right to counsel under the fifth and fourteenth amendments." 197 Conn. at 57, 495 A.2d at 1049 (citations omitted). This invocation, the court believed, brought the case within what it called the "bright-line rule for establishing a waiver of this right." Id. at 58, 495 A.2d at 1049. That rule requires a finding that the suspect "(a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked." Smith v. Illinois, 469 U. S. 91 , 469 U. S. 95 (1984) (per curiam). See also Edwards, supra, at 451 U. S. 485 , 451 U. S. 486 , n. 9. Because Barrett had not initiated further discussions with police, the court found his statement improperly admitted. We think that the Connecticut Supreme Court erred in holding that the United States Constitution required suppression of Barrett's statement. Barrett made clear to police his willingness to talk about the crime for which he was a suspect. The trial court found that this decision was a voluntary waiver of his rights, and there is no evidence that Barrett was "threatened, tricked, or cajoled" into this waiver. Miranda, 384 U.S. at 384 U. S. 476 . The Connecticut Supreme Court nevertheless held as a matter of law [ Footnote 1 ] that respondent's Page 479 U. S. 528 limited invocation of his right to counsel prohibited all interrogation absent initiation of further discussion by Barrett. Nothing in our decisions, however, or in the rationale of Miranda, requires authorities to ignore the tenor or sense of a defendant's response to these warnings. The fundamental purpose of the Court's decision in Miranda was "to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process." Id. at 384 U. S. 469 (emphasis added). See also Moran v. Burbine, 475 U. S. 412 , 475 U. S. 426 (1986) (" Miranda attempted to reconcile [competing] concerns by giving the defendant the power to exert some control over the course of the interrogation") (emphasis in original); Oregon v. Elstad, 470 U. S. 298 , 470 U. S. 308 (1985) ("Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities") (emphasis added). To this end, the Miranda Court adopted prophylactic rules designed to insulate the exercise of Fifth Amendment rights from the government "compulsion, subtle or otherwise," that "operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked." Miranda, supra, at 384 U. S. 474 . See also Smith, supra, at 469 U. S. 98 ; Oregon v. Bradshaw, 462 U. S. 1039 , 462 U. S. 1044 (1983). One such rule requires that, once the accused "states that he wants an attorney, the interrogation must cease until an attorney is present." Miranda, supra, at 384 U. S. 474 . See also Edwards, 451 U.S. at 451 U. S. 484 . It remains clear, however, that this prohibition on further questioning -- like other aspects of Miranda -- is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose. See New York v. Quarles, 467 U. S. 649 , 467 U. S. 654 (1984). By prohibiting further interrogation after the invocation of these rights, we erect an auxiliary barrier against police coercion. Page 479 U. S. 529 But we know of no constitutional objective that would be served by suppression in this case. It is undisputed that Barrett desired the presence of counsel before making a written statement. Had the police obtained such a statement without meeting the waiver standards of Edwards, it would clearly be inadmissible. [ Footnote 2 ] Barrett's limited requests for counsel, however, were accompanied by affirmative announcements of his willingness to speak with the authorities. The fact that officials took the opportunity provided by Barrett to obtain an oral confession is quite consistent with the Fifth Amendment. Miranda gives the defendant a right to choose between speech and silence, and Barrett chose to speak. The Connecticut Supreme Court's decision to the contrary rested on the view that requests for counsel are not to be narrowly construed. 197 Conn. at 67, 495 A.2d at 1049. In support of this premise, respondent observes that our prior decisions have given broad effect to requests for counsel that were less than all-inclusive. See Bradshaw, supra, at 1041-1042 ("I do want an attorney before it goes very much further"); Edwards, supra, at 451 U. S. 479 ("I want an attorney before making a deal"). We do not denigrate the "settled approach to questions of waiver [that] requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel," Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 633 (1986), when we observe that this approach does little to aid respondent's cause. Interpretation is only required where the defendant's words, understood as ordinary people would understand them, are ambiguous. Here, however, Barrett made clear his intentions, and they were honored by police. [ Footnote 3 ] To conclude that respondent invoked his right to Page 479 U. S. 530 counsel for all purposes requires not a broad interpretation of an ambiguous statement, but a disregard of the ordinary meaning of respondent's statement. We also reject the contention that the distinction drawn by Barrett between oral and written statements indicates an understanding of the consequences so incomplete that we should deem his limited invocation of the right to counsel effective for all purposes. This suggestion ignores Barrett's testimony -- and the finding of the trial court not questioned by the Connecticut Supreme Court -- that respondent fully understood the Miranda warnings. These warnings, of course, made clear to Barrett that "[i]f you talk to any police officers, anything you say can and will be used against you in court." App. at 48A. The fact that some might find Barrett's decision illogical [ Footnote 4 ] is irrelevant, for we have never "embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness." Elstad, supra, at 470 U. S. 316 ; Colorado v. Spring, post p. 479 U. S. 564 . For the reasons stated, the judgment of the Connecticut Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] The Connecticut Supreme Court noted in its opinion that the trial court "impliedly found that the defendant had requested counsel." 197 Conn.50, 66, 496 A.2d 1044, 1048 (1985). This statement does not suggest, however, that the request for counsel was in fact all-inclusive, and the Supreme Court expressly noted the trial court's finding that defendant had refused to give a written statement without his attorney present. Id. at 56, n. 6, 496 A.2d at 1048, n. 6. The holding that Barrett had invoked his right to counsel, then, rests on a legal conclusion about the effect of his limited invocation, rather than on a factual finding. [ Footnote 2 ] Because the attempts to record Barrett's statements were unsuccessful, we have no occasion to consider whether the result would be different if police had taped the statements and used the recording against Barrett. [ Footnote 3 ] Since we reject the claim that Barrett's statements represent an ambiguous or equivocal response to the Miranda warnings, there is no need for us to address the question left open in Smith v. Illinois, 469 U. S. 91 , 469 U. S. 96 , n. 3 (1984) (per curiam). [ Footnote 4 ] We do not suggest that the distinction drawn by Barrett is in fact illogical, for there may be several strategic reasons why a defendant willing to speak to the police would still refuse to write out his answers to questions, or to sign a transcript of his answers prepared by the police, a statement that may be used against him. JUSTICE BRENNAN, concurring in the judgment. I concur in the judgment that the Constitution does not require the suppression of Barrett's statements to the police, but for reasons different from those set forth in the opinion of the Court. Barrett's contemporaneous waiver of his right to silence and limited invocation of his right to counsel (for the Page 479 U. S. 531 purpose of making a written statement) suggested that he did not understand that anything he said could be used against him. However, the State eliminated this apparent ambiguity when it demonstrated that Barrett's waiver of his right to silence was voluntary, knowing, and intelligent. Barrett testified at trial that he understood his Miranda rights, i.e., he knew that he need not talk to the police without a lawyer present, and that anything he said could be used against him. Under these circumstances, the waiver of the right to silence and the limited invocation of the right to counsel were valid. I In Miranda v. Arizona, 384 U. S. 436 (1966), the Court held that custodial interrogation is inherently coercive, and that a defendant must receive detailed warnings that he or she has the rights to remain silent and to receive assistance of counsel before and during questioning. A statement obtained from a defendant during custodial interrogation is admissible only if the State carries its "heavy burden" of establishing that a defendant has executed a valid waiver of the privilege against self-incrimination and the right to counsel. Id. at 384 U. S. 475 . To do so, the State must demonstrate "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938); see Miranda, supra, at 384 U. S. 475 -479. In making this determination, courts must examine "the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused." Johnson v. Zerbst, supra, at 304 U. S. 464 . The language and tenor of the Miranda opinion suggested that the Court would require that a waiver of the rights at stake be "specifically made." See 384 U.S. at 384 U. S. 470 . While the Court retreated from that position in North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 373 (1979), I continue to believe that the Court should require the police to obtain an " affirmative waiver'" of Miranda rights before proceeding with interrogation. Page 479 U. S. 532 See id. at 441 U. S. 377 (quoting Carnley v. Cochran, 369 U. S. 506 , 369 U. S. 516 (1962)). In this case, Barrett affirmatively waived his Miranda rights. Unlike the defendant in Butler, Barrett orally expressed his willingness to talk with the police and willingly signed a form indicating that he understood his rights. The police obtained an explicit oral waiver of the right to silence. Furthermore, the officer who administered the Miranda warnings to Barrett testified that the latter understood his rights "[c]ompletely": "I asked [Barrett] several times during my administration of those rights if, in fact, he understood them; if there were points he wanted me to clarify, and he indicated to me, no, he understood everything fairly well." Tr. 452. At trial, one issue was whether Barrett voluntarily, knowingly, and intelligently waived his Miranda rights, and Barrett himself testified that he understood his rights as they were read to him. Id. at 879-880. [ Footnote 2/1 ] Had the State been without Barrett's testimony at trial, where he was represented by counsel, I could not reach this conclusion. Barrett's statement to police -- that he would talk to them, but allow nothing in writing without counsel -- created doubt about whether he actually understood that anything he said could be used against him. In other words, the statement is not, on its face, a knowing and intelligent waiver of the right to silence. [ Footnote 2/2 ] As a general matter, I believe Page 479 U. S. 533 that this odd juxtaposition (a willingness to talk and an unwillingness to have anything preserved) militates against finding a knowing or intelligent waiver of the right to silence. See Butler, supra, at 441 U. S. 378 ("[T]here is no reason to believe that [the defendant's] oral statements, which followed a refusal to sign a written waiver form, were intended to signify relinquishment of his rights"). [ Footnote 2/3 ] But Barrett's testimony revealed that he understood that he had rights to remain silent and to have an attorney present, and that anything he said could be used against him; nevertheless he chose to speak. In sum, the State has carried its "heavy burden" of demonstrating waiver. It has shown that Barrett received the Miranda warnings, that he had the capacity to understand them, [ Footnote 2/4 ] and in fact understood them, and that he expressly Page 479 U. S. 534 waived his right to silence, saying that he "had no problem in talking about the incident." Tr. 452; see also id. at 461-462, 490-491, 674. In my view, each of these findings was essential to the conclusion that a voluntary, knowing, and intelligent waiver of the Miranda rights occurred. II Barrett argues that his refusal to make a written statement without an attorney present constituted an invocation of the right to counsel for all purposes, and that any further interrogation after this mention of his desire for an attorney was impermissible under Edwards v. Arizona, 451 U. S. 477 (1981). It is settled that any plain reference, however glancing, to a need or a desire for representation must result in the cessation of questioning. See Miranda, 384 U.S. at 384 U. S. 444 -445 (questioning must cease when the accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking"); Smith v. Illinois, 469 U. S. 91 (1984) (per curiam). I believe that a partial invocation of the right to counsel, without more, invariably will be ambiguous. It gives rise to doubts about the defendant's precise wishes regarding representation, and about his or her understanding of the nature and scope of the right to counsel. Thus, the police may not infer from a partial invocation of the right to counsel alone that the defendant has waived any of his or her rights not specifically invoked. However, circumstances may clarify an otherwise ambiguous situation. If the partial invocation is accompanied by an explicit waiver of the right to silence that is voluntary, knowing, and intelligent, it may lose its ambiguity. [ Footnote 2/5 ] It may become Page 479 U. S. 535 clear that the portion of the right to counsel that was not invoked was in fact waived when, for example, a knowing and intelligent waiver of the right to silence necessarily includes a waiver of the right to have counsel present at questioning. This is such a case. [ Footnote 2/6 ] Here Barrett's limited invocation was not ambiguous: It was accompanied by an express waiver of his right to silence, the validity of which was plainly established by his subsequent trial testimony. The accompaniment of Barrett's reference to his limited desire for counsel with an explicit waiver of his right to silence rendered permissible the authorities' use of his statements. [ Footnote 2/7 ] For these reasons, I concur in the judgment of the Court. Page 479 U. S. 536 [ Footnote 2/1 ] The trial judge denied Barrett's motion to suppress the statements made following administration of the Miranda warnings, holding: "[T]he Court concludes from the evidence it heard that [Barrett] indicated he understood perfectly what was being read to him. Not only did he indicate that he understood, he offered the statements that he did not need anything explained to him, because he understood. So it was not merely a passive acquiescence, and his agreement that he understood, he did go on to explain that he did not need anything explained to him because he perfectly understood." App. 70A. [ Footnote 2/2 ] The Court states that " a defendant's ignorance of the full consequences of his decisions'" would not "`vitiat[e] their voluntariness.'" Ante at 479 U. S. 530 (quoting Oregon v. Elstad, 470 U. S. 298 , 470 U. S. 316 (1985)). I do not accept that a defendant could voluntarily, knowingly, or intelligently waive a right that he or she does not understand to exist. Cf. Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 277 (1973) (BRENNAN, J., dissenting) ("The Court holds today that an individual can effectively waive this right [to be secure against an unreasonable search] even though he is totally ignorant of the fact that, in the absence of his consent, such invasions of privacy would be constitutionally prohibited. It wholly escapes me how our citizens can meaningfully be said to have waived something as precious as a constitutional guarantee without ever being aware of its existence"); ibid. (MARSHALL, J., dissenting) ("I would have thought that the capacity to choose necessarily depends upon knowledge that there is a choice to be made. But today the Court reaches the curious result that one can choose to relinquish a constitutional right -- the right to be free of unreasonable searches -- without knowing that he has the alternative of refusing to accede to a police request to search"). [ Footnote 2/3 ] See also 1 W. LaFave & J. Israel, Criminal Procedure § 6.9(f), pp. 634-636 (1984 ed.) ("[T]he Butler facts certainly suggest that the defendant misperceived the effect of a waiver which was oral rather than written. Under such circumstances, there is much to be said for the view that the police are under an obligation to clear up misunderstandings of this nature which are apparent to any reasonable observer. Short of this, it certainly makes sense to conclude that the defendant's conduct should significantly increase the prosecution's burden to overcome the presumption against waiver of the Miranda rights"). [ Footnote 2/4 ] It is undisputed that the defendant here, unlike the defendant in Butler, had the capacity to understand his rights: the police ascertained that Barrett had a 12th-grade education, Tr. 458, while in Butler there was a dispute over whether the defendant could read. North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 378 (1979). [ Footnote 2/5 ] In order for a valid waiver and partial invocation of the right to counsel to occur, the accused must effect them contemporaneously. In Smith v. Illinois, 469 U. S. 91 (1984) (per curiam), the Court considered a defendant's plain request for counsel that had been closely followed by statements rendering equivocal or ambiguous his first request. The State Supreme Court determined that the defendant's statements, considered as a totality, were ambiguous, and therefore did not invoke his right to counsel. We held that "an accused's post-request responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself." Id. at 469 U. S. 100 . Thus, if the initial request for counsel is clear, as it was here, the police may not create ambiguity in a defendant's desire by continuing to question him or her about it. [ Footnote 2/6 ] See also United States v. Jardina, 747 F.2d 945, 949 (CA5 1984) (The defendant stated "without the slightest ambiguity that he would then and there answer some questions, but not others" and "clearly indicated that he wished his attorney to work out a cooperative deal with the government in the future." The Court of Appeals found that these combined statements "did not invoke any present right to counsel"). [ Footnote 2/7 ] It is undisputed that, "[h]ad the police obtained [a written] statement without meeting the waiver standards of Edwards [v. Arizona, 451 U. S. 477 (1981)], it would clearly be inadmissible." Ante at 479 U. S. 529 . Barrett's invocation of his rights demonstrates that he opposed any immediate preservation of statements made without counsel. If the attempt to tape Barrett's statements had succeeded, the recording would have been inadmissible. In addition, the police attempted to persuade Barrett to waive the right he had asserted not to make a written statement without the assistance of counsel, not once, but twice, absent any indication from Barrett that he had changed his mind on this point. Tr. 689 ("Sergeant Genovese at the first [questioning] and Lieutenant Howard at the second inquired whether or not he had changed his mind [about reducing his statements to writing]"); see also id. at 521. In Edwards v. Arizona, 451 U.S. at 451 U. S. 484 -485, we held that, once an accused invokes the right to counsel, he or she is not subject to further custodial interrogation "until counsel has been made available to him [or her], unless the accused . . . initiates further communication, exchanges, or conversations with the police." Here the police failed to respect Barrett's limited assertion of his right to counsel. Had a written statement been obtained as a result of these persistent efforts to change Barrett's mind, it would have been inadmissible. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins, dissenting. The Court's disposition of this case raises two troublesome questions. First, why did the Court decide to exercise its discretion to grant review in this case? The facts of the case are surely unique. They do not give rise to any issue of general or recurring significance. There is no conflict among the state or federal courts on how the narrow question presented should be resolved. It is merely a case in which one State Supreme Court arguably granted more protection to a citizen accused of crime than the Federal Constitution requires. [ Footnote 3/1 ] The State "asks us to rule that the state court interpreted federal rights too broadly and overprotected' the citizen." Michigan v. Long, 463 U. S. 1032 , 463 U. S. 1068 (1983) (STEVENS, J., dissenting). If this is a sufficient reason for adding a case to our already overcrowded docket, we will need, not one, but several newly fashioned "intercircuit tribunals" to keep abreast of our work. Second, why was respondent's request for the assistance of counsel any less ambiguous than the request in Edwards v. Arizona, 451 U. S. 477 (1981)? In that case, the defendant said that he wanted an attorney " before making a deal.'" Id. at 451 U. S. 479 . He also said he would talk to the police "`but I don't want it on tape.'" Ibid. The police interrogation complied with the everyday meaning of both of those conditions; it occurred before Edwards made any "deal" -- indeed, he never made a deal -- and no tape recording of the session was made. The Court nevertheless found the interrogation objectionable. In this case, respondent requested an attorney before signing a written statement. Why the police's compliance with the literal terms of that request makes the request -- as opposed to the subsequent waiver [ Footnote 3/2 ] -- any less of a request for the assistance of counsel than Edwards' is not adequately explained in the Court's opinion. In all events, the Court does not purport to change the governing rule of law that judges must "give a broad, rather than a narrow, interpretation to a defendant's request for counsel." Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 633 (1986). I would dismiss the writ of certiorari as improvidently granted. [ Footnote 3/1 ] "The central contention of the Petitioner in this action is that the Connecticut Supreme Court unduly expanded the protections accorded criminal defendants under the Fifth Amendment to the United States [C]onstitution when it determined that this defendant involuntarily waived his right to assistance of counsel at his interrogation. This result was possible only through use of a prophylactic rule which ignored the circumstances of this case." Pet. for Cert. 5. [ Footnote 3/2 ] In this case, the Connecticut Supreme Court interpreted the trial court's ruling as embodying a factual finding that respondent had requested the assistance of counsel, but thereafter waived his right to counsel. It agreed with that factual determination, but held that the subsequent waiver was ineffective as a matter of law. 197 Conn.50, 60, 495 A.2d 1044, 1050 (1985).

The Supreme Court ruled that the defendant's incriminating statement did not need to be suppressed as he had voluntarily waived his right to counsel. The defendant clearly expressed his willingness to speak to the police about the sexual assault and was not coerced in any way. His request for counsel was limited to the making of written statements and did not prohibit all discussion with the police. The Court distinguished this case from Edwards v. Arizona, highlighting that the defendant's request for counsel in that case was ambiguous, whereas the respondent's request in this case was clear and unequivocal.

Miranda Rights

Berkemer v. McCarty

https://supreme.justia.com/cases/federal/us/468/420/

U.S. Supreme Court Berkemer v. McCarty, 468 U.S. 420 (1984) Berkemer v. McCarty No. 83-710 Argued April 18, 1984 Decided July 2, 1984 468 U.S. 420 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Syllabus After observing respondent's car weaving in and out of a highway lane, an officer of the Ohio State Highway Patrol forced respondent to stop and asked him to get out of the car. Upon noticing that respondent was having difficulty standing, the officer concluded that respondent would be charged with a traffic offense and would not be allowed to leave the scene, but respondent was not told that he would be taken into custody. When respondent could not perform a field sobriety test without falling, the officer asked him if he had been using intoxicants, and he replied that he had consumed two beers and had smoked marihuana a short time before. The officer then formally arrested respondent and drove him to a county jail, where a blood test failed to detect any alcohol in respondent's blood. Questioning was then resumed, and respondent again made incriminating statements, including an admission that he was "barely" under the influence of alcohol. At no point during this sequence was respondent given the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 . Respondent was charged with the misdemeanor under Ohio law of operating a motor vehicle while under the influence of alcohol and/or drugs, and when the state court denied his motion to exclude the various incriminating statements on the asserted ground that their admission into evidence would violate the Fifth Amendment because respondent had not been informed of his constitutional rights prior to his interrogation, he pleaded "no contest," and was convicted. After the conviction was affirmed on appeal by the Franklin County Court of Appeals and the Ohio Supreme Court denied review, respondent filed an action in Federal District Court for habeas corpus relief. The District Court dismissed the petition, but the Court of Appeals reversed, holding that Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated is a felony or a misdemeanor traffic offense, and that respondent's post-arrest statements, at least, were inadmissible. Held: 1. A person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda, regardless of the nature or severity of the offense of which he is suspected or for which Page 468 U. S. 421 he was arrested. Thus, respondent's statements made at the station house were inadmissible, since he was "in custody" at least as of the moment he was formally arrested and instructed to get into the police car, and since he was not informed of his constitutional rights at that time. To create an exception to the Miranda rule when the police arrest a person for allegedly committing a misdemeanor traffic offense and then question him without informing him of his constitutional rights would substantially undermine the rule's simplicity and clarity, and would introduce doctrinal complexities, particularly with respect to situations where the police, in conducting custodial interrogations, do not know whether the person has committed a misdemeanor or a felony. The purposes of the Miranda safeguards as to ensuring that the police do not coerce or trick captive suspects into confessing, relieving the inherently compelling pressures generated by the custodial setting itself, and freeing courts from the task of scrutinizing individual cases to determine, after the fact, whether particular confessions were voluntary, are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies. Pp. 468 U. S. 428 -435. 2. The roadside questioning of a motorist detained pursuant to a routine traffic stop does not constitute "custodial interrogation" for the purposes of the Miranda rule. Although an ordinary traffic stop curtails the "freedom of action" of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee's exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. A traffic stop is usually brief, and the motorist expects that, while he may be given a citation, in the end, he most likely will be allowed to continue on his way. Moreover, the typical traffic stop is conducted in public, and the atmosphere surrounding it is substantially less "police dominated" than that surrounding the kinds of interrogation at issue in Miranda and subsequent cases in which Miranda has been applied. However, if a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he is entitled to the full panoply of protections prescribed by Miranda. In this case, the initial stop of respondent's car, by itself, did not render him "in custody," and respondent has failed to demonstrate that, at any time between the stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Although the arresting officer apparently decided as soon as respondent stepped out of his car that he would be taken into custody and charged with a traffic offense, the officer never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the Page 468 U. S. 422 only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. Since respondent was not taken into custody for the purposes of Miranda until he was formally arrested, his statements made prior to that point were admissible against him. Pp. 468 U. S. 435 -442. 3. A determination of whether the improper admission of respondent's postarrest statements constituted "harmless error" will not be made by this Court for the cumulative reasons that (i) the issue was not presented to the Ohio courts or to the federal courts below, (ii) respondent's admissions made at the scene of the traffic stop and the statements he made at the police station were not identical, and (iii) the procedural posture of the case makes the use of harmless error analysis especially difficult, because respondent, while preserving his objection to the denial of his pretrial motion to exclude the evidence, elected not to contest the prosecution's case against him and thus has not yet had an opportunity to try to impeach the State's evidence or to present evidence of his own. Pp. 468 U. S. 442 -445. 716 F.2d 361, affirmed. MARSHALL, J., delivered the opinion of the Court, in which BURGER, C.J., and BRENNAN, WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 468 U. S. 445 . JUSTICE MARSHALL delivered the opinion of the Court. This case presents two related questions: First, does our decision in Miranda v. Arizona, 384 U. S. 436 (1966), govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic Page 468 U. S. 423 offense? Second, does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda? I A The parties have stipulated to the essential facts. See App. to Pet. for Cert. A-1. On the evening of March 31, 1980, Trooper Williams of the Ohio State Highway Patrol observed respondent's car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, "Williams concluded that [respondent] would be charged with a traffic offense, and therefore his freedom to leave the scene was terminated." Id. at A-2. However, respondent was not told that he would be taken into custody. Williams then asked respondent to perform a field sobriety test, commonly known as a "balancing test." Respondent could not do so without falling. While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that "he had consumed two beers and had smoked several joints of marijuana a short time before." Ibid. Respondent's speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail. At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood. [ Footnote 1 ] The test did not detect any alcohol whatsoever in respondent's system. Williams then resumed questioning respondent Page 468 U. S. 424 in order to obtain information for inclusion in the State Highway Patrol Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, "I guess, barely." Ibid. Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed "Remarks," respondent wrote, "No ang[el] dust or PCP in the pot. Rick McCarty." App. 2. At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one. B Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Ohio Rev.Code Ann. § 4511.19 (Supp.1983). Under Ohio law, that offense is a first-degree misdemeanor and is punishable by fine or imprisonment for up to six months. § 2929.21 (1982). Incarceration for a minimum of three days is mandatory. § 4511.99 (Supp.1983). Respondent moved to exclude the various incriminating statements he had made to Trooper Williams on the ground that introduction into evidence of those statements would violate the Fifth Amendment insofar as he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded "no contest," and was found guilty. [ Footnote 2 ] He was sentenced to 90 Page 468 U. S. 425 days in jail, 80 of which were suspended, and was fined $300, $100 of which was suspended. On appeal to the Franklin County Court of Appeals, respondent renewed his constitutional claim. Relying on a prior decision by the Ohio Supreme Court, which held that the rule announced in Miranda "is not applicable to misdemeanors," State v. Pyle, 19 Ohio St.2d 64, 249 N.E.2d 826 (1969), cert. denied, 396 U.S. 1007 (1970), the Court of Appeals rejected respondent's argument and affirmed his conviction. State v. McCarty, No. 80AP-680 (Mar. 10, 1981). The Ohio Supreme Court dismissed respondent's appeal on the ground that it failed to present a "substantial constitutional question." State v. McCarty, No. 81-710 (July 1, 1981). Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of Ohio. [ Footnote 3 ] The District Court dismissed the petition, holding that " Miranda warnings do not have to be given prior to in-custody interrogation of a suspect arrested for a traffic offense." McCarty v. Herdman, No. C-2-81-1118 (Dec. 11, 1981). A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that " Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated be a felony or a misdemeanor traffic offense." McCarty v. Herdman, 716 F.2d 361, 363 (1983) (emphasis in original). In applying this principle to the facts of the case, the Court of Appeals distinguished between the statements made by respondent before and after his formal arrest. [ Footnote 4 ] The postarrest statements, the court ruled, were Page 468 U. S. 426 plainly inadmissible; because respondent was not warned of his constitutional rights prior to or "[a]t the point that Trooper Williams took [him] to the police station," his ensuing admissions could not be used against him. Id. at 364. The court's treatment of respondent's prearrest statements was less clear. It eschewed a holding that "the mere stopping of a motor vehicle triggers Miranda, " ibid., but did not expressly rule that the statements made by respondent at the scene of the traffic stop could be used against him. In the penultimate paragraph of its opinion, the court asserted that "[t]he failure to advise [respondent] of his constitutional rights rendered at least some of his statements inadmissible," ibid. (emphasis added), suggesting that the court was uncertain as to the status of the prearrest confessions. [ Footnote 5 ] "Because [respondent] was convicted on inadmissible evidence," the court deemed it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus. Ibid. [ Footnote 6 ] However, the Court of Appeals did not specify which statements, if any, could be used against respondent in a retrial. We granted certiorari to resolve confusion in the federal and state courts regarding the applicability of our ruling in Page 468 U. S. 427 Miranda to interrogations involving minor offenses [ Footnote 7 ] and to questioning of motorists detained pursuant to traffic stops. [ Footnote 8 ] 464 U.S. 1038 (1984). Page 468 U. S. 428 II The Fifth Amendment provides: "No person . . . shall be compelled in any criminal case to be a witness against himself. . . ." It is settled that this provision governs state as well as federal criminal proceedings. Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 (1964). In Miranda v. Arizona, 384 U. S. 436 (1966), the Court addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation. The Court held: "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the Page 468 U. S. 429 following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Id. at 384 U. S. 444 (footnote omitted). In the years since the decision in Miranda, we have frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt. [ Footnote 9 ] See, e.g., Estelle v. Smith, 451 U. S. 454 , 451 U. S. 466 -467 (1981); Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 297 -298 (1980) (dictum); Orozco v. Texas, 394 U. S. 324 , 394 U. S. 326 -327 (1969); Mathis v. United States, 391 U. S. 1 , 391 U. S. 3 -5 (1968). [ Footnote 10 ] Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a person for allegedly committing a misdemeanor traffic offense and then ask him questions without telling him his constitutional rights, petitioner argues, his responses should be admissible against him. [ Footnote 11 ] We cannot agree. Page 468 U. S. 430 One of the principal advantages of the doctrine that suspects must be given warnings before being interrogated while in custody is the clarity of that rule. " Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis." Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979). The exception to Miranda proposed by petitioner would substantially undermine this crucial advantage of the doctrine. The police often are unaware when they arrest a person whether he may have committed a misdemeanor or a felony. Consider, for example, the reasonably common situation in which the driver of a car involved in an accident is taken into custody. Under Ohio law, both driving while under the influence of intoxicants and negligent vehicular homicide are misdemeanors, Ohio Rev.Code Ann. §§ 2903.07, 4511.99 (Supp.1983), while reckless vehicular homicide is a felony, § 2903.06 (Supp.1983). When arresting a person for causing a collision, the police may not know which of these offenses he may have committed. Indeed, the nature of his offense may depend upon circumstances unknowable to the police, such as whether the suspect has previously committed Page 468 U. S. 431 a similar offense [ Footnote 12 ] or has a criminal record of some other kind. It may even turn upon events yet to happen, such as whether a victim of the accident dies. It would be unreasonable to expect the police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate the suspect. [ Footnote 13 ] Equally importantly, the doctrinal complexities that would confront the courts if we accepted petitioner's proposal would be Byzantine. Difficult questions quickly spring to mind: for instance, investigations into seemingly minor offenses sometimes escalate gradually into investigations into more serious matters; [ Footnote 14 ] at what point in the evolution of an affair of this sort would the police be obliged to give Miranda warnings to a suspect in custody? What evidence would be necessary to establish that an arrest for a misdemeanor offense Page 468 U. S. 432 was merely a pretext to enable the police to interrogate the suspect (in hopes of obtaining information about a felony) without providing him the safeguards prescribed by Miranda? [ Footnote 15 ] The litigation necessary to resolve such matters would be time-consuming and disruptive of law enforcement. And the end result would be an elaborate set of rules, interlaced with exceptions and subtle distinctions, discriminating between different kinds of custodial interrogations. [ Footnote 16 ] Neither the police nor criminal defendants would benefit from such a development. Absent a compelling justification, we surely would be unwilling so seriously to impair the simplicity and clarity of the holding of Miranda. Neither of the two arguments proffered by petitioner constitutes such a justification. Petitioner first contends that Miranda warnings are unnecessary when a suspect is questioned about a misdemeanor traffic offense, because the police have no reason to subject such a suspect to the sort of interrogation that most troubled the Court in Miranda. We cannot agree that the dangers of police abuse are so slight in this context. For example, the offense of driving while intoxicated is increasingly regarded in many jurisdictions as a very serious matter. [ Footnote 17 ] Especially when the intoxicant at issue is a narcotic drug, rather than alcohol, the police sometimes have difficulty obtaining evidence of this crime. Under such circumstances, the incentive for the police to try to induce the defendant to incriminate Page 468 U. S. 433 himself may well be substantial. Similar incentives are likely to be present when a person is arrested for a minor offense but the police suspect that a more serious crime may have been committed. See supra. at 468 U. S. 431 -432. We do not suggest that there is any reason to think improper efforts were made in this case to induce respondent to make damaging admissions. More generally, we have no doubt that, in conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses, the police behave responsibly, and do not deliberately exert pressures upon the suspect to confess against his will. But the same might be said of custodial interrogations of persons arrested for felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing, [ Footnote 18 ] to relieve the " inherently compelling pressures'" generated by the custodial setting itself, "`which work to undermine the individual's will to resist,'" [ Footnote 19 ] and, as much as possible, to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether particular confessions were voluntary. [ Footnote 20 ] Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies. Page 468 U. S. 434 Petitioner's second argument is that law enforcement would be more expeditious and effective in the absence of a requirement that persons arrested for traffic offenses be informed of their rights. Again, we are unpersuaded. The occasions on which the police arrest and then interrogate someone suspected only of a misdemeanor traffic offense are rare. The police are already well accustomed to giving Miranda warnings to persons taken into custody. Adherence to the principle that all suspects must be given such warnings will not significantly hamper the efforts of the police to investigate crimes. We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda [ Footnote 21 ] regardless of the nature or severity of the offense of which he is suspected or for which he was arrested. The implication of this holding is that the Court of Appeals was correct in ruling that the statements made by respondent at the County Jail were inadmissible. There can be no question that respondent was "in custody" at least as of the moment he was formally placed under arrest and instructed to get into the police car. Because he was not informed of Page 468 U. S. 435 his constitutional rights at that juncture, respondent's subsequent admissions should not have been used against him. III To assess the admissibility of the self-incriminating statements made by respondent prior to his formal arrest, we are obliged to address a second issue concerning the scope of our decision in Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered "custodial interrogation." Respondent urges that it should, [ Footnote 22 ] on the ground that Miranda, by its terms, applies whenever "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, " 384 U.S. at 384 U. S. 444 (emphasis added); see id. at 384 U. S. 467 . [ Footnote 23 ] Page 468 U. S. 436 Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctrine. It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action" of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away without permission. E.g., Ohio Rev.Code Ann. § 4511.02 (1982). [ Footnote 24 ] Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so. [ Footnote 25 ] Partly for these reasons, we have long acknowledged that "stopping an automobile and detaining its occupants constitute a 'seizure' Page 468 U. S. 437 within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, 440 U. S. 648 , 440 U. S. 653 (1979) (citations omitted). However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced "to speak where he would not otherwise do so freely," Miranda v. Arizona, 384 U.S. at 384 U. S. 467 . First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that, in the end, he most likely will be allowed to continue on his way. [ Footnote 26 ] In this respect, Page 468 U. S. 438 questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. See id. at 384 U. S. 451 . [ Footnote 27 ] Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere Page 468 U. S. 439 surrounding an ordinary traffic stop is substantially less "police dominated" than that surrounding the kinds of interrogation at issue in Miranda itself, see 384 U.S. at 384 U. S. 445 , 384 U. S. 491 -498, and in the subsequent cases in which we have applied Miranda. [ Footnote 28 ] In both of these respects, the usual traffic stop is more analogous to a so-called " Terry stop," see Terry v. Ohio, 392 U. S. 1 (1968), than to a formal arrest. [ Footnote 29 ] Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly [ Footnote 30 ] in order to "investigate the circumstances that provoke suspicion." United States v. Brignoni-Ponce, 422 U. S. 873 , 422 U. S. 881 (1975). "[T]he stop and inquiry must be reasonably related in scope to the justification for their initiation.'" Ibid. (quoting Terry v. Ohio, supra, at 392 U. S. 29 .) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him, [ Footnote 31 ] he must then be Page 468 U. S. 440 released. [ Footnote 32 ] The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda. Respondent contends that to "exempt" traffic stops from the coverage of Miranda will open the way to widespread abuse. Policemen will simply delay formally arresting detained motorists, and will subject them to sustained and intimidating interrogation at the scene of their initial detention. Cf. State v. Roberti, 293 Ore. 59, 95, 644 P.2d 1104 , 1125 (1982) (Linde, J., dissenting) (predicting the emergence of a rule that "a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons"), withdrawn on rehearing, 293 Ore. 236, 646 P.2d 1341 (1982), cert. pending, No. 82315. The net result, respondent contends, will be a serious threat to the rights that the Miranda doctrine is designed to protect. We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U. S. 1121 , 463 U. S. 1125 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U. S. 492 , 429 U. S. 495 (1977) (per curiam). Page 468 U. S. 441 Admittedly, our adherence to the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody. Either a rule that Miranda applies to all traffic stops or a rule that a suspect need not be advised of his rights until he is formally placed under arrest would provide a clearer, more easily administered line. However, each of these two alternatives has drawbacks that make it unacceptable. The first would substantially impede the enforcement of the Nation's traffic laws -- by compelling the police either to take the time to warn all detained motorists of their constitutional rights or to forgo use of self-incriminating statements made by those motorists -- while doing little to protect citizens' Fifth Amendment rights. [ Footnote 33 ] The second would enable the police to circumvent the constraints on custodial interrogations established by Miranda. Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest. For the reasons indicated above, we reject the contention that the initial stop of respondent's car, by itself, rendered him "in custody." And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest. [ Footnote 34 ] At no point during that interval was respondent Page 468 U. S. 442 informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation. [ Footnote 35 ] Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to "custodial interrogation" at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists. [ Footnote 36 ] Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest. We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him. IV We are left with the question of the appropriate remedy. In his brief, petitioner contends that, if we agree with the Page 468 U. S. 443 Court of Appeals that respondent's postarrest statements should have been suppressed, but conclude that respondent's prearrest statements were admissible, we should reverse the Court of Appeals' judgment on the ground that the state trial court's erroneous refusal to exclude the postarrest admissions constituted "harmless error" within the meaning of Chapman v. California, 386 U. S. 18 (1967). Relying on Milton v. Wainwright, 407 U. S. 371 (1972), petitioner argues that the statements made by respondent at the police station "were merely recitations of what respondent had already admitted at the scene of the traffic arrest," and therefore were unnecessary to his conviction. Brief for Petitioner 25. We reject this proposed disposition of the case for three cumulative reasons. First, the issue of harmless error was not presented to any of the Ohio courts, to the District Court, or to the Court of Appeals. [ Footnote 37 ] Though, when reviewing a judgment of a federal court, we have jurisdiction to consider an issue not raised below, see Carlson v. Green, 446 U. S. 14 , 446 U. S. 17 , n. 2 (1980), we are generally reluctant to do so, Adickes v. S. H. Kress & Co., 398 U. S. 144 , 398 U. S. 147 , n. 2 (1970). [ Footnote 38 ] Second, the admissions respondent made at the scene of the traffic stop and the statements he made at the police station were not identical. Most importantly, though respondent at the scene admitted having recently drunk beer and smoked marihuana, not until questioned at the station did he Page 468 U. S. 444 acknowledge being under the influence of intoxicants, an essential element of the crime for which he was convicted. [ Footnote 39 ] This fact assumes significance in view of the failure of the intoxilyzer test to discern any alcohol in his blood. Third, the case arises in a procedural posture that makes the use of harmless error analysis especially difficult. [ Footnote 40 ] This is not a case in which a defendant, after denial of a suppression motion, is given a full trial resulting in his conviction. Rather, after the trial court ruled that all of respondent's self-incriminating statements were admissible, respondent elected not to contest the prosecution's case against him, while preserving his objection to the denial of his pretrial motion. [ Footnote 41 ] As a result, respondent has not yet had an opportunity to try to impeach the State's evidence or to present evidence of his own. For example, respondent alleges that, at the time of his arrest, he had an injured back and a limp, [ Footnote 42 ] and that those ailments accounted for his difficulty getting out of the car and performing the balancing test; because he pleaded "no contest," he never had a chance to make that argument to a jury. It is difficult enough, on the basis of a complete record of a trial and the parties' contentions regarding the relative importance of each portion of the evidence presented, to determine whether the erroneous admission of particular material affected the outcome. Without the benefit of such a record in this case, we decline to rule that Page 468 U. S. 445 the trial court's refusal to suppress respondent's postarrest statements "was harmless beyond a reasonable doubt." See Chapman v. California, 386 U.S. at 386 U. S. 24 . Accordingly, the judgment of the Court of Appeals is Affirmed. [ Footnote 1 ] For a description of the technology associated with the intoxilyzer test, see California v. Trombetta, 467 U. S. 479 , 467 U. S. 481 -482 (1984). [ Footnote 2 ] Ohio Rev.Code Ann. § 2937.07 (1982) provides, in pertinent part: "If the plea be 'no contest' or words of similar import in pleading to a misdemeanor, it shall constitute a stipulation that the judge or magistrate may make [a] finding of guilty or not guilty from the explanation of circumstances, and if guilt be found, impose or continue for sentence accordingly." "Ohio Rule of Criminal Procedure 12(H) provides:" "The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence." [ Footnote 3 ] On respondent's motion, the state trial court stayed execution of respondent's sentence pending the outcome of his application for a writ of habeas corpus. State v. McCarty, No. 80-TF-C-123915 (Franklin County Mun.Ct., July 28, 1981). [ Footnote 4 ] In differentiating respondent's various admissions, the Court of Appeals accorded no significance to the parties' stipulation that respondent's "freedom to leave the scene was terminated" at the moment Trooper Williams formed an intent to arrest respondent. The court reasoned that a " reasonable man' test," not a subjective standard, should control the determination of when a suspect is taken into custody for the purposes of Miranda. McCarty v. Herdman, 716 F.2d at 362, n. 1 (quoting Lowe v. United States, 407 F.2d 1391, 1397 (CA9 1969)). [ Footnote 5 ] Judge Wellford, dissenting, observed: "As I read the opinion, the majority finds that McCarty was not in custody until he was formally placed under arrest." 716 F.2d at 364. The majority neither accepted nor disavowed this interpretation of its ruling. [ Footnote 6 ] Judge Wellford's dissent was premised on his view that the incriminating statements made by respondent after he was formally taken into custody were "essentially repetitious" of the statements he made before his arrest. Reasoning that the prearrest statements were admissible, Judge Wellford argued that the trial court's failure to suppress the postarrest statements was "harmless error." Id. at 365. [ Footnote 7 ] In Clay v. Riddle, 541 F.2d 456 (1976), the Court of Appeals for the Fourth Circuit held that persons arrested for traffic offenses need not be given Miranda warnings. Id. at 457. Several state courts have taken similar positions. See State v. Bliss, 238 A.2d 848 , 850 (Del.1968); County of Dade v. Callahan, 259 So. 2d 504, 507 (Fla.App.1971), cert. denied, 265 So. 2d 50 (Fla.1972); State v. Gabrielson, 192 N.W.2d 792 , 796 (Iowa 1971), cert. denied, 409 U.S. 912 (1972); State v. Angelo, 251 La. 250, 254-255, 203 So. 2d 710 , 711-717 (1967); State v. Neal, 476 S.W.2d 547 , 553 (Mo.1972); State v. Macuk, 57 N.J. 1, 15-16, 268 A.2d 1 , 9 (1970). Other state courts have refused to limit in this fashion the reach of Miranda. See Campbell v. Superior Court, 106 Ariz. 542, 552, 479 P.2d 685 , 695 (1971); Commonwealth v. Brennan, 386 Mass. 772, 775, 438 N.E.2d 60 , 63 (1982); State v. Kinn, 288 Minn. 31, 35, 178 N.W.2d 888 , 891 (1970); State v. Lawson, 285 N.C. 320, 327-328, 204 S.E.2d 843 , 848 (1974); State v. Fields, 294 N.W.2d 404 , 409 (N.D.1980) ( Miranda applicable at least to "more serious [traffic] offense[s] such as driving while intoxicated"); State v. Buchholz, 11 Ohio St.3d 24, 28, 462 N.E.2d 1222, 1226 (1984) (overruling State v. Pyle, 19 Ohio St.2d 64, 249 N.E.2d 826 (1969), cert. denied, 396 U.S. 1007 (1970), and holding that " Miranda warnings must be given prior to any custodial interrogation regardless of whether the individual is suspected of committing a felony or misdemeanor"); State v. Roberti, 293 Ore. 59, 644 P.2d 1104 , on rehearing, 293 Ore. 236, 646 P.2d 1341 (1982), cert. pending, No. 82-315; Commonwealth v. Meyer, 488 Pa. 297, 305-306, 412 A.2d 517 , 521 (1980); Holman v. Cox, 598 P.2d 1331 , 1333 (Utah 1979); State v. Darnell, 8 Wash. App. 627, 628, 508 P.2d 613, 615, cert. denied, 414 U.S. 1112 (1973). [ Footnote 8 ] The lower courts have dealt with the problem of roadside questioning in a wide variety of ways. For a spectrum of positions, see State v. Tellez, 6 Ariz. App. 251, 256, 431 P.2d 691, 696 (1967) ( Miranda warnings must be given as soon as the policeman has "reasonable grounds" to believe the detained motorist has committed an offense); Newberry v. State, 552 S.W.2d 457 , 461 (Tex.Crim.App.1977) ( Miranda applies when there is probable cause to arrest the driver and the policeman "consider[s the driver] to be in custody and would not . . . let him leave"); State v. Roberti, 293 Ore., at 236, 646 P.2d at 1341 ( Miranda applies as soon as the officer forms an intention to arrest the motorist); People v. Ramirez, 199 Colo. 367, 372, n. 5, 609 P.2d 616 , 618, n. 5 (1980) (en banc); State v. Darnell, supra, at 629-630, 508 P.2d at 615 (driver is "in custody" for Miranda purposes at least by the time he is asked to take a field sobriety test); Commonwealth v. Meyer, supra, at 307, 412 A.2d at 521-522 (warnings are required as soon as the motorist "reasonably believes his freedom of action is being restricted"); Lowe v. United States, supra, at 1394, 1396; State v. Sykes, 285 N.C. 202, 205-206, 203 S.E.2d 849 , 850 (1974) ( Miranda is inapplicable to a traffic stop until the motorist is subjected to formal arrest or the functional equivalent thereof); Allen v. United States, 129 U.S.App.D.C. 61, 63-64, 390 F.2d 476, 478-479 ("[S]ome inquiry can be made [without giving Miranda warnings] as part of an investigation notwithstanding limited and brief restraints by the police in their effort to screen crimes from relatively routine mishaps"), modified, 131 U.S.App.D.C. 358, 404 F.2d 1335 (1968); Holman v. Cox, supra, at 1333 ( Miranda applies upon formal arrest). [ Footnote 9 ] In Harris v. New York, 401 U. S. 222 (1971), the Court did sanction use of statements obtained in violation of Miranda to impeach the defendant who had made them. The Court was careful to note, however, that the jury had been instructed to consider the statements "only in passing on [the defendant's] credibility and not as evidence of guilt." 4 01 U.S. at 401 U. S. 223 . [ Footnote 10 ] The one exception to this consistent line of decisions is New York v. Quarles, 467 U. S. 649 (1984). The Court held in that case that, when the police arrest a suspect under circumstances presenting an imminent danger to the public safety, they may, without informing him of his constitutional rights, ask questions essential to elicit information necessary to neutralize the threat to the public. Once such information has been obtained, the suspect must be given the standard warnings. [ Footnote 11 ] Not all of petitioner's formulations of his proposal are consistent. At some points in his brief and at oral argument, petitioner appeared to advocate an exception solely for drunken driving charges; at other points, he seemed to favor a line between felonies and misdemeanors. Because all of these suggestions suffer from similar infirmities, we do not differentiate among them in the ensuing discussion. [ Footnote 12 ] Thus, under Ohio law, while a first offense of negligent vehicular homicide is a misdemeanor, a second offense is a felony. Ohio Rev.Code Ann. § 2903.07 (Supp.1983). In some jurisdictions, a certain number of convictions for drunken driving triggers a quantum jump in the status of the crime. In South Dakota, for instance, first and second offenses for driving while intoxicated are misdemeanors, but a third offense is a felony. See Solem v. Helm, 463 U. S. 277 , 463 U. S. 280 , n. 4 (1983). [ Footnote 13 ] Cf. Welsh v. Wisconsin, 466 U. S. 740 , 466 U. S. 761 (1984) (WHITE, J., dissenting) (observing that officers in the field frequently "have neither the time nor the competence to determine" the severity of the offense for which they are considering arresting a person). It might be argued that the police would not need to make such guesses; whenever in doubt, they could ensure compliance with the law by giving the full Miranda warnings. It cannot be doubted, however, that in some cases, a desire to induce a suspect to reveal information he might withhold if informed of his rights would induce the police not to take the cautious course. [ Footnote 14 ] See, e.g., United States v. Schultz, 442 F. Supp. 176 (Md.1977) (investigation of erratic driving developed into inquiry into narcotics offenses and terminated in a charge of possession of a sawed-off shotgun); United States v. Hatchel, 329 F. Supp. 113 (Mass.1971) (investigation into offense of driving the wrong way on a one-way street yielded a charge of possession of a stolen car). [ Footnote 15 ] Cf. United States v. Robinson, 414 U. S. 218 , 414 U. S. 221 , n. 1 (1973); id. at 414 U. S. 238 , n. 2 (POWELL, J., concurring) (discussing the problem of determining if a traffic arrest was used as a pretext to legitimate a warrantless search for narcotics). [ Footnote 16 ] Cf. New York v. Quarles, 467 U.S. at 467 U. S. 663 -664 (O'CONNOR, J., concurring in judgment in part and dissenting in part). [ Footnote 17 ] See Brief for State of Ohio as Amicus Curiae 18-21 (discussing the "National Epidemic Of Impaired Drivers" and the importance of stemming it); cf. South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 558 -559 (1983); Perez v. Campbell, 402 U. S. 637 , 402 U. S. 657 , 402 U. S. 672 (1971) (BLACKMUN, J., concurring in part and dissenting in part). [ Footnote 18 ] See Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 299 , 446 U. S. 301 (1980); Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 445 -458 (1966). [ Footnote 19 ] Minnesota v. Murphy, 465 U. S. 420 , 465 U. S. 430 (1984) (quoting Miranda v. Arizona, supra, at 384 U. S. 467 ); see Estelle v. Smith, 451 U. S. 454 , 451 U. S. 467 (1981); United States v. Washington, 431 U. S. 181 , 431 U. S. 187 , n. 5 (1977). [ Footnote 20 ] Cf. Developments in the Law -- Confessions, 79 Harv.L.Rev. 935, 954-984 (1966) (describing the difficulties encountered by state and federal courts, during the period preceding the decision in Miranda, in trying to distinguish voluntary from involuntary confessions). We do not suggest that compliance with Miranda conclusively establishes the voluntariness of a subsequent confession. But cases in which a defendant can make a colorable argument that a self-incriminating statement was "compelled" despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare. [ Footnote 21 ] The parties urge us to answer two questions concerning the precise scope of the safeguards required in circumstances of the sort involved in this case. First, we are asked to consider what a State must do in order to demonstrate that a suspect who might have been under the influence of drugs or alcohol when subjected to custodial interrogation nevertheless understood and freely waived his constitutional rights. Second, it is suggested that we decide whether an indigent suspect has a right, under the Fifth Amendment, to have an attorney appointed to advise him regarding his responses to custodial interrogation when the alleged offense about which he is being questioned is sufficiently minor that he would not have a right, under the Sixth Amendment, to the assistance of appointed counsel at trial, see Scott v. Illinois, 440 U. S. 367 (1979). We prefer to defer resolution of such matters to a case in which law enforcement authorities have at least attempted to inform the suspect of rights to which he is indisputably entitled. [ Footnote 22 ] In his brief, respondent hesitates to embrace this proposition fully, advocating instead a more limited rule under which questioning of a suspect detained pursuant to a traffic stop would be deemed "custodial interrogation" if and only if the police officer had probable cause to arrest the motorist for a crime. See Brief for Respondent 39-40, 46. This ostensibly more modest proposal has little to recommend it. The threat to a citizen's Fifth Amendment rights that Miranda was designed to neutralize has little to do with the strength of an interrogating officer's suspicions. And, by requiring a policeman conversing with a motorist constantly to monitor the information available to him to determine when it becomes sufficient to establish probable cause, the rule proposed by respondent would be extremely difficult to administer. Accordingly, we confine our attention below to respondent's stronger argument: that all traffic stops are subject to the dictates of Miranda. [ Footnote 23 ] It might be argued that, insofar as the Court of Appeals expressly held inadmissible only the statements made by respondent after his formal arrest, and respondent has not filed a cross-petition, respondent is disentitled at this juncture to assert that Miranda warnings must be given to a detained motorist who has not been arrested. See, e.g., United States v. Reliable Transfer Co., 421 U. S. 397 , 421 U. S. 401 , n. 2 (1975). However, three considerations, in combination, prompt us to consider the question highlighted by respondent. First, as indicated above, the Court of Appeals' judgment regarding the time at which Miranda became applicable is ambiguous; some of the court's statements cast doubt upon the admissibility of respondent's prearrest statements. See supra at 468 U. S. 425 -426. Without undue strain, the position taken by respondent before this Court thus might be characterized as an argument in support of the judgment below, which respondent is entitled to make. Second, the relevance of Miranda to the questioning of a motorist detained pursuant to a traffic stop is an issue that plainly warrants our attention, and with regard to which the lower courts are in need of guidance. Third, and perhaps most importantly, both parties have briefed and argued the question. Under these circumstances, we decline to interpret and apply strictly the rule that we will not address an argument advanced by a respondent that would enlarge his rights under a judgment, unless he has filed a cross-petition for certiorari. [ Footnote 24 ] Examples of similar provisions in other States are: Ariz.Rev.Stat.Ann. §§ 28-622, 28-622.01 (1976 and Supp.1983-1984); Cal.Veh.Code Ann. §§ 2800, 2800.1 (West Supp.1984); Del.Code Ann., Tit. 21, § 4103 (1979); Fla.Stat. § 316.1935 (Supp.1984); Ill.Rev.Stat., ch. 95 1/2, � 11-204 (1983); N.Y. Veh. & Traf.Law § 1102 (McKinney Supp.1983-1984); Nev.Rev.Stat. § 484.348(1) (1983); 75 Pa.Cons.Stat. § 3733(a) (1977); Wash.Rev.Code § 46.61.020 (1983). [ Footnote 25 ] Indeed, petitioner frankly admits that "[n]o reasonable person would feel that he was free to ignore the visible and audible signal of a traffic safety enforcement officer. . . . Moreover, it is nothing short of sophistic to state that a motorist ordered by a police officer to step out of his vehicle would reasonabl[y] or prudently believe that he was at liberty to ignore that command." Brief for Petitioner 16-17. [ Footnote 26 ] State laws governing when a motorist detained pursuant to a traffic stop may or must be issued a citation instead of taken into custody vary significantly, see Y. Kamisar, W. LaFave, & J. Israel, Modern Criminal Procedure 402, n. a (5th ed.1980), but no State requires that a detained motorist be arrested unless he is accused of a specified serious crime, refuses to promise to appear in court, or demands to be taken before a magistrate. For a representative sample of these provisions, see Ariz.Rev.Stat.Ann. §§ 28-1053, 28-1054 (1976); Ga.Code Ann. § 40-13-53 (Supp.1983); Kan.Stat.Ann. §§ 8-2105, 8-2106 (1982); Nev.Rev.Stat. §§ 484.793, 484.795, 484.797, 484.799, 484.805 (1983); Ore.Rev.Stat. 484.353 (1983); S.D.Codified Laws § 32-33-2 (Supp.1983); Tex.Rev.Civ.Stat.Ann., Art. 6701d, §§ 147, 148 (Vernon 1977); Va.Code § 46.1-178 (Supp.1983). Cf. National Committee on Uniform Traffic Laws and Ordinances, Uniform Vehicle Code and Model Traffic Ordinance §§ 16-203 -- 16-206 (Supp.1979) (advocating mandatory release on citation of all drivers except those charged with specified offenses, those who fail to furnish satisfactory self-identification, and those as to whom the officer has "reasonable and probable grounds to believe . . . will disregard a written promise to appear in court"). [ Footnote 27 ] The brevity and spontaneity of an ordinary traffic stop also reduces the danger that the driver, through subterfuge, will be made to incriminate himself. One of the investigative techniques that Miranda was designed to guard against was the use by police of various kinds of trickery -- such as "Mutt and Jeff" routines -- to elicit confessions from suspects. See 384 U.S. at 384 U. S. 448 -455. A police officer who stops a suspect on the highway has little chance to develop or implement a plan of this sort. Cf. LaFave, "Street Encounters" and the Constitution: Terry, Sibror, Peters, and Beyond, 67 Mich.L.Rev. 39, 99 (1968). [ Footnote 28 ] See Orozco v. Texas, 394 U. S. 324 , 394 U. S. 325 (1969) (suspect arrested and questioned in his bedroom by four police officers); Mathis v. United States, 391 U. S. 1 , 391 U. S. 2 -3 (1968) (defendant questioned by a Government agent while in jail). [ Footnote 29 ] No more is implied by this analogy than that most traffic stops resemble, in duration and atmosphere, the kind of brief detention authorized in Terry. We of course do not suggest that a traffic stop supported by probable cause may not exceed the bounds set by the Fourth Amendment on the scope of a Terry stop. [ Footnote 30 ] Nothing in this opinion is intended to refine the constraints imposed by the Fourth Amendment on the duration of such detentions. Cf. Sharpe v. United States, 712 F.2d 65 (CA4 1983), cert. granted, 467 U.S. 1250 (1984). [ Footnote 31 ] Cf. Adams v. Williams, 407 U. S. 143 , 407 U. S. 148 (1972). [ Footnote 32 ] Cf. Terry v. Ohio, 392 U.S. at 392 U. S. 34 (WHITE, J., concurring). [ Footnote 33 ] Contrast the minor burdens on law enforcement and significant protection of citizens' rights effected by our holding that Miranda governs custodial interrogation of persons accused of misdemeanor traffic offenses. See supra at 468 U. S. 432 -434. [ Footnote 34 ] Cf. Commonwealth v. Meyer, 488 Pa., at 301, 307, 412 A.2d at 518-519, 522 (driver who was detained for over one-half hour, part of the time in a patrol car, held to have been in custody for the purposes of Miranda by the time he was questioned concerning the circumstances of an accident). [ Footnote 35 ] Cf. Beckwith v. United States, 425 U. S. 341 , 425 U. S. 346 -347 (1976) (" I t was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning'") (quoting United States v. Caiello, 420 F.2d 471, 473 (CA2 1969)); People v. P., 21 N.Y.2d 1 , 9-10, 233 N.E.2d 255, 260 (1967) (an objective, reasonable man test is appropriate because, unlike a subjective test, it "is not solely dependent either on the self-serving declarations of the police officers or the defendant, nor does it place upon the police the burden of anticipating the frailties or idiosyncracies of every person whom they question"). [ Footnote 36 ] Cf. United States v. Schultz, 442 F. Supp. at 180 (suspect who was stopped for erratic driving, subjected to persistent questioning in the squad car about drinking alcohol and smoking marihuana, and denied permission to contact his mother held to have been in custody for the purposes of Miranda by the time he confessed to possession of a sawed-off shotgun). [ Footnote 37 ] Judge Wellford, dissenting in the Court of Appeals, did address the issue of harmless error, see n 6, supra, but without the benefit of briefing by the parties. The majority of the panel of the Court of Appeals did not consider the question. [ Footnote 38 ] Nor did petitioner mention harmless error in his petition to this Court. Absent unusual circumstances, cf. n 23, supra, we are chary of considering issues not presented in petitions for certiorari. See this Court's Rule 21.1(a) ("Only the questions set forth in the petition or fairly included therein will be considered by the Court"). [ Footnote 39 ] This case is thus not comparable to Milton v. Wainwright, 407 U. S. 371 (1972), in which a confession presumed to be inadmissible contained no information not already provided by three admissible confessions. See id. at 407 U. S. 375 -376. [ Footnote 40 ] Because we do not rule that the trial court's error was harmless, we need not decide whether harmless error analysis is even applicable to a case of this sort. [ Footnote 41 ] Under Ohio law, respondent had a right to pursue such a course. See n 2, supra. [ Footnote 42 ] Indeed, respondent points out that he told Trooper Williams of these ailments at the time of his arrest, and their existence was duly noted in the Alcohol Influence Report. See App. 2. JUSTICE STEVENS, concurring in part and concurring in the judgment. The only question presented by the petition for certiorari reads as follows: "Whether law enforcement officers must give ' Miranda warnings' to individuals arrested for misdemeanor traffic offenses." In Parts I, II, and IV of its opinion, the Court answers that question in the affirmative, and explains why that answer requires that the judgment of the Court of Appeals be affirmed. Part III of the Court's opinion is written for the purpose of discussing the admissibility of statements made by respondent "prior to his formal arrest," see ante at 468 U. S. 435 . That discussion is not necessary to the disposition of the case, nor necessary to answer the only question presented by the certiorari petition. Indeed, the Court of Appeals quite properly did not pass on the question answered in Part III, since it was entirely unnecessary to the judgment in this case. It thus wisely followed the cardinal rule that a court should not pass on a constitutional question in advance of the necessity of deciding it. See, e.g., Ashwander v. TVA, 297 U. S. 288 , 297 U. S. 346 (1936) (Brandeis, J., concurring). Lamentably, this Court fails to follow the course of judicial restraint that we have set for the entire federal judiciary. In this case, it appears the reason for reaching out to decide a question not passed upon below and unnecessary to the judgment is that the answer to the question upon which we granted review is so clear under our settled precedents that the majority -- its appetite for deciding constitutional questions Page 468 U. S. 446 only whetted -- is driven to serve up a more delectable issue to satiate it. I had thought it clear, however, that no matter how interesting or potentially important a determination on a question of constitutional law may be, "broad considerations of the appropriate exercise of judicial power prevent such determinations unless actually compelled by the litigation before the Court." Barr v. Matteo, 355 U. S. 171 , 355 U. S. 172 (1957) (per curiam). Indeed, this principle of restraint grows in importance the more problematic the constitutional issue is. See New York v. Uplinger, 467 U. S. 246 , 467 U. S. 251 (1984) (STEVENS, J., concurring). Because I remain convinced that the Court should abjure the practice of reaching out to decide cases on the broadest grounds possible, e.g., United States v. Doe, 465 U. S. 605 , 465 U. S. 619 -620 (1984) (STEVENS, J., concurring in part and dissenting in part); Grove City College v. Bell, 465 U. S. 555 , 465 U. S. 579 (1984) (STEVENS, J., concurring in part and concurring in result); Colorado v. Nunez, 465 U. S. 324 , 465 U. S. 327 -328 (1984) (STEVENS, J., concurring); United States v. Gouveia, 467 U. S. 180 , 467 U. S. 193 (1984) (STEVENS, J., concurring in judgment); Firefighters v. Stotts, 467 U. S. 561 , 467 U. S. 590 -591 (1984) (STEVENS, J., concurring in judgment); see also, University of California Regents v. Bakke, 438 U. S. 265 , 438 U. S. 411 -412 (1978) (STEVENS, J., concurring in judgment in part and dissenting in part); Monell v. New York City Dept. of Social Services, 436 U. S. 658 , 436 U. S. 714 (1978) (STEVENS, J., concurring in part); cf. Snepp v. United States, 444 U. S. 507 , 444 U. S. 524 -525 (1980) (STEVENS, J., dissenting), I do not join Part III of the Court's opinion.

Here is a summary of the Supreme Court case Berkemer v. McCarty, 468 U.S. 420 (1984): Issue: Whether an individual must be given Miranda warnings prior to custodial interrogation, regardless of the nature or severity of the offense they are suspected of committing. Facts: A police officer pulled over the respondent, McCarty, for weaving in and out of a highway lane. The officer noticed McCarty was having difficulty standing and concluded he would be charged with a traffic offense. At no point was McCarty informed of his Miranda rights. After failing a field sobriety test, McCarty admitted to consuming alcohol and smoking marijuana. He was then formally arrested and taken to a county jail, where he made further incriminating statements. Procedural History: McCarty was charged with a misdemeanor under Ohio law for operating a vehicle while under the influence of alcohol and/or drugs. He filed a motion to exclude his incriminating statements on the grounds that he had not been informed of his constitutional rights prior to interrogation. The motion was denied, and he pleaded "no contest," resulting in a conviction. The conviction was affirmed on appeal, but the Federal District Court for Habeas Corpus Relief dismissed the petition. The Court of Appeals reversed this decision, holding that Miranda warnings must be given regardless of the offense investigated. Holding: The Supreme Court affirmed the Court of Appeals' decision, ruling that an individual subjected to custodial interrogation is entitled to Miranda warnings, regardless of the nature or severity of the suspected offense. McCarty's statements at the station house were inadmissible as he was not informed of his rights when he was formally arrested. Justice Stevens's Concurrence: Justice Stevens concurred with the judgment but disagreed with the Court's decision to address the admissibility of McCarty's statements made prior to his formal arrest, as it was unnecessary to the disposition of the case and fell outside the scope of the certiorari petition. He emphasized the importance of judicial restraint and criticized the Court for deciding on a broader issue than was necessary.

Miranda Rights

Illinois v. Perkins

https://supreme.justia.com/cases/federal/us/496/292/

U.S. Supreme Court Illinois v. Perkins, 496 U.S. 292 (1990) Illinois v. Perkins No. 88-1972 Argued Feb. 20, 1990 Decided June 4, 1990 496 U.S. 292 CERTIORARI TO THE APPELLATE COURT OF ILLINOIS, FIFTH JUDICIAL DISTRICT Syllabus Police placed undercover agent Parisi in a jail cellblock with respondent Perkins, who was incarcerated on charges unrelated to the murder that Parisi was investigating. When Parisi asked him if he had ever killed anybody, Perkins made statements implicating himself in the murder. He was then charged with the murder. The trial court granted respondent's motion to suppress his statements on the ground that Parisi had not given him the warnings required by Miranda v. Arizona, 384 U. S. 436 , before their conversations. The Appellate Court of Illinois affirmed, holding that Miranda prohibits all undercover contacts with incarcerated suspects that are reasonably likely to elicit an incriminating response. Held: An undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. The Miranda doctrine must be enforced strictly, but only in situations where the concerns underlying that decision are present. Those concerns are not implicated here, since the essential ingredients of a "police dominated atmosphere" and compulsion are lacking. It is Miranda's premise that the danger of coercion results from the interaction of custody and official interrogation, whereby the suspect may feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess. That coercive atmosphere is not present when an incarcerated person speaks freely to someone whom he believes to be a fellow inmate and whom he assumes is not an officer having official power over him. In such circumstances, Miranda does not forbid mere strategic deception by taking advantage of a suspect's misplaced trust. The only difference between this case and Hoffa v. United States, 385 U. S. 293 -- which upheld the placing of an undercover agent near a suspect in order to gather incriminating information -- is that Perkins was incarcerated. Detention, however, whether or not for the crime in question, does not warrant a presumption that such use of an undercover agent renders involuntary the incarcerated suspect's resulting confession. Mathis v. United States, 391 U. S. 1 -- which held that an inmate's statements to a known agent were inadmissible because no Miranda warnings were given -- is distinguishable. Where the suspect does not Page 496 U. S. 293 know that he is speaking to a government agent, there is no reason to assume the possibility of coercion. Massiah v. United States, 377 U. S. 201 , and similar cases -- which held that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged -- are inapplicable, since, here, no murder charges had been filed at the time of interrogation. Also unavailing is Perkins' argument that a bright-line rule for the application of Miranda is desirable, since law enforcement officers will have little difficulty applying the holding of this case. Pp. 496 U. S. 296 -300. 176 Ill.App.3d 443, 126 Ill.Dec. 8, 531 N.E.2d 141 (1988), reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, post, p. 496 U. S. 300 . MARSHALL, J., filed a dissenting opinion, post, p. 496 U. S. 303 . Page 496 U. S. 294 OPINION Justice KENNEDY delivered the opinion of the Court. An undercover government agent was placed in the cell of respondent Perkins, who was incarcerated on charges unrelated to the subject of the agent's investigation. Respondent made statements that implicated him in the crime that the agent sought to solve. Respondent claims that the statements should be inadmissible because he had not been given Miranda warnings by the agent. We hold that the statements are admissible. Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer, and gives a voluntary statement. I In November, 1984, Richard Stephenson was murdered in a suburb of East St. Louis, Illinois. The murder remained unsolved until March, 1986, when one Donald Charlton told police that he had learned about a homicide from a fellow inmate at the Graham Correctional Facility, where Charlton had been serving a sentence for burglary. The fellow inmate was Lloyd Perkins, who is the respondent here. Charlton told police that, while at Graham, he had befriended respondent, who told him in detail about a murder that respondent had committed in East St. Louis. On hearing Charlton's account, the police recognized details of the Stephenson murder that were not well known, and so they treated Charlton's story as a credible one. By the time the police heard Charlton's account, respondent had been released from Graham, but police traced him to a jail in Montgomery County, Illinois, where he was being held pending trial on a charge of aggravated battery, unrelated to the Stephenson murder. The police wanted to investigate further respondent's connection to the Stephenson murder, but feared that the use of an eavesdropping device would prove impracticable and unsafe. They decided instead to place an undercover agent in the cellblock with respondent and Charlton. The plan was for Charlton and undercover Page 496 U. S. 295 agent John Parisi to pose as escapees from a work release program who had been arrested in the course of a burglary. Parisi and Charlton were instructed to engage respondent in casual conversation and report anything he said about the Stephenson murder. Parisi, using the alias "Vito Bianco," and Charlton, both clothed in jail garb, were placed in the cellblock with respondent at the Montgomery County jail. The cellblock consisted of 12 separate cells that opened onto a common room. Respondent greeted Charlton who, after a brief conversation with respondent, introduced Parisi by his alias. Parisi told respondent that he "wasn't going to do any more time," and suggested that the three of them escape. Respondent replied that the Montgomery County jail was "rinky-dink," and that they could "break out." The trio met in respondent's cell later that evening, after the other inmates were asleep, to refine their plan. Respondent said that his girlfriend could smuggle in a pistol. Charlton said "Hey, I'm not a murderer, I'm a burglar. That's your guys' profession." After telling Charlton that he would be responsible for any murder that occurred, Parisi asked respondent if he had ever "done" anybody. Respondent said that he had, and proceeded to describe at length the events of the Stephenson murder. Parisi and respondent then engaged in some casual conversation before respondent went to sleep. Parisi did not give respondent Miranda warnings before the conversations. Respondent was charged with the Stephenson murder. Before trial, he moved to suppress the statements made to Parisi in the jail. The trial court granted the motion to suppress, and the State appealed. The Appellate Court of Illinois affirmed, holding that Miranda v. Arizona, 384 U. S. 436 (1966), prohibits all undercover contacts with incarcerated suspects which are reasonably likely to elicit an incriminating response. We granted certiorari, 493 U.S. 808 (1989), to decide whether an undercover law enforcement officer must give Page 496 U. S. 296 Miranda warnings to an incarcerated suspect before asking him questions that may elicit an incriminating response. We now reverse. II In Miranda v. Arizona, supra, the Court held that the Fifth Amendment privilege against self-incrimination prohibits admitting statements given by a suspect during "custodial interrogation" without a prior warning. Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody. . . ." Id., 384 U.S. at 384 U. S. 444 . The warning mandated by Miranda was meant to preserve the privilege during "incommunicado interrogation of individuals in a police-dominated atmosphere." Id. at 384 U. S. 445 . That atmosphere is said to generate "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 384 U. S. 467 . "Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated." Berkemer v. McCarty, 468 U. S. 420 , 468 U. S. 437 (1984). Conversations between suspects and undercover agents do not implicate the concerns underlying Miranda. The essential ingredients of a "police-dominated atmosphere" and compulsion are not present when an incarcerated person speaks freely to someone that he believes to be a fellow inmate. Coercion is determined from the perspective of the suspect. Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 301 (1980); Berkemer v. McCarty, 468 U. S. 420 , 468 U. S. 442 (1984). When a suspect considers himself in the company of cellmates and not officers, the coercive atmosphere is lacking. Miranda, 384 U.S. at 384 U. S. 449 ("The principal psychological factor contributing to a successful interrogation is privacy -- being alone with the person under interrogation'"); id. at 384 U. S. 445 . There is no empirical basis for the assumption that a suspect speaking to those whom he assumes are not officers will feel compelled to speak by the fear Page 496 U. S. 297 of reprisal for remaining silent or in the hope of more lenient treatment should he confess. It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation. We reject the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent. Questioning by captors, who appear to control the suspect's fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect's will, but where a suspect does not know that he is conversing with a government agent, these pressures do not exist. The State Court here mistakenly assumed that, because the suspect was in custody, no undercover questioning could take place. When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners. "[W]hen the agent carries neither badge nor gun and wears not police blue,' but the same prison gray" as the suspect, there is no "interplay between police interrogation and police custody." Kamisar, Brewer v. Williams, Massiah and Miranda: What is "Interrogation"? When Does it Matter?, 67 Geo.L.J. 1, 67, 63 (1978). Miranda forbids coercion, not mere strategic deception by taking advantage of a suspect's misplaced trust in one he supposes to be a fellow prisoner. As we recognized in Miranda, "[c]onfessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence." 384 U.S. at 384 U. S. 478 . Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda's concerns. Cf. Oregon v. Mathiason, 429 U. S. 492 , 429 U. S. 495 -496 (1977) (per curiam); Moran v. Burbine, 475 U. S. 412 (1986) (where police fail to inform suspect of attorney's efforts to reach him, Page 496 U. S. 298 neither Miranda nor Fifth Amendment require suppression of prearraignment confession after voluntary waiver). Miranda was not meant to protect suspects from boasting about their criminal activities in front of persons whom they believe to be their cellmates. This case is illustrative. Respondent had no reason to feel that undercover agent Parisi had any legal authority to force him to answer questions or that Parisi could affect respondent's future treatment. Respondent viewed the cellmate-agent as an equal, and showed no hint of being intimidated by the atmosphere of the jail. In recounting the details of the Stephenson murder, respondent was motivated solely by the desire to impress his fellow inmates. He spoke at his own peril. The tactic employed here to elicit a voluntary confession from a suspect does not violate the Self-Incrimination Clause. We held in Hoffa v. United States, 385 U. S. 293 (1966), that placing an undercover agent near a suspect in order to gather incriminating information was permissible under the Fifth Amendment. In Hoffa, while petitioner Hoffa was on trial, he met often with one Partin, who, unbeknownst to Hoffa, was cooperating with law enforcement officials. Partin reported to officials that Hoffa had divulged his attempts to bribe jury members. We approved using Hoffa's statements at his subsequent trial for jury tampering, on the rationale that "no claim ha[d] been or could [have been] made that [Hoffa's] incriminating statements were the product of any sort of coercion, legal or factual." Id. at 385 U. S. 304 . In addition, we found that the fact that Partin had fooled Hoffa into thinking that Partin was a sympathetic colleague did not affect the voluntariness of the statements. Ibid. Cf. Oregon v. Mathiason, supra, 429 U.S. at 429 U. S. 495 -496 (officer's falsely telling suspect that suspect's fingerprints had been found at crime scene did not render interview "custodial" under Miranda ); Frazier v. Cupp, 394 U. S. 731 , 394 U. S. 739 (1969); Procunier v. Atchley, 400 U. S. 446 , 400 U. S. 453 -454 (1971). The only difference between this case and Hoffa is that the suspect here was incarcerated, but Page 496 U. S. 299 detention, whether or not for the crime in question, does not warrant a presumption that the use of an undercover agent to speak with an incarcerated suspect makes any confession thus obtained involuntary. Our decision in Mathis v. United States, 391 U. S. 1 (1968), is distinguishable. In Mathis, an inmate in a state prison was interviewed by an Internal Revenue Service agent about possible tax violations. No Miranda warning was given before questioning. The Court held that the suspect's incriminating statements were not admissible at his subsequent trial on tax fraud charges. The suspect in Mathis was aware that the agent was a government official, investigating the possibility of noncompliance with the tax laws. The case before us now is different. Where the suspect does not know that he is speaking to a government agent, there is no reason to assume the possibility that the suspect might feel coerced. (The bare fact of custody may not in every instance require a warning, even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here.) This Court's Sixth Amendment decisions in Massiah v. United States, 377 U. S. 201 (1964), United States v. Henry, 447 U. S. 264 (1980), and Maine v. Moulton, 474 U. S. 159 (1985), also do not avail respondent. We held in those cases that the government may not use an undercover agent to circumvent the Sixth Amendment right to counsel once a suspect has been charged with the crime. After charges have been filed, the Sixth Amendment prevents the government from interfering with the accused's right to counsel. Moulton, supra, at 474 U. S. 176 . In the instant case, no charges had been filed on the subject of the interrogation, and our Sixth Amendment precedents are not applicable. Respondent can seek no help from his argument that a bright-line rule for the application of Miranda is desirable. Law enforcement officers will have little difficulty putting into practice our holding that undercover agents need not Page 496 U. S. 300 give Miranda warnings to incarcerated suspects. The use of undercover agents is a recognized law enforcement technique, often employed in the prison context to detect violence against correctional officials or inmates as well as for the purposes served here. The interests protected by Miranda are not implicated in these cases, and the warnings are not required to safeguard the constitutional rights of inmates who make voluntary statements to undercover agents. We hold that an undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. The statements at issue in this case were voluntary, and there is no federal obstacle to their admissibility at trial. We now reverse and remand for proceedings not inconsistent with our opinion. It is so ordered. Justice BRENNAN, concurring in the judgment. The Court holds that Miranda v. Arizona, 384 U. S. 436 (1966), does not require suppression of a statement made by an incarcerated suspect to an undercover agent. Although I do not subscribe to the majority's characterization of Miranda in its entirety, I do agree that, when a suspect does not know that his questioner is a police agent, such questioning does not amount to "interrogation" in an "inherently coercive" environment so as to require application of Miranda. Since the only issue raised at this stage of the litigation is the applicability of Miranda, * I concur in the judgment of the Court. Page 496 U. S. 301 This is not to say that I believe the Constitution condones the method by which the police extracted the confession in this case. To the contrary, the deception and manipulation practiced on respondent raise a substantial claim that the confession was obtained in violation of the Due Process Clause. As we recently stated in Miller v. Fenton, 474 U. S. 104 , 474 U. S. 109 -110 (1985): "This Court has long held that certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned under the Due Process Clause of the Fourteenth Amendment. . . . Although these decisions framed the legal inquiry in a variety of different ways, usually through the 'convenient shorthand' of asking whether the confession was 'involuntary,' Blackburn v. Alabama, 361 U. S. 199 (1960), the Court's analysis has consistently been animated by the view that 'ours is an accusatorial and not an inquisitorial system,' Rogers v. Richmond, 365 U. S. 534 , 365 U. S. 541 (1961), and that, accordingly, tactics for eliciting inculpatory statements must fall within the broad constitutional boundaries imposed by the Fourteenth Amendment's guarantee of fundamental fairness. Page 496 U. S. 302 That the right is derived from the Due Process Clause" "is significant because it reflects the Court's consistently held view that the admissibility of a confession turns as much on whether the techniques for extracting the statements, as applied to this suspect, are compatible with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means as on whether the defendant's will was in fact overborne." Miller, supra, 474 U.S. at 474 U. S. 116 . See Spano v. New York, 360 U. S. 315 , 360 U. S. 320 -321 (1959) ("The abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves"); see also Degraffenreid v. McKellar, 494 U. S. 1071 , 1072-1074 (1990) (MARSHALL, J., joined by BRENNAN, J., dissenting from denial of certiorari). The method used to elicit the confession in this case deserves close scrutiny. The police devised a ruse to lure respondent into incriminating himself when he was in jail on an unrelated charge. A police agent, posing as a fellow inmate and proposing a sham escape plot, tricked respondent into confessing that he had once committed a murder as a way of proving that he would be willing to do so again should the need arise during the escape. The testimony of the undercover officer and a police informant at the suppression hearing reveal the deliberate manner in which the two elicited incriminating statements from respondent. See App. 43-53 and 66-73. We have recognized that "the mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents." United States v. Henry, 447 U. S. 264 , 447 U. S. 274 (1980). As Justice MARSHALL points out, the pressures of custody make a suspect more likely to confide in others and to engage Page 496 U. S. 303 in "jailhouse bravado." See post at 496 U. S. 307 -308. The State is in a unique position to exploit this vulnerability because it has virtually complete control over the suspect's environment. Thus, the State can ensure that a suspect is barraged with questions from an undercover agent until the suspect confesses. Cf. Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 399 (1978); Ashcraft v. Tennessee, 322 U. S. 143 , 322 U. S. 153 -155 (1944). The testimony in this case suggests the State did just that. The deliberate use of deception and manipulation by the police appears to be incompatible "with a system that presumes innocence and assures that a conviction will not be secured by inquisitorial means," Miller, supra, 474 U.S. at 474 U. S. 116 , and raises serious concerns that respondent's will was overborne. It is open to the lower court on remand to determine whether, under the totality of the circumstances, respondent's confession was elicited in a manner that violated the Due Process Clause. That the confession was not elicited through means of physical torture, see Brown v. Mississippi, 297 U. S. 278 (1936), or overt psychological pressure, see Payne v. Arkansas, 356 U. S. 560 , 356 U. S. 566 (1958), does not end the inquiry. "[A]s law enforcement officers become more responsible, and the methods used to extract confessions more sophisticated, [a court's] duty to enforce federal constitutional protections does not cease. It only becomes more difficult because of the more delicate judgments to be made." Spano, supra, 360 U.S. at 360 U. S. 321 . Justice MARSHALL, dissenting. This Court clearly and simply stated its holding in Miranda v. Arizona, 384 U. S. 436 (1966): "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 384 U. S. 444 . The conditions that require the police to apprise a defendant of his constitutional rights -- custodial interrogation conducted by an agent of the police -- were present in this Page 496 U. S. 304 case. Because Lloyd Perkins received no Miranda warnings before he was subjected to custodial interrogation, his confession was not admissible. The Court reaches the contrary conclusion by fashioning an exception to the Miranda rule that applies whenever "an undercover law enforcement officer posing as a fellow inmate . . . ask[s] questions that may elicit an incriminating response" from an incarcerated suspect. Ante at 496 U. S. 300 . This exception is inconsistent with the rationale supporting Miranda, and allows police officers intentionally to take advantage of suspects unaware of their constitutional rights. I therefore dissent. The Court does not dispute that the police officer here conducted a custodial interrogation of a criminal suspect. Perkins was incarcerated in county jail during the questioning at issue here; under these circumstances, he was in custody as that term is defined in Miranda. 384 U.S. at 384 U. S. 444 ; Mathis v. United States, 391 U. S. 1 , 391 U. S. 4 -5 (1968) (holding that defendant incarcerated on charges different from the crime about which he is questioned was in custody for purposes of Miranda ). The Solicitor General argues that Perkins was not in custody for purpose of Miranda because he was familiar with the custodial environment as a result of being in jail for two days and previously spending time in prison. Brief for United States 11. Perkins' familiarity with confinement, however, does not transform his incarceration into some sort of noncustodial arrangement. Cf. Orozco v. Texas, 394 U. S. 324 (1969) (holding that suspect who had been arrested in his home and then questioned in his bedroom was in custody, notwithstanding his familiarity with the surroundings). While Perkins was confined, an undercover police officer, with the help of a police informant, questioned him about a serious crime. Although the Court does not dispute that Perkins was interrogated, it downplays the nature of the 35-minute questioning by disingenuously referring to it as a Page 496 U. S. 305 "conversatio[n]." Ante at 496 U. S. 295 -296. The officer's narration of the "conversation" at Perkins' trial, however, reveals that it clearly was an interrogation. "[Agent:] You ever do anyone?" "[Perkins:] Yeah, once in East St. Louis, in a rich white neighborhood." "Informant: I didn't know they had any rich white neighborhoods in East St. Louis." "Perkins: It wasn't in East St. Louis, it was by a race track in Fairview Heights. . . . " "[Agent]: You did a guy in Fairview Heights?" "Perkins: Yeah, in a rich white section where most of the houses look the same." "[Informant]: If all the houses look the same, how did you know you had the right house?" "Perkins: Me and two guys cased the house for about a week. I knew exactly which house, the second house on the left from the corner." "[Agent]: How long ago did this happen?" "Perkins: Approximately about two years ago. I got paid $5,000 for that job." "[Agent]: How did it go down?" "Perkins: I walked up to . . . this guy['s] house with a sawed-off under my trenchcoat." "[Agent]: What type gun[?]" "Perkins: A .12 gauge Remmington [sic] Automatic Model 1100 sawed-off." App. 49-50. The police officer continued the inquiry, asking a series of questions designed to elicit specific information about the victim, the crime scene, the weapon, Perkins' motive, and his actions during and after the shooting. Id. at 50-52. This interaction was not a "conversation"; Perkins, the officer, and the informant were not equal participants in a free-ranging discussion, with each man offering his views on different topics. Rather, it was an interrogation: Perkins was subjected to express questioning likely to evoke an incriminating response. Page 496 U. S. 306 Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 300 -301 (1980). Because Perkins was interrogated by police while he was in custody, Miranda required that the officer inform him of his rights. In rejecting that conclusion, the Court finds that "conversations" between undercover agents and suspects are devoid of the coercion inherent in stationhouse interrogations conducted by law enforcement officials who openly represent the State. Ante at 496 U. S. 296 . Miranda was not, however, concerned solely with police coercion. It dealt with any police tactics that may operate to compel a suspect in custody to make incriminating statements without full awareness of his constitutional rights. See Miranda, supra, 384 U.S. at 384 U. S. 468 (referring to "inherent pressures of the interrogation atmosphere"); Estelle v. Smith, 451 U. S. 454 , 451 U. S. 467 (1981) ("The purpose of [the Miranda ] admonitions is to combat what the Court saw as inherently compelling pressures' at work on the person and to provide him with an awareness of the Fifth Amendment privilege and the consequences of forgoing it") (quoting Miranda, 384 U.S. at 384 U. S. 467 ). Thus, when a law enforcement agent structures a custodial interrogation so that a suspect feels compelled to reveal incriminating information, he must inform the suspect of his constitutional rights and give him an opportunity to decide whether or not to talk. The compulsion proscribed by Miranda includes deception by the police. See Miranda, supra, 384 U.S. at 384 U. S. 453 (indicting police tactics "to induce a confession out of trickery," such as using fictitious witnesses or false accusations); Berkemer v. McCarty, 468 U. S. 420 , 468 U. S. 433 (1984) ("The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing") (emmphasis Page 496 U. S. 307 deleted, emphasis added). Cf. Moran v. Burbine, 475 U. S. 412 , 475 U. S. 421 (1986) ("[T]he relinquishment of the right [protected by the Miranda warnings] must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception") (emphasis added). Although the Court did not find trickery by itself sufficient to constitute compulsion in Hoffa v. United States, 385 U. S. 293 (1966), the defendant in that case was not in custody. Perkins, however, was interrogated while incarcerated. As the Court has acknowledged in the Sixth Amendment context: "[T]he mere fact of custody imposes pressures on the accused; confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents." United States v. Henry, 447 U. S. 264 , 447 U. S. 274 (1980). See also Massiah v. United States, 377 U. S. 201 , 377 U. S. 206 (1964) (holding, in the context of the Sixth Amendment, that defendant's constitutional privilege against self-incrimination was "more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent") (citation, internal quotation marks omitted). Custody works to the State's advantage in obtaining incriminating information. The psychological pressures inherent in confinement increase the suspect's anxiety, making him likely to seek relief by talking with others. Dix, Undercover Investigations and Police Rulemaking, 53 Texas L.Rev. 203, 230 (1975). See also Gibbs, The First Cut is the Deepest: Psychological Breakdown and Survival in the Detention Setting, in The Pains of Imprisonment 97, 107 (R. Johnson & H. Toch eds. 1982); Hagel-Seymour, Environmental Sanctuaries for Susceptible Prisoners, in The Pains of Imprisonment, supra, at 267, 279; Chicago Tribune, Apr. 15, 1990, p. D3 (prosecutors have found that prisoners often talk freely with fellow inmates). The inmate is thus more susceptible to efforts by undercover agents to elicit information from him. Similarly, where the suspect is incarcerated, the constant threat of physical danger peculiar to the prison environment may make him demonstrate his toughness to other inmates by recounting or inventing past violent acts. "Because the suspect's ability to select people with whom he can confide is completely within their control, the police have a Page 496 U. S. 308 unique opportunity to exploit the suspect's vulnerability. In short, the police can insure that if the pressures of confinement lead the suspect to confide in anyone, it will be a police agent." White, Police Trickery in Inducing Confessions, 127 U.Pa.L.Rev. 581, 605 (1979). In this case, the police deceptively took advantage of Perkins' psychological vulnerability by including him in a sham escape plot, a situation in which he would feel compelled to demonstrate his willingness to shoot a prison guard by revealing his past involvement in a murder. See App. 49 (agent stressed that a killing might be necessary in the escape and then asked Perkins if he had ever murdered someone). Thus, the pressures unique to custody allow the police to use deceptive interrogation tactics to compel a suspect to make an incriminating statement. The compulsion is not eliminated by the suspect's ignorance of his interrogator's true identity. The Court therefore need not inquire past the bare facts of custody and interrogation to determine whether Miranda warnings are required. The Court's adoption of an exception to the Miranda doctrine is incompatible with the principle, consistently applied by this Court, that the doctrine should remain simple and clear. See, e.g., Miranda, supra, 384 U.S. at 384 U. S. 441 -42 (noting that one reason certiorari was granted was "to give concrete constitutional guidelines for law enforcement agencies and courts to follow"); McCarty, supra, 468 U.S. at 468 U. S. 430 (noting that one of "the principal advantages of the [ Miranda ] doctrine . . . is the clarity of that rule"); Arizona v. Roberson, 486 U. S. 675 , 486 U. S. 680 (1988) (same). See also New York v. Quarles, 467 U. S. 649 , 467 U. S. 657 -658 (1984) (recognizing need for clarity in Miranda doctrine and finding that narrow "public safety" exception would not significantly lessen clarity and would be easy for police to apply). We explained the benefits of a bright-line rule in Fare v. Michael C., 442 U. S. 707 (1979): " Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial Page 496 U. S. 309 interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible." Id. at 442 U. S. 718 . The Court's holding today complicates a previously clear and straightforward doctrine. The Court opines that "[l]aw enforcement officers will have little difficulty putting into practice our holding that undercover agents need not give Miranda warnings to incarcerated suspects." Ante at 496 U. S. 299 -300. Perhaps this prediction is true with respect to fact patterns virtually identical to the one before the Court today. But the outer boundaries of the exception created by the Court are by no means clear. Would Miranda be violated, for instance, if an undercover police officer beat a confession out of a suspect, but the suspect thought the officer was another prisoner who wanted the information for his own purposes? Even if Miranda, as interpreted by the Court, would not permit such obviously compelled confessions, the ramifications of today's opinion are still disturbing. The exception carved out of the Miranda doctrine today may well result in a proliferation of departmental policies to encourage police officers to conduct interrogations of confined suspects through undercover agents, thereby circumventing the need to administer Miranda warnings. Indeed, if Miranda now requires a police officer to issue warnings only in those situations in which the suspect might feel compelled "to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess," ante at 496 U. S. 296 -297, presumably it allows custodial interrogation by an undercover officer posing as a member of the clergy or a suspect's defense attorney. Although such abhorrent tricks would play on a suspect's need to confide in a trusted adviser, neither would cause the suspect to "think that the listeners have official power over him," ante at 496 U. S. 297 . The Court's adoption of the "undercover agent" exception to the Miranda rule thus is necessarily also the adoption of a substantial loophole in our jurisprudence protecting suspects' Fifth Amendment rights. I dissent. * As the case comes to us, it involves only the question whether Miranda applies to the questioning of an incarcerated suspect by an undercover agent. Nothing in the Court's opinion suggests that, had respondent previously invoked his Fifth Amendment right to counsel or right to silence, his statements would be admissible. If respondent had invoked either right, the inquiry would focus on whether he subsequently waived the particular right. See Edwards v. Arizona, 451 U. S. 477 (1981); Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 104 (1975). As the Court made clear in Moran v. Burbine, 475 U. S. 412 , 475 U. S. 421 (1986), the waiver of Miranda rights "must [be] voluntary in the sense that it [must be] the product of a free and deliberate choice rather than intimidation, coercion or deception. " (Emphasis added). Since respondent was in custody on an unrelated charge when he was questioned, he may be able to challenge the admission of these statements if he previously had invoked his Miranda rights with respect to that charge. See Arizona v. Roberson, 486 U. S. 675 (1988); Mosley, supra, 423 U.S. at 423 U. S. 104 . Similarly, if respondent had been formally charged on the unrelated charge and had invoked his Sixth Amendment right to counsel, he may have a Sixth Amendment challenge to the admissibility of these statements. See Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 629 -636 (1986). Cf. Roberson, supra, 486 U.S. at 486 U. S. 683 -85.

Here is a summary of the case: In Illinois v. Perkins, the Supreme Court held that an undercover law enforcement officer posing as a fellow inmate does not need to provide Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response. The Court reasoned that the coercive atmosphere of a "police-dominated atmosphere" is not present when an incarcerated person speaks freely to someone they believe is a fellow inmate. The Court distinguished this case from others by emphasizing that the suspect did not know they were speaking to a government agent, and therefore, there was no assumption of coercion. The dissenting opinion expressed concern that the ruling created a loophole in the Miranda doctrine, potentially leading to departmental policies that encourage undercover interrogations of confined suspects. However, the majority opinion strictly enforced Miranda protections in situations where the concerns of custody and official interrogation were present.

Miranda Rights

Oregon v. Elstad

https://supreme.justia.com/cases/federal/us/470/298/

U.S. Supreme Court Oregon v. Elstad, 470 U.S. 298 (1985) Oregon v. Elstad No. 83-773 Argued October 3, 1984 Decided March 4, 1985 470 U.S. 298 CERTIORARI TO THE COURT OF APPEALS OF OREGON Syllabus When officers of the Polk County, Ore., Sheriff's Office picked up respondent at his home as a suspect in a burglary, he made an incriminating statement without having been given the warnings required by Miranda v. Arizona, 384 U. S. 436 . After he was taken to the station house, and after he was advised of and waived his Miranda rights, respondent executed a written confession. In respondent's subsequent prosecution for burglary, the state trial court excluded from evidence his first statement because he had not been given Miranda warnings, but admitted the written confession. Respondent was convicted, but the Oregon Court of Appeals reversed, holding that the confession should also have been excluded. The court concluded that, because of the brief period separating respondent's initial, unconstitutionally obtained statement and his subsequent confession, the "cat was sufficiently out of the bag to exert a coercive impact" on respondent's confession, rendering it inadmissible. Held: The Self-Incrimination Clause of the Fifth Amendment does not require the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the suspect. Pp. 470 U. S. 303 -318. (a) A procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the "fruits" doctrine that requires exclusion as "fruit of the poisonous tree" of evidence discovered as a result of an unconstitutional search. The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony, and failure to administer Miranda warnings creates a presumption of compulsion, requiring that unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment be excluded from evidence. But the Miranda presumption does not require that fruits of otherwise voluntary statements be discarded as inherently tainted. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Pp. 470 U. S. 304 -309. Page 470 U. S. 299 (b) The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised. Absent deliberate coercion or improper tactics in obtaining an unwarned statement, a careful and thorough administration of Miranda warnings cures the condition that rendered the unwarned statement inadmissible. The warnings convey the relevant information, and thereafter the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an act of free will. Endowing the psychological effects of voluntary unwarned admissions -- such as the psychological impact of the suspect's conviction that he has "let the cat out of the bag" -- with constitutional implications would, practically speaking, disable the police from obtaining the suspect's informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions. Pp. 470 U. S. 309 -314. (c) Respondent knowingly and voluntarily waived his right to remain silent before he executed his written confession, and his earlier statement was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either "interrogation" was coercive. To impose a requirement, suggested by respondent, that he should also have been given an additional warning at the station house that his prior statement could not be used against him, is neither practicable nor constitutionally necessary. Pp. 470 U. S. 314 -317. (d) The dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. Pp. 470 U. S. 317 -318. 61 Ore. App. 673, 658 P.2d 552 , reversed and remanded. O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, BLACKMUN, POWELL and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 470 U. S. 318 . STEVENS, J., filed a dissenting opinion, post, p. 470 U. S. 364 . Page 470 U. S. 300 JUSTICE O'CONNOR delivered the opinion of the Court. This case requires us to decide whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966), without more, "taints" subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights. Respondent, Michael James Elstad, was convicted of burglary by an Oregon trial court. The Oregon Court of Appeals reversed, holding that respondent's signed confession, although voluntary, was rendered inadmissible by a prior remark made in response to questioning without benefit of Miranda warnings. We granted certiorari, 465 U.S. 1078 (1984), and we now reverse. I In December, 1981, the home of Mr. and Mrs. Gilbert Gross, in the town of Salem, Polk County, Ore., was burglarized. Missing were art objects and furnishings valued at $150,000. A witness to the burglary contacted the Polk County Sheriff's Office, implicating respondent Michael Elstad, an 18-year-old neighbor and friend of the Grosses' teenage son. Thereupon, Officers Burke and McAllister went to the home of respondent Elstad, with a warrant for his arrest. Elstad's mother answered the door. She led the officers to her son's room, where he lay on his bed, clad in shorts and listening to his stereo. The officers asked him to get dressed and to accompany them into the living room. Officer McAllister asked respondent's mother to step into the kitchen, where he explained that they had a warrant for her Page 470 U. S. 301 son's arrest for the burglary of a neighbor's residence. Officer Burke remained with Elstad in the living room. He later testified: "I sat down with Mr. Elstad and I asked him if he was aware of why Detective McAllister and myself were there to talk with him. He stated no, he had no idea why we were there. I then asked him if he knew a person by the name of Gross, and he said yes, he did, and also added that he heard that there was a robbery at the Gross house. And at that point, I told Mr. Elstad that I felt he was involved in that, and he looked at me and stated, 'Yes, I was there.'" App.19-20. The officers then escorted Elstad to the back of the patrol car. As they were about to leave for the Polk County Sheriff's office, Elstad's father arrived home and came to the rear of the patrol car. The officers advised him that his son was a suspect in the burglary. Officer Burke testified that Mr. Elstad became quite agitated, opened the rear door of the car and admonished his son: "I told you that you were going to get into trouble. You wouldn't listen to me. You never learn." Id. at 21. Elstad was transported to the Sheriff's headquarters and, approximately one hour later, Officers Burke and McAllister joined him in McAllister's office. McAllister then advised respondent for the first time of his Miranda rights, reading from a standard card. Respondent indicated he understood his rights, and, having these rights in mind, wished to speak with the officers. Elstad gave a full statement, explaining that he had known that the Gross family was out of town, and had been paid to lead several acquaintances to the Gross residence and show them how to gain entry through a defective sliding glass door. The statement was typed, reviewed by respondent, read back to him for correction, initialed and signed by Elstad and both officers. As an afterthought, Elstad added and initialed the sentence, "After leaving the house, Robby & I went back to [the] van & Robby handed Page 470 U. S. 302 me a small bag of grass." App. 42. Respondent concedes that the officers made no threats or promises either at his residence or at the Sheriff's office. Respondent was charged with first-degree burglary. He was represented at trial by retained counsel. Elstad waived his right to a jury, and his case was tried by a Circuit Court Judge. Respondent moved at once to suppress his oral statement and signed confession. He contended that the statement he made in response to questioning at his house "let the cat out of the bag," citing United States v. Bayer, 331 U. S. 532 (1947), and tainted the subsequent confession as "fruit of the poisonous tree," citing Wong Sun v. United States, 371 U. S. 471 (1963). The judge ruled that the statement, "I was there," had to be excluded because the defendant had not been advised of his Miranda rights. The written confession taken after Elstad's arrival at the Sheriff's office, however, was admitted in evidence. The court found: "[H]is written statement was given freely, voluntarily and knowingly by the defendant after he had waived his right to remain silent and have counsel present, which waiver was evidenced by the card which the defendant had signed. [It] was not tainted in any way by the previous brief statement between the defendant and the Sheriff's Deputies that had arrested him." App. 45. Elstad was found guilty of burglary in the first degree. He received a 5-year sentence, and was ordered to pay $18,000 in restitution. Following his conviction, respondent appealed to the Oregon Court of Appeals, relying on Wong Sun and Bayer. The State conceded that Elstad had been in custody when he made his statement, "I was there," and accordingly agreed that this statement was inadmissible as having been given without the prescribed Miranda warnings. But the State maintained that any conceivable "taint" had been dissipated prior to the respondent's written confession by McAllister's careful administration of the requisite warnings. The Court Page 470 U. S. 303 of Appeals reversed respondent's conviction, identifying the crucial constitutional inquiry as "whether there was a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before." 61 Ore.App. 673, 676, 658 P.2d 552 , 554 (1983). The Oregon court concluded: "Regardless of the absence of actual compulsion, the coercive impact of the unconstitutionally obtained statement remains, because in a defendant's mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible. In determining whether it has been dissipated, lapse of time, and change of place from the original surroundings are the most important considerations." Id. at 677, 658 P.2d at 554. Because of the brief period separating the two incidents, the "cat was sufficiently out of the bag to exert a coercive impact on [respondent's] later admissions." Id. at 678, 658 P.2d at 555. The State of Oregon petitioned the Oregon Supreme Court for review, and review was declined. This Court granted certiorari to consider the question whether the Self-Incrimination Clause of the Fifth Amendment requires the suppression of a confession, made after proper Miranda warnings and a valid waiver of rights, solely because the police had obtained an earlier voluntary but unwarned admission from the defendant. II The arguments advanced in favor of suppression of respondent's written confession rely heavily on metaphor. One metaphor, familiar from the Fourth Amendment context, would require that respondent's confession, regardless of its integrity, voluntariness, and probative value, be suppressed as the "tainted fruit of the poisonous tree" of the Miranda violation. A second metaphor questions whether a Page 470 U. S. 304 confession can be truly voluntary once the "cat is out of the bag." Taken out of context, each of these metaphors can be misleading. They should not be used to obscure fundamental differences between the role of the Fourth Amendment exclusionary rule and the function of Miranda in guarding against the prosecutorial use of compelled statements as prohibited by the Fifth Amendment. The Oregon court assumed and respondent here contends that a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right, so that evidence uncovered following an unwarned statement must be suppressed as "fruit of the poisonous tree." We believe this view misconstrues the nature of the protections afforded by Miranda warnings, and therefore misreads the consequences of police failure to supply them. A Prior to Miranda, the admissibility of an accused's in-custody statements was judged solely by whether they were "voluntary" within the meaning of the Due Process Clause. See, e.g., Haynes v. Washington, 373 U. S. 503 (1963); Chambers v. Florida, 309 U. S. 227 (1940). If a suspect's statements had been obtained by "techniques and methods offensive to due process," Haynes v. Washington, 373 U.S. at 373 U. S. 515 , or under circumstances in which the suspect clearly had no opportunity to exercise "a free and unconstrained will," id. at 373 U.S. 514 , the statements would not be admitted. The Court in Miranda required suppression of many statements that would have been admissible under traditional due process analysis by presuming that statements made while in custody and without adequate warnings were protected by the Fifth Amendment. The Fifth Amendment, of course, is not concerned with nontestimonial evidence. See Schmerber v. California, 384 U. S. 757 , 384 U. S. 764 (1966) (defendant may be compelled to supply blood samples). Nor is it concerned Page 470 U. S. 305 with moral and psychological pressures to confess emanating from sources other than official coercion. See, e.g., California v. Beheler, 463 U. S. 1121 , 1125, and n. 3 (1983) (per curiam); Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 303 , and n. 10 (1980); Oregon v. Mathiason, 429 U. S. 492 , 429 U. S. 495 -496 (1977). Voluntary statements "remain a proper element in law enforcement." Miranda v. Arizona, 384 U.S. at 384 U. S. 478 . "Indeed, far from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable. . . . Absent some officially coerced self-accusation, the Fifth Amendment privilege is not violated by even the most damning admissions." United States v. Washington, 431 U. S. 181 , 431 U. S. 187 (1977). As the Court noted last Term in New York v. Quarles, 467 U. S. 649 , 467 U. S. 654 (1984) (footnote omitted): "The Miranda Court, however, presumed that interrogation in certain custodial circumstances is inherently coercive, and . . . that statements made under those circumstances are inadmissible unless the suspect is specifically informed of his Miranda rights and freely decides to forgo those rights. The prophylactic Miranda warnings therefore are 'not themselves rights protected by the Constitution, but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected.' Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974); see Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 492 (1981) (POWELL, J., concurring). Requiring Miranda warnings before custodial interrogation provides 'practical reinforcement' for the Fifth Amendment right." Respondent's contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings, and must be excluded as "fruit of the poisonous tree," assumes the existence of a constitutional violation. This figure of speech is drawn from Wong Sun v. United States, 371 U. S. 471 (1963), in which the Court held that evidence and witnesses Page 470 U. S. 306 discovered as a result of a search in violation of the Fourth Amendment must be excluded from evidence. The Wong Sun doctrine applies as well when the fruit of the Fourth Amendment violation is a confession. It is settled law that "a confession obtained through custodial interrogation after an illegal arrest should be excluded unless intervening events break the causal connection between the illegal arrest and the confession so that the confession is 'sufficiently an act of free will to purge the primary taint.'" Taylor v. Alabama, 457 U. S. 687 , 457 U. S. 690 (1982) (quoting Brown v. Illinois, 422 U. S. 590 , 422 U. S. 602 (1975)). But as we explained in Quarles and Tucker, a procedural Miranda violation differs in significant respects from violations of the Fourth Amendment, which have traditionally mandated a broad application of the "fruits" doctrine. The purpose of the Fourth Amendment exclusionary rule is to deter unreasonable searches, no matter how probative their fruits. Dunaway v. New York, 442 U. S. 200 , 442 U. S. 216 -217 (1979); Brown v. Illinois, 422 U.S. at 422 U. S. 600 -602. "The exclusionary rule, . . . when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth." Id. at 422 U. S. 601 . Where a Fourth Amendment violation "taints" the confession, a finding of voluntariness for the purposes of the Fifth Amendment is merely a threshold requirement in determining whether the confession may be admitted in evidence. Taylor v. Alabama, supra, at 457 U. S. 690 . Beyond this, the prosecution must show a sufficient break in events to undermine the inference that the confession was caused by the Fourth Amendment violation. The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself. It may be triggered even in the absence of a Fifth Amendment violation. [ Footnote 1 ] The Fifth Amendment prohibits Page 470 U. S. 307 use by the prosecution in its case in chief only of compelled testimony. Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded from evidence under Miranda. Thus, in the individual case, Miranda's preventive medicine provides a remedy even to the defendant who has suffered no identifiable constitutional harm. See New York v. Quarles, supra, at 467 U. S. 654 ; Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974). But the Miranda presumption, though irrebuttable for purposes of the prosecution's case in chief, does not require that the statements and their fruits be discarded as inherently tainted. Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution's case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination. Harris v. New York, 401 U. S. 222 (1971). The Court in Harris rejected as an "extravagant extension of the Constitution," the theory that a defendant who had confessed under circumstances that made the confession inadmissible, could thereby enjoy the freedom to "deny every fact disclosed or discovered as a 'fruit' of his confession, free from confrontation with his prior statements," and that the voluntariness of his confession would be totally irrelevant. Id. at 401 U. S. 225 , and n. 2. Where an unwarned statement is preserved for use in situations that fall outside the sweep of the Miranda presumption, "the primary criterion of admissibility Page 470 U. S. 308 [remains] the 'old' due process voluntariness test." Schulhofer, Confessions and the Court, 79 Mich.L.Rev. 865, 877 (1981). In Michigan v. Tucker, supra, the Court was asked to extend the Wong Sun fruits doctrine to suppress the testimony of a witness for the prosecution whose identity was discovered as the result of a statement taken from the accused without benefit of full Miranda warnings. As in respondent's case, the breach of the Miranda procedures in Tucker involved no actual compulsion. The Court concluded that the unwarned questioning "did not abridge respondent's constitutional privilege, . . . but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege." 417 U.S. at 417 U. S. 446 . Since there was no actual infringement of the suspect's constitutional rights, the case was not controlled by the doctrine expressed in Wong Sun that fruits of a constitutional violation must be suppressed. In deciding "how sweeping the judicially imposed consequences of a failure to administer Miranda warnings should be," 417 U.S. at 417 U. S. 445 , the Tucker Court noted that neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the witness' testimony. The unwarned confession must, of course, be suppressed, but the Court ruled that introduction of the third-party witness' testimony did not violate Tucker's Fifth Amendment rights. We believe that this reasoning applies with equal force when the alleged "fruit" of a noncoercive Miranda violation is neither a witness nor an article of evidence, but the accused's own voluntary testimony. As in Tucker, the absence of any coercion or improper tactics undercuts the twin rationales -- trustworthiness and deterrence -- for a broader rule. Once warned, the suspect is free to exercise his own volition in deciding whether or not to make a statement to the authorities. The Court has often noted: "'[A] living witness is not to be Page 470 U. S. 309 mechanically equated with the proffer of inanimate evidentiary objects illegally seized. . . . [T]he living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give.'" United States v. Ceccolini, 435 U. S. 268 , 435 U. S. 277 (1978) (emphasis added) (quoting from Smith v. United States, 117 U.S.App.D.C. 1, 3-4, 324 F.2d 879, 881-882 (1963) (Burger, J.) (footnotes omitted), cert. denied, 377 U.S. 954 (1964)). Because Miranda warnings may inhibit persons from giving information, this Court has determined that they need be administered only after the person is taken into "custody," or his freedom has otherwise been significantly restrained. Miranda v. Arizona, 384 U.S. at 384 U. S. 478 . Unfortunately, the task of defining "custody" is a slippery one, and "policemen investigating serious crimes [cannot realistically be expected to] make no errors whatsoever." Michigan v. Tucker, supra, at 417 U. S. 446 . If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. B The Oregon court, however, believed that the unwarned remark compromised the voluntariness of respondent's later confession. It was the court's view that the prior answer, Page 470 U. S. 310 and not the unwarned questioning, impaired respondent's ability to give a valid waiver, and that only lapse of time and change of place could dissipate what it termed the "coercive impact" of the inadmissible statement. When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession. See Westover v. United States, decided together with Miranda v. Arizona, 384 U.S. at 384 U. S. 494 ; Clewis v. Texas, 386 U. S. 707 (1967). The failure of police to administer Miranda warnings does not mean that the statements received have actually been coerced, but only that courts will presume the privilege against compulsory self-incrimination has not been intelligently exercised. See New York v. Quarles, 467 U.S. at 476 U. S. 654 , and n. 5; Miranda v. Arizona, supra at 470 U. S. 457 . Of the courts that have considered whether a properly warned confession must be suppressed because it was preceded by an unwarned but clearly voluntary admission, the majority have explicitly or implicitly recognized that Westover's requirement of a break in the stream of events is inapposite. [ Footnote 2 ] In these circumstances, a careful and thorough Page 470 U. S. 311 administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible. The warning conveys the relevant information, and thereafter, the suspect's choice whether to exercise his privilege to remain silent should ordinarily be viewed as an "act of free will." Wong Sun v. United States, 371 U.S. at 371 U. S. 486 . The Oregon court nevertheless identified a subtle form of lingering compulsion, the psychological impact of the suspect's conviction that he has let the cat out of the bag and, in so doing, has sealed his own fate. But endowing the psychological effects of voluntary unwarned admissions with constitutional implications would, practically speaking, disable the police from obtaining the suspect's informed cooperation even when the official coercion proscribed by the Fifth Amendment played no part in either his warned or unwarned confessions. As the Court remarked in Bayer: "[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession may always be looked upon as fruit of the first. But this Court has never gone so far as to hold that making a confession under circumstances which preclude its use, perpetually disables the confessor from making a usable one after those conditions have been removed." 331 U.S. at 331 U. S. 540 -541. Even in such extreme cases as Lyons v. Oklahoma, 322 U. S. 596 (1944), in which police forced a full confession from the accused through unconscionable methods of interrogation, the Court has assumed that the coercive effect of the confession Page 470 U. S. 312 could, with time, be dissipated. See also Westover v. United States, supra, at 384 U. S. 496 . This Court has never held that the psychological impact of voluntary disclosure of a guilty secret qualifies as state compulsion or compromises the voluntariness of a subsequent informed waiver. The Oregon court, by adopting this expansive view of Fifth Amendment compulsion, effectively immunizes a suspect who responds to pre- Miranda warning questions from the consequences of his subsequent informed waiver of the privilege of remaining silent. See 61 Ore.App. at 679, 658 P.2d at 555 (Gillette, P. J., concurring). This immunity comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual's interest in not being compelled to testify against himself. Cf. Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 107 -111 (1975) (WHITE, J., concurring in result). When neither the initial nor the subsequent admission is coerced, little justification exists for permitting the highly probative evidence of a voluntary confession to be irretrievably lost to the factfinder. There is a vast difference between the direct consequences flowing from coercion of a confession by physical violence or other deliberate means calculated to break the suspect's will and the uncertain consequences of disclosure of a "guilty secret" freely given in response to an unwarned but noncoercive question, as in this case. JUSTICE BRENNAN's contention that it is impossible to perceive any causal distinction between this case and one involving a confession that is coerced by torture is wholly unpersuasive. [ Footnote 3 ] Certainly, in Page 470 U. S. 313 respondent's case, the causal connection between any psychological disadvantage created by his admission and his ultimate decision to cooperate is speculative and attenuated at Page 470 U. S. 314 best. It is difficult to tell with certainty what motivates a suspect to speak. A suspect's confession may be traced to factors as disparate as "a prearrest event such as a visit with a minister," Dunaway v. New York, 442 U.S. at 442 U. S. 220 (STEVENS, J., concurring), or an intervening event such as the exchange of words respondent had with his father. We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement. In such circumstances, the finder of fact may reasonably conclude that the suspect made a rational and intelligent choice whether to waive or invoke his rights. III Though belated, the reading of respondent's rights was undeniably complete. McAllister testified that he read the Miranda warnings aloud from a printed card and recorded Page 470 U. S. 315 Elstad's responses. [ Footnote 4 ] There is no question that respondent knowingly and voluntarily waived his right to remain silent before he described his participation in the burglary. It is also beyond dispute that respondent's earlier remark was voluntary, within the meaning of the Fifth Amendment. Neither the environment nor the manner of either "interrogation" was coercive. The initial conversation took place at midday, in the living room area of respondent's own home, with his mother in the kitchen area, a few steps away. Although in retrospect the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest. The arresting officers' testimony indicates that the brief stop in the living room before proceeding to the station house was not to interrogate the suspect, but to notify his mother of the reason for his arrest. App. 9-10. The State has conceded the issue of custody, and thus we must assume that Burke breached Miranda procedures in failing to administer Miranda warnings before initiating the discussion in the living room. This breach may have been the result of confusion as to whether the brief exchange qualified as "custodial interrogation," or it may simply have reflected Burke's reluctance to initiate an alarming police Page 470 U. S. 316 procedure before McAllister had spoken with respondent's mother. Whatever the reason for Burke's oversight, the incident had none of the earmarks of coercion. See Rawlings v. Kentucky, 448 U. S. 98 , 448 U. S. 109 -110 (1980). Nor did the officers exploit the unwarned admission to pressure respondent into waiving his right to remain silent. Respondent, however, has argued that he was unable to give a fully informed waiver of his rights because he was unaware that his prior statement could not be used against him. Respondent suggests that Officer McAllister, to cure this deficiency, should have added an additional warning to those given him at the Sheriff's office. Such a requirement is neither practicable nor constitutionally necessary. In many cases, a breach of Miranda procedures may not be identified as such until long after full Miranda warnings are administered and a valid confession obtained. See, e.g., United States v. Bowler, 561 F.2d 1323, 1324-1325 (CA9 1977) (certain statements ruled inadmissible by trial court); United States v. Toral, 536 F.2d 893, 896 (CA9 1976); United States v. Knight, 395 F.2d 971, 974-975 (CA2 1968) (custody unclear). The standard Miranda warnings explicitly inform the suspect of his right to consult a lawyer before speaking. Police officers are ill-equipped to pinch-hit for counsel, construing the murky and difficult questions of when "custody" begins or whether a given unwarned statement will ultimately be held admissible. See Tanner v. Vincent, 541 F.2d 932, 936 (CA2 1976), cert. denied, 429 U.S. 1065 (1977). This Court has never embraced the theory that a defendant's ignorance of the full consequences of his decisions vitiates their voluntariness. See California v. Beheler, 463 U.S. at 463 U. S. 1125 -1126, n. 3; McMann v. Richardson, 397 U. S. 759 , 397 U. S. 769 (1970). If the prosecution has actually violated the defendant's Fifth Amendment rights by introducing an inadmissible confession at trial, compelling the defendant to testify in rebuttal, the rule announced in Harrison v. United States, 392 U. S. 219 (1968), precludes use of that testimony Page 470 U. S. 317 on retrial. "Having 'released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony." Id. at 392 U. S. 224 -225. But the Court has refused to find that a defendant who confesses, after being falsely told that his codefendant has turned State's evidence, does so involuntarily. Frazier v. Cupp, 394 U. S. 731 , 394 U. S. 739 (1969). The Court has also rejected the argument that a defendant's ignorance that a prior coerced confession could not be admitted in evidence compromised the voluntariness of his guilty plea. McMann v. Richardson, supra, at 397 U. S. 769 . Likewise, in California v. Beheler, supra, the Court declined to accept defendant's contention that, because he was unaware of the potential adverse consequences of statements he made to the police, his participation in the interview was involuntary. Thus we have not held that the sine qua non for a knowing and voluntary waiver of the right to remain silent is a full and complete appreciation of all of the consequences flowing from the nature and the quality of the evidence in the case. IV When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled and that they be excluded from evidence at trial in the State's case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. See New York v. Quarles, 467 U.S. at 467 U. S. 655 -656. The Court today in no way retreats from the bright-line rule of Miranda. We do not imply that good faith excuses a failure to administer Miranda warnings; nor do we condone inherently coercive police tactics or methods offensive to due process that render the initial admission involuntary and undermine the suspect's will to invoke his rights once they are read to him. A handful of courts have, however, applied our precedents relating to confessions obtained Page 470 U. S. 318 under coercive circumstances to situations involving wholly voluntary admissions, requiring a passage of time or break in events before a second, fully warned statement can be deemed voluntary. Far from establishing a rigid rule, we direct courts to avoid one; there is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. [ Footnote 5 ] The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements. The fact that a suspect chooses to speak after being informed of his rights is, of course, highly probative. We find that the dictates of Miranda and the goals of the Fifth Amendment proscription against use of compelled testimony are fully satisfied in the circumstances of this case by barring use of the unwarned statement in the case in chief. No further purpose is served by imputing "taint" to subsequent statements obtained pursuant to a voluntary and knowing waiver. We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings. The judgment of the Court of Appeals of Oregon is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] JUSTICE STEVENS expresses puzzlement at our statement that a simple failure to administer Miranda warnings is not, in itself, a violation of the Fifth Amendment. Yet the Court so held in New York v. Quarles, 467 U. S. 649 , 467 U. S. 654 (1983), and Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974). The Miranda Court itself recognized this point when it disclaimed any intent to create a "constitutional straitjacket," and invited Congress and the States to suggest "potential alternatives for protecting the privilege." 384 U.S. at 384 U. S. 467 . A Miranda violation does not constitute coercion, but rather affords a bright-line, legal presumption of coercion, requiring suppression of all unwarned statements. It has never been remotely suggested that any statement taken from Mr. Elstad without benefit of Miranda warnings would be admissible. [ Footnote 2 ] See, e.g., United States v. Bowler, 561 F.2d 1323, 1326 (CA9 1977); Tanner v. Vincent, 541 F.2d 932 (CA2 1976); United States v. Toral, 536 F.2d 893, 896-897 (CA9 1976); United States v. Knight, 395 F.2d 971, 975 (CA2 1968); State v. Montes, 136 Ariz. 491, 496-497, 667 P.2d 191 , 196-197 (1983); State v. Derrico, 181 Conn.151, 166-167, 434 A.2d 356, 365-366, cert. denied, 449 U.S. 1064 (1980); State v. Holt, 354 So. 2d 888, 890 (Fla.App.), cert. denied, 361 So. 2d 832 (Fla.1978); Fried v. State, 42 Md.App. 643, 644-648, 402 A.2d 101 , 102-104 (1979); Commonwealth v. White, 353 Mass. 409, 232 N.E.2d 335 (1967); State v. Sickels, 275 N.W.2d 809 , 813-814 (Minn.1979); State v. Dakota, 300 Minn. 12, 217 N.W.2d 748 (1974); State v. Raymond, 305 Minn. 160, 170, 232 N.W.2d 879 , 886 (1975) (noting common thread in line of cases holding prejudicial coercion not present "just because [defendant] had made an earlier confession which 'let the cat out of the bag'"); Commonwealth v. Chacko, 500 Pa. 571, 580-582, 459 A.2d 311 , 316 (1983) ("After being given his Miranda warnings it is clear [defendant] maintained his intention to provide his questioners with his version of the incident"). But see In re Pablo A. C., 129 Cal. App. 3d 984 , 181 Cal. Rptr. 468 (1982); State v. Hibdon, 57 Ore.App. 509, 645 P.2d 580 (1982); State v. Lavaris, 99 Wash. 2d 851 , 857-860, 664 P.2d 1234 , 1237-1239 (1983). [ Footnote 3 ] Most of the 50 cases cited by JUSTICE BRENNAN in his discussion of consecutive confessions concern an initial unwarned statement obtained through overtly or inherently coercive methods which raise serious Fifth Amendment and due process concerns. Without describing each case cited, the following are representative of the situations JUSTICE BRENNAN views as analogous to this case: e.g., Darwin v. Connecticut, 391 U. S. 346 (1968) (suspect interrogated for 48 hours incommunicado while officers denied access to counsel); Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 36 (1967) (officer fired rifle next to suspect's ear and said "If you don't tell the truth, I am going to kill you"); Clewis v. Texas, 386 U. S. 707 (1967) (suspect was arrested without probable cause, interrogated for nine days with little food or sleep, and gave three unwarned "confessions" each of which he immediately retracted); Reck v. Pate, 367 U. S. 433 , 367 U. S. 439 -440, n. 3 (1961) (mentally retarded youth interrogated incommunicado for a week "during which time he was frequently ill, fainted several times, vomited blood on the floor of the police station, and was twice taken to the hospital on a stretcher"). Typical of the state cases cited in the dissent's discussion are: e.g., Cagle v. State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120 (1969) (police interrogated wounded suspect at police station for one hour before obtaining statement, took him to hospital to have his severe wounds treated, only then giving the Miranda warnings; suspect prefaced second statement with "I have already give the Chief a statement and I might as well give one to you, too"), cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969); People v. Saiz, 620 P.2d 15 (Colo.1980) (two hours' unwarned custodial interrogation of 16-year-old in violation of state law requiring parent's presence, culminating in visit to scene of crime); People v. Bodner, 75 App.Div.2d 440, 430 N.Y.S.2d 433 (1980) (confrontation at police station and at scene of crime between police and retarded youth with mental age of eight or nine); State v. Badger, 141 Vt. 430, 441, 450 A.2d 336 , 343 (1982) (unwarned "close and intense" station house questioning of 15-year-old, including threats and promises, resulted in confession at 1:20 a. m.; court held "[w]arnings . . . were insufficient to cure such blatant abuse or compensate for the coercion in this case"). JUSTICE BRENNAN cannot seriously mean to equate such situations with the case at bar. Likewise inapposite are the cases the dissent cites concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation. See, e.g., United States ex rel. Sanders v. Rowe, 460 F. Supp. 1128 (ND Ill.1978); People v. Braeseke, 25 Cal. 3d 691 , 602 P.2d 384 (1979), vacated on other grounds, 446 U.S. 932 (1980); Smith v. State, 132 Ga.App. 491, 208 S.E.2d 351 (1974). Finally, many of the decisions JUSTICE BRENNAN claims require that the "taint" be "dissipated" simply recite the stock "cat" and "tree" metaphors but go on to find the second confession voluntary without identifying any break in the stream of events beyond the simple administration of a careful and thorough warning. See cases cited in n 2, supra. Out of the multitude of decisions JUSTICE BRENNAN cites, no more than half a dozen fairly can be said to suppress confessions on facts remotely comparable to those in the instant case, and some of these decisions involved other elements not present here. See United States v. Pierce, 397 F.2d 128 (CA4 1968) (thorough custodial interrogation at station house); United States v. Pellegrini, 309 F. Supp. 250 , 257 (SDNY 1970) (officers induced unwarned suspect to produce "the clinching evidence of his crime"); In re Pablo A. C., 129 Cal. App. 3d 984 , 181 Cal. Rptr. 468 (1982) (25-minute interrogation of juvenile; court finds causal connection but notes that all prior cited cases relying on "cat-out-of-bag" theory have involved coercion); State v. Lekas, 201 Kan. 579, 442 P.2d 11 (1968) (parolee taken into custody and questioned at courthouse). At least one State Supreme Court cited by JUSTICE BRENNAN that read Miranda as mandating suppression of a subsequent voluntary and fully warned confession did so with express reluctance, convinced that admissibility of a subsequent confession should turn on voluntariness alone. See Brunson v. State, 264 So. 2d 817 , 819-820 (Miss.1972). [ Footnote 4 ] comprehensive, incorporating the warning that any statements could be used in a court of law; the rights to remain silent, consult an attorney at state expense, and interrupt the conversation at any time; and the reminder that any statements must be voluntary. The reverse side of the card carried three questions in boldface and recorded Elstad's responses: "DO YOU UNDERSTAND THESE RIGHTS? 'Yeh'" "DO YOU HAVE ANY QUESTIONS ABOUT YOUR RIGHTS? 'No'" "HAVING THESE RIGHTS IN MIND, DO YOU WISH TO TALK TO US NOW? 'Yeh I do!'" The card is dated and signed by respondent and by Officer McAllister. A recent high school graduate, Elstad was fully capable of understanding this careful administering of Miranda warnings. [ Footnote 5 ] JUSTICE BRENNAN, with an apocalyptic tone, heralds this opinion as dealing a "crippling blow to Miranda. " Post at 470 U. S. 319 . JUSTICE BRENNAN not only distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. The Self-Incrimination Clause of the Fifth Amendment guarantees every individual that, if taken into official custody, Page 470 U. S. 319 he shall be informed of important constitutional rights and be given the opportunity knowingly and voluntarily to waive those rights before being interrogated about suspected wrongdoing. Miranda v. Arizona, 384 U. S. 436 (1966). [ Footnote 2/1 ] This guarantee embodies our society's conviction that "no system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens' abdication through unawareness of their constitutional rights." Escobedo v. Illinois, 378 U. S. 478 , 378 U. S. 490 (1964). Even while purporting to reaffirm these constitutional guarantees, the Court has engaged of late in a studied campaign to strip the Miranda decision piecemeal and to undermine the rights Miranda sought to secure. Today's decision not only extends this effort a further step, but delivers a potentially crippling blow to Miranda and the ability of courts to safeguard the rights of persons accused of crime. For at least with respect to successive confessions, the Court today appears to strip remedies for Miranda violations of the "fruit of the poisonous tree" doctrine prohibiting the use of evidence presumptively derived from official illegality. [ Footnote 2/2 ] Two major premises undergird the Court's decision. The Court rejects as nothing more than "speculative" the long-recognized presumption that an illegally extracted confession causes the accused to confess again out of the mistaken belief that he already has sealed his fate, and it condemns as " extravagant'" the requirement that the prosecution affirmatively rebut the presumption before the subsequent confession Page 470 U. S. 320 may be admitted. Ante at 470 U. S. 307 , 470 U. S. 313 . The Court instead adopts a new rule that, so long as the accused is given the usual Miranda warnings before further interrogation, the taint of a previous confession obtained in violation of Miranda "ordinarily" must be viewed as automatically dissipated. Ante at 470 U. S. 311 . In the alternative, the Court asserts that neither the Fifth Amendment itself nor the judicial policy of deterring illegal police conduct requires the suppression of the "fruits" of a confession obtained in violation of Miranda, reasoning that to do otherwise would interfere with "legitimate law enforcement activity." Ante at 470 U. S. 312 . As the Court surely understands, however, "[t]o forbid the direct use of methods . . . but to put no curb on their full indirect use would only invite the very methods deemed 'inconsistent with ethical standards and destructive of personal liberty.'" Nardone v. United States, 308 U. S. 338 , 308 U. S. 340 (1939). If violations of constitutional rights may not be remedied through the well-established rules respecting derivative evidence, as the Court has held today, there is a critical danger that the rights will be rendered nothing more than a mere "form of words." Silverthorne Lumber Co. v. United States, 251 U. S. 385 , 251 U. S. 392 (1920). The Court's decision says much about the way the Court currently goes about implementing its agenda. In imposing its new rule, for example, the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities of custodial interrogation that have led nearly every lower court to reject its simplistic reasoning. Moreover, the Court adopts startling and unprecedented methods of construing constitutional guarantees. Finally, the Court reaches out once again to address issues not before us. For example, although the State of Oregon has conceded that the arresting officers broke the law in this case, the Court goes out of its way to suggest that they may have been objectively justified in doing so. Page 470 U. S. 321 Today's decision, in short, threatens disastrous consequences far beyond the outcome in this case. As the Court has not seen fit to provide a full explanation for this result, I believe it essential to consider in detail the premises, reasoning, and implications of the Court's opinion. I The threshold question is this: what effect should an admission or confession of guilt obtained in violation of an accused's Miranda rights be presumed to have upon the voluntariness of subsequent confessions that are preceded by Miranda warnings? Relying on the "cat out of the bag" analysis of United States v. Bayer, 331 U. S. 532 , 331 U. S. 540 -541 (1947), the Oregon Court of Appeals held that the first confession presumptively taints subsequent confessions in such circumstances. 61 Ore.App. 673, 676, 658 P.2d 552 , 554 (1983). On the specific facts of this case, the court below found that the prosecution had not rebutted this presumption. Rather, given the temporal proximity of Elstad's second confession to his first and the absence of any significant intervening circumstances, the court correctly concluded that there had not been "a sufficient break in the stream of events between [the] inadmissible statement and the written confession to insulate the latter statement from the effect of what went before." Ibid . If this Court's reversal of the judgment below reflected mere disagreement with the Oregon court's application of the "cat out of the bag" presumption to the particular facts of this case, the outcome, while clearly erroneous, would be of little lasting consequence. But the Court rejects the "cat out of the bag" presumption entirely, and instead adopts a new rule presuming that "ordinarily" there is no causal connection between a confession extracted in violation of Miranda and a subsequent confession preceded by the usual Miranda warnings. Ante at 470 U. S. 311 , 470 U. S. 314 . The Court suggests that it is merely following settled lower court practice in adopting this Page 470 U. S. 322 rule, and that the analysis followed by the Oregon Court of Appeals was aberrant. This is simply not so. Most federal courts have rejected the Court's approach, and instead held that (1) there is a rebuttable presumption that a confession obtained in violation of Miranda taints subsequent confessions, and (2) the taint cannot be dissipated solely by giving Miranda warnings. [ Footnote 2/3 ] Moreover, those few federal courts that have suggested approaches similar to the Court's have subsequently qualified their positions. [ Footnote 2/4 ] Even more significant is the case among state courts. Although a handful have adopted the Court's approach, [ Footnote 2/5 ] the overwhelming majority Page 470 U. S. 323 of state courts that have considered the issue have concluded that subsequent confessions are presumptively tainted by a first confession taken in violation of Miranda and that Miranda warnings alone cannot dissipate the taint. [ Footnote 2/6 ] Page 470 U. S. 324 The Court today sweeps aside this common-sense approach as "speculative" reasoning, adopting instead a rule that "the psychological impact of voluntary disclosure of a guilty secret" neither "qualifies as state compulsion" nor "compromises the voluntariness" of subsequent confessions. Ante at 470 U. S. 312 , 470 U. S. 313 (emphasis added). So long as a suspect receives the usual Miranda warnings before further interrogation, the Court reasons, the fact that he "is free to exercise his own volition in deciding whether or not to make" further confessions "ordinarily" is a sufficient "cure" and serves to break any causal connection between the illegal confession and subsequent statements. Ante at 470 U. S. 308 , 470 U. S. 311 . The Court's marble-palace psychoanalysis is tidy, but it flies in the face of our own precedents, demonstrates a startling unawareness of the realities of police interrogation, and is completely out of tune with the experience of state and federal courts over the last 20 years. Perhaps the Court has grasped some psychological truth that has eluded persons far more experienced in these matters; if so, the Court owes an explanation of how so many could have been so wrong for so many years. A (1) This Court has had long experience with the problem of confessions obtained after an earlier confession has been Page 470 U. S. 325 illegally secured. Subsequent confessions in these circumstances are not per se inadmissible, but the prosecution must demonstrate facts "sufficient to insulate the [subsequent] statement from the effect of all that went before." Clewis v. Texas, 386 U. S. 707 , 386 U. S. 710 (1967). If the accused's subsequent confession was merely the culmination of "one continuous process," or if the first confession was merely "filled in and perfected by additional statements given in rapid succession," the subsequent confession is inadmissible, even though it was not obtained through the same illegal means as the first. Leyra v. Denno, 347 U. S. 556 , 347 U. S. 561 (1954); see also Westover v. United States, decided together with Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 494 -496 (1966). The question in each case is whether the accused's will was "overborne at the time he confessed," and the prosecution must demonstrate that the second confession "was an act independent of the [earlier] confession." Reck v. Pate, 367 U. S. 433 , 367 U. S. 440 , 367 U. S. 444 (1961). One of the factors that can vitiate the voluntariness of a subsequent confession is the hopeless feeling of an accused that he has nothing to lose by repeating his confession, even where the circumstances that rendered his first confession illegal have been removed. As the Court observed in United States v. Bayer, 331 U.S. at 331 U. S. 540 : "[A]fter an accused has once let the cat out of the bag by confessing, no matter what the inducement, he is never thereafter free of the psychological and practical disadvantages of having confessed. He can never get the cat back in the bag. The secret is out for good. In such a sense, a later confession always may be looked upon as a fruit of the first." The Court today decries the "irremediable consequences" of this reasoning, ante at 470 U. S. 309 , but it has always been clear that, even after "let[ting] the cat out of the bag," the accused is not "perpetually disable[d]" from giving an admissible subsequent confession. United States v. Bayer, supra, at 331 U. S. 541 . Page 470 U. S. 326 Rather, we have held that subsequent confessions in such circumstances may be admitted if the prosecution demonstrates that, "[c]onsidering the totality of the circumstances,'" there was a "`break in the stream of events . . . sufficient to insulate'" the subsequent confession from the damning impact of the first. Darwin v. Connecticut, 391 U. S. 346 , 391 U. S. 349 (1968) (citations omitted). Although we have thus rejected a per se rule forbidding the introduction of subsequent statements in these circumstances, we have emphasized that the psychological impact of admissions and confessions of criminal guilt nevertheless can have a decisive impact in undermining the voluntariness of a suspect's responses to continued police interrogation, and must be accounted for in determining their admissibility. As Justice Harlan explained in his separate Darwin opinion: "A principal reason why a suspect might make a second or third confession is simply that, having already confessed once or twice, he might think he has little to lose by repetition. If a first confession is not shown to be voluntary, I do not think a later confession that is merely a direct product of the earlier one should be held to be voluntary. It would be neither conducive to good police work nor fair to a suspect to allow the erroneous impression that he has nothing to lose to play the major role in a defendant's decision to speak a second or third time." "In consequence, when the prosecution seeks to use a confession uttered after an earlier one not found to be voluntary, it has . . . the burden of proving not only that the later confession was not itself the product of improper threats or promises or coercive conditions, but also that it was not directly produced by the existence of the earlier confession." Id. at 391 U. S. 350 -351 (concurring in part and dissenting in part). See also Brown v. Illinois, 422 U. S. 590 , 422 U. S. 605 , n. 12 (1975) ("The fact that Brown had made one statement, believed by Page 470 U. S. 327 him to be admissible, . . . bolstered the pressures for him to give the second, or at least vitiated any incentive on his part to avoid self-incrimination"); Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 36 , n. 2 (1967) (per curiam) (existence of earlier illegal confession "is of course vitally relevant to the voluntariness of petitioner's later statements"). [ Footnote 2/7 ] Page 470 U. S. 328 (2) Our precedents did not develop in a vacuum. They reflect an understanding of the realities of police interrogation and the everyday experience of lower courts. Expert interrogators, far from dismissing a first admission or confession as creating merely a "speculative and attenuated" disadvantage for a suspect, ante at 470 U. S. 313 , understand that such revelations frequently lead directly to a full confession. Standard interrogation manuals advise that "[t]he securing of the first admission is the biggest stumbling block. . . ." A. Aubry & R. Caputo, Criminal Interrogation 290 (3d ed.1980). If this first admission can be obtained, "there is every reason to expect that the first admission will lead to others, and eventually to the full confession." Ibid. "For some psychological reason which does not have to concern us at this point, 'the dam finally breaks as a result of the first leak' with regards to the tough subject. . . . Any structure is only as strong as its weakest component, and total collapse can be anticipated when the weakest part first begins to sag." Id. at 291. Interrogators describe the point of the first admission as the "breakthrough" and the "beachhead," R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 143 (1976), which once obtained will give them enormous "tactical advantages," F. Inbau & J. Reid, Criminal Interrogation and Confessions 82 (2d ed.1967). See also W. Dienstein, Technics for the Crime Investigator 117 (2d ed.1974). Thus, "[t]he securing of incriminating admissions might well be considered as the beginning of the final stages in crumbling the defenses of the suspect," and the process of obtaining such admissions is described as "the spadework required to motivate the subject into making the full confession." Aubry & Caputo, supra, at 31, 203. Page 470 U. S. 329 "Once the initial admission has been made, further inducement in the form of skillfully applied interrogation techniques will motivate the suspect into making the confession." Id. at 26; see also id. at 33 (initial admissions are "capitalized upon by the interrogator in securing the eventual confession"). Some of these "skillfully applied" techniques involve direct confrontation of the suspect with the earlier admission, but many of the techniques are more discreet and create leverage without the need of expressly discussing the earlier admission. These techniques are all aimed at reinforcing in the suspect's mind that, as one manual describes it, "'you're wasting your own time, and you're wasting my time, you're guilty and you know it, I know it, what's more, you know that I know it.'" Id. at 234. [ Footnote 2/8 ] The practical experience of state and federal courts confirms the experts' understanding. From this experience, lower courts have concluded that a first confession obtained without proper Miranda warnings, far from creating merely some "speculative and attenuated" disadvantage for the accused, ante at 470 U. S. 313 , frequently enables the authorities to obtain subsequent confessions on a "silver platter." Cagle v. State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120, cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969). One police practice that courts have frequently encountered involves the withholding of Miranda warnings until the end of an interrogation session. Specifically, the police Page 470 U. S. 330 escort a suspect into a room, sit him down and, without explaining his Fifth Amendment rights or obtaining a knowing and voluntary waiver of those rights, interrogate him about his suspected criminal activity. If the police obtain a confession, it is then typed up, the police hand the suspect a pen for his signature, and -- just before he signs -- the police advise him of his Miranda rights and ask him to proceed. Alternatively, the police may call a stenographer in after they have obtained the confession, advise the suspect for the first time of his Miranda rights, and ask him to repeat what he has just told them. In such circumstances, the process of giving Miranda warnings and obtaining the final confession is " merely a formalizing, a setting down almost as a scrivener does, [of] what ha[s] already taken [place].'" People v. Raddatz, 91 Ill.App.2d 425, 430, 235 N.E.2d 353, 356 (1968) (quoting trial court). In such situations, where "it was all over except for reading aloud and explaining the written waiver of the Miranda safeguards," courts have time and again concluded that "[t]he giving of the Miranda warnings before reducing the product of the day's work to written form could not undo what had been done or make legal what was illegal." People v. Bodner, 75 App.Div.2d 440, 448, 430 N.Y.S.2d 433, 438 (1980). [ Footnote 2/9 ] There are numerous variations on this theme. Police may obtain a confession in violation of Miranda and then take a break for lunch or go home for the evening. When questioning is resumed, this time preceded by Miranda warnings, the suspect is asked to "clarify" the earlier illegal confession and to provide additional information. [ Footnote 2/10 ] Or he is led by one of Page 470 U. S. 331 the interrogators into another room, introduced to another official, and asked to repeat his story. The new officer then gives the Miranda warnings and asks the suspect to proceed. [ Footnote 2/11 ] Alternatively, the suspect might be questioned by arresting officers "in the field" and without Miranda warnings, as was young Elstad in the instant case. After making incriminating admissions or a confession, the suspect is then brought into the station house and either questioned by the same officers again or asked to repeat his earlier statements to another officer. [ Footnote 2/12 ] The variations of this practice are numerous, but the underlying problem is always the same: after hearing the witness testimony and considering the practical realities, courts have confirmed the time-honored wisdom of presuming that a first illegal confession "taints" subsequent confessions, and permitting such subsequent confessions to be admitted at trial only if the prosecution convincingly rebuts the presumption. They have discovered that, frequently, "[h]aving once confessed, [the accused] was ready to confess some more." State v. Lekas, 201 Kan. 579, 587-588, 442 P.2d 11 , 19 (1968). For all practical purposes, the prewarning and postwarning questioning are often but stages of one overall interrogation. Whether or not the authorities explicitly confront the suspect with his earlier illegal admissions makes no significant difference, of course, because the suspect knows that the authorities know of his earlier statements, and most frequently will believe that those statements already have sealed his fate. Thus a suspect in such circumstances is likely to conclude that "he might as well answer the questions Page 470 U. S. 332 put to him, since the [authorities are] already aware of the earlier answers," United States v. Pierce, 397 F.2d 128, 131 (CA4 1968); he will probably tell himself that "it's O.K., I have already told them," State v. Lekas, supra, at 582, 442 P.2d at 15. See also Cagle v. State, 45 Ala. App. at 4, 221 So. 2d at 120 ("I have already give[n] the Chief . . . a statement, and I might as well give one to you, too"). In such circumstances, courts have found, a suspect almost invariably asks himself, "What use is a lawyer? What good is a lawyer now? What benefit can a lawyer tell me? [ sic ] I have already told the police everything." People v. Raddatz, 91 Ill.App.2d at 430, 235 N.E.2d at 356. [ Footnote 2/13 ] I would have thought that the Court, instead of dismissing the "cat out of the bag" presumption out of hand, would have accounted for these practical realities. Compare Nardone v. United States, 308 U.S. at 342 (derivative evidence rules should be grounded on the "learning, good sense, fairness and courage" of lower court judges). Expert interrogators and experienced lower court judges will be startled, to say the least, to learn that the connection between multiple confessions is "speculative" and that a subsequent rendition of Miranda warnings "ordinarily" enables the accused in these circumstances to exercise his "free will" and to make "a rational and intelligent choice whether to waive or invoke his rights." Ante at 470 U. S. 311 , 470 U. S. 314 . (3) The Court's new view about the "psychological impact" of prior illegalities also is at odds with our Fourth Amendment Page 470 U. S. 333 precedents. For example, it is well established that a confession secured as a proximate result of an illegal arrest must be suppressed. See, e.g., Taylor v. Alabama, 457 U. S. 687 (1982); Brown v. Illinois, 422 U. S. 590 (1975); Wong Sun v. United States, 371 U. S. 471 (1963). We have emphasized in this context that "verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest . . . is no less the 'fruit' of official illegality than the more common tangible fruits of the unwarranted intrusion." Wong Sun v. United States, supra, at 371 U. S. 485 . The Court seeks to distinguish these precedents on the ground that Fourth Amendment violations require a broader exclusionary rule than do Fifth Amendment violations. Ante at 470 U. S. 306 . I address this reasoning in 470 U. S. infra. But the question immediately at issue -- whether there should be a presumptive rule against finding a causal connection between successive confessions -- would surely seem to be controlled by the logic of these Fourth Amendment cases. In part because of the inherent psychological pressures attendant upon an arrest, we have refused to presume that a confession following an illegal arrest is "sufficiently an act of free will to purge the primary taint of the unlawful invasion." Wong Sun v. United States, supra, at 371 U. S. 486 . See also Brown v. Illinois, supra, at 422 U. S. 601 -603. If the Court so quickly dismisses the notion of a multiple-confession taint as nothing more than a "speculative and attenuated" disadvantage, ante at 470 U. S. 313 , what is to prevent it in the future from deciding that, contrary to the settled understanding, the fact of a proximate illegal arrest is presumptively nothing but a "speculative and attenuated" disadvantage to a defendant who is asked to confess? Similarly, a confession obtained as a proximate result of confronting the accused with illegally seized evidence is inadmissible as the fruit of the illegal seizure. See, e.g., Fahy v. Connecticut, 375 U. S. 85 , 375 U. S. 90 -91 (1963) (remanding for determination whether admission was so induced); see generally 3 W. LaFave, Search and Seizure § 11.4, pp. 638-642 Page 470 U. S. 334 (1978) (collecting cases). As commentators have noted, courts in finding such confessions to be tainted by the Fourth Amendment violation have emphasized that " the realization that the "cat is out of the bag" plays a significant role in encouraging the suspect to speak.'" Id. § 11.4, p. 639 (footnote omitted). By discarding the accepted "cat out of the bag" presumption in the successive confession context, however, the Court now appears to have opened the door to applying this same simplistic reasoning to Fourth Amendment violations. [ Footnote 2/14 ] Page 470 U. S. 335 B The correct approach, administered for almost 20 years by most courts with no untoward results, is to presume that an admission or confession obtained in violation of Miranda taints a subsequent confession unless the prosecution can show that the taint is so attenuated as to justify admission of the subsequent confession. See cases cited in nn. 470 U.S. 298 fn2/3|>3, 470 U.S. 298 fn2/6|>6, supra. Although the Court warns against the "irremediable consequences" of this presumption, ante at 470 U. S. 309 , it is obvious that a subsequent confession, just like any other evidence that follows upon illegal police action, does not become "sacred and inaccessible." Silverthorne Lumber Co. v. United States, 251 U.S. at 251 U. S. 392 . As with any other evidence, the inquiry is whether the subsequent confession "'has been come at by exploitation of [the] illegality, or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun v. United States, 371 U.S. at 371 U. S. 488 (citation omitted). Until today the Court has recognized that the dissipation inquiry requires the prosecution to demonstrate that the official illegality did not taint the challenged confession, and we have rejected the simplistic view that abstract notions of "free will" are alone sufficient to dissipate the challenged taint. "The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings Page 470 U. S. 336 of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of [constitutional rights] to turn on . . . a talismanic test." Brown v. Illinois, 422 U.S. at 422 U. S. 603 . Instead, we have instructed courts to consider carefully such factors as the strength of the causal connection between the illegal action and the challenged evidence, their proximity in time and place, the presence of intervening factors, and the "purpose and flagrancy of the official misconduct." Id. at 422 U. S. 603 -604. The Court today shatters this sensitive inquiry and decides instead that, since individuals possess " will, perception, memory and volition,'" a suspect's "exercise [of] his own volition in deciding whether or not to make a [subsequent] statement to the authorities" must "ordinarily" be viewed as sufficient to dissipate the coercive influence of a prior confession obtained in violation of Miranda. Ante at 470 U. S. 308 , 470 U. S. 309 , 470 U. S. 311 (citation omitted). But "[w]ill, perception, memory and volition are only relevant as they provide meaningful alternatives in the causal chain, not as mystical qualities which in themselves invoke the doctrine of attenuation." Hirtle, Inadmissible Confessions and Their Fruits: A Comment on Harrison v. United States, 60 J. Crim. L., C., & P. S. 58, 62 (1969). Thus we have always rejected, until today, the notion that "individual will" alone presumptively serves to insulate a person's actions from the taint of earlier official illegality. See, e.g., United States v. Ceccolini, 435 U. S. 268 , 435 U. S. 274 -275 (1978) (rejecting Government's request for a rule "that the testimony of a live witness should not be excluded at trial no matter how close and proximate the connection between it" and an illegal search); Wong Sun v. United States, supra, at 371 U. S. 486 (confession obtained as a proximate result of an illegal arrest is not presumptively admissible as an "intervening independent act of a free will"). Nor have we ever allowed Miranda warnings alone to serve talismanically to purge the taint of prior illegalities. In Brown v. Illinois, for example, we emphasized that Page 470 U. S. 337 " Miranda warnings, alone and per se, cannot always make [a confession] sufficiently a product of free will to break . . . the causal connection between [an illegal arrest] and the confession." 422 U.S. at 422 U. S. 603 (emphasis in original). [ Footnote 2/15 ] See also Taylor v. Alabama, 457 U.S. at 457 U. S. 690 -691. The reason we rejected this rule is manifest: "The Miranda warnings in no way inform a person of his Fourth Amendment rights, including his right to be released from unlawful custody following an arrest made without a warrant or without probable cause." Brown v. Illinois, supra, at 422 U. S. 601 , n. 6. This logic applies with even greater force to the Fifth Amendment problem of successive confessions. Where an accused believes that it is futile to resist because the authorities already have elicited an admission of guilt, the mere rendition of Miranda warnings does not convey the information most critical at that point to ensuring his informed and voluntary decision to speak again: that the earlier confession may not be admissible, and thus that he need not speak out of any feeling that he already has sealed his fate. The Court therefore is flatly wrong in arguing, as it does repeatedly, that the mere provision of Miranda warnings prior to subsequent interrogation supplies the accused with "the relevant information" and ensures that a subsequent confession "ordinarily" will be the product of "a rational and intelligent choice" and " an act of free will.'" Ante at 470 U. S. 311 , 314. [ Footnote 2/16 ] Page 470 U. S. 338 The Court's new approach is therefore completely at odds with established dissipation analysis. A comparison of the Court's analysis with the factors most frequently relied on by lower courts in considering the admissibility of subsequent confessions demonstrates the practical and legal flaws of the new rule. Advice that earlier confession may be inadmissible. The most effective means to ensure the voluntariness of an accused's subsequent confession is to advise the accused that his earlier admissions may not be admissible, and therefore that he need not speak solely out of a belief that "the cat is out of the bag." Many courts have required such warnings in the absence of other dissipating factors, [ Footnote 2/17 ] and this Court has not uncovered anything to suggest that this approach has not succeeded in the real world. The Court, however, believes that law enforcement authorities could never possibly understand "the murky and difficult questio[n]" of when Page 470 U. S. 339 Miranda warnings must be given, and therefore that they are "ill-equipped" to make the decision whether supplementary warnings might be required. Ante at 470 U. S. 316 . This reasoning is unpersuasive for two reasons. First, the whole point of Miranda and its progeny has been to prescribe "bright line" rules for the authorities to follow. [ Footnote 2/18 ] Although borderline cases will of course occasionally arise, thus militating against a per se rule requiring supplementary warnings, the experience of the lower courts demonstrates that the vast majority of confrontations implicating this question involve obvious Miranda violations. The occasional "murky and difficult" case should not preclude consideration of supplementary warnings in situations where the authorities could not possibly have acted in an objectively reasonable manner in their earlier interrogation of the accused. Second, even where the authorities are not certain that an earlier confession has been illegally obtained, courts and commentators have recognized that a supplementary warning merely advising the accused that his earlier confession may be inadmissible can dispel his belief that he has nothing to lose by repetition. [ Footnote 2/19 ] Proximity in time and place. Courts have frequently concluded that a subsequent confession was so removed in time and place from the first that the accused most likely was able fully to exercise his independent judgment in deciding whether to speak again. [ Footnote 2/20 ] As in the instant case, however, a Page 470 U. S. 340 second confession frequently follows immediately on the heels of the first and is obtained by the same officials in the same or similar coercive surroundings. In such situations, it is wholly unreasonable to assume that the mere rendition of Miranda warnings will safeguard the accused's freedom of action. The Court today asserts, however, that the traditional requirement that there be a "break in the stream of events" is "inapposite" in this context. Ante at 470 U. S. 310 . Yet most lower courts that have considered the question have recognized that our decision in Westover v. United States, 384 U.S. at 384 U. S. 494 , compels the contrary conclusion. [ Footnote 2/21 ] There, the accused was questioned by local authorities for several hours and then turned over to federal officials, who only then advised him of his constitutional rights and obtained a confession. We concluded that Westover's waiver was invalid because, from Westover's perspective, the separate questioning amounted to but one continuous period of interrogation, "the warnings came at the end of the interrogation process," and the giving of warnings could not dissipate the effect of Page 470 U. S. 341 the earlier, illegal questioning. Id. at 384 U. S. 496 . [ Footnote 2/22 ] Thus, it is clear that Miranda warnings given at the end of the interrogation process cannot dispel the illegality of what has gone before. If this is so in a situation like Westover, where the accused had not yet given a confession, how can the Court possibly conclude otherwise where the accused already has confessed, and therefore feels that he has nothing to lose by "confess[ing] some more?" State v. Lekas, 201 Kan. at 588, 442 P.2d at 19. Intervening factors. Some lower courts have found that, because of intervening factors -- such as consultation with a lawyer or family members, or an independent decision to speak -- an accused's subsequent confession could not fairly be attributed to the earlier statement taken in violation of Miranda. [ Footnote 2/23 ] On the other hand, where, as here, an accused has continuously been in custody and there is no legitimate suggestion of an intervening event sufficient to break the impact of the first confession, subsequent confessions are inadmissible. [ Footnote 2/24 ] The Court reasons, however, that, because "[a] suspect's confession may be traced to . . . an intervening event," it " must [be] conclude[d]" that subsequent Miranda warnings presumptively enable the suspect to make "a rational and intelligent choice" whether to repeat his confession. Ante at 470 U. S. 314 (emphasis added). In applying the intervening events inquiry, however, "courts must use a surgeon's scalpel, and not a meat axe." Cf. 3 W. LaFave, Search and Seizure § 11.4, p. 624 (1978). The only proper inquiry is whether a meaningful intervening event actually occurred, not whether Page 470 U. S. 342 a court simply chooses to shut its eyes to human nature and the realities of custodial interrogation. Purpose and flagrancy of the illegality. Courts have frequently taken the "purpose and flagrancy of the official misconduct" into account in considering whether the taint of illegal action was sufficiently dissipated to render a confession admissible. Brown v. Illinois, 422 U.S. at 422 U. S. 604 . In part, this inquiry has reflected conviction that particularly egregious misconduct must be deterred through particularly stern action. This factor is also important, however, because it is fair to presume that, if the authorities acted flagrantly in violating the law, they probably did so for ulterior motives. Thus, if the authorities blatantly failed to advise an accused of his constitutional rights while interrogating him, and gave him the Miranda warnings only as they handed him a typed confession for his signature, it is fair to presume that they pursued their strategy precisely to weaken his ability knowingly and voluntarily to exercise his constitutional rights. C Perhaps because the Court is discomfited by the radical implications of its failure to apply the settled derivative evidence presumption to violations of Miranda, it grudgingly qualifies its sweeping pronouncements with the acknowledgment that its new presumption about so-called "ordinary" Miranda violations can be overcome by the accused. Ante at 470 U. S. 311 , 470 U. S. 314 . Explicitly eschewing "a per se rule," ante at 470 U. S. 317 , the Court suggests that its approach should not be followed where the police have employed "improper tactics" or "inherently coercive methods" that are "calculated to undermine the suspect's ability to exercise his free will." Ante at 470 U. S. 308 , 470 U. S. 309 , 470 U. S. 312 , n. 3; see also ante at 470 U. S. 312 , 470 U. S. 314 , 470 U. S. 317 . The Court thus concedes that lower courts must continue to be free to "examine the surrounding circumstances and the Page 470 U. S. 343 entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements." Ante at 470 U. S. 318 . The Court's concessions are potentially significant, but its analysis is wholly at odds with established dissipation analysis. To begin with, the Court repeatedly suggests that a confession may be suppressed only if the police have used "improper tactics," ante at 470 U. S. 308 ; this obscure reasoning overlooks the fact that a violation of Miranda is obviously itself an "improper tactic," one frequently used precisely to undermine the voluntariness of subsequent confessions. See supra at 470 U. S. 329 -332. The Court's negative implication that Miranda violations are not "improper tactics" is, to say the least, disquieting. Second, the Court reasons that the fact that the accused gave a subsequent confession is itself "highly probative" evidence that he was able to exercise his free will. Ante at 470 U. S. 318 . This inaccurate premise follows from the Court's erroneous rejection of the "cat out of the bag" presumption in these circumstances and its inexplicable assertion that the previous extraction of a "guilty secret" neither constitutes compulsion nor compromises the voluntariness of later confessions. Ante at 470 U. S. 312 . [ Footnote 2/25 ] Finally, the Page 470 U. S. 344 foundation of the derivative evidence doctrine has always been that, where the authorities have acted illegally, they must bear the "ultimate burden" of proving that their misconduct did not "taint" subsequently obtained evidence. Alderman v. United States, 394 U. S. 165 , 394 U. S. 183 (1969); see also Nardone v. United States, 308 U.S. at 308 U. S. 341 . That is precisely the point of the derivative evidence presumption. By rejecting this presumption in Miranda cases, the Court today appears to adopt a "go ahead and try to prove it" posture toward citizens whose Fifth Amendment Miranda rights have been violated, an attitude that marks a sharp break from the Court's traditional approach to official lawlessness. Nevertheless, prudent law enforcement officials must not now believe that they are wholly at liberty to refuse to give timely warnings and obtain effective waivers, confident that evidence derived from Miranda violations will be entirely immune from judicial scrutiny. I believe that most state and federal courts will continue to exercise the "learning, good sense, fairness and courage" they have displayed in administering the derivative evidence rules prior to today's decision. Nardone v. United States, supra, at 308 U. S. 342 . Lower courts are free to interpret the Court's qualifications, grudging though they may be, as providing sufficient latitude to scrutinize confessions obtained in the wake of Miranda violations to determine whether, in light of all "the surrounding circumstances and the entire course of police conduct," the initial Miranda violation compromised the voluntariness of the accused's subsequent confession. Ante at 470 U. S. 318 . Any overt Page 470 U. S. 345 use of the illegally secured statement by the police in obtaining the subsequent confession must of course be viewed as powerful evidence of a tainted connection; the Court itself asserts that the officers in this case did not "exploit the unwarned admission to pressure respondent" into giving his subsequent confession. Ante at 470 U. S. 316 . [ Footnote 2/26 ] In such circumstances, "[h]aving 'released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his [subsequent statements]." Harrison v. United States, 392 U. S. 219 , 392 U. S. 224 -225 (1968). Moreover, courts must scrutinize the totality of the circumstances even where the authorities have not explicitly exploited the earlier confession. Many of the police practices discussed above do not rely on overt use of the earlier confession at all, but instead are implicit strategies that create leverage on the accused to believe he already has sealed his fate. See supra at 470 U. S. 328 -332. These strategies are just as pernicious as overt exploitation of the illegal confession, because they just as surely are "calculated to undermine the suspect's ability to exercise his free will." Ante at 470 U. S. 309 . [ Footnote 2/27 ] In evaluating the likely effects of such tactics, courts should continue to employ many of the same elements traditionally used in dissipation analysis. Thus, although the Court discounts the importance of a "break in the stream of events" in Page 470 U. S. 346 the context of the derivative evidence presumption, the proximity in time and place of the first and second confessions surely remains a critical factor. See supra at 470 U. S. 339 -341. So too does the inquiry into possible intervening events. Supra at 470 U. S. 341 -342. And if the official violation of Miranda was flagrant, courts may fairly conclude that the violation was calculated, and employed precisely so as to "undermine the suspect's ability to exercise his free will." Ante at 470 U. S. 309 . See also ante at 470 U. S. 314 ("deliberately . . . improper tactics" warrant a presumption of compulsion). [ Footnote 2/28 ] In sum, today's opinion marks an evisceration of the established fruit of the poisonous tree doctrine, but its reasoning is sufficiently obscure and qualified as to leave state and federal courts with continued authority to combat obvious flouting by the authorities of the privilege against self-incrimination. I am confident that lower courts will exercise this authority responsibly, as they have for the most part prior to this Court's intervention. II Not content merely to ignore the practical realities of police interrogation and the likely effects of its abolition of the derivative evidence presumption, the Court goes on to assert that nothing in the Fifth Amendment or the general judicial policy of deterring illegal police conduct "ordinarily" requires the suppression of evidence derived proximately from a confession obtained in violation of Miranda. The Court does not limit its analysis to successive confessions, but recurrently refers generally to the "fruits" of the illegal confession. Ante at 470 U. S. 306 , 470 U. S. 307 , 470 U. S. 308 . Thus, the potential impact of the Court's reasoning might extend far beyond the Page 470 U. S. 347 "cat out of the bag" context to include the discovery of physical evidence and other derivative fruits of Miranda violations as well. [ Footnote 2/29 ] A The Fifth Amendment requires that an accused in custody be informed of important constitutional rights before the authorities interrogate him. Miranda v. Arizona. This requirement serves to combat the "inherently compelling pressures" of custodial questioning "which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," and is a prerequisite to securing the accused's informed and voluntary waiver of his Page 470 U. S. 348 rights. 384 U.S. at 384 U. S. 467 . Far from serving merely as a prophylactic safeguard, "[t]he requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege. . . ." Id. at 384 U. S. 476 . It is precisely because this requirement embraces rights that are deemed to serve a "central role in the preservation of basic liberties," Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 5 (1964), that it is binding on the States through the Fourteenth Amendment, Miranda v. Arizona, 384 U.S. at 384 U. S. 467 . Twice in the last 10 years, however, the Court has suggested that the Miranda safeguards are not themselves rights guaranteed by the Fifth Amendment. In Michigan v. Tucker, 417 U. S. 433 (1974), the Court stated that Miranda had only prescribed "recommended" procedural safeguards "to provide practical reinforcement for the right against compulsory self-incrimination," the violation of which may not necessarily violate the Fifth Amendment itself. 417 U.S. at 417 U. S. 443 -444. And in New York v. Quarles, 467 U. S. 649 (1984), the Court last Term disturbingly rejected the argument that a confession "must be presumed compelled because of . . . failure to read [the accused] his Miranda warnings." Id. at 467 U. S. 655 , n. 5 (emphasis in original). These assertions are erroneous. Miranda's requirement of warnings and an effective waiver was not merely an exercise of supervisory authority over interrogation practices. As Justice Douglas noted in his Tucker dissent: " Miranda's purpose was not promulgation of judicially preferred standards for police interrogation, a function we are quite powerless to perform; the decision enunciated ' constitutional standards for protection of the privilege' against self-incrimination. 384 U.S. at 384 U. S. 491 ." 417 U.S. at 417 U. S. 465 -466 (emphasis in original). Miranda clearly emphasized that warnings and an informed waiver are essential to the Fifth Amendment privilege itself. See supra at 470 U. S. 347 and this page. As noted in Tucker, Miranda did state that the Constitution does not require Page 470 U. S. 349 " adherence to any particular solution'" for providing the required knowledge and obtaining an informed waiver. 417 U.S. at 417 U. S. 444 (quoting Miranda, supra, at 384 U. S. 467 ). But to rely solely on this language in concluding that the Miranda warnings are not constitutional rights, as did the Court in Tucker, ignores the central issue. The Court in Tucker omitted to mention that, in Miranda, after concluding that no "particular solution" is required, we went on to emphasize that, "unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the [prescribed] safeguards must be observed." Miranda, supra, at 384 U. S. 467 . Thus "the use of [any] admissions obtained in the absence of the required warnings [is] a flat violation of the Self-Incrimination Clause of the Fifth Amendment. . . ." Orozco v. Texas, 394 U. S. 324 , 394 U. S. 326 (1969). The Court today finally recognizes these flaws in the logic of Tucker and Quarles. [ Footnote 2/30 ] Although disastrous in so many other respects, today's opinion at least has the virtue of rejecting the inaccurate assertion in Quarles that confessions extracted in violation of Miranda are not presumptively coerced for Fifth Amendment purposes. Cf. Quarles, supra, at 467 U. S. 655 , n. 5. Instead, the Court holds squarely that there is an "irrebuttable" presumption that such confessions are indeed coerced, and are therefore inadmissible under the Fifth Amendment except in narrow circumstances. Ante at 470 U. S. 307 . [ Footnote 2/31 ] B Unfortunately, the Court takes away with one hand far more than what it has given with the other. Although the Page 470 U. S. 350 Court concedes, as it must, that a confession obtained in violation of Miranda is irrebuttably presumed to be coerced, and that the Self-Incrimination Clause therefore prevents its use in the prosecution's case in chief, ante at 470 U. S. 306 -307, the Court goes on to hold that nothing in the Fifth Amendment prevents the introduction at trial of evidence proximately derived from the illegal confession. It contends, for example, that the Fifth Amendment prohibits introduction "only" of the "compelled testimony," and that this constitutional guarantee "is not concerned with nontestimonial evidence." Ante at 470 U. S. 304 , 470 U. S. 307 . This narrow compass of the protection against compelled self-incrimination does not accord with our historic understanding of the Fifth Amendment. Although the Self-Incrimination Clause "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," Schmerber v. California, 384 U. S. 757 , 384 U. S. 761 (1966), it prohibits the use of such communications "against" the accused in any way. The Fifth Amendment therefore contains a self-executing rule commanding the exclusion of evidence derived from such communications. [ Footnote 2/32 ] It bars "the use of compelled testimony, as well as evidence derived directly and indirectly therefrom," and "prohibits the prosecutorial authorities from using the compelled testimony in any respect." Kastigar v. United States, 406 U. S. 441 , 406 U. S. 453 (1972) (emphasis in original). If a coerced statement leads to "sources of information which may supply other means of convicting" the accused, those sources must also be suppressed. Conselman v. Hitchcock, 142 U. S. 547 , 142 U. S. 586 (1892). Under this constitutional exclusionary rule, the authorities are thus Page 470 U. S. 351 "prohibited from making any . . . use of compelled testimony and its fruits " "in connection with a criminal prosecution against" the accused. Murphy v. Waterfront Comm'n, 378 U. S. 52 , 378 U. S. 79 (1964) (emphasis added). [ Footnote 2/33 ] In short, the Fifth Amendment's rule excluding "the use of compelled testimony and evidence derived therefrom is coextensive with the scope of the privilege" against self-incrimination itself. Kastigar v. United States, supra, at 406 U. S. 452 -453. "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court, but that it shall not be used at all. " Silverthorne Lumber Co. v. United States, 251 U.S. at 251 U. S. 392 (emphasis added). If the authorities were permitted to use an accused's illegal confession to extract additional confessions or to uncover physical evidence against him, the use of these fruits at trial would violate the Self-Incrimination Clause just as surely as if the original confession itself were introduced. Yet that is precisely what today's decision threatens to encourage. What possible justification does the Court advance for its evisceration of the Fifth Amendment's exclusionary rule in this context? Two rationales appear to be at work here. First, while acknowledging that a confession obtained in the absence of warnings and an informed waiver is irrebuttably presumed to be coerced in violation of the Self-Incrimination Clause, ante at 470 U. S. 307 , the Court recurrently asserts elsewhere that the extraction of such a confession is not really "a Fifth Amendment violation," ante at 470 U. S. 306 . Thus, the Court suggests that a Miranda violation does not constitute "police Page 470 U. S. 352 infringement of a constitutional right," that it is not "a constitutional violation," that a suspect in such circumstances "suffer[s] no identifiable constitutional harm," and that his "Fifth Amendment rights" have not "actually [been] violated." Ante at 470 U. S. 304 , 470 U. S. 305 , 470 U. S. 307 , 470 U. S. 316 . Similarly, the Court persists in reasoning that a confession obtained in violation of Miranda "ordinarily" should be viewed as "voluntary," a "voluntary disclosure of a guilty secret," "freely given," "noncoerc[ed]," and "wholly voluntary." Ante at 470 U. S. 311 , 470 U. S. 312 , 318318. I have already demonstrated the fallacy of this reasoning. See Part 470 U. S. supra. Suffice it to say that the public will have understandable difficulty in comprehending how a confession obtained in violation of Miranda can at once be (1) "irrebuttabl[y]" presumed to be the product of official compulsion, and therefore suppressible as a matter of federal constitutional law, ante at 470 U. S. 307 , 470 U. S. 317 , and (2) "noncoerc[ed]" and "wholly voluntary," ante at 470 U. S. 312 , 470 U. S. 318 . Second, while not discussed in today's opinion, JUSTICE O'CONNOR has recently argued that the Fifth Amendment's exclusion of derivative evidence extends only to confessions obtained when the accused is compelled "to appear before a court, grand jury, or other such formal tribunal," and not merely when he is "subject to informal custodial police interrogation." New York v. Quarles, 467 U.S. at 467 U. S. 670 (O'CONNOR, J., concurring in part in judgment and dissenting in part). An accused in this situation, it is argued, "has a much less sympathetic case for obtaining the benefit of a broad suppression ruling." Ibid. Such an analysis overlooks that, by the time we decided Miranda, it was settled that the privilege against self-incrimination applies with full force outside the chambers of "formal" proceedings. "Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda v. Arizona, 384 U.S. at 384 U. S. 467 . See also Page 470 U. S. 353 Ziang Sung Wan v. United States, 266 U. S. 1 , 266 U. S. 14 -15 (1924) ("[A] confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise ") (emphasis added); Brain v. United States, 168 U. S. 532 (1897). Thus there is no question that "all the principles embodied in the privilege apply to informal compulsion exerted by law enforcement officers during in-custody questioning." Miranda v. Arizona, supra at 384 U. S. 461 . The application of the privilege to custodial interrogation simply reflects the realities and purposes of 20th-century police investigations, matters which the Court chooses to ignore. "[P]olice interrogation has in recent times performed the function once accomplished by interrogation of the defendant by the committing magistrate, a practice brought to an end by establishment of the rule against self-incrimination. [ Footnote 2/34 ]" Moreover, "[a]s a practical matter, the compulsion to speak in the [police interrogation setting] may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery." 384 U.S. at 384 U. S. 461 (emphasis added). [ Footnote 2/35 ] In addition, there can be no legitimate dispute that Page 470 U. S. 354 an incriminating statement obtained through custodial interrogation "is as revealing of leads" and other derivative evidence as a statement compelled before a judicial tribunal. Murphy v. Waterfront Comm'n, 378 U.S. at 378 U. S. 103 (WHITE, J., concurring). Accordingly, Miranda itself emphasized that, under the Fifth Amendment exclusionary rule, " no evidence obtained as a result of interrogation can be used against" the defendant unless he was warned of his rights and gave an effective waiver. 384 U.S. at 384 U. S. 479 (emphasis added). [ Footnote 2/36 ] For these reasons, the Fifth Amendment itself requires the exclusion of evidence proximately derived from a confession obtained in violation of Miranda. The Court today has altogether evaded this constitutional command, the application of which should not turn simply on whether one is "sympathetic" to suspects undergoing custodial interrogation. C Even if I accepted the Court's conclusion that the Fifth Amendment does not command the suppression of evidence proximately derived from a Miranda violation, I would nevertheless dissent from the Court's refusal to recognize the importance of deterring Miranda violations in appropriate circumstances. Just last Term, in United States v. Leon, 468 U. S. 897 (1984), the Court held that, while the Fourth Amendment does not per se require the suppression of evidence derived from an unconstitutional search, the exclusionary rule must nevertheless be invoked where the search was objectively unreasonable. Id. at 468 U. S. 919 -920, n. 20. Although Page 470 U. S. 355 I do not share the Court's view of the Fourth Amendment, [ Footnote 2/37 ] Leon at least had the virtue of recognizing that exclusion of derivative evidence is essential to the effective deterrence of objectively unreasonable failures by the authorities to obey the law. Ibid. . The Court today refuses to apply the derivative evidence rule even to the extent necessary to deter objectively unreasonable failures by the authorities to honor a suspect's Miranda rights. Incredibly, faced with an obvious violation of Miranda, the Court asserts that it will not countenance suppression of a subsequent confession in such circumstances where the authorities have acted "legitimate[ly]," and have not used "improper tactics." Ante at 470 U. S. 312 , 470 U. S. 314 . One can only respond: whither went Miranda? The Court contends, however, that Michigan v. Tucker, 417 U. S. 433 (1974), already decided that the failure of the authorities to obey Miranda should not be deterred by application of the derivative evidence rule. Ante at 470 U. S. 308 -309. Tucker did not so decide. After criticizing the Fifth Amendment basis for exclusion, the Court in Tucker went on to note another " prime purpose'" for the exclusion of evidence -- "`to deter future unlawful police conduct and thereby effectuate the guarantee[s]'" of the Constitution. 417 U.S. at 417 U. S. 446 (citation omitted). The Court emphasized that, "[i]n a proper case, this rationale would seem applicable to the Fifth Amendment context as well." Id. at 417 U. S. 447 . Anticipating Leon, however, the Court asserted that the "deterrent purpose" was applicable only where "the police have engaged in willful, or at the very least negligent, conduct. . . ." 417 U. S 417 U. S. Because the questioning in Tucker occurred before Miranda was announced, and was otherwise conducted in an objectively reasonable manner, the exclusion of the derivative evidence solely for failure to comply with the then-nonexistent Page 470 U. S. 356 Miranda requirement would not significantly deter future Miranda violations. As the Court noted, the "deterrence rationale loses much of its force" when there is nothing to deter. 417 U.S. at 417 U. S. 447 . Far from rejecting the derivative evidence rule, Tucker thus expressly invited its application in "a proper case" when the authorities have acted unreasonably. Ibid. Nearly every court and commentator considering the issue have correctly recognized that Tucker's logic and its reliance on the Fourth Amendment "good faith" analysis compel the exclusion of derivative evidence where the police have deliberately, recklessly, or negligently violated the Fifth Amendment requirement of warnings and an effective waiver. [ Footnote 2/38 ] Thus, the Court's assertion today that Tucker's "reasoning applies with equal force" to preclude application of the derivative evidence rule in this case is a gross mischaracterization. Ante at 470 U. S. 308 . If the police acted in an objectively unreasonable manner, see 470 U. S. infra, Tucker's "reasoning" instead requires suppression of Elstad's subsequent statement. The Court clearly errs in suggesting that suppression of the "unwarned admission" alone will provide meaningful deterrence. Ante at 470 U. S. 309 . The experience of lower courts demonstrates that the police frequently have refused to comply with Miranda precisely in order to obtain incriminating statements that will undermine the voluntariness of the accused's decision to speak again once he has received the usual warnings; in such circumstances, subsequent confessions Page 470 U. S. 357 often follow on a "silver platter." Cagle v. State, 45 Ala.App. at 4, 221 So. 2d at 120. See generally supra at 470 U. S. 329 -332. Expert interrogators themselves recognize the direct connection between such statements. Supra at 470 U. S. 328 -329. And the Court's suggestion that its analysis might apply generally to "fruits" of illegal interrogations, but see 470 U.S. 298 fn2/29|>n. 29, supra, blinks reality even further. For example, expert interrogators acknowledge that confessions are " the prime source of other evidence. '" [ Footnote 2/39 ] If the police, through illegal interrogation, could discover contraband and be confident that the contraband "ordinarily" would not be suppressed, what possible incentive would they have to obey Miranda? The Court simply has not confronted the basic premise of the derivative evidence rule: that [t]o forbid the direct use of methods . . . but to put no curb on their full indirect use would only invite the very methods deemed "inconsistent with ethical standards and destructive of personal liberty." Nardone v. United States, 308 U.S. at 308 U. S. 340 . "[I]t is clear that, if the police were permitted to utilize illegally obtained confessions for links and leads, rather than being required to gather evidence independently, then the Miranda warnings would be of no value in protecting the privilege against self-incrimination. The requirement of a warning would be meaningless, for the police would be permitted to accomplish indirectly what they could not accomplish directly, and there would exist no incentive to warn." Pitler, 56 Calif.L.Rev. supra, 470 U.S. 298 fn2/16|>n. 16, at 620. Page 470 U. S. 358 As the Executive Director of the National District Attorneys Association Foundation emphasized shortly after Miranda, merely to exclude the statement itself while putting no curbs on the admission of derivative evidence "would destroy the whole basis for the rule in the first instance." Nedrud, The New Fifth Amendment Concept: Self-Incrimination Redefined, 2 J.Nat.Dist.Att.Assn.Found. 112, 114 (1966). [ Footnote 2/40 ] Yet that is precisely the result that today's disastrous opinion threatens to encourage. How can the Court possibly expect the authorities to obey Miranda when they have every incentive now to interrogate suspects without warnings or an effective waiver, knowing that the fruits of such interrogations "ordinarily" will be admitted, that an admissible subsequent confession "ordinarily" can be obtained simply by reciting the Miranda warnings shortly after the first has been procured and asking the accused to repeat himself, and that, unless the accused can demonstrate otherwise, his confession will be viewed as an "act of free will" in response to "legitimate law Page 470 U. S. 359 enforcement activity"? Ante at 470 U. S. 311 , 470 U. S. 312 . By condoning such a result, the Court today encourages practices that threaten to reduce Miranda to a mere "form of words," Silverthorne Lumber Co. v. United States, 251 U.S. at 251 U. S. 392 , and it is shocking that the Court nevertheless disingenuously purports that it "in no way retreats" from the Miranda safeguards, ante at 470 U. S. 317 . D Not content with its handiwork discussed above, the Court goes on and devotes considerable effort to suggesting that, "[u]nfortunately," Miranda is such an inherently "slippery," "murky," and "difficult" concept that the authorities in general, and the police officer conducting the interrogation in this case in particular, cannot be faulted for failing to advise a suspect of his rights and to obtain an informed waiver. Ante at 470 U. S. 309 , 470 U. S. 316 . Miranda will become "murky," however, only because the Court's opinion today threatens to become a self-fulfilling prophecy. Although borderline cases occasionally have arisen respecting the concepts of "custody" and "interrogation," until today there has been nothing "slippery," "murky," or "difficult" about Miranda in the overwhelming majority of cases. The whole point of the Court's work in this area has been to prescribe "bright line" rules to give clear guidance to the authorities. [ Footnote 2/41 ] Rather than acknowledge that the police in this case clearly broke the law, the Court bends over backwards to suggest why the officers may have been justified in failing to obey Miranda. Page 470 U. S. 360 First. The Court asserts that "[n]either the environment nor the manner of either interrogation' was coercive," noting that the initial interrogation took place in Elstad's "own home." Ante at 470 U. S. 315 . The Court also believes that, "[a]lthough, in retrospect, the officers testified that respondent was then in custody, at the time he made his statement he had not been informed that he was under arrest." Ibid. There is no question, however, that Michael Elstad was in custody and "deprived of his freedom of action in [a] significant way" at the time he was interrogated. Miranda v. Arizona, 384 U.S. at 384 U. S. 444 . Two police officers had entered his bedroom, ordered him to get out of bed and come with them, stood over him while he dressed, taken him downstairs, and separated him from his mother. Tr. 64-65, 74-75, 80-84. The officers themselves acknowledged that Elstad was then under arrest. Id. at 81-82. Moreover, we have made clear that police interrogation of an accused in custody triggers the Miranda safeguard even if he is in the "familiar surroundings" of his own home, precisely because he is no less " deprived of his freedom of action'" there than if he were at a police station. Orozco v. Texas, 394 U.S. at 394 U. S. 326 -327 (citation omitted). Thus, because Elstad was in custody, the circumstances of his interrogation were inherently coercive, and the Court once again flouts settled law in suggesting otherwise. "[W]ithout proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U.S. at 384 U. S. 467 . The Fifth Amendment's requirement of warnings and an informed waiver is "an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere." Id. at 384 U. S. 468 . Second. Without anything in the record to support its speculation, the Court suggests that Officer Burke's violation Page 470 U. S. 361 of Miranda "may have been the result of confusion as to whether the brief exchange qualified as custodial interrogation'. . . ." Ante at 470 U. S. 315 . There was no confusion on this point until today. Burke made Elstad sit down and, standing over him, said "[y]ou know why we're here," asked if he knew the Gross family, and "asked what he knew about the burglary." Tr. 83-84. This questioning obviously constituted interrogation, because it was "reasonably likely to evoke an incriminating response" from Elstad, as it did. Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 301 (1980). Third. The Court contends that the interrogation might be excusable because "the brief stop in the living room before proceeding to the station house was not to interrogate the suspect, but to notify his mother of the reason for his arrest." Ante at 470 U. S. 315 . Officer Burke's partner did take Elstad's mother into the kitchen to inform her of the charges, but Burke took Elstad into another room, sat him down, and interrogated him concerning "what he knew about the burglary." Tr. 84. How can the Court possibly describe this interrogation as merely informing Elstad's mother of his arrest? Finally. The Court suggests that Burke's violation of Elstad's Fifth Amendment rights "may simply have reflected Burke's reluctance to initiate an alarming police procedure before McAllister had spoken with respondent's mother." Ante at 470 U. S. 315 -316. As the officers themselves acknowledged, however, the fact that they "[took] the young fellow out of bed" had "[o]bviously" already created "tension and stress" for the mother, Tr. 64, which surely was not lessened when she learned that her son was under arrest. And if Elstad's mother was in earshot, as the Court assumes, it is difficult to perceive how listening to the Miranda warnings would be any more "alarming" to her than what she actually heard -- actual interrogation of her son, including Burke's direct accusation that the boy had committed a felony. Most importantly, an individual's constitutional rights should not turn on Page 470 U. S. 362 whether his relatives might be upset. Surely there is no "tender feelings" exception to the Fifth Amendment privilege against self-incrimination. [ Footnote 2/42 ] III The Court's decision today vividly reflects its impatience with the constitutional rights that the authorities attack as standing in the way of combating crime. But the States that adopted the Bill of Rights struck that balance, and it is not for this Court to balance the Bill of Rights away on a cost/benefit scale "where the 'costs' of excluding illegally obtained evidence loom to exaggerated heights, and where the 'benefits' of such exclusion are made to disappear with a mere wave of the hand." United States v. Leon, 468 U.S. at 468 U. S. 929 (BRENNAN, J., dissenting). It is precisely in that vein, however, that the Court emphasizes that the subsequent confession in this case was "voluntary" and "highly probative evidence," that application of the derivative evidence presumption would cause the confession to be "irretrievably lost," and that such a result would come at an impermissibly "high cost to legitimate law enforcement activity." Ante at 470 U. S. 312 . Failure of government to obey the law cannot ever constitute "legitimate law enforcement activity." In any event, application of the derivative evidence presumption does not Page 470 U. S. 363 "irretrievably" lead to suppression. If a subsequent confession is truly independent of earlier, illegally obtained confessions, nothing prevents its full use to secure the accused's conviction. If the subsequent confession did result from the earlier illegalities, however, there is nothing "voluntary" about it. And even if a tainted subsequent confession is "highly probative," we have never until today permitted probity to override the fact that the confession was "the product of constitutionally impermissible methods in [its] inducement." Rogers v. Richmond, 365 U. S. 534 , 365 U. S. 541 (1961). In such circumstances, the Fifth Amendment makes clear that the prosecutor has no entitlement to use the confession in attempting to obtain the accused's conviction. [ Footnote 2/43 ] The lesson of today's decision is that, at least for now, what the Court decrees are "legitimate" violations by authorities of the rights embodied in Miranda shall "ordinarily" go undeterred. It is but the latest of the escalating number of decisions that are making this tribunal increasingly irrelevant in the protection of individual rights, and that are requiring other tribunals to shoulder the burden. [ Footnote 2/44 ] "There is hope, however, that in time, this or some later Court will restore Page 470 U. S. 364 these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom." United States v. Leon, supra, at 468 U. S. 960 (BRENNAN, J., dissenting). I dissent. [ Footnote 2/1 ] "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently." 384 U.S. at 384 U. S. 444 . [ Footnote 2/2 ] The Court repeatedly casts its analysis in terms of the "fruits" of a Miranda violation, see ante at 470 U. S. 306 , 470 U. S. 307 , 470 U. S. 308 , but its dicta nevertheless surely should not be read as necessarily foreclosing application of derivative evidence rules where the Miranda violation produces evidence other than a subsequent confession by the accused. See 470 U.S. 298 fn2/29|>n. 29, infra. [ Footnote 2/3 ] See, e.g., United States v. Lee, 699 F.2d 466, 468-469 (CA9 1982); United States v. Nash, 563 F.2d 1166, 1169 (CA5 1977); Randall v. Estelle, 492 F.2d 118, 120 (CA5 1974); Fisher v. Scafati, 439 F.2d 307, 311 (CA1), cert. denied, 403 U.S. 939 (1971); United States v. Pierce, 397 F.2d 128, 130-131 (CA4 1968); Evans v. United States, 375 F.2d 355, 360-361 (CA8 1967), rev'd on other grounds sub nom. Bruton v. United States, 391 U. S. 123 (1968); United States ex rel. Sanders v. Rowe, 460 F. Supp. 1128 , 1137-1138 (ND Ill.1978); United States v. Pellegrini, 309 F. Supp. 250 , 257 (SDNY 1970). Cf. Killough v. United States, 114 U.S.App.D.C. 305, 312, 315 F.2d 241, 248 (1962) (Wright, J., concurring) ( McNabb-Mallory violation) ( McNabb v. United States, 318 U. S. 332 (1943); Mallory v. United States, 354 U. S. 449 (1957)). [ Footnote 2/4 ] Three decisions from the Second and Ninth Circuits that are cited in the Court's opinion reached similar results. See ante at 470 U. S. 310 , n. 2, citing United States v. Bowler, 561 F.2d 1323 (CA9 1977); United States v. Toral, 536 F.2d 893 (CA9 1976); and United States v. Knight, 395 F.2d 971 (CA2 1968), cert. denied, 395 U.S. 930 (1969). Yet subsequent decisions of the Ninth Circuit have made clear that Bowler and Toral have not led to an abandonment of traditional derivative evidence analysis in that jurisdiction. See, e.g., United States v. Lee, supra, at 468-469 ("Here, the second confession, a virtual repetition of the first, was obtained less than 24 hours after the first confession was elicited without Miranda warnings. . . . [T]he [second] confession was correctly suppressed as the fruit of the poisonous tree"). And the Second Circuit has expressly reserved the question whether "the exclusion of a second confession might be required in order to deter avoidance of Miranda in obtaining the first." Tanner v. Vincent, 541 F.2d 932, 937, n. 5 (1976), cert. denied, 429 U.S. 1065 (1977). [ Footnote 2/5 ] See, e.g., State v. Montes, 136 Ariz. 491, 496-497, 667 P.2d 191 , 196-197 (1983) (en banc); State v. Holt, 354 So. 2d 888, 890 (Fla.App.), cert. denied, 361 So. 2d 832 (Fla.1978); Fried v. State, 42 Md.App. 643, 646-648, 402 A.2d 101 , 102-104 (1979). [ Footnote 2/6 ] See, e.g., Cagle v. State, 45 Ala. App. 3, 4, 221 So. 2d 119, 120 (subsequent confession suppressed), cert. denied, 284 Ala. 727, 221 So. 2d 121 (1969); People v. Braeseke, 25 Cal. 3d 691 , 703-704, 602 P.2d 384, 391-392 (1979) (same), vacated on other grounds, 446 U.S. 932 (1980); In re Pablo A. C., 129 Cal. App. 3d 984 , 989-991, 181 Cal. Rptr. 468 , 471-472 (1982) (same); People v. Saiz, 620 P.2d 15 , 19-21 (Colo.1980) (en banc) (same); People v. Algien, 180 Colo. 1, 8, 501 P.2d 468 , 471 (1972) (en banc) (same); State v. Derrico, 181 Conn.151, 165-167, 434 A.2d 356, 365-366 (taint dissipated), cert. denied, 449 U.S. 1064 (1980); Smith v. State, 132 Ga.App. 491, 492, 208 S.E.2d 351 (1974) (subsequent confession suppressed); State v. Medeiros, 4 Haw.App. 248, 252-253, 665 P.2d 181 , 184-185 (1983) (taint dissipated); People v. Jordan, 90 Ill.App.3d 489, 495, 413 N.E.2d 195, 199 (1980) (subsequent confession suppressed); People v. Raddatz, 91 Ill.App.2d 425, 429-436, 235 N.E.2d 353, 355-359 (1968) (same); State v. Gress, 210 Kan. 850, 852-854, 504 P.2d 256 , 259-261 (1972) (taint dissipated); State v. Lekas, 201 Kan. 579, 585-588, 442 P.2d 11 , 17-19 (1968) (subsequent confession suppressed); State v. Young, 344 So. 2d 983 , 987 (La.1977) (taint dissipated); State v. Welch, 337 So. 2d 1114 , 1120 (La.1976) (subsequent confession suppressed); State v. Ayers, 433 A.2d 356 , 362 (Me.1981) (trial statement suppressed); State v. Sickels, 275 N.W.2d 809 , 813-814 (Minn.1979) (taint dissipated); State v. Raymond, 305 Minn. 160, 168-172, 232 N.W.2d 879 , 884-886 (1975) (same); Brunson v. State, 264 So. 2d 817 , 819-820 (Miss.1972) (subsequent confession suppressed); State v. Wright, 515 S.W.2d 421 , 426-427 (Mo.1974) (en banc) (taint dissipated); State v. Williams, 486 S.W.2d 468 , 474 (Mo.1972) (subsequent confession suppressed); In re R. P. S., ___ Mont. ___, ___, 623 P.2d 964, 968-969 (1981) (taint dissipated); Rhodes v. State, 91 Nev. 17, 21-22, 530 P.2d 1199 , 1201-1202 (1975) (dictum); People v. Bodner, 75 App.Div.2d 440, 447-449, 430 N.Y.S.2d 433, 438-439 (1980) (subsequent confession suppressed); State v. Edwards, 284 N.C. 76, 78-81, 199 S.E.2d 459 , 461-462 (1973) (same); State v. Hibdon, 57 Ore.App. 509, 512, 645 P.2d 580 (1982) (same); Commonwealth v. Chacko, 500 Pa. 571, 580-582, 459 A.2d 311 , 316 (1983) (taint dissipated); Commonwealth v. Wideman, 460 Pa. 699, 708-709, 334 A.2d 594 , 599 (1975) (subsequent confession suppressed); State v. Branch, 298 N.W.2d 173 , 175-176 (S.D.1980) (taint dissipated); Martin v. State, 1 Tenn. Crim. App. 282, 289-291, 440 S.W.2d 624 , 627-628 (1968) (subsequent confession suppressed); State v. Badger, 141 Vt. 430, 439-441, 450 A.2d 336 , 342-343 (1982) (same); State v. Lavaris, 99 Wash. 2d 851 , 856-860, 664 P.2d 1234 , 1237-1239 (1983) (en banc) (same). The Court scrambles to distinguish some of the cases cited in this footnote and in notes 470 U.S. 298 fn2/3|>3 and 470 U.S. 298 fn2/4|>4, supra, arguing that "JUSTICE BRENNAN cannot seriously mean to equate" these precedents with the case at hand. Ante at 313, n. 470 U.S. 298 fn2/3|>3. To the contrary. Although many of these cases unquestionably raised traditional due process questions on their individual facts, that is not the ground on which they were decided. Instead, courts in every one of the cited cases explicitly or implicitly recognized the applicability of traditional derivative evidence analysis in evaluating the consequences of Miranda violations. [ Footnote 2/7 ] The application of the "cat out of the bag" presumption is further illustrated by our decision in Harrison v. United States, 392 U. S. 219 (1968). Harrison took the stand at his trial in an attempt to rebut illegally obtained confessions that the prosecution had been permitted to introduce into evidence. His conviction was overturned on appeal because of the introduction of these confessions. On retrial, Harrison's earlier trial testimony was introduced, and led to his second conviction. We reversed that conviction, reasoning that, if Harrison testified "in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible." Id. at 392 U. S. 223 . We observed: "It is, of course, difficult to unravel the many considerations that might have led the petitioner to take the witness stand at his former trial. But, having illegally placed his confessions before the jury, the Government can hardly demand a demonstration by the petitioner that he would not have testified as he did if his inadmissible confessions had not been used. 'The springs of conduct are subtle and varied,' Mr. Justice Cardozo once observed." "One who meddles with them must not insist upon too nice a measure of proof that the spring which he released was effective to the exclusion of all others." "Having 'released the spring' by using the petitioner's unlawfully obtained confessions against him, the Government must show that its illegal action did not induce his testimony." Id. at 392 U. S. 224 -225 (footnotes omitted). The Court today cryptically acknowledges the Harrison precedent, ante at 470 U. S. 316 -317, but it wholly fails to explain the palpable inconsistencies between its reasoning and the logical force of Harrison. Courts considering the applicability of Harrison to cases similar to the one before us have correctly recognized that it sheds controlling light on whether to presume a causal connection between illegal confessions and an individual's decision to speak again. See, e.g., Randall v. Estelle, 492 F.2d at 120-121; Fisher v. Scafati, 439 F.2d at 311; People v. Saiz, 620 P.2d at 19; Commonwealth v. Wideman, 460 Pa. at 709, 334 A.2d at 599; State v. Lavaris, 99 Wash. 2d at 859, 664 P.2d at 1238. See also State v. Ayers, 433 A.2d at 362 (citing cases). [ Footnote 2/8 ] See also A. Aubry & R. Caputo, Criminal Interrogation 206 (3d ed.1980) (discussing the " fait accompli, " or "what's done is done, and you can't change it now" approach), id. at 239 (discussing the "I would sure hate to be in your shoes" and the "[t]hings sure look dark for you" techniques); F. Inbau & J. Reid, Criminal Interrogation and Confessions 26-31 (2d ed.1967) (displaying an air of confidence in the subject's guilt), id. at 77 (creating the impression of the futility of resistance); R. Royal & S. Schutt, The Gentle Art of Interviewing and Interrogation: A Professional Manual and Guide 145-149 (1976) (techniques for "capitaliz[ing]" on the "breakthrough" admission). [ Footnote 2/9 ] See also United States v. Nash, 563 F.2d at 1168; People v. Saiz, 620 P.2d at 20; State v. Lekas, 201 Kan. at 581-582, 442 P.2d at 14-15; Commonwealth v. Wideman, 460 Pa. at 704, 334 A.2d at 597; State v. Badger, 141 Vt. at 434-437, 450 A.2d at 339-340; State v. Lavaris, 99 Wash. 2d at 854-856, 664 P.2d at 1236-1237. [ Footnote 2/10 ] See, e.g., United States v. Lee, 699 F.2d at 467-469; Smith v. State, 132 Ga.App. at 491-492, 208 S.E.2d at 351; State v. Welch, 337 So. 2d at 1120; Martin v. State, 1 Tenn.Crim.App. at 289-290, 440 S.W.2d at 627; State v. Badger, supra, at 440, 450 A.2d at 342. [ Footnote 2/11 ] See, e.g., United States v. Pierce, 397 F.2d at 129-130; Evans v. United States, 375 F.2d at 358; Cagle v. State, 45 Ala.App. at 4, 221 So. 2d at 120; People v. Braeseke, 25 Cal. 3d at 695-696, 602 P.2d at 386-388; People v. Algien, 180 Colo. at 4-5, 501 P.2d at 469-470; People v. Raddatz, 91 Ill.App.2d at 428-429, 235 N.E.2d at 355; Rhodes v. State, 91 Nev. at 21, 530 P.2d at 1201. [ Footnote 2/12 ] See, e.g., Randall v. Estelle, 492 F.2d at 119-120; In re Pablo A. C., 129 Cal. App. 3d at 987-988, 181 Cal. Rptr. at 470; Note, 45 Denver L.J. 427, 462-463 (1968). [ Footnote 2/13 ] See also Killough v. United States, 114 U.S.App.D.C. at 313-314, 315 F.2d at 249-250 (Wright, J., concurring) ( McNabb-Mallory violation) ("[H]uman nature being what it is, we must recognize a presumption that one [confession] is the fruit of the other. . . . While the psychological helplessness that comes from surrender need not last forever, . . . the burden should be on the Government to show that a second confession did not spring from a mind in which all the mechanisms of resistance are still subdued by defeat and the apparent futility of further combat"). [ Footnote 2/14 ] The Court cites three cases in support of its assertion that an illegally obtained "guilty secret" does not "ordinarily" compromise the voluntariness of a subsequent confession preceded by the usual Miranda warnings. Ante at 470 U. S. 316 -317. These cases are all inapposite. The Court in McMann v. Richardson, 397 U. S. 759 (1970), held that a defendant's guilty plea may not be attacked on federal collateral review on the ground that it was induced by the mistaken assumption that an illegal confession might have been admitted at trial and have led to conviction. Id. at 397 U. S. 770 . The Court emphasized that this bar applies only when the defendant pleads in "open court" and the decision not to challenge the confession is based on "the good faith evaluations of a reasonably competent attorney." Id. at 397 U. S. 770 , 773. Thus, the defendant's decision to reiterate the confession is insulated in these circumstances by the assistance of counsel and review by a court -- factors wholly absent in the confession context at hand. The Court in McMann noted that collateral review is available where the defendant "was incompetently advised by his attorney," id. at 397 U. S. 772 , and in light of this qualification, I cannot see how that case is at all analogous to uncounseled decisions to repeat a proximate confession. Similarly, in Frazier v. Cupp, 394 U. S. 731 (1969), the Court held that police misrepresentations concerning an accomplice, while "relevant" to the admissibility of the defendant's confession, did not vitiate the voluntariness of the confession under the totality of the circumstances of that case. Id. at 394 U. S. 739 . The defendant there, however, had received warnings which were proper at the time. Ibid. And under the Fifth Amendment, there of course are significant distinctions between the use of third-party statements in obtaining a confession and the use of the accused's own previously compelled illegal admissions. Finally, the respondent in California v. Beheler, 463 U. S. 1121 (1983) (per curiam), was not in custody at all when he spoke with the police, and the Court rejected his contention that "his lack of awareness [of the consequences of what he said] transformed the situation into a custodial one." Id. at 463 U. S. 1125 , n. 3. The Court emphasized that a person is in "custody" for purposes of the Fifth Amendment only if "there is a formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." Id. at 463 U. S. 1125 (citation omitted). Michael Elstad obviously was in custody at the time he was questioned. See 470 U. S. infra. [ Footnote 2/15 ] Under a contrary rule, we emphasized, "[a]ny incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,' and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to 'a form of words.'" 422 U.S. at 422 U. S. 602 -603. [ Footnote 2/16 ] See, e.g., Fisher v. Scafati, 439 F.2d at 311 ("All that intervened between the two confessions was a full Miranda warning, which of course did not warn the defendant that the first confession was invalid, and could not be used against him"); People v. Saiz, 620 P.2d at 20; People v. Raddatz, 91 Ill.App.2d at 434, 235 N.E.2d at 357-358 ("If a suspect is to intelligently waive his Fifth Amendment rights, he is entitled to know the scope of the amendment's protection at the time he is being interrogated. In the absence of this knowledge of the consequence of his prior confession, Raddatz' waiver of rights cannot be considered one intelligently made"); State v. Lavaris, 99 Wash. 2d at 860, 664 P.2d at 1239. See also Pitler, "The Fruit of the Poisonous Tree" Revisited and Shepardized, 56 Calif.L.Rev. 579, 608-609 (1968). Cf. Killough v. United States, 114 U.S.App.D.C. at 313, 315 F.2d at 249 (Wright, J., concurring) ("The assumption that a commissioner's statement to an accused, who has already confessed, that he may remain silent, will immediately remove the psychological disadvantage he suffers when confronting the same officers, who know his secret, is simply unrealistic"). [ Footnote 2/17 ] "It has also been held, generally, that the influence of the improper inducement is removed when the accused is properly cautioned before the subsequent confession. The warning so given, however, should be explicit, and it ought to be full enough to apprise the accused (1) that anything he may say after such warning can be used against him; and (2) that his previous confession, made under improper inducement, cannot be used against him." 2 F. Wharton, Criminal Evidence § 359, p. 66 (12th ed.1955) (citing cases). See also Williams v. United States, 328 F.2d 669, 672-673 (CA5 1964); State v. Edwards, 284 N.C. at 80-81, 199 S.E.2d at 462; State v. Williams, 162 W.Va. 309, 318, 249 S.E.2d 758 , 764 (1978); 1 W. LaFave & J. Israel, Criminal Procedure § 9.4, p. 747, § 9.5, p. 767 (1984); E. Cleary, McCormick on Evidence § 157, pp. 345-346 (2d ed.1972). [ Footnote 2/18 ] See 470 U.S. 298 fn2/41|>n. 41, infra. [ Footnote 2/19 ] In addition to the sources cited in 470 U.S. 298 fn2/17|>n. 17, supra, see Note, 45 Denver L.J. supra, 470 U.S. 298 fn2/12|>n. 12, at 463, suggesting the following warning: "Nothing that you may have said or confessed to prior to this time to any law enforcement official may be used against you in any way unless they first told you of your right to remain silent and to talk to an attorney and have him present during questioning, and you then agreed to talk to them. Do you understand?" [ Footnote 2/20 ] See, e.g., State v. Raymond, 305 Minn. at 171-172, 232 N.W.2d at 886. [ Footnote 2/21 ] See, e.g., State v. Medeiros, 4 Haw.App. at 252-253, 665 P.2d at 184-185; People v. Raddatz, 91 Ill.App.2d at 431-433, 235 N.E.2d at 356-357; State v. Lekas, 201 Kan. at 585, 442 P.2d at 17; People v. Bodner, 75 App.Div.2d at 447-448, 430 N.Y.S.2d at 438; State v. Badger, 141 Vt. at 439-440, 450 A.2d at 342; State v. Lavaris, supra, at 857-858, 664 P.2d at 1237-1238. See also People v. Saiz, 620 P.2d at 20; Rhodes v. State, 91 Nev. at 21, 530 P.2d at 1201. See generally George, The Fruits of Miranda: Scope of the Exclusionary Rule, 39 U.Colo.L.Rev. 478, 492-494 (1967); Pitler, 56 Calif.L.Rev. supra, 470 U.S. 298 fn2/16|>n. 16 at 612-613, 618; Comment, 41 Brooklyn L.Rev. 325, 330 (1974); Note, 45 Denver L.J. supra, 470 U.S. 298 fn2/12|>n. 12, at 461-463. After reviewing the cases cited in nn. 470 U.S. 298 fn2/3|>3-6, supra, the Court pronounces that "the majority have explicitly or implicitly recognized that Westover's requirement of a break in the stream of events is inapposite." Ante at 470 U. S. 310 , and n. 1. This is incorrect. Whether "explicitly" or "implicitly," the majority of the cited cases have "recognized" precisely the contrary. [ Footnote 2/22 ] We advised: "A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them." 384 U.S. at 384 U. S. 496 . [ Footnote 2/23 ] See, e.g., State v. Medeiros, supra, at 252-253, 665 P.2d at 184-185; In re R. P. S., ___ Mont. at ___, 623 P.2d at 969. [ Footnote 2/24 ] See cases in nn. 470 U.S. 298 fn2/16|>16, 470 U.S. 298 fn2/22|>22, supra. [ Footnote 2/25 ] The Court appears to limit the reach of its "guilty secret" doctrine to so-called "voluntary" confessions, but the logic of its analysis raises disturbing implications for the application of derivative evidence rules to involuntarily obtained confessions. If a confession were extracted through savage beatings or other unconscionable techniques, and the accused were then permitted a good night's sleep and were questioned the next day by sympathetic officers, most would agree that the subsequent confession, if given out of the defeated feeling that the accused had nothing more to lose, should not be admissible, because it just as surely was the product of torture as the earlier confession. Yet the Court permitted the admission of just such a confession in Lyons v. Oklahoma, 322 U. S. 596 (1944). In light of the maturation of our scruples against such techniques over the past 40 years, I believe such a result would be impossible today. See, e.g., Darwin v. Connecticut, 391 U. S. 346 , 391 U. S. 350 -351 (1968) (Harlan, J., concurring in part and dissenting in part). Yet today the Court cites Lyons as support for its "guilty secret" doctrine. Ante at 470 U. S. 311 -312. Although I am confident that the entire Court would never sanction the multiple confession technique employed in Lyons, I nevertheless respectfully submit that it is impossible to perceive any causal distinction between the "guilty secret" consequences of a confession that is presumptively coerced under Miranda and one that is actually coerced through torture. [ Footnote 2/26 ] The Court's reliance on this qualification undermines the fallacious suggestion elsewhere in its opinion that an illegally obtained "guilty secret" may be used to secure a confession. Ante at 470 U. S. 312 . [ Footnote 2/27 ] See, e.g., Pitler, 56 Calif.L.Rev. supra, 470 U.S. 298 fn2/16|>n. 16, at 617: "[P]olice could procure a confession absent the warnings, then take the suspect out for dinner, let him shower, shave, get a good twelve hours sleep, and the next day let two different officers warn and question him. The questioning need not even refer tangentially to the previous confession; for the suspect has those spoken words imprinted on his mind, and assumes they can be used against him. Under such circumstances is any waiver the product of a free will and a rational intellect?" [ Footnote 2/28 ] In addition, the Court concedes that its new analysis does not apply where the authorities have ignored the accused's actual invocation of his Miranda rights to remain silent or to consult with counsel. Ante at 470 U. S. 312 -314, n. 3. In such circumstances, courts should continue to apply the traditional presumption of tainted connection. [ Footnote 2/29 ] Notwithstanding the sweep of the Court's language, today's opinion surely ought not be read as also foreclosing application of the traditional derivative evidence presumption to physical evidence obtained as a proximate result of a Miranda violation. The Court relies heavily on individual "volition" as an insulating factor in successive confession cases. Ante at 470 U. S. 308 -309, 470 U. S. 314 . Although the Court's reliance on this factor is clearly misplaced, see supra at 470 U. S. 328 -332, the factor is altogether missing in the context of inanimate evidence. As they have in successive confession cases, most courts considering the issue have recognized that physical evidence proximately derived from a Miranda violation is presumptively inadmissible. See, e.g., United States v. Downing, 665 F.2d 404, 407-409 (CA1 1981); United States v. Castellana, 488 F.2d 65, 67-68 (CA5 1974); In re Yarber, 375 So. 2d 1231 , 1234-1235 (Ala.1979); People v. Braeseke, 25 Cal. 3d at 703-704, 602 P.2d at 391-392; People v. Schader, 71 Cal. 2d 761 , 778-779, 457 P.2d 841, 851-852 (1969); State v. Lekas, 201 Kan. at 588-589, 442 P.2d at 19-20; State v. Preston, 411 A.2d 402 , 407-408 (Me.1980); In re Appeal No. 245 (75), 29 Md.App. 131, 147-153, 349 A.2d 434 , 444-447 (1975); Commonwealth v. White, 374 Mass. 132, 138-139, 371 N.E.2d 777 , 781 (1977), aff'd, by an equally divided Court, 439 U. S. 280 (1978); People v. Oramus, 25 N.Y.2d 825, 826-827, 250 N.E.2d 723, 724 (1969); Commonwealth v. Wideman, 478 Pa. 102, 104-107, 385 A.2d 1334 , 1335-1336 (1978); Nolle v. State, 478 S.W.2d 83 , 84 (Tex.Crim.App.1972); State v. Badger, 141 Vt. at 453-454, 450 A.2d at 349-350. Cf. People v. Briggs, 668 P.2d 961 , 962-963 (Colo. App.1983); State v. Williams, 162 W.Va. at 318-319, 249 S.E.2d at 764. [ Footnote 2/30 ] For an incisive critique of Tucker, see Stone, The Miranda Doctrine in the Burger Court, 1977 S.Ct.Rev. 99, 115-125. [ Footnote 2/31 ] The exceptions are where a confession is used to impeach the defendant's trial testimony, Harris v. New York, 401 U. S. 222 (1971), and where Miranda warnings were not given because of "pressing public safety concerns," ante at 470 U. S. 317 , citing New York v. Quarles, 467 U. S. 649 (1984). [ Footnote 2/32 ] The Court's reliance on Schmerber in support of its constricted view of the Fifth Amendment, ante at 470 U. S. 304 , is wholly inappropriate. Schmerber had nothing to do with the derivative evidence rule, but held only that the evidence compelled in the first instance in that case -- blood samples -- was nontestimonial in nature. 384 U.S. at 384 U. S. 761 . [ Footnote 2/33 ] See also United States v. Mandujano, 425 U. S. 564 , 425 U. S. 576 (1976); Maness v. Meyers, 419 U. S. 449 , 419 U. S. 461 (1975); Lefkowitz v. Turley, 414 U. S. 70 , 414 U. S. 78 (1973) ("compelled answers and evidence derived therefrom" must be suppressed); Ullmann v. United States, 350 U. S. 422 , 350 U. S. 437 (1956) (Self-Incrimination Clause requires suppression of "knowledge and sources of information obtained from the compelled testimony"); Hoffman v. United States, 341 U. S. 479 , 341 U. S. 486 (1951); Arndstein v. McCarthy, 254 U. S. 71 , 254 U. S. 73 (1920). [ Footnote 2/34 ] LaFave & Israel, supra, 470 U.S. 298 fn2/17|>n. 17, § 6.5(a), p. 480, n. 13. See also Y. Kamisar, Police Interrogation and Confessions 48-55 (1980); Morgan, The Privilege Against Self-Incrimination, 34 Minn.L.Rev. 1, 27, 28 (1949): "The function which the police have assumed in interrogating an accused is exactly that of the early committing magistrates, and the opportunities for imposition and abuse are fraught with much greater danger. . . . Investigation by the police is not judicial, but when it consists of an examination of an accused, it is quite as much an official proceeding as the early English preliminary hearing before a magistrate, and it has none of the safeguards of a judicial proceeding. . . . [T]his surely is an area that needs inclusion for reasons infinitely more compelling than those applicable to the arraignment." [ Footnote 2/35 ] Accord, Kastigar v. United States, 406 U. S. 441 , 406 U. S. 461 (1972). As we observed in Miranda, "[a]n individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak." 384 U.S. at 384 U. S. 461 . [ Footnote 2/36 ] Justices Clark and Harlan, dissenting in Miranda, recognized the applicability of the derivative evidence rule. See, e.g., id. at 384 U. S. 500 (Clark, J., dissenting in part and concurring in part in result) ("[F]ailure to follow the new procedures requires inexorably the exclusion of any statement by the accused, as well as the fruits thereof"); id. at 384 U. S. 522 (Harlan, J., dissenting). But see id. at 384 U. S. 545 (WHITE, J., dissenting) (question remains open). [ Footnote 2/37 ] See United States v. Leon, 468 U.S. at 468 U. S. 928 (BRENNAN, J., dissenting) . [ Footnote 2/38 ] See, e.g., United States v. Downing, 665 F.2d at 407; State v. Preston, 411 A.2d at 407-408 ("[I]f the rationale of the majority in Tucker is followed, it becomes important to determine in each such case of derivative evidence whether, in the circumstances, enforcement of the exclusionary rule has some tendency to deter the police from engaging in conduct violating the fifth and sixth amendment rights of the accused"); In re Appeal No. 245 (75), 29 Md.App. at 150-151, 349 A.2d at 445-446; Comment, 41 Brooklyn L.Rev., supra, 470 U.S. 298 fn2/21|>n. 21, at 339-340; Comment, 24 Clev.St.L.Rev. 689, 692-694 (1975). [ Footnote 2/39 ] C. O'Hara & G. O'Hara, Fundamentals of Criminal Investigation 131 (5th ed.1980). See also Aubry & Caputo, supra, 470 U.S. 298 fn2/8|>n. 8, at 24-25; id. at 27-28 ("Interrogation is valuable in developing information leading to the recovery of the fruits of the crime. . . . The process of interrogation ideally lends itself to the accomplishment of the recovery of the fruits of the crime, particularly in the areas of stolen property, contraband, and money"); O. Stephens, The Supreme Court and Confessions of Guilt 192 (1973) (survey-research findings). [ Footnote 2/40 ] "What is the point of formulating comprehensive rules as the Court did in Miranda if the police still have a substantial incentive to continue to disregard these rules, if the police can still make use of all the leads and clues stemming from the inadmissible statements or confessions? You are not going to influence police practices greatly, you are not likely to get the police to change their procedures, if you permit them to operate on the premise that, even if they pay no attention to Miranda, they can still obtain and introduce in a trial valuable evidence derived from the suspect's statements." " * * * *" ". . . We should ask: Would admitting evidence or permitting testimony obtained under these circumstances give the police a significant incentive to act illegally?" A New Look At Confessions: Escobedo -- The Second Round 150, 156 (B. George ed.1967) (remarks of Professor Yale Kamisar). See also Dershowitz & Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1220 (1971); Pitler, 56 Calif.L.Rev. supra, 470 U.S. 298 fn2/16|>n. 16, at 619 ("There appears no logical reason to permit the fruits of a Miranda violation to be admissible. Any other holding, despite the cries of the disastrous effects on law enforcement, wold emasculate the rights granted by Miranda ") (footnote omitted). [ Footnote 2/41 ] Solem v. Stumes, 465 U. S. 638 , 465 U. S. 646 -647 (1984). See also Smith v. Illinois, 469 U. S. 91 (1984) (per curiam); Edwards v. Arizona, 451 U. S. 477 (1981); Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979). See also Schulhofer, Confessions and the Court, 79 Mich.L.Rev. 865, 879 (1981) (although there "was some potential ambiguity at the fringes of custody' and `interrogation,'" the Court in Miranda had "taken a big step toward clarifying the ground rules of permissible interrogation" and "provided plenty of guidance for the police"). [ Footnote 2/42 ] If the Court means to suggest otherwise, the authorities would be well advised to arrest and interrogate suspects in the presence of loved ones, so as to avoid the traumatizing need to obey Miranda. This procedure would fit in well with a classic interrogation ploy -- the "you're just hurting yourself and your loved ones" technique. See, e.g., Aubry & Caputo, supra, 470 U.S. 298 fn2/8|>n. 8, at 235: "The direct implication about hurting the loved ones can be made by statements to the effect of 'What are your wife and children going to think about you when they find out about this?' 'What are your kids going to think of their father?' The subject has most probably thought of little else since he was apprehended, and having these ideas forcefully brought to his attention by the interrogator is going to increase and intensify these fears and anxieties." See also W. Dienstein, Technics for the Crime Investigator 116 (2d ed.1974). [ Footnote 2/43 ] "The exclusion of an illegally procured confession and of any testimony obtained in its wake deprives the Government of nothing to which it has any lawful claim, and creates no impediment to legitimate methods of investigating and prosecuting crime. On the contrary, the exclusion of evidence causally linked to the Government's illegal activity no more than restores the situation that would have prevailed if the Government had itself obeyed the law." Harrison v. United States, 392 U.S. at 392 U. S. 224 , n. 10. [ Footnote 2/44 ] "In light of today's erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. . . . Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court." Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 120 -121 (1975) (BRENNAN, J., dissenting). JUSTICE STEVENS, dissenting. The Court concludes its opinion with a carefully phrased statement of its holding: "We hold today that a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings." Ante at 470 U. S. 318 . I find nothing objectionable in such a holding. Moreover, because the Court expressly endorses the "bright-line rule of Miranda, " which conclusively presumes that incriminating statements obtained from a suspect in custody without administering the required warnings are the product of compulsion, [ Footnote 3/1 ] and because the Court places so much emphasis on the special facts of this case, I am persuaded that the Court intends its holding to apply only to a narrow category of cases in which the initial questioning of the suspect was made in a totally uncoercive setting, and in which the first confession obviously had no influence on the second. [ Footnote 3/2 ] I nevertheless Page 470 U. S. 365 dissent, because even such a narrowly confined exception is inconsistent with the Court's prior cases, because the attempt to identify its boundaries in future cases will breed confusion and uncertainty in the administration of criminal justice, and because it denigrates the importance of one of the core constitutional rights that protects every American citizen from the kind of tyranny that has flourished in other societies. I The desire to achieve a just result in this particular case has produced an opinion that is somewhat opaque and internally inconsistent. If I read it correctly, its conclusion rests on two untenable premises: (1) that the respondent's first confession was not the product of coercion, [ Footnote 3/3 ] and (2) that no constitutional right was violated when respondent was questioned in a tranquil, domestic setting. [ Footnote 3/4 ] Page 470 U. S. 366 Even before the decision in Miranda v. Arizona, 384 U. S. 436 (1966), it had been recognized that police interrogation of a suspect who has been taken into custody is presumptively coercive. That presumption had its greatest force when the questioning occurred in a police station, when it was prolonged, and when there was evidence that the prisoner had suffered physical injury. To rebut the presumption, the prosecutor had the burden of proving the absence of any actual coercion. [ Footnote 3/5 ] Because police officers are generally more credible witnesses than prisoners, and because it is always difficult for triers of fact to disregard evidence of guilt when addressing a procedural question, more often than not, the presumption of coercion afforded only slight protection to the accused. The decision in Miranda v. Arizona clarified the law in three important respects. First, it provided the prosecutor with a simple method of overcoming the presumption of coercion. [ Footnote 3/6 ] If the police interrogation is preceded by the warning specified in that opinion, the usual presumption does not attach. Second, it provided an important protection to the accused by making the presumption of coercion irrebuttable if the prescribed warnings are not given. [ Footnote 3/7 ] Third, the decision Page 470 U. S. 367 made it clear that a self-incriminatory statement made in response to custodial interrogation was always to be considered "compelled" within the meaning of the Fifth Amendment to the Federal Constitution if the interrogation had not been preceded by appropriate warnings. [ Footnote 3/8 ] Thus, the irrebuttable presumption of coercion that applies to such a self-incriminatory statement, like a finding of actual coercion, renders the resulting confession inadmissible as a matter of federal constitutional law. [ Footnote 3/9 ] Page 470 U. S. 368 In my opinion, the Court's attempt to fashion a distinction between actual coercion "by physical violence or other deliberate means calculated to break the suspect's will," ante at 470 U. S. 312 , and irrebuttably presumed coercion cannot succeed. The presumption is only legitimate if it is assumed that there is always a coercive aspect to custodial interrogation that is not preceded by adequate advice of the constitutional right to remain silent. Although I would not support it, I could understand a rule that refused to apply the presumption unless the interrogation took place in an especially coercive setting -- perhaps only in the police station itself -- but if the presumption arises whenever the accused has been taken into custody or his freedom has been restrained in any significant way, it will surely be futile to try to develop subcategories of custodial interrogation. [ Footnote 3/10 ] Indeed, a major purpose of treating the presumption of coercion as irrebuttable is to avoid the kind of fact-bound inquiry that today's decision will surely engender. [ Footnote 3/11 ] As I read the Court's opinion, it expressly accepts the proposition that routine Miranda warnings will not be sufficient to overcome the presumption of coercion, and thereby make a second confession admissible when an earlier confession is tainted by coercion "by physical violence or other Page 470 U. S. 369 deliberate means calculated to break the suspect's will." [ Footnote 3/12 ] Even in such a case, however, it is not necessary to assume that the earlier confession will always "effectively immunize" a later voluntary confession. But surely the fact that an earlier confession was obtained by unlawful methods should add force to the presumption of coercion that attaches to subsequent custodial interrogation, and should require the prosecutor to shoulder a heavier burden of rebuttal than in a routine case. Simple logic, as well as the interest in not providing an affirmative incentive to police misconduct, requires that result. I see no reason why the violation of a rule that is as well recognized and easily administered as the duty to give Miranda warnings should not also impose an additional burden on the prosecutor. [ Footnote 3/13 ] If we are faithful to the holding in Page 470 U. S. 370 Miranda itself, when we are considering the admissibility of evidence in the prosecutor's case in chief, we should not try to fashion a distinction between police misconduct that warrants a finding of actual coercion and police misconduct that establishes an irrebuttable presumption of coercion. II For me, the most disturbing aspect of the Court's opinion is its somewhat opaque characterization of the police misconduct in this case. The Court appears ambivalent on the question whether there was any constitutional violation. [ Footnote 3/14 ] This ambivalence is either disingenuous or completely lawless. This Court's power to require state courts to exclude probative self-incriminatory statements rests entirely on the premise that the use of such evidence violates the Federal Constitution. [ Footnote 3/15 ] The same constitutional analysis applies Page 470 U. S. 371 whether the custodial interrogation is actually coercive or irrebuttably presumed to be coercive. If the Court does not accept that premise, it must regard the holding in the Miranda case itself, as well as all of the federal jurisprudence that has evolved from that decision, as nothing more than an illegitimate exercise of raw judicial power. [ Footnote 3/16 ] If the Court accepts the proposition that respondent's self-incriminatory statement was inadmissible, it must also acknowledge that the Federal Constitution protected him from custodial police interrogation without first being advised of his right to remain silent. The source of respondent's constitutional protection is the Fifth Amendment's privilege against compelled self-incrimination that is secured against state invasion by the Due Process Clause of the Fourteenth Amendment. Like many other provisions of the Bill of Rights, that provision is merely a procedural safeguard. It is, however, the specific provision that protects all citizens from the kind of custodial interrogation that was once employed by the Star Chamber, [ Footnote 3/17 ] by "the Germans of the 1930's and early 1940's," [ Footnote 3/18 ] and by some of our own police departments only a few decades ago. [ Footnote 3/19 ] Page 470 U. S. 372 Custodial interrogation that violates that provision of the Bill of Rights is a classic example of a violation of a constitutional right. I respectfully dissent. [ Footnote 3/1 ] "When police ask questions of a suspect in custody without administering the required warnings, Miranda dictates that the answers received be presumed compelled, and that they be excluded from evidence at trial in the State's case in chief. The Court has carefully adhered to this principle, permitting a narrow exception only where pressing public safety concerns demanded. See New York v. Quarles, 467 U.S. at 467 U. S. 655 -656. The Court today in no way retreats from the bright-line rule of Miranda. " Ante at 470 U. S. 317 . [ Footnote 3/2 ] The Court emphasizes the noncoercive setting in which the initial interview occurred, ante at 470 U. S. 300 -301, 470 U. S. 315 ; the apparent candor of the respondent during both of his interviews with the police, ante at 470 U. S. 301 -302, and the absence of any evidence suggesting that the second confession was motivated by the first, ante at 470 U. S. 315 -316. Further, the Court characterizes the first confession as "patently voluntary, " ante at 470 U. S. 307 (emphasis in original), because it was not the product of any "physical violence or other deliberate means calculated to break the suspect's will," ante at 470 U. S. 312 . Moreover, the Court -- apparently not satisfied that the State has conceded that respondent was in custody at the time of the unwarned admission, ante at 470 U. S. 315 -- launches into an allegedly fact-based discussion of this "issue," going out of its way to speculate about the probable good faith of the officers. See ante at 470 U. S. 315 -316 ("This breach may have been the result of confusion as to whether the brief exchange qualified as custodial interrogation,' or it may simply have reflected Burke's reluctance to initiate an alarming police procedure before McAllister had spoken with respondent's mother"). Finally, the Court makes its own finding that the failure to give Miranda warnings was an "oversight." Ante at 470 U. S. 316 . [ Footnote 3/3 ] Ante at 470 U. S. 309 ("It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period"); ante at 470 U. S. 311 (" voluntary unwarned admissions") (emphasis in original); ante at 470 U. S. 312 ("When neither the initial nor the subsequent admission is coerced"); ante at 470 U. S. 314 ("absent deliberately coercive or improper tactics in obtaining the initial statement"). [ Footnote 3/4 ] Ante at 470 U. S. 304 (rejecting contention that "a failure to administer Miranda warnings necessarily breeds the same consequences as police infringement of a constitutional right"); ante at 470 U. S. 305 ("Respondent's contention that his confession was tainted by the earlier failure of the police to provide Miranda warnings and must be excluded as fruit of the poisonous tree' assumes the existence of a constitutional violation"); ante at 470 U. S. 306 ("[A] procedural Miranda violation differs in significant respects from violations of the Fourth Amendment"); ibid. ("The Miranda exclusionary rule, however, serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself"); ante at 470 U. S. 318 ("[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary"). [ Footnote 3/5 ] See, e.g., People v. La Frana, 4 Ill. 2d 261 , 268, 122 N.E.2d 583 , 586-587 (1954); cf. People v. Nemke, 23 Ill. 2d 591 , 601, 179 N.E.2d 825 , 830 (1962). [ Footnote 3/6 ] 384 U.S. at 384 U. S. 444 -445 [ Footnote 3/7 ] Id. at 384 U. S. 444 ("[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination"); id. at 384 U. S. 467 -469. [ Footnote 3/8 ] Id. at 384 U. S. 445 , 384 U. S. 448 , 384 U. S. 457 -458 ("Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice") . [ Footnote 3/9 ] In 1964, the Court held that the "Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement -- the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 . Two years later, in Miranda v. Arizona, 384 U. S. 436 (1966), the Court held that the State of Arizona had deprived Miranda of his liberty without due process of law because his conviction was based on a confession that had been obtained in violation of his Fifth Amendment privilege against self-incrimination. Obviously, the Court's power to reverse Miranda's conviction rested entirely on the determination that a violation of the Federal Constitution had occurred. The constitutional violation was established without any evidence that the police actually coerced Miranda in any way. Id. at 384 U. S. 445 , 384 U. S. 491 -492. The fact that Miranda had confessed while he was in custody, and without having been adequately advised of his right to remain silent, was sufficient to establish the constitutional violation. To phrase it another way, the absence of an adequate warning, plus the fact of custody, created an irrebuttable presumption of coercion. Id. at 384 U. S. 492 . Thus, the Court wrote: "To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that, in none of these cases, did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice." Id. at 384 U. S. 457 . See also id. at 384 U. S. 448 ("[T]his Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition"); id. at 384 U. S. 477 . [ Footnote 3/10 ] Of course, in Orozco v. Texas, 394 U. S. 324 (1969), this Court rejected the contention that Miranda warnings were inapplicable because a defendant "was interrogated on his own bed, in familiar surroundings." Id. at 394 U. S. 326 -327. [ Footnote 3/11 ] Miranda v. Arizona, 384 U.S. at 384 U. S. 468 ; New York v. Quarles, 467 U. S. 649 , 467 U. S. 664 (1984) (O'CONNOR, J., concurring in part in judgment and dissenting in part) ("When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled, and that they be excluded from evidence at trial"); Orozco v. Texas, 394 U.S. at 394 U. S. 324 . [ Footnote 3/12 ] Ante at 470 U. S. 312 ; see also ante at 470 U. S. 314 ("We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion"). [ Footnote 3/13 ] In view of the Court's holding, it is not necessary to consider how that additional burden should be discharged in all cases. In general, however, I should think that, before the second session of custodial interrogation begins, the prisoner should be advised that his earlier statement is, or may be, inadmissible. I am not persuaded that the Miranda rule is so "murky," ante at 470 U. S. 316 , that the law enforcement profession would be unable to identify the cases in which a supplementary warning would be appropriate. Miranda was written, in part, "to give concrete constitutional guidelines for law enforcement agencies and courts to follow." 384 U.S. at 384 U. S. 441 -442; id. at 384 U. S. 468 (noting that the "Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple ") (emphasis added). Nearly two decades after that disposition, it is undisputed that the Miranda rule -- now so deeply embedded in our culture that most schoolchildren know not only the warnings, but also when they are required -- has given that clarity. See New York v. Quarles, 467 U.S. at 467 U. S. 660 (O'CONNOR, J., concurring in part in judgment and dissenting in part) (noting Miranda's "now clear strictures"); Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 304 (1980) (BURGER, C.J., concurring in judgment) (the "meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures"); Fare v. Michael C., 442 U. S. 707 , 442 U. S. 717 (1979) ("The rule the Court established in Miranda is clear"); Stephens, Flanders, & Cannon, Law Enforcement and the Supreme Court: Police Perceptions of the Miranda Requirements, 39 Tenn.L.Rev. 407, 431 (1972). At the same time, it has ensured the right to be free from self-incrimination that the Constitution guarantees to all. Moreover, many professionals are convinced that, rather than hampering law enforcement, the Miranda rule has helped law enforcement efforts. See Jacobs, The State of Miranda, Trial 45 (Jan.1985) ("[I]ncreased professionalism of police . . . has resulted from the challenging combination of Miranda and Gideon v. Wainwright, [and] has benefited both police and prosecutors in preparing good cases"). Nevertheless, the Court today blurs Miranda's clear guidelines. The author of today's opinion -- less than one Term ago -- summarized precisely my feelings about the Court's disposition today: " Miranda is now the law, and, in my view, the Court has not provided sufficient justification for departing from it or for blurring its now clear strictures." New York v. Quarles, 467 U.S. at 467 U. S. 660 (O'CONNOR, J., concurring in part in judgment and dissenting in part). [ Footnote 3/14 ] See 470 U.S. 298 fn3/4|>n. 4, supra. Indeed, the Court's holding rests on its view that there were no "improper tactics in obtaining the initial statement." See ante at 470 U. S. 314 . [ Footnote 3/15 ] At least that is my view. In response to this dissent, however, the Court has added a footnote, ante at 306-307, n 1, implying that, whenever the Court commands exclusion of a presumptively coerced confession, it is standing -- not on a constitutional predicate but merely on its own shoulders. [ Footnote 3/16 ] The Miranda Court explicitly recognized the contrary when it stated that "our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings." 384 U.S. at 384 U. S. 442 . See also id. at 384 U. S. 445 ("The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way"); id. at 384 U. S. 460 -467. [ Footnote 3/17 ] See id. at 384 U. S. 458 -459; E. Cleary, McCormick on Evidence § 114 (2d ed.1972); 8 J. Wigmore, Evidence § 2250 (McNaughton rev. ed.1961). [ Footnote 3/18 ] See Burger, Who Will Watch the Watchman, 14 Am.U.L.Rev. 1, 14 (1964). [ Footnote 3/19 ] See, e.g., Leyra v. Denno, 347 U. S. 556 (1954); Malinski v. New York, 324 U. S. 401 (1945); Ashcraft v. Tennessee, 322 U. S. 143 (1944); Ward v. Texas, 316 U. S. 547 (1942); Vernon v. Alabama, 313 U.S. 547 (1941); White v. Texas, 310 U. S. 530 (1940); Canty v. Alabama, 309 U.S. 629 (1940); Chambers v. Florida, 309 U. S. 227 (1940); Brown v. Mississippi, 297 U. S. 278 (1936); Wakat v. Harlib, 253 F.2d 59 (CA7 1958); People v. La Frana, 4 Ill. 2d 261 , 122 N.E.2d 583 (1954); cf. People v. Portelli, 15 N.Y.2d 235, 205 N.E.2d 857 (1965) (potential witness tortured by police). Such custodial interrogation is, of course, closer to that employed by the Soviet Union than that which our constitutional scheme tolerates. See Coleman v. Alabama, 399 U. S. 1 , 399 U. S. 15 -16 (1970) (opinion of Douglas, J.) ("In [Russia] detention incommunicado is the common practice, and the period of permissible detention now extends for nine months. Where there is custodial interrogation, it is clear that the critical stage of the trial takes place long before the courtroom formalities commence. That is apparent to one who attends criminal trials in Russia. Those that I viewed never put in issue the question of guilt; guilt was an issue resolved in the inner precincts of a prison under questioning by the police").

In the case of Oregon v. Elstad (1985), the U.S. Supreme Court ruled that a voluntary confession obtained after proper Miranda warnings and a valid waiver of rights is admissible, even if the police previously obtained an unwarned admission from the suspect. The Court distinguished between procedural Miranda violations and Fourth Amendment violations, emphasizing that Miranda warnings are a prophylactic measure to protect the Fifth Amendment right against self-incrimination. The Court held that the failure to administer Miranda warnings does not automatically render subsequent informed waivers ineffective and that the "fruits of the poisonous tree" doctrine does not apply in this context. The exclusionary rule for compelled testimony only applies when there is actual coercion or improper tactics used to obtain an unwarned statement.

Miranda Rights

Patterson v. Illinois

https://supreme.justia.com/cases/federal/us/487/285/

U.S. Supreme Court Patterson v. Illinois, 487 U.S. 285 (1988) Patterson v. Illinois No. 86-7059 Argued March 22, 1988 Decided June 24, 1988 487 U.S. 285 CERTIORARI TO THE SUPREME COURT OF ILLINOIS Syllabus After being informed by police that he had been indicted for murder, petitioner, who was in police custody, twice indicated his willingness to discuss the crime during interviews initiated by the authorities. On both occasions, petitioner was read a form waiving his rights under Miranda v. Arizona, 384 U. S. 436 , initialed each of the five specific warnings on the form, and signed the form. He then gave inculpatory statements to the authorities. The Illinois trial court denied his motions to suppress his statements on constitutional grounds, and the statements were used against him at trial. The State Supreme Court affirmed his conviction, rejecting his contention that the warnings he received, while adequate to protect his Fifth Amendment rights as guaranteed by Miranda, did not adequately inform him of his Sixth Amendment right to counsel. Held: The postindictment questioning that produced petitioner's incriminating statements did not violate his Sixth Amendment right to counsel. Pp. 487 U. S. 290 -300. (a) Petitioner cannot avail himself of the argument that, because his Sixth Amendment right to counsel arose with his indictment, the police were thereafter barred from initiating questioning, since he at no time sought to have counsel present. The essence of Edwards v. Arizona, 451 U. S. 477 , and its progeny, on which petitioner relies, is the preservation of the integrity of an accused's choice to communicate with police only through counsel. Had petitioner indicated he wanted counsel's assistance, the questioning would have stopped, and further questioning would have been forbidden unless he himself initiated the meeting. Michigan v. Jackson, 475 U. S. 625 . However, once an accused "knowingly and intelligently" elects to proceed without counsel, the uncounseled statements he then makes need not be excluded at trial. Pp. 487 U. S. 290 -291. (b) Petitioner's contention that his Sixth Amendment rights were violated because he did not "knowingly and intelligently" waive his right to have counsel present during his postindictment questioning is without merit. The constitutional minimum for determining whether a waiver was "knowing and intelligent" is that the accused be made sufficiently aware of his right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel. Here, by admonishing petitioner with the Miranda warnings, respondent met this burden, and petitioner's waiver was valid. First, by telling him that he had the Page 487 U. S. 286 rights to consult an attorney, to have a lawyer present while he was questioned, and even to have a lawyer appointed if he could not afford one, the authorities conveyed to him the sum and substance of his Sixth Amendment rights. Second, by informing him that any statement he made could be used against him, the authorities made him aware of the ultimate adverse consequence of his decision to waive his Sixth Amendment rights, and of what a lawyer could "do for him" during postindictment questioning: namely, advise him to refrain from making any such statements. Petitioner's inability here to articulate with precision what additional information should have been provided before he would have been competent to waive his right to counsel supports the conclusion that the information that was provided satisfies the constitutional minimum. Pp. 487 U. S. 292 -297. (c) This Court has never adopted petitioner's suggestion that the Sixth Amendment right to counsel is "superior" to or "more difficult" to waive than its Fifth Amendment counterpart. Rather, in Sixth Amendment cases, the court has defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular stage of the proceedings in question, and the dangers to the accused of proceeding without counsel at that stage. An accused's waiver is "knowing and intelligent" if he is made aware of these basic facts. Miranda warnings are sufficient for this purpose in the postindictment questioning context, because, at that stage, the role of counsel is relatively simple and limited, and the dangers and disadvantages of self-representation are less substantial and more obvious to an accused than they are at trial. Pp. 487 U. S. 297 -300. 116 Ill. 2d 290 , 507 N.E.2d 843 , affirmed. WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed a dissenting opinion, post, p. 487 U. S. 300 . STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 487 U. S. 301 . Page 487 U. S. 287 JUSTICE WHITE delivered the opinion of the Court. In this case, we are called on to determine whether the interrogation of petitioner after his indictment violated his Sixth Amendment right to counsel. I Before dawn on August 21, 1983, petitioner and other members of the "Vice Lords" street gang became involved in a fight with members of a rival gang, the "Black Mobsters." Some time after the fight, a former member of the Black Mobsters, James Jackson, went to the home where the Vice Lords had fled. A second fight broke out there, with petitioner and three other Vice Lords beating Jackson severely. The Vice Lords then put Jackson into a car, drove to the end of a nearby street, and left him face down in a puddle of water. Later that morning, police discovered Jackson, dead, where he had been left. That afternoon, local police officers obtained warrants for the arrest of the Vice Lords, on charges of battery and mob action, in connection with the first fight. One of the gang members who was arrested gave the police a statement concerning the first fight; the statement also implicated several of the Vice Lords (including petitioner) in Jackson's murder. A few hours later, petitioner was apprehended. Petitioner was informed of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and volunteered to answer questions put to him by the police. Petitioner gave a statement concerning the initial fight between the rival gangs, but denied knowing anything Page 487 U. S. 288 about Jackson's death. Petitioner was held in custody the following day, August 22, as law enforcement authorities completed their investigation of the Jackson murder. On August 23, a Cook County grand jury indicted petitioner and two other gang members for the murder of James Jackson. Police Officer Michael Gresham, who had questioned petitioner earlier, removed him from the lockup where he was being held and told petitioner that, because he had been indicted, he was being transferred to the Cook County jail. Petitioner asked Gresham which of the gang members had been charged with Jackson's murder, and, upon learning that one particular Vice Lord had been omitted from the indictments, asked: "[W]hy wasn't he indicted, he did everything." App. 7. Petitioner also began to explain that there was a witness who would support his account of the crime. At this point, Gresham interrupted petitioner, and handed him a Miranda waiver form. The form contained five specific warnings, as suggested by this Court's Miranda decision, to make petitioner aware of his right to counsel and of the consequences of any statement he might make to police. [ Footnote 1 ] Gresham read the warnings aloud, as petitioner read along with him. Petitioner initialed each of the five warnings, and signed the waiver form. Petitioner then gave a lengthy statement to police officers concerning the Jackson murder; petitioner's statement described in detail the role of each of the Vice Lords -- including himself -- in the murder of James Jackson. Later that day, petitioner confessed involvement in the murder for a second time. This confession came in an interview Page 487 U. S. 289 with Assistant State's Attorney (ASA) George Smith. At the outset of the interview, Smith reviewed with petitioner the Miranda waiver he had previously signed, and petitioner confirmed that he had signed the waiver and understood his rights. Smith went through the waiver procedure once again: reading petitioner his rights, having petitioner initial each one, and sign a waiver form. In addition, Smith informed petitioner that he was a lawyer working with the police investigating the Jackson case. Petitioner then gave another inculpatory statement concerning the crime. Before trial, petitioner moved to suppress his statements, arguing that they were obtained in a manner at odds with various constitutional guarantees. The trial court denied these motions, and the statements were used against petitioner at his trial. The jury found petitioner guilty of murder, and petitioner was sentenced to a 24-year prison term. On appeal, petitioner argued that he had not "knowingly and intelligently" waived his Sixth Amendment right to counsel before he gave his uncounseled postindictment confessions. Petitioner contended that the warnings he received, while adequate for the purposes of protecting his Fifth Amendment rights as guaranteed by Miranda, did not adequately inform him of his Sixth Amendment right to counsel. The Illinois Supreme Court, however, rejected this theory, applying its previous decision in People v. Owens, 102 Ill. 2d 88 , 464 N.E.2d 261 , cert. denied, 469 U.S. 963 (1984), which had held that Miranda warnings were sufficient to make a defendant aware of his Sixth Amendment right to counsel during postindictment questioning. People v. Thomas, 116 Ill. 2d 290 , 298-300, 507 N.E.2d 843 , 846-847 (1987). In reaching this conclusion, the Illinois Supreme Court noted that this Court had reserved decision on this question on several previous occasions, [ Footnote 2 ] and that the lower courts are Page 487 U. S. 290 divided on the issue. Id. at 299, 507 N.E.2d at 846. We granted this petition for certiorari, 484 U.S. 895 (1987), to resolve this split of authority and to address the issues we had previously left open. II There can be no doubt that petitioner had the right to have the assistance of counsel at his postindictment interviews with law enforcement authorities. Our cases make it plain that the Sixth Amendment guarantees this right to criminal defendants. Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 629 -630 (1986); Brewer v. Williams, 430 U. S. 387 , 430 U. S. 398 -401 (1977); Massiah v. United States, 377 U. S. 201 , 377 U. S. 205 -207 (1964). [ Footnote 3 ] Petitioner asserts that the questioning that produced his incriminating statements violated his Sixth Amendment right to counsel in two ways. A Petitioner's first claim is that, because his Sixth Amendment right to counsel arose with his indictment, the police were thereafter barred from initiating a meeting with him. See Brief for Petitioner 30-31; Tr. of Oral Arg. 2, 9, 11, 17. He equates himself with a preindictment suspect who, while being interrogated, asserts his Fifth Amendment right to counsel; under Edwards v. Arizona, 451 U. S. 477 (1981), such a suspect may not be questioned again unless he initiates the meeting. Petitioner, however, at no time sought to exercise his right to have counsel present. The fact that petitioner's Sixth Page 487 U. S. 291 Amendment right came into existence with his indictment, i.e., that he had such a right at the time of his questioning, does not distinguish him from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned. Had petitioner indicated he wanted the assistance of counsel, the authorities' interview with him would have stopped, and further questioning would have been forbidden (unless petitioner called for such a meeting). This was our holding in Michigan v. Jackson, supra, which applied Edwards to the Sixth Amendment context. We observe that the analysis in Jackson is rendered wholly unnecessary if petitioner's position is correct: under petitioner's theory, the officers in Jackson would have been completely barred from approaching the accused in that case unless he called for them. Our decision in Jackson, however, turned on the fact that the accused "ha[d] asked for the help of a lawyer" in dealing with the police. Jackson, supra, at 475 U. S. 631 , 633-635. At bottom, petitioner's theory cannot be squared with our rationale in Edwards, the case he relies on for support. Edwards rested on the view that, once "an accused . . . ha[s] expressed his desire to deal with the police only through counsel," he should "not [be] subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication." Edwards, supra, at 451 U. S. 484 -485; cf. also Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 104 , n. 10 (1975). Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards and its progeny -- not barring an accused from making an initial election as to whether he will face the State's officers during questioning with the aid of counsel, or go it alone. If an accused "knowingly and intelligently" pursues the latter course, we see no reason why the uncounseled statements he then makes must be excluded at his trial. Page 487 U. S. 292 B Petitioner's principal and more substantial claim is that questioning him without counsel present violated the Sixth Amendment because he did not validly waive his right to have counsel present during the interviews. Since it is clear that, after the Miranda warnings were given to petitioner, he not only voluntarily answered questions without claiming his right to silence or his right to have a lawyer present to advise him, but also executed a written waiver of his right to counsel during questioning, the specific issue posed here is whether this waiver was a "knowing and intelligent" waiver of his Sixth Amendment right. [ Footnote 4 ] See Brewer v. Williams, supra, at 430 U. S. 401 , 430 U. S. 404 ; Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 -465 (1938). In the past, this Court has held that a waiver of the Sixth Amendment right to counsel is valid only when it reflects "an intentional relinquishment or abandonment of a known right or privilege." Johnson v. Zerbst, supra, at 304 U. S. 464 . In other words, the accused must "kno[w] what he is doing" so that "his choice is made with eyes open." Adams v. United States ex rel. McCann, 317 U. S. 269 , 317 U. S. 279 (1942). In a case arising under the Fifth Amendment, we described this requirement as "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v. Burbine, 475 U. S. 412 , 475 U. S. 421 (1986). Whichever of these formulations is used, the key inquiry in a case such as this one must be: was the accused, who waived his Sixth Amendment rights during postindictment questioning, made sufficiently aware of his right to have counsel present during the questioning, and of the possible consequences Page 487 U. S. 293 of a decision to forgo the aid of counsel? In this case, we are convinced that, by admonishing petitioner with the Miranda warnings, respondent has met this burden, and that petitioner's waiver of his right to counsel at the questioning was valid. [ Footnote 5 ] First, the Miranda warnings given petitioner made him aware of his right to have counsel present during the questioning. By telling petitioner that he had a right to consult with an attorney, to have a lawyer present while he was questioned, and even to have a lawyer appointed for him if he could not afford to retain one on his own, Officer Gresham and ASA Smith conveyed to petitioner the sum and substance of the rights that the Sixth Amendment provided him. "Indeed, it seems self-evident that one who is told he" has such rights to counsel "is in a curious posture to later complain" that his waiver of these rights was unknowing. Cf. United States v. Washington, 431 U. S. 181 , 431 U. S. 188 (1977). There is little more petitioner could have possibly been told in an effort to satisfy this portion of the waiver inquiry. Second, the Miranda warnings also served to make petitioner aware of the consequences of a decision by him to waive his Sixth Amendment rights during postindictment questioning. Petitioner knew that any statement that he made could be used against him in subsequent criminal proceedings. This is the ultimate adverse consequence petitioner could have suffered by virtue of his choice to make Page 487 U. S. 294 uncounseled admissions to the authorities. This warning also sufficed -- contrary to petitioner's claim here, see Tr. of Oral Arg. 7-8 -- to let petitioner know what a lawyer could "do for him" during the postindictment questioning: namely, advise petitioner to refrain from making any such statements. [ Footnote 6 ] By knowing what could be done with any statements he might make, and therefore, what benefit could be obtained by having the aid of counsel while making such statements, petitioner was essentially informed of the possible consequences of going without counsel during questioning. If petitioner nonetheless lacked "a full and complete appreciation of all of the consequences flowing" from his waiver, it does not defeat the State's showing that the information it provided to him satisfied the constitutional minimum. Cf. Oregon v. Elstad, 470 U. S. 298 , 470 U. S. 316 -317 (1985). Our conclusion is supported by petitioner's inability, in the proceedings before this Court, to articulate with precision what additional information should have been provided to him before he would have been competent to waive his right to counsel. All that petitioner's brief and reply brief suggest is petitioner should have been made aware of his "right under the Sixth Amendment to the broad protection of counsel" -- a rather nebulous suggestion -- and the "gravity of [his] situation." Reply Brief for Petitioner 13; see Brief for Petitioner 30-31. But surely this latter "requirement" (if it is one) was met when Officer Gresham informed petitioner that he had been formally charged with the murder of James Jackson. Page 487 U. S. 295 See n 8, infra. Under close questioning on this same point at argument, petitioner likewise failed to suggest any meaningful additional information that he should have been, but was not, provided in advance of his decision to waive his right to counsel. [ Footnote 7 ] The discussions found in favorable court decisions, on which petitioner relies, are similarly lacking. [ Footnote 8 ] Page 487 U. S. 296 As a general matter, then, an accused who is admonished with the warnings prescribed by this Court in Miranda, 384 U.S. at 384 U. S. 479 , has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one. [ Footnote 9 ] We feel that Page 487 U. S. 297 our conclusion in a recent Fifth Amendment case is equally apposite here: "Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete, and the waiver is valid as a matter of law." See Moran v. Burbine, 475 U.S. at 475 U. S. 422 -423. C We consequently reject petitioner's argument, which has some acceptance from courts and commentators, [ Footnote 10 ] that, since "the sixth amendment right [to counsel] is far superior to that of the fifth amendment right," and since "[t]he greater the right, the greater the loss from a waiver of that right," waiver of an accused's Sixth Amendment right to counsel should be "more difficult" to effectuate than waiver of a suspect's Fifth Amendment rights. Brief for Petitioner 23. While our cases have recognized a "difference" between the Fifth Amendment and Sixth Amendment rights to counsel, and the "policies" behind these constitutional guarantees, [ Footnote 11 ] we have never suggested that one right is "superior" or "greater" than the other, nor is there any support in our cases for the notion that, because Page 487 U. S. 298 a Sixth Amendment right may be involved, it is more difficult to waive than the Fifth Amendment counterpart. Instead, we have taken a more pragmatic approach to the waiver question -- asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage -- to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized. At one end of the spectrum, we have concluded there is no Sixth Amendment right to counsel whatsoever at a postindictment photographic display identification, because this procedure is not one at which the accused "require[s] aid in coping with legal problems or assistance in meeting his adversary." See United States v. Ash, 413 U. S. 300 , 413 U. S. 313 -320 (1973). At the other extreme, recognizing the enormous importance and role that an attorney plays at a criminal trial, we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him to waive his right to counsel at trial. See Faretta v. California, 422 U. S. 806 , 422 U. S. 835 -836 (1975); cf. Von Moltke v. Gillies, 332 U. S. 708 , 332 U. S. 723 -724 (1948). In these extreme cases, and in others that fall between these two poles, we have defined the scope of the right to counsel by a pragmatic assessment of the usefulness of counsel to the accused at the particular proceeding, and the dangers to the accused of proceeding without counsel. An accused's waiver of his right to counsel is "knowing" when he is made aware of these basic facts. Applying this approach, it is our view that whatever warnings suffice for Miranda's purposes will also be sufficient in the context of postindictment questioning. The State's decision to take an additional step and commence formal adversarial proceedings against the accused does not substantially increase the value of counsel to the accused at questioning, or expand the limited purpose that an attorney serves when the Page 487 U. S. 299 accused is questioned by authorities. With respect to this inquiry, we do not discern a substantial difference between the usefulness of a lawyer to a suspect during custodial interrogation and his value to an accused at postindictment questioning. [ Footnote 12 ] Thus, we require a more searching or formal inquiry before permitting an accused to waive his right to counsel at trial than we require for a Sixth Amendment waiver during postindictment questioning -- not because postindictment questioning is "less important" than a trial (the analysis that petitioner's "hierarchical" approach would suggest) -- but because the full "dangers and disadvantages of self-representation," Faretta, supra, at 422 U. S. 835 , during questioning are less substantial and more obvious to an accused than they are at trial. [ Footnote 13 ] Because the role of counsel at questioning is relatively simple and limited, we see no problem in having a waiver procedure at that stage which is likewise simple and limited. So long as the accused is made aware of the "dangers and disadvantages Page 487 U. S. 300 of self-representation" during postindictment questioning, by use of the Miranda warnings, his waiver of his Sixth Amendment right to counsel at such questioning is "knowing and intelligent." III Before confessing to the murder of James Jackson, petitioner was meticulously informed by authorities of his right to counsel, and of the consequences of any choice not to exercise that right. On two separate occasions, petitioner elected to forgo the assistance of counsel and speak directly to officials concerning his role in the murder. Because we believe that petitioner's waiver of his Sixth Amendment rights was "knowing and intelligent," we find no error in the decision of the trial court to permit petitioner's confessions to be used against him. Consequently, the judgment of the Illinois Supreme Court is Affirmed. [ Footnote 1 ] Although the signed waiver form does not appear in the record or the appendix, petitioner concedes that he was informed of his right to counsel to the extent required by our decision in Miranda v. Arizona, 384 U. S. 436 (1966). Brief for Petitioner 3; Tr. of Oral Arg. 6-8. This apparently included informing petitioner that he had a right to remain silent; that anything he might say could be used against him; that he had a right to consult with an attorney; that he had a right to have an attorney present during interrogation; and that, as an indigent, the State would provide him with a lawyer if he so desired. [ Footnote 2 ] See, e.g., Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 635 -636, n. 10 (1986); Moran v. Burbine, 475 U. S. 412 , 475 U. S. 428 , n. 2 (1986); Brewer v. Williams, 430 U. S. 387 , 430 U. S. 405 -406 (1977). [ Footnote 3 ] We note as a matter of some significance that petitioner had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities. Once an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney-client relationship takes effect. See Maine v. Moulton, 474 U. S. 159 , 474 U. S. 176 (1985). The State conceded as much at argument. See Tr. of Oral Arg. 28. Indeed, the analysis changes markedly once an accused even requests the assistance of counsel. See Michigan v. Jackson, supra; 487 U. S. infra. [ Footnote 4 ] Of course, we also require that any such waiver must be voluntary. Petitioner contested the voluntariness of his confession in the trial court and in the intermediate appellate courts, which rejected petitioner's claim that his confessions were coerced. See 140 Ill.App.3d 421, 425-426, 488 N.E.2d 1283, 1287 (1986). Petitioner does not appear to have maintained this contention before the Illinois Supreme Court, and in any event, he does not press this argument here. Thus, the "voluntariness" of petitioner's confessions is not before us. [ Footnote 5 ] We emphasize the significance of the fact that petitioner's waiver of counsel was only for this limited aspect of the criminal proceedings against him -- only for postindictment questioning. Our decision on the validity of petitioner's waiver extends only so far. Moreover, even within this limited context, we note that petitioner's waiver was binding on him only so long as he wished it to be. Under this Court's precedents, at any time during the questioning, petitioner could have changed his mind, elected to have the assistance of counsel, and immediately dissolve the effectiveness of his waiver with respect to any subsequent statements. See, e.g., Michigan v. Jackson, 475 U.S. at 475 U. S. 631 -635; 487 U. S. supra. Our decision today does nothing to change this rule. [ Footnote 6 ] An important basis for our analysis is our understanding that an attorney's role at postindictment questioning is rather limited, and substantially different from the attorney's role in later phases of criminal proceedings. At trial, an accused needs an attorney to perform several varied functions -- some of which are entirely beyond even the most intelligent layman. Yet during postindictment questioning, a lawyer's role is rather unidimensional: largely limited to advising his client as to what questions to answer and which ones to decline to answer. We discuss this point in greater detail below. See 487 U. S. infra. [ Footnote 7 ] Representative excerpts from the relevant portions of argument include the following: "QUESTION: [Petitioner] . . . was told that he had a right to counsel." "MR. HONCHELL [petitioner's counsel]: He was told -- the word 'counsel' was used. He was told he had a right to counsel. But not through information by which it would become meaningful to him, because the method that was used was not designed to alert the accused to the Sixth Amendment rights to counsel. . . ." "QUESTION: . . . You mean they should have said you have a Sixth Amendment right to counsel instead of just, you have a right to counsel?" "He knew he had a right to have counsel present before [he] made the confession. Now, what in addition did he have to know to make the waiver an intelligent one?" "MR. HONCHELL: He had to meaningfully know he had a Sixth Amendment right to counsel present because -- " "QUESTION: What is the difference between meaningfully knowing and knowing?" "MR. HONCHELL: Because the warning here used did not convey or express what counsel was intended to do for him after indictment." "QUESTION: So then you say . . . [that] he would have had to be told more about what counsel would do for him after indictment before he could intelligently waive?" "MR. HONCHELL: That there is a right to counsel who would act on his behalf and represent him." " * * * *" "QUESTION: Well, okay. So it should have said, in addition to saying counsel, counsel who would act on your behalf and represent you? That would have been the magic solution?" "MR. HONCHELL: That is a possible method, yes." Tr. of Oral Arg. 7-8. We do not believe that adding the words "who would act on your behalf and represent you" in Sixth Amendment cases would provide any meaningful improvement in the Miranda warnings. Cf. Brewer v. Williams, 430 U.S. at 430 U. S. 435 -436, n. 5 (WHITE, J., dissenting). [ Footnote 8 ] Even those lower court cases which have suggested that something beyond Miranda warnings is -- or may be -- required before a Sixth Amendment waiver can be considered "knowing and intelligent" have failed to suggest just what this "something more" should be. See, e.g., Felder v. McCotter, 765 F.2d 1245, 1250 (CA5 1985); Robinson v. Percy, 738 F.2d 214, 222 (CA7 1984); Fields v. Wyrick, 706 F.2d 879, 880-881 (CA8 1983). An exception to this is the occasional suggestion that, in addition to the Miranda warnings, an accused should be informed that he has been indicted before a postindictment waiver is sought. See, e.g., United States v. Mohabir, 624 F.2d 1140, 1150 (CA2 1980); United States v. Payton, 615 F.2d 922, 924-925 (CA1), cert. denied, 446 U.S. 969 (1980). Because, in this case, petitioner concedes that he was so informed, see Brief for Petitioner 3, we do not address the question whether or not an accused must be told that he has been indicted before a postindictment Sixth Amendment waiver will be valid. Nor do we even pass on the desirability of so informing the accused -- a matter that can be reasonably debated. See, e.g., Tr. of Oral Arg. 24. Beyond this, only one Court of Appeals -- the Second Circuit -- has adopted substantive or procedural requirements (in addition to Miranda ) that must be completed before a Sixth Amendment waiver can be effectuated for postindictment questioning. See United States v. Mohabir, 624 F.2d at 1150-1153. As have a majority of the Courts of Appeals, we reject Mohabir's holding that some "additional" warnings or discussions with an accused are required in this situation, or that any waiver in this context can only properly be made before a "neutral . . . judicial officer." Ibid. [ Footnote 9 ] This does not mean, of course, that all Sixth Amendment challenges to the conduct of postindictment questioning will fail whenever the challenged practice would pass constitutional muster under Miranda. For example, we have permitted a Miranda waiver to stand where a suspect was not told that his lawyer was trying to reach him during questioning; in the Sixth Amendment context, this waiver would not be valid. See Moran v. Burbine, 475 U.S. at 475 U. S. 424 , 475 U. S. 428 . Likewise a surreptitious conversation between an undercover police officer and an unindicted suspect would not give rise to any Miranda violation as long as the "interrogation" was not in a custodial setting, see Miranda, 384 U.S. at 384 U. S. 475 ; however, once the accused is indicted, such questioning would be prohibited. See United States v. Henry, 447 U. S. 264 , 447 U. S. 273 , 447 U. S. 274 -275 (1980). Thus, because the Sixth Amendment's protection of the attorney-client relationship -- "the right to rely on counsel as a medium' between [the accused] and the State" -- extends beyond Miranda's protection of the Fifth Amendment right to counsel, see Maine v. Moulton, 474 U.S. at 474 U. S. 176 , there will be cases where a waiver which would be valid under Miranda will not suffice for Sixth Amendment purposes. See also Michigan v. Jackson, 475 U.S. at 475 U. S. 632 . [ Footnote 10 ] See, e.g., United States v. Mohabir, supra, at 1149-1152; Note, Proposed Requirements for Waiver of the Sixth Amendment Right to Counsel, 82 Colum.L.Rev. 363, 372 (1982). [ Footnote 11 ] See, e.g., Michigan v. Jackson, supra, at 475 U. S. 633 , n. 7; Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 300 , n. 4 (1980). [ Footnote 12 ] We note, incidentally, that in the Miranda decision itself, the analysis and disposition of the waiver question relied on this Court's decision in Johnson v. Zerbst, 304 U. S. 458 (1938) -- a Sixth Amendment waiver case. See Miranda, 384 U.S. at 384 U. S. 475 . From the outset, then, this Court has recognized that the waiver inquiry focuses more on the lawyer's role during such questioning, rather than the particular constitutional guarantee that gives rise to the right to counsel at that proceeding. See ibid.; see also Moran v. Burbine, supra, at 475 U. S. 421 . Thus, it should be no surprise that we now find a strong similarity between the level of knowledge a defendant must have to waive his Fifth Amendment right to counsel and the protection accorded to Sixth Amendment rights. See Comment, Constitutional Law -- Right to Counsel, 49 Geo.Wash.L.Rev. 399, 409 (1981). [ Footnote 13 ] As discussed above, see n 6, supra, an attorney's role at questioning is relatively limited. But at trial, counsel is required to help even the most gifted layman adhere to the rules of procedure and evidence, comprehend the subtleties of voir dire, examine and cross-examine witnesses effectively (including the accused), object to improper prosecution questions, and much more. Cf., e.g., 1 Bench Book for United States District Court Judges 1.02-2-1.02-5 (3d ed.1986); McDowell v. United States, 484 U. S. 980 (1987) (WHITE, J., dissenting from denial of certiorari). JUSTICE BLACKMUN, dissenting. I agree with most of what JUSTICE STEVENS says in his dissenting opinion, post, p. 487 U. S. 301 . I, however, merely would hold that, after formal adversary proceedings against a defendant have been commenced, the Sixth Amendment mandates that the defendant not be "'subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.'" Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 626 (1986), quoting Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485 (1981). The Court's majority concludes, ante at 487 U. S. 290 -291: "The fact that petitioner's Sixth Amendment right came into existence with his indictment . . . does not distinguish him from the preindictment interrogatee whose right to counsel is in existence and available for his exercise while he is questioned." I must disagree. "[W]hen the Constitution grants protection against criminal proceedings without the assistance of counsel, Page 487 U. S. 301 counsel must be furnished whether or not the accused requested the appointment of counsel." Carnley v. Cochran, 369 U. S. 506 , 369 U. S. 513 (1962) (internal quotations omitted). In my view, the Sixth Amendment does not allow the prosecution to take undue advantage of any gap between the commencement of the adversary process and the time at which counsel is appointed for a defendant. JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting. The Court should not condone unethical forms of trial preparation by prosecutors or their investigators. In civil litigation it is improper for a lawyer to communicate with his or her adversary's client without either notice to opposing counsel or the permission of the court. [ Footnote 2/1 ] An attempt to obtain evidence for use at trial by going behind the back of one's adversary would be not only a serious breach of professional ethics, but also a manifestly unfair form of trial practice. In the criminal context, the same ethical rules apply and, in my opinion, notions of fairness that are at least as demanding should also be enforced. After a jury has been empaneled and a criminal trial is in progress, it would obviously be improper for the prosecutor to conduct a private interview with the defendant for the purpose Page 487 U. S. 302 of obtaining evidence to be used against him at trial. By "private interview," I mean, of course, an interview initiated by the prosecutor, or his or her agents, without notice to the defendant's lawyer and without the permission of the court. Even if such an interview were to be commenced by giving the defendant the five items of legal advice that are mandated by Miranda, see ante at 487 U. S. 288 , n. 1, I have no doubt that this Court would promptly and unanimously condemn such a shabby practice. As our holding in Michigan v. Jackson, 475 U. S. 625 (1986), suggests, such a practice would not simply constitute a serious ethical violation, but would rise to the level of an impairment of the Sixth Amendment right to counsel. [ Footnote 2/2 ] Page 487 U. S. 303 The question that this case raises, therefore, is at what point in the adversary process does it become impermissible for the prosecutor, or his or her agents, to conduct such private interviews with the opposing party? Several alternatives are conceivable: when the trial commences, when the defendant has actually met and accepted representation by his or her appointed counsel, when counsel is appointed, or when the adversary process commences. In my opinion, the Sixth Amendment right to counsel demands that a firm and unequivocal line be drawn at the point at which adversary proceedings commence. In prior cases, this Court has used strong language to emphasize the significance of the formal commencement of adversary proceedings. Such language has been employed to explain decisions denying the defendant the benefit of the protection of the Sixth Amendment in preindictment settings, but an evenhanded interpretation of the Amendment would support the view that additional protection should automatically attach the moment the formal proceedings Page 487 U. S. 304 begin. One such example is Kirby v. Illinois, 406 U. S. 682 (1972), in which the Court concluded that the general rule requiring the presence of counsel at pretrial, lineup identifications, see United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967), should not extend to protect custodial defendants not yet formally charged. Justice Stewart's plurality opinion explained the significance of the formal charge: "The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable. See Powell v. Alabama, 287 U.S. at 487 U. S. 66 -71; Massiah v. United States, 377 U. S. 201 ; Spano v. New York, 360 U. S. 315 , 360 U. S. 324 (Douglas, J., concurring)." 406 U.S. at 406 U. S. 689 -690 (footnote omitted). Similarly, in United States v. Gouveia, 467 U. S. 180 (1984), we relied upon the significance of the absence of a formal charge in concluding that the Sixth Amendment does not require the appointment of counsel for indigent prison inmates confined in administrative detention while authorities investigate their possible involvement in criminal activity. Again, the Court noted that, "given the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial Page 487 U. S. 305 criminal proceedings 'is far from a mere formalism.' Kirby v. Illinois, 406 U.S. at 406 U. S. 689 ." Id. at 467 U. S. 189 . Most recently, in Moran v. Burbine, 475 U. S. 412 (1986), the Court upheld a waiver of the right to counsel in a pretrial context even though the waiver "would not be valid" if the same situation had arisen after indictment, see ante at 487 U. S. 296 -297, n. 9. In the Moran opinion, the Court explained: "It is clear, of course, that, absent a valid waiver, the defendant has the right to the presence of an attorney during any interrogation occurring after the first formal charging proceeding, the point at which the Sixth Amendment right to counsel initially attaches. United States v. Gouveia, 467 U. S. 180 , 467 U. S. 187 (1984); Kirby v. Illinois, 406 U. S. 682 , 406 U. S. 689 (1972) (opinion of Stewart, J.). See Brewer v. Williams, 430 U.S. at 430 U. S. 400 -401. And we readily agree that, once the right has attached, it follows that the police may not interfere with the efforts of a defendant's attorney to act as a " medium' between [the suspect] and the State" during the interrogation. Maine v. Moulton, 474 U. S. 159 , 474 U. S. 176 (1985); see Brewer v. Williams, supra, at 430 U. S. 401 , n. 8. The difficulty for respondent is that the interrogation sessions that yielded the inculpatory statements took place before the initiation of "adversary judicial proceedings." United States v. Gouveia, supra, at 467 U. S. 192 ." 475 U.S. at 475 U. S. 428 . Today, however, in reaching a decision similarly favorable to the interest in law enforcement unfettered by process concerns, the Court backs away from the significance previously attributed to the initiation of formal proceedings. In the majority's view, the purported waiver of counsel in this case is properly equated with that of an unindicted suspect. Yet, as recognized in Kirby, Gouveia, and Moran, important differences Page 487 U. S. 306 separate the two. [ Footnote 2/3 ] The return of an indictment, or like instrument, substantially alters the relationship between the state and the accused. Only after a formal accusation has "the government . . . committed itself to prosecute, and only then [have] the adverse positions of government and defendant . . . solidified." Kirby, 406 U.S. at 406 U. S. 689 . Moreover, the return of an indictment also presumably signals the government's conclusion that it has sufficient evidence to establish a prima facie case. As a result, any further interrogation can only be designed to buttress the government's case; authorities are no longer simply attempting " to solve a crime.'" United States v. Mohabir, 624 F.2d 1140, 1148 (CA2 1980) (quoting People v. Waterman, 9 N.Y.2d 561, 565, 175 N.E.2d 445, 447 (1961)); see also Moran v. Burbine, 475 U.S. at 475 U. S. 430 . Given the significance of the initiation of formal proceedings and the concomitant shift in the relationship between the state and the accused, I think it quite wrong to suggest that Miranda warnings -- or for that Page 487 U. S. 307 matter, any warnings offered by an adverse party -- provide a sufficient basis for permitting the undoubtedly prejudicial -- and, in my view, unfair -- practice of permitting trained law enforcement personnel and prosecuting attorneys to communicate with as-of-yet unrepresented criminal defendants. It is well settled that there is a strong presumption against waiver of Sixth Amendment protections, see Michigan v. Jackson, 475 U.S. at 475 U. S. 633 ; Von Moltke v. Gillies, 332 U. S. 708 , 332 U. S. 723 (1948) (plurality opinion); Johnson v. Zerbst, 304 U. S. 458 , 304 U. S. 464 (1938), and that a waiver may only be accepted if made with full awareness of "the dangers and disadvantages of self-representation," Faretta v. California, 422 U. S. 806 , 422 U. S. 835 (1975); see also Adams v. United States ex rel. McCann, 317 U. S. 269 , 317 U. S. 279 (1942) (accused "may waive his Constitutional right to assistance of counsel if he knows what he is doing and his choice is made with eyes open"). Warnings offered by an opposing party, whether detailed or cursory, simply cannot satisfy this high standard. The majority premises its conclusion that Miranda warnings lay a sufficient basis for accepting a waiver of the right to counsel on the assumption that those warnings make clear to an accused "what a lawyer could 'do for him' during the postindictment questioning: namely, advise [him] to refrain from making any [incriminating] statements." Ante at 487 U. S. 294 (footnote omitted). [ Footnote 2/4 ] Yet this is surely a gross understatement of the disadvantage of proceeding without a lawyer and Page 487 U. S. 308 an understatement of what a defendant must understand to make a knowing waiver. [ Footnote 2/5 ] The Miranda warnings do not, for example, inform the accused that a lawyer might examine the indictment for legal sufficiency before submitting his or her client to interrogation, or that a lawyer is likely to be considerably more skillful at negotiating a plea bargain, and that such negotiations may be most fruitful if initiated prior to any interrogation. Rather, the warnings do not even go so far as to explain to the accused the nature of the charges pending against him -- advice that a court would insist upon before allowing a defendant to enter a guilty plea with or without the presence of an attorney, see Henderson v. Morgan, 426 U. S. 637 (1976). Without defining precisely the nature of the inquiry required to establish a valid waiver of the Sixth Amendment right to counsel, it must be conceded that at least minimal advice is necessary -- the accused must be told of the "dangers and disadvantages of self-representation." Yet, once it is conceded that certain advice is required and that, after indictment, the adversary relationship between the state and the accused has solidified, it inescapably follows Page 487 U. S. 309 that a prosecutor may not conduct private interviews with a charged defendant. As at least one Court of Appeals has recognized, there are ethical constraints that prevent a prosecutor from giving legal advice to an uncounseled adversary. [ Footnote 2/6 ] Thus, neither the prosecutor nor his or her agents can ethically provide the unrepresented defendant with the kind of advice that should precede an evidence-gathering interview after formal proceedings have been commenced. Indeed, in my opinion even the Miranda warnings themselves are a species of legal advice that is improper when given by the prosecutor after indictment. Moreover, there are good reasons why such advice is deemed unethical, reasons that extend to the custodial, postindictment setting with unequaled strength. First, the offering of legal advice may lead an accused to underestimate the prosecuting authorities' true adversary posture. For an incarcerated defendant -- in this case, a 17-year-old who had been in custody for 44 hours at the time he was told of the Page 487 U. S. 310 indictment -- the assistance of someone to explain why he is being held, the nature of the charges against him, and the extent of his legal rights, may be of such importance as to overcome what is perhaps obvious to most, that the prosecutor is a foe, and not a friend. Second, the adversary posture of the parties, which is not fully solidified until formal charges are brought, will inevitably tend to color the advice offered. As hard as a prosecutor might try, I doubt that it is possible for one to wear the hat of an effective adviser to a criminal defendant while at the same time wearing the hat of a law enforcement authority. Finally, regardless of whether or not the accused actually understands the legal and factual issues involved and the state's role as an adversary party, advice offered by a lawyer (or his or her agents) with such an evident conflict of interest cannot help but create a public perception of unfairness and unethical conduct. And as we held earlier this Term, "courts have an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession, and that legal proceedings appear fair to all who observe them." Wheat v. United States, 486 U. S. 153 , 486 U. S. 160 (1988). This interest is a factor that may be considered in deciding whether to override a defendant's waiver of his or her Sixth Amendment right to conflict-free representation, see ibid., and likewise should be considered in determining whether a waiver based on advice offered by the criminal defendant's adversary is ever appropriate. [ Footnote 2/7 ] In sum, without a careful discussion of the pitfalls of proceeding without counsel, the Sixth Amendment right cannot properly be waived. An adversary party, moreover, cannot adequately provide such advice. As a result, once the right to counsel attaches and the adversary relationship between Page 487 U. S. 311 the state and the accused solidifies, a prosecutor cannot conduct a private interview with an accused party without "dilut[ing] the protection afforded by the right to counsel," Maine v. Moulton, 474 U. S. 159 , 474 U. S. 171 (1985). Although this ground alone is reason enough to never permit such private interviews, the rule also presents the added virtue of drawing a clear and easily identifiable line at the point between the investigatory and adversary stages of a criminal proceeding. Such clarity in definition of constitutional rules that govern criminal proceedings is important to the law enforcement profession, as well as to the private citizen. See Arizona v. Roberson, 486 U. S. 675 (1988). It is true, of course, that the interest in effective law enforcement would benefit from an opportunity to engage in incommunicado questioning of defendants who, for reasons beyond their control, have not been able to receive the legal advice from counsel to which they are constitutionally entitled. But the Court's single-minded concentration on that interest might also lead to the toleration of similar practices at any stage of the trial. I think it clear that such private communications are intolerable not simply during trial, but at any point after adversary proceedings have commenced. I therefore respectfully dissent. [ Footnote 2/1 ] Disciplinary Rule 7-104 of the ABA Model Code of Professional Responsibility (1982) provides in relevant part: "(A) During the course of his representation of a client a lawyer shall not:" "(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so." Likewise, Rule 4.2 of the ABA Model Rules of Professional Conduct (1984) provides: "In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so." [ Footnote 2/2 ] In Jackson, we held that, "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." 475 U.S. at 475 U. S. 636 . In that case, we held the waiver invalid even though the appointed law firm had not yet received notice of the appointment and the defendant had not yet been informed that a law firm had been appointed to represent him. Id. at 475 U. S. 627 . Similarly, our holdings in Massiah v. United States, 377 U. S. 201 (1964), United States v. Henry, 447 U. S. 264 (1980), and Maine v. Moulton, 474 U. S. 159 (1985), suggest that law enforcement personnel may not bypass counsel in favor of direct communications with an accused. In each of these cases, the government engaged in secret attempts to elicit incriminating statements from an indicted suspect through the use of government informants. Yet the Court's analysis does not turn primarily upon the covert nature of the interrogation. See Brewer v. Williams, 430 U. S. 387 , 430 U. S. 400 (1977) ("That the incriminating statements were elicited surreptitiously in the Massiah case, and otherwise here, is constitutionally irrelevant"). Nor does the finding of a Sixth Amendment violation appear to turn upon the absence of a waiver, which, of course, could not have been obtained given the surreptitious nature of the attempts to elicit incriminating statements. But cf. Jackson, 475 U.S. at 475 U. S. 641 , n. 4 (REHNQUIST, J., dissenting). As the Court wrote in Moulton: "Once the right to counsel has attached and been asserted, the State must of course honor it. This means more than simply that the State cannot prevent the accused from obtaining the assistance of counsel. The Sixth Amendment also imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek this assistance. We have on several occasions been called upon to clarify the scope of the State's obligation in this regard, and have made clear that, at the very least, the prosecutor and police have an affirmative obligation not to act in a manner that circumvents, and thereby dilutes, the protection afforded by the right to counsel." 474 U.S. at 474 U. S. 170 -171 (footnote omitted). See also Henry, 447 U.S. at 447 U. S. 274 ("By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the Government violated Henry's Sixth Amendment right to counsel") (footnote omitted); Massiah, 377 U.S. at 377 U. S. 206 ("We hold that the petitioner was denied the basic protections of [the Sixth Amendment] guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel"). I think it clear that an ex parte communication between a prosecutor, or his or her agents, and a represented defendant -- regardless of whether the accused has received Miranda warnings -- can only be viewed as an attempt to "circumven[t]" and "dilut[e] the protection afforded by the right to counsel." Moulton, 474 U.S. at 474 U. S. 171 . [ Footnote 2/3 ] Other of our prior decisions have also made clear that the return of a formal charge fundamentally alters the relationship between the State and the accused, conferring increased protections upon defendants in their interactions with state authorities. In Michigan v. Jackson, 475 U. S. 625 (1986), we explained: "Indeed, after a formal accusation has been made -- and a person who had previously been just a 'suspect' has become an 'accused' within the meaning of the Sixth Amendment -- the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. Thus, the surreptitious employment of a cell-mate, see United States v. Henry, 447 U. S. 264 (1980), or the electronic surveillance of conversations with third parties, See Maine v. Moulton , [ 474 U.S. 159 (1985)]; Massiah v. United States, 377 U. S. 201 (1964), may violate the defendant's Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment." Id. at 475 U. S. 632 (footnote omitted). See also Wyrick v. Fields, 459 U. S. 42 , 459 U. S. 50 (1982) (MARSHALL, J., dissenting). [ Footnote 2/4 ] The majority finds support for its conclusion that Miranda warnings provide a sufficient basis for a waiver of the Sixth Amendment right to counsel in "petitioner's inability, in the proceedings before this Court, to articulate with precision what additional information should have been provided to him before he would have been competent to waive his right to counsel." Ante at 487 U. S. 294 . Additional -- although not exhaustive -- possible warnings, however, have been articulated. See, e.g., United States v. Callabrass, 458 F. Supp. 964 , 967 (SDNY 1978). Part of the difficulty in fashioning a proper boilerplate set of warnings is that, unlike in the Fifth Amendment context, the information that must be imparted to the accused will vary from case to case as the facts, legal issues, and parties differ. [ Footnote 2/5 ] Respondent, and the United States as amicus curiae, argue that the comprehensive inquiry required by Faretta v. California, 422 U. S. 806 (1975), should not be extended to pretrial waivers because the role of counsel -- and conversely the difficulty of proceeding without counsel -- is more important at trial. I reject the premise that a lawyer's skills are more likely to sit idle at a pretrial interrogation than at trial. Both events require considerable experience and expertise, and I would be reluctant to rank one over the other. Moreover, as we recognized in Escobedo v. Illinois, 378 U. S. 478 (1964): "[T]he" "right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination." " In re Groban, 352 U. S. 330 , 352 U. S. 344 (Black, J., dissenting)." "One can imagine a cynical prosecutor saying: 'Let them have the most illustrious counsel, now. They can't escape the noose. There is nothing that counsel can do for them at the trial.' " " Ex parte Sullivan, 107 F. Supp. 514 , 517-518." Id. at 378 U. S. 487 -488 (footnote omitted). See also United States v. Wade, 388 U. S. 218 , 388 U. S. 226 (1967); Spano v. New York, 360 U. S. 315 , 360 U. S. 325 , 360 U. S. 326 (1959) (Douglas, J., concurring). [ Footnote 2/6 ] In discussing a suggestion that the prosecutor should supplement the customary Miranda warnings in the postindictment setting, the Court of Appeals for the Second Circuit wrote: "We believe there are strong policy reasons, grounded in ethical considerations, for not adopting the . . . alternative of having the prosecutor give further warnings to the defendant. The government itself points out that a prosecutor 'is, in many senses, an adversary of the defendant, and, as such, is counselled not to give him legal advice;' in support of this proposition, the government cites the ABA Code of Professional Responsibility, DR 7-104(A)(2).[14]" "14. DR 7-104(A) provides:" "During the course of his representation of a client a lawyer shall not:" "(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so." "(2) Give advice to a person who is not represented by a lawyer, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interests of his client." United States v. Mohabir, 624 F.2d 1140, 1152 (1980). [ Footnote 2/7 ] In Wheat, we sustained the District Court's decision to reject the defendant's waiver of the right to conflict-free representation even though Wheat, unlike the petitioner, made his decision to waive this right with the assistance of additional counsel, see 486 U.S. at 486 U. S. 172 (STEVENS, J., dissenting).

The Supreme Court ruled that the post-indictment questioning of a petitioner, who had twice indicated his willingness to discuss a crime during police interviews and had waived his Miranda rights, did not violate his Sixth Amendment right to counsel. The Court held that the petitioner's uncounseled statements were admissible at trial as he had "knowingly and intelligently" waived his right to counsel by initialing and signing a form that conveyed the essence of his Sixth Amendment rights.

Miranda Rights

Arizona v. Mauro

https://supreme.justia.com/cases/federal/us/481/520/

U.S. Supreme Court Arizona v. Mauro, 481 U.S. 520 (1987) Arizona v. Mauro No. 85-2121 Argued March 31, 1987 Decided May 4, 1987 481 U.S. 520 CERTIORARI TO THE SUPREME COURT OF ARIZONA Syllabus After being advised of his Miranda rights while in custody for killing his son, respondent stated that he did not wish to answer any questions until a lawyer was present. All questioning then ceased and respondent was placed in the police captain's office, since there was no secure detention area. Following her questioning in another room, respondent's wife insisted that she be allowed to speak with her husband. Although reluctant at first, the police allowed the meeting in the office on the condition that an officer be present. Using a recorder placed in plain sight, the officer taped a brief conversation, during which the wife expressed despair, and respondent told her not to answer questions until a lawyer was present. The prosecution used the tape to rebut respondent's insanity defense, the trial court having refused to suppress it upon finding that the police's actions were not a subterfuge to avoid the dictates of Miranda. Respondent was convicted and sentenced to death, but the Arizona Supreme Court reversed, holding that the police had impermissibly interrogated respondent within the meaning of Miranda. Noting police admissions that they knew it was "possible" that respondent might make incriminating statements if he saw his wife, the court relied on the ruling in Rhode Island v. Innis, 446 U. S. 291 , that "interrogation" includes a practice -- whether actual questioning or "its functional equivalent" -- that the police know is reasonably likely to elicit an incriminating response from a suspect. According to Innis, the likelihood-of-response question focuses primarily upon the perceptions of the suspect, rather than the intent of the police. Held: The police's actions following respondent's refusal to be questioned without a lawyer did not constitute interrogation or its functional equivalent. The purpose of Miranda and Innis is to prevent the government from using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. This purpose is not implicated here, since respondent was not subjected to compelling influences, psychological ploys, or direct questioning. There is no evidence that the police allowed the wife to meet with respondent in order to obtain incriminating statements. Moreover, police testimony, which the trial court found credible, indicated a number of legitimate reasons for an officer's presence at the meeting, including the wife's safety and various security considerations. Furthermore, an examination of the situation Page 481 U. S. 521 from respondent's perspective demonstrates the improbability that he would have felt he was being coerced to incriminate himself simply because he was told his wife would be allowed to speak to him. Although the police were indeed aware that it was "possible" respondent would incriminate himself while talking to his wife, police do not "interrogate" a suspect simply by hoping he will confess. Thus, respondent's statements to his wife were voluntary, and their use at his trial was not prohibited by the Fifth and Fourteenth Amendments. Pp. 481 U. S. 525 -530. 149 Ariz. 24, 716 P.2d 393 , reversed and remanded. POWELL, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined, post, p. 481 U. S. 530 . JUSTICE POWELL delivered the opinion of the Court. While respondent in this case was in police custody, he indicated that he did not wish to answer any questions until a lawyer was present. The issue presented is whether, in the circumstances of this case, officers interrogated respondent in violation of the Fifth and Fourteenth Amendments when they allowed him to speak with his wife in the presence of a police officer. I On November 23, 1982, the Flagstaff Police Department received a telephone call from a local K mart store. The caller stated that a man had entered the store claiming to have killed his son. When officers reached the store, respondent Mauro freely admitted that he had killed his son. He directed the officers to the child's body, and then was arrested and advised of his constitutional rights pursuant to Page 481 U. S. 522 Miranda v. Arizona, 384 U. S. 436 (1966). The officers then took Mauro to the police station, where he was advised of his Miranda rights again. At that point, Mauro told the officers that he did not wish to make any more statements without having a lawyer present. All questioning then ceased. As no secure detention area was available, Mauro was held in the office of the police captain. At the same time, one of the officers, Detective Manson, was questioning Mauro's wife in another room. After she finished speaking with Manson, Mrs. Mauro asked if she could speak to her husband. Manson was reluctant to allow the meeting, but after Mrs. Mauro insisted, he discussed the request with his supervisor, Sergeant Allen. Allen testified that he "saw no harm in it, and suggested to [Manson] that, if she really sincerely wanted to talk to him, to go ahead and allow it." App. 74. Allen instructed Manson not to leave Mr. and Mrs. Mauro alone, and suggested that Manson tape-record the conversation. Manson then "told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe and hear what was going on." Id. at 218 (findings of trial court). He brought Mrs. Mauro into the room and seated himself at a desk, placing a tape recorder in plain sight on the desk. He recorded their brief conversation, in which she expressed despair about their situation. During the conversation, Mauro told his wife not to answer questions until a lawyer was present. [ Footnote 1 ] Page 481 U. S. 523 Mauro's defense at trial was that he had been insane at the time of the crime. In rebuttal, the prosecution played the tape of the meeting between Mauro and his wife, arguing that it demonstrated that Mauro was sane on the day of the murder. Mauro sought suppression of the recording on the ground that it was a product of police interrogation in violation of his Miranda rights. The trial court refused to suppress the recording. First, it explained the basis of the officers' decision to allow Mrs. Mauro to meet with her husband in the presence of a policeman: "The police counseled [Mrs. Mauro] not to [speak with her husband], but she was adamant about that. They finally yielded to her insistent demands. The Police Station lacked a secure interview room. The police justifiably appeared [ sic ] for Mrs. Mauro's . . . safety, and they were also concerned about security, both in terms of whether Mr. and Mrs. Mauro might cook up a lie or Page 481 U. S. 524 swap statements with each other that shouldn't have been allowed, and whether some escape attempt might have been made, or whether there might have been an attempt to smuggle in a weapon. They really had no idea what to expect along those lines." Ibid. In light of these justifications, the trial court found "that this procedure was not a ruse, nor a subterfuge by the police. They did not create this situation [ i.e., allowing the meeting] as an indirect means of avoiding the dictates of Miranda. " Ibid. Accordingly, the trial court admitted the evidence. Mauro was convicted of murder and child abuse, and sentenced to death. The Arizona Supreme Court reversed. 149 Ariz. 24, 716 P.2d 393 (1986). It found that, by allowing Mauro to speak with his wife in the presence of a police officer, the detectives interrogated Mauro within the meaning of Miranda. This interrogation was impermissible, the court said, because Mauro previously had invoked the right to have counsel present before being questioned further. The court noted that both detectives had acknowledged in pretrial hearings that they knew it was "possible" that Mauro might make incriminating statements if he saw his wife. [ Footnote 2 ] The court relied Page 481 U. S. 525 on our statement in Rhode Island v. Innis, 446 U. S. 291 (1980), that interrogation includes a "practice that the police should know is reasonably likely to evoke an incriminating response from a suspect," id. at 446 U. S. 301 . The court then concluded that the officers' testimony demonstrated that there had been interrogation, because "[t]hey both knew that, if the conversation took place, incriminating statements were likely to be made." 149 Ariz. at 31, 716 P.2d at 400. Therefore, it held that the tape recording was not properly admitted at Mauro's trial. Arizona filed a petition for a writ of certiorari. Because the decision below appeared to misconstrue our decision in Rhode Island v. Innis, supra, we granted the petition, 479 U.S. 811 (1986). We now reverse. II We begin by summarizing the relevant legal principles. The Fifth Amendment provides that no "person . . . shall be compelled in any criminal case to be a witness against himself." [ Footnote 3 ] In Miranda v. Arizona, 384 U. S. 436 (1966), the Court concluded that, "without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 384 U. S. 467 . "Accordingly, the Court formulated the now-familiar procedural safeguards effective to secure the privilege against self-incrimination.'" Colorado v. Spring, 479 U. S. 564 , 479 U. S. 572 (1987) (quoting Miranda v. Arizona, supra, at 384 U. S. 444 ). Among these is the rule that, when an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities Page 481 U. S. 526 until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485 (1981). One of the questions frequently presented in cases in this area is whether particular police conduct constitutes "interrogation." In Miranda, the Court suggested in one passage that "interrogation" referred only to actual "questioning initiated by law enforcement officers." 384 U.S. at 384 U. S. 444 . But this statement was clarified in Rhode Island v. Innis, supra. In that case, the Court reviewed the police practices that had evoked the Miranda Court's concern about the coerciveness of the " interrogation environment.'" 446 U.S. at 446 U. S. 299 (quoting Miranda, supra, at 384 U. S. 457 ). The questioned practices included "the use of lineups in which a coached witness would pick the defendant as the perpetrator . . . [,] the so-called 'reverse line-up,' in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime," and a variety of "psychological ploys, such as to 'posi[t]' 'the guilt of the subject,' to 'minimize the moral seriousness of the offense,' and 'to cast blame on the victim or on society.'" 446 U.S. at 446 U. S. 299 (quoting Miranda, supra, at 384 U. S. 450 ) (brackets by Innis Court). None of these techniques involves express questioning, and yet the Court found that any of them, coupled with the "interrogation environment," was likely to "'subjugate the individual to the will of his examiner,' and thereby undermine the privilege against compulsory self-incrimination." 466 U.S. at 466 U. S. 399 (quoting Miranda, supra, at 384 U. S. 457 ). Thus, the Innis Court concluded that the goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to "its functional equivalent." 446 U.S. at 446 U. S. 301 . The Court explained the phrase "functional equivalent" of interrogation as including "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an Page 481 U. S. 527 incriminating response from the suspect." Ibid. (footnotes omitted). Finally, it noted that "[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Ibid. III We now turn to the case before us. The officers gave Mauro the warnings required by Miranda. Mauro indicated that he did not wish to be questioned further without a lawyer present. Mauro never waived his right to have a lawyer present. The sole issue, then, is whether the officers' subsequent actions rose to the level of interrogation -- that is, in the language of Innis, whether they were the "functional equivalent" of police interrogation. We think it is clear under both Miranda and Innis that Mauro was not interrogated. The tape recording of the conversation between Mauro and his wife shows that Detective Manson asked Mauro no questions about the crime or his conduct. [ Footnote 4 ] Nor is it suggested -- or supported by any evidence -- that Sergeant Allen's decision to allow Mauro's wife to see him was the kind of psychological ploy that properly could be treated as the functional equivalent of interrogation. [ Footnote 5 ] Page 481 U. S. 528 There is no evidence that the officers sent Mrs. Mauro in to see her husband for the purpose of eliciting incriminating statements. As the trial court found, the officers tried to discourage her from talking to her husband, but finally "yielded to her insistent demands," App. 218. Nor was Detective Manson's presence improper. His testimony, that the trial court found credible, indicated a number of legitimate reasons -- not related to securing incriminating statements -- for having a police officer present. See supra, at 481 U. S. 523 -524 (quoting App. 218). Finally, the weakness of Mauro's claim that he was interrogated is underscored by examining the situation from his perspective. Cf Rhode Island v. Innis, 446 U.S. at 446 U. S. 301 (suggesting that the suspect's perspective may be relevant in some cases in determining whether police actions constitute interrogation). We doubt that a suspect, told by officers that his wife will be allowed to speak to him, would feel that he was being coerced to incriminate himself in any way. The Arizona Supreme Court was correct to note that there was a "possibility" that Mauro would incriminate himself while talking to his wife. It also emphasized that the officers were aware of that possibility when they agreed to allow the Mauros to talk to each other. [ Footnote 6 ] But the actions in this case Page 481 U. S. 529 were far less questionable than the "subtle compulsion" that we held not to be interrogation in Innis. See id. at 446 U. S. 303 . Officers do not interrogate a suspect simply by hoping that he will incriminate himself. In Miranda, and again in Innis, the Court emphasized: "Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment, and their admissibility is not affected by our holding today." Miranda v. Arizona, 384 U.S. at 384 U. S. 478 , quoted in Rhode Island v. Innis, supra, at 446 U. S. 299 -300. See Oregon v. Elstad, 470 U. S. 298 , 470 U. S. 305 (1985). (" [F]ar from being prohibited by the Constitution, admissions of guilt by wrongdoers, if not coerced, are inherently desirable'" (quoting United States v. Washington, 431 U. S. 181 , 431 U. S. 187 (1977))). Mauro was not subjected to compelling influences, psychological ploys, or direct questioning. Thus, his volunteered statements cannot properly be considered the result of police interrogation. In deciding whether particular police conduct is interrogation, we must remember the purpose behind our decisions in Miranda and Edwards: preventing government officials from Page 481 U. S. 530 using the coercive nature of confinement to extract confessions that would not be given in an unrestrained environment. The government actions in this case do not implicate this purpose in any way. Police departments need not adopt inflexible rules barring suspects from speaking with their spouses, nor must they ignore legitimate security concerns by allowing spouses to meet in private. In short, the officers in this case acted reasonably and lawfully by allowing Mrs. Mauro to speak with her husband. In this situation, the Federal Constitution does not forbid use of Mauro's subsequent statements at his criminal trial. IV The judgment of the Arizona Supreme Court is reversed. The case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] The entire conversation proceeded as follows: "MRS. MAURO: Please -- please, I don't know what to do. We should have put David [the victim] in the hospital. Please -- I don't know what we're going to do. We should have went for help -- we should have went for help." "[MR. MAURO]: You tried as best you could to stop it." "MRS. MAURO: I -- " "[MR. MAURO]: Shut up." "MRS. MAURO: -- taken him to a mental hospital or something. What'll we do?" "[MR. MAURO]: Shut up." "DET. MANSON: Do you know a reverend or a priest or someone you can talk to -- take care of David?" "MRS. MAURO: No." "[MR. MAURO]: Don't answer questions until you get rights of attorney before you find out whats [ sic ] going on. You tried to stop me as best you can. What are you going to do, kill me? You tried the best you can to stop me." "MRS. MAURO: I don't -- we don't -- I don't have money." "[MR. MAURO]: There's a public attorney." "MRS. MAURO: I don't know." "[MR. MAURO]: There's a public attorney. Why don't you just be quiet." "MRS. MAURO: I don't have any money to bury him. I don't have any money. All I got is enough money for the rent for the children and that's it." "DET. MANSON: Did you want to talk to your husband any more?" "MRS. MAURO: No, I can't talk to him." "[MR. MAURO]: Then don't talk to me -- get out." "MRS. MAURO: I don't know what to do. O.K." 149 Ariz. 24, 30-31, 716 P.2d 393 , 399-400 (1986). [ Footnote 2 ] The court relied on testimony of the officers at the hearing in the trial court on the suppression motion. Sergeant Allen testified as follows: "Q. [C]ertainly when you sent an officer in there to listen to that conversation, you knew that it was possible that he might make incriminating statements?" "A. That's correct." "Q. And obviously, you wanted to record that conversation so as to have a record of those incriminating statements." "A. That's correct." Id. at 30, 716 P.2d at 399. Detective Manson's testimony was as follows: "Q. [Detective Manson], certainly you were aware that, during the conversation, either [Mrs. Mauro] or my client may have given an incriminating statement?" "A. Yes." "Q. And obviously one of the purposes of your tape-recording the interview was to take down any such statements?" "A. Yes, sir." Ibid. [ Footnote 3 ] In Malloy v. Hogan, 378 U. S. 1 (1964), the Court held that the Fourteenth Amendment requires observance of this privilege in state court proceedings. [ Footnote 4 ] In the course of the conversation, that apparently lasted only a few minutes, Manson made two statements, both apparently directed at Mauro's wife. See n 1, supra. [ Footnote 5 ] JUSTICE STEVENS suggests that the officers "employed a powerful psychological ploy." Post at 481 U. S. 531 . He bases this statement on his reading of the record that the officers "failed to give respondent any advance warning that Mrs. Mauro was coming to talk to him, that a police officer would accompany her, or that their conversation would be recorded." Ibid. This reading is difficult to reconcile with the trial court's conclusion that the officers "told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe and hear what was going on." App. 218. This sentence seems to indicate that Mauro received advance warning. But accepting the facts as JUSTICE STEVENS states them, the opinion still makes it clear that Mauro was fully informed before the conversation began. Similarly, it may be that the officers did not give Mr. Mauro advance warning that they would record the conversation, but the trial court noted that "[t]he officer who was present produced a tape recorder and told the couple that their conversation would be recorded, and put that tape recorder down on the desk in plain sight and taped their conversation, so they had knowledge that that was going on." Ibid. JUSTICE STEVENS also implies that respondent was forced against his will to talk to his wife. Post at 481 U. S. 531 . But, as the trial court observed, "[t]he defendant, with knowledge that the police were listening, could have chosen not to speak to his wife. Instead, he chose to speak." App. 219. In short, the trial court's findings completely rebut the atmosphere of oppressive police conduct portrayed by the dissent. [ Footnote 6 ] The dissent suggests that the Arizona Supreme Court found as a fact that the officers intended to interrogate Mauro and faults us for reversing this allegedly factual finding. With due respect, we disagree with this reading of the record. The Arizona Supreme Court did not conclude that the officers intended to interrogate Mauro. Rather, it concluded that "[t]hey both knew that . . . incriminating statements were likely to be made." 149 Ariz. at 31, 716 P.2d at 400. Taken in context, this is a determination that the facts known to the officers satisfied the legal standard we established in Rhode Island v. Innis. Our decision today does not overturn any of the factual findings of the Arizona Supreme Court. Rather, it rests on a determination that the facts of this case do not present a sufficient likelihood of incrimination to satisfy the legal standard articulated in Miranda v. Arizona and in Rhode Island v. Innis. JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, dissenting. The Supreme Court of Arizona unanimously and unequivocally concluded that the police intended to interrogate respondent. [ Footnote 2/1 ] This Court reverses, finding that no interrogation Page 481 U. S. 531 occurred because Mauro "was not subjected to compelling influences, psychological ploys, or direct questioning." Ante at 481 U. S. 529 . The record indicates, however, that the police employed a powerful psychological ploy; they failed to give respondent any advance warning that Mrs. Mauro was coming to talk to him, that a police officer would accompany her, or that their conversation would be recorded. [ Footnote 2/2 ] As the transcript of the conversation reveals, respondent would not have freely chosen to speak with her. See ante at 481 U. S. 522 -523, n. 1. These facts compel the conclusion that the police took advantage of Mrs. Mauro's request to visit her husband, setting up a confrontation between them at a time when he manifestly desired to remain silent. Because they allowed respondent's conversation with his wife to commence at a time when they knew it was reasonably likely to produce an incriminating statement, the police interrogated him. The Court's opposite conclusion removes an important brick from the wall of Page 481 U. S. 532 protection against police overreaching that surrounds the Fifth Amendment rights of suspects in custody. I At the time of the meeting in question between William Mauro and his wife, he was in police custody and had requested an attorney. It is therefore undisputed that he could not be subjected to interrogation until he either received the assistance of counsel or initiated a conversation with the police. See ante at 481 U. S. 525 -526; Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485 (1981). Since neither event occurred, the tape-recorded evidence must be excluded if it was the product of "interrogation" within the meaning of Rhode Island v. Innis, 446 U. S. 291 (1980). Police conduct may constitute "interrogation" even if the officers do not pose direct questions to the suspect. The Court explained the term in Rhode Island v. Innis : "[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation." Id. at 446 U. S. 301 (footnotes omitted). In a footnote, the Court added: "By 'incriminating response,' we refer to any response -- whether inculpatory or exculpatory -- that the prosecution may seek to introduce at trial." Id. at 446 U. S. 301 , n. 5 (emphasis in original). The Arizona Supreme Court correctly applied the Innis standard when it held that "the admission of a tape-recorded conversation between [Mauro] and his wife violated his state and federal rights not to incriminate himself. U.S.Const. amend. V, XIV; Ariz. Const. art. 2, § 10." 149 Ariz. 24, 29, Page 481 U. S. 533 716 P.2d 393 , 398 (1986). [ Footnote 2/3 ] After distinguishing the cases on which the Attorney General of Arizona relied, [ Footnote 2/4 ] the State Supreme Court explained: "Unlike the Narten cases and Summerlin, this is not a case where an officer accidentally overhears a conversation. Rather, here we have illicit custodial interrogation. At the time of the tape recording at issue, appellant was under arrest and being detained at a police station. There is no doubt that this constituted a custodial setting. However, besides being in a custodial setting, the conversation must constitute 'interrogation.'" "Interrogation includes a 'practice that the police should know is reasonably likely to evoke an incriminating response from a suspect.' Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 301 . . . (1980)." "The focus in ascertaining whether particular police conduct amounts to interrogation, then, is not on the form of the words used, but the intent of the police officers and the perceptions of the Page 481 U. S. 534 suspect." " State v. Finehout, 136 Ariz. at 230, 665 P.2d at 574. An incriminating response is any response -- whether inculpatory or exculpatory -- that the prosecution may seek to introduce at trial. Rhode Island v. Innis, 446 U.S. at 446 U. S. 301 n. 5. . . ." "The intent of the detectives is clear from their own testimony. They both knew that, if the conversation took place, incriminating statements were likely to be made. With that in mind, they decided to take in a tape recorder, sit near appellant and his wife and allow the conversation to commence." "Since the intent of the detectives is so clear, we need not address appellant's perceptions. Whether the police knew that appellant was unusually disoriented or upset might have been an important factor in this case had the State's intent not been so unambiguous. See id., 446 U.S. at 446 U. S. 302 -03 . . . (suspect's peculiar susceptibility to the police appeal and whether the police knew that appellant was unusually disoriented or upset are factors to be examined in determining the perceptions of a suspect). We find, therefore, that in allowing the conversation to commence, the police did indirectly what they could not do directly -- interrogate appellant." Id. at 31-32, 716 P.2d at 400-401. II The Court's proffered reasons for disturbing these cogent findings are unpersuasive. In Rhode Island v. Innis, the Court emphasized that the police "cannot be held accountable for the unforeseeable results of their words or actions." 446 U.S. at 446 U. S. 301 -302. But there is a grand canyon between innocent unforeseeability and the mere lack of explicit police subterfuge that the Court now finds adequate to preclude a finding that an interrogation has taken place. It is, of course, true that the trial court found that the spousal conversation, which Detective Manson witnessed and recorded, Page 481 U. S. 535 "was not a ruse, nor a subterfuge by the police. . . . They did not create this situation as an indirect means of avoiding the dictates of Miranda. " App. 218. But this observation, as the Arizona Supreme Court correctly recognized, is not sufficient to satisfy the concerns of the Fifth Amendment. It is undisputed that a police decision to place two suspects in the same room and then to listen to or record their conversation may constitute a form of interrogation even if no questions are asked by any police officers. That is exactly what happened here. [ Footnote 2/5 ] The police placed respondent and his wife, who was also in police custody, in the same small area. Mr. and Mrs. Mauro were both suspects in the murder of their son. Each of them had been interrogated separately before the officers decided to allow them to converse, an act that surely did not require a tape recorder or the presence of a police officer within hearing range. Under the circumstances, the police knew or should have known that Mrs. Mauro's encounter with respondent was reasonably likely to produce an incriminating response. Indeed, Officer Allen's supervisor testified that the police had a reasonable expectation that the spousal conversation would provide information on the murder investigation. When asked, "what was the purpose in having Detective Manson present during any interview or confrontation . . . between the defendant, Mr. Mauro, and his wife . . . ?" Captain Latham replied: "Well, one of the reasons would be to, for her protection, in case he attacked her or there was any violence that occurred. . . . The other reason would be to see what the conversation was about. She and he both were under investigation at that time, and any statements that she made or he made could shed light on our case. " App. 101 (emphasis added). Page 481 U. S. 536 In my opinion, it was not only likely, but highly probable, that one of the suspects would make a statement that the prosecutor might seek to introduce at trial. It follows that the police conduct in this case was the "functional equivalent" of deliberate, direct interrogation. The State should not be permitted to set aside this conclusion with testimony that merely indicates that the evidence-gathering purpose of the police was mixed with other motives. For example, it is irrelevant to the inquiry whether the police had legitimate security reasons for having an officer present that were "not related to securing incriminating statements." Ante at 481 U. S. 528 . Nor does it matter that the officers lacked a precise expectation of how the statements Mauro would make might be incriminating; much interrogation is exploratory, rather than directed at the admission of a fact whose incriminatory import is already known to the officers. The Court's final proffered reason for disregarding the findings of the Supreme Court of Arizona is that the suspect may not have felt coerced to incriminate himself. The police did not compel or even encourage Mauro to speak with his wife. When they brought her into the room without warning Mauro in advance, however, they expected that the resulting conversation "could shed light on our case." App. 101. Under the circumstances, the mere fact that respondent's wife made the initial request leading to the conversation does not alter the correctness of the Supreme Court of Arizona's analysis. The officers exercised exclusive control over whether and when the suspects spoke with each other; the police knew that whatever Mauro might wish to convey to his wife at that moment he would have to say under the conditions unilaterally imposed by the officers. In brief, the police exploited the custodial situation and the understandable desire of Mrs. Mauro to speak with respondent to conduct an interrogation. I respectfully dissent. [ Footnote 2/1 ] Thus, the Arizona Supreme Court credited part, but not all, of the following testimony by Detective Manson: "Q. I'd like to ask you some questions concerning police interrogation techniques, if I might." "Do you have any experience in police interrogation techniques?" "A. Yes, sir." " * * * *" "Q. Another technique, Byron, would be to, for example, if you are investigating a juvenile matter, to have the parents come down and speak to the juvenile in your presence?" "A. That's correct." "Q. Along those same lines, it's not uncommon to ask a family member to come in and speak to someone in your presence?" "A. That's correct." "Q. And, in fact, that technique was utilized in this case, isn't it true?" "A. I don't believe so, no, sir. That was not our purpose. That was not an interrogation method." App. 79, 81. [ Footnote 2/2 ] The trial court found that the police "told both Mr. and Mrs. Mauro that they could speak together only if an officer were present in the room to observe what was going on." App. 218. This advice was not given to Mr. Mauro until Mrs. Mauro entered the room in which he was being held. The trial court did not dispute the testimony of Officer Manson, which establishes that, up to the moment when Mrs. Mauro and Officer Manson entered the room with the tape recorder running, every effort was made to keep respondent from knowing that Mrs. Mauro was in the police station: "Q. When did Mrs. Mauro become aware that her husband was in custody at the Police Station?" "A. I'm not sure. It was probably during our initial interview. I know that we had closed the door to the captain's office, and that we entered through the back door. We didn't want them to see each other." Id. at 111-112. There is nothing in the trial court's opinion or elsewhere in the record to support the Court's apparent assumption, see ante at 481 U. S. 527 -528, n. 5, that Officer Manson separately advised respondent beforehand that his wife would be brought in to see him and that a police officer would monitor the conversation. [ Footnote 2/3 ] The Arizona Supreme Court, after studying the trial record in light of our precedents, concluded that respondent's Fifth Amendment rights had been violated. Its decision rests on a careful evaluation of the behavior of the local police. Justices of that court regularly review cases in which Arizona police officers have testified. The Arizona Supreme Court's assessment of the actual intent of the Arizona police officers who testified in this case is therefore a good deal more reliable than this Court's. Indeed, whenever this Court reviews a state appellate court's examination of a trial record, there is a special risk of error resulting from lack of familiarity with local conditions and from the limited time the Members of this Court can devote to study of the trial record. In some instances, this risk of error is outweighed by the necessity of granting review to decide an "issue of general or recurring significance" or to resolve a split of authority. Connecticut v. Barrett, 479 U. S. 523 , 479 U. S. 536 (1987) (STEVENS, J., dissenting). In my opinion, however, no trace of such necessity is present in this case. The vote of four Members of this Court to grant certiorari in this case was surely an exercise of indiscretion. [ Footnote 2/4 ] State v. Narten, 99 Ariz. 116, 407 P.2d 81 (1965), cert. denied, 384 U.S. 1008 (1966); Narten v. Eyman, 460 F.2d 184 (CA9 1969); State v. Summerlin, 138 Ariz. 426, 675 P.2d 686 (1984). [ Footnote 2/5 ] The regrettable irony in this case is that respondent endured the functional equivalent of interrogation while in the very process of advising his wife to exercise her own Fifth Amendment right to remain silent. See ante at 481 U. S. 522 -523, n. 1.

In Arizona v. Mauro (1987), the U.S. Supreme Court ruled that the police's actions did not constitute interrogation or its functional equivalent when they allowed a suspect's wife to speak with him in the presence of an officer after the suspect had invoked his right to counsel. The Court found that the police had legitimate reasons for their actions and that the suspect was unlikely to have felt coerced, as he was simply told his wife wanted to speak with him. The case centered on the interpretation of "interrogation" under Miranda and Innis, with the Court focusing on the perceptions of the suspect rather than the intent of the police.

Property Rights & Land Use

Horne v. Dept. of Agriculture

https://supreme.justia.com/cases/federal/us/576/14-275/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 14–275 _________________ MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE on writ of certiorari to the united states court of appeals for the ninth circuit [June 22, 2015] Chief Justice Roberts delivered the opinion of the Court. Under the United States Department of Agriculture’s California Raisin Marketing Order, a percentage of a grower’s crop must be physically set aside in certain years for the account of the Government, free of charge. The Government then sells, allocates, or otherwise disposes of the raisins in ways it determines are best suited to maintaining an orderly market. The question is whether the Takings Clause of the Fifth Amendment bars the Government from imposing such a demand on the growers without just compensation. I The Agricultural Marketing Agreement Act of 1937 authorizes the Secretary of Agriculture to promulgate “marketing orders” to help maintain stable markets for particular agricultural products. The marketing order for raisins requires growers in certain years to give a percentage of their crop to the Government, free of charge. The required allocation is determined by the Raisin Administrative Committee, a Government entity composed largely of growers and others in the raisin business appointed by the Secretary of Agriculture. In 2002–2003, this Committee ordered raisin growers to turn over 47 percent of their crop. In 2003–2004, 30 percent. Growers generally ship their raisins to a raisin “handler,” who physically separates the raisins due the Government (called “reserve raisins”), pays the growers only for the remainder (“free-tonnage raisins”), and packs and sells the free-tonnage raisins. The Raisin Committee acquires title to the reserve raisins that have been set aside, and decides how to dispose of them in its discretion. It sells them in noncompetitive markets, for example to exporters, federal agencies, or foreign governments; donates them to charitable causes; releases them to growers who agree to reduce their raisin production; or disposes of them by “any other means” consistent with the purposes of the raisin program. 7 CFR §989.67(b)(5) (2015). Proceeds from Committee sales are principally used to subsidize handlers who sell raisins for export (not including the Hornes, who are not raisin exporters). Raisin growers retain an interest in any net proceeds from sales the Raisin Committee makes, after deductions for the export subsidies and the Committee’s administrative expenses. In the years at issue in this case, those proceeds were less than the cost of producing the crop one year, and nothing at all the next. The Hornes—Marvin Horne, Laura Horne, and their family—are both raisin growers and handlers. They “handled” not only their own raisins but also those produced by other growers, paying those growers in full for all of their raisins, not just the free-tonnage portion. In 2002, the Hornes refused to set aside any raisins for the Government, believing they were not legally bound to do so. The Government sent trucks to the Hornes’ facility at eight o’clock one morning to pick up the raisins, but the Hornes refused entry. App. 31; cf. post, at 11 (Sotomayor, J., dissenting). The Government then assessed against the Hornes a fine equal to the market value of the missing raisins—some $480,000—as well as an additional civil penalty of just over $200,000 for disobeying the order to turn them over. When the Government sought to collect the fine, the Hornes turned to the courts, arguing that the reserve requirement was an unconstitutional taking of their property under the Fifth Amendment. Their case eventually made it to this Court when the Government argued that the lower courts had no jurisdiction to consider the Hornes’ constitutional defense to the fine. Horne v. Department of Agriculture , 569 U. S. ___ (2013) ( Horne I ). We rejected the Government’s argument and sent the case back to the Court of Appeals so it could address the Hornes’ contention on the merits. Id. , at ___ (slip op.,at 15). On remand, the Ninth Circuit agreed with the Hornes that the validity of the fine rose or fell with the constitutionality of the reserve requirement. 750 F. 3d 1128, 1137 (2014). The court then considered whether that requirement was a physical appropriation of property, giving rise to a per se taking, or a restriction on a raisin grower’s use of his property, properly analyzed under the more flexible and forgiving standard for a regulatory taking. The court rejected the Hornes’ argument that the reserve requirement was a per se taking, reasoning that “the Takings Clause affords less protection to personal than to real property,” and concluding that the Hornes “are not completely divested of their property rights,” because growers retain an interest in the proceeds from any sale of reserve raisins by the Raisin Committee. Id. , at 1139. The court instead viewed the reserve requirement as a use restriction, similar to a government condition on the grant of a land use permit. See Dolan v. City of Tigard , 512 U. S. 374 (1994) ; Nollan v. California Coastal Comm’n , 483 U. S. 825 (1987) . As in such permit cases, the Court of Appeals explained, the Government here imposed a condition (the reserve requirement) in exchange for a Government benefit (an orderly raisin market). And just as a landowner was free to avoid the government condition by forgoing a permit, so too the Hornes could avoid the reserve requirement by “planting different crops.” 750 F. 3d, at 1143. Under that analysis, the court found that the reserve requirement was a proportional response to the Government’s interest in ensuring an orderly raisin market, and not a taking under the Fifth Amendment. We granted certiorari. 574 U. S. ___ (2015). II The petition for certiorari poses three questions, which we answer in turn. A The first question presented asks “Whether the government’s ‘categorical duty’ under the Fifth Amendment to pay just compensation when it ‘physically takes possession of an interest in property,’ Arkansas Game & Fish Comm’n v. United States , 133 S. Ct. 511, 518 (2012), applies only to real property and not to personal property.” The answer is no. 1 There is no dispute that the “classic taking [is one] in which the government directly appropriates private property for its own use.” Tahoe-Sierra Preservation Council , Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302, 324 (2002) (brackets and internal quotation marks omitted). Nor is there any dispute that, in the case of real property, such an appropriation is a per se taking that requires just compensation. See Loretto v. Teleprompter Manhattan CATV Corp. , 458 U. S. 419 –435 (1982). Nothing in the text or history of the Takings Clause, or our precedents, suggests that the rule is any different when it comes to appropriation of personal property. The Government has a categorical duty to pay just compensation when it takes your car, just as when it takes your home. The Takings Clause provides: “[N]or shall private property be taken for public use, without just compensation.” U. S. Const., Amdt. 5. It protects “private property” without any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any “constable or other bailiff ” from taking “corn or other provisions from any one without immedi-ately tendering money therefor, unless he can have postponement thereof by permission of the seller.” Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914). The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Massachusetts Body of Liberties ¶8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus “live stock, or beef, pork, or bacon” for the military, but only upon “paying or tendering to the owner the price so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of “necessaries” for public use, but provided that “said articles so seized shall be paid for agreeable to the prices such and the like articles sold for on the ninth day of October last.” 1779 S. C. Acts §4. Given that background, it is not surprising that early Americans bridled at appropriations of their personal property during the Revolutionary War, at the hands of both sides. John Jay, for example, complained to the New York Legislature about military impressment by the Continental Army of “Horses, Teems, and Carriages,” and voiced his fear that such action by the “little Officers” of the Quartermasters Department might extend to “Blankets, Shoes, and many other articles.” A Hint to the Legislature of the State of New York (1778), in John Jay, The Making of a Revolutionary 461–463 (R. Morris ed. 1975) (emphasis deleted). The legislature took the “hint,” passing a law that, among other things, provided for compensation for the impressment of horses and carriages. 1778 N. Y. Laws ch. 29. According to the author of the first treatise on the Constitution, St. George Tucker, the Takings Clause was “probably” adopted in response to “the arbitrary and oppressive mode of obtaining supplies for the army, and other public uses, by impressment, as was too frequently practised during the revolutionary war, without any compensation whatever.” 1 Blackstone’s Commentaries, Editor’s App. 305–306 (1803). Nothing in this history suggests that personal property was any less protected against physical appropriation than real property. As this Court summed up in James v. Campbell , 104 U. S. 356, 358 (1882) , a case concerning the alleged appropriation of a patent by the Government: “[A patent] confers upon the patentee an exclusive property in the patented invention which cannot be appropriated or used by the government itself, without just compensation, any more than it can appropriate or use without compensation land which has been patented to a private purchaser.” Prior to this Court’s decision in Pennsylvania Coal Co. v. Mahon , 260 U. S. 393 (1922) , the Takings Clause was understood to provide protection only against a direct appropriation of property—personal or real. Pennsylvania Coal expanded the protection of the Takings Clause, holding that compensation was also required for a “regulatory taking”—a restriction on the use of property that went “too far.” Id. , at 415. And in Penn Central Transp. Co. v. New York City , 438 U. S. 104, 124 (1978) , the Court clarified that the test for how far was “too far” required an “ad hoc” factual inquiry. That inquiry required considering factors such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the government action. Four years after Penn Central , however, the Court reaffirmed the rule that a physical appropriation of property gave rise to a per se taking, without regard to other factors. In Loretto , the Court held that requiring an owner of an apartment building to allow installation of a cable box on her rooftop was a physical taking of real property, for which compensation was required. That was true without regard to the claimed public benefit or the economic impact on the owner. The Court explained that such protection was justified not only by history, but also because “[s]uch an appropriation is perhaps the most serious form of invasion of an owner’s property interests,” depriving the owner of the “the rights to possess, use and dispose of” the property. 458 U. S., at 435 (internal quotation marks omitted). That reasoning—both with respect to history and logic—is equally applicable to a physical appropriation of personal property. The Ninth Circuit based its distinction between real and personal property on this Court’s discussion in Lucas v. South Carolina Coastal Council , 505 U. S. 1003 (1992) , a case involving extensive limitations on the use of shorefront property. 750 F. 3d, at 1139–1141. Lucas recognized that while an owner of personal property “ought to be aware of the possibility that new regulation might even render his property economically worthless,” such an “implied limitation” was not reasonable in the case of land. 505 U. S., at 1027–1028. Lucas , however, was about regulatory takings, not direct appropriations. Whatever Lucas had to say about reasonable expectations with regard to regulations, people still do not expect their property, real or personal, to be actually occupied or taken away. Our cases have stressed the “longstanding distinction” between government acquisitions of property and regulations. Tahoe-Sierra Preservation Council , 535 U. S., at 323. The different treatment of real and personal property in a regulatory case suggested by Lucas did not alter the established rule of treating direct appropriations of real and personal property alike. See 535 U. S., at 323 . (It is “inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a ‘regulatory taking,’ and vice versa” (footnote omitted)). 2 The reserve requirement imposed by the Raisin Committee is a clear physical taking. Actual raisins are transferred from the growers to the Government. Title to the raisins passes to the Raisin Committee. App. to Pet. for Cert. 179a; Tr. of Oral Arg. 31. The Committee’s raisins must be physically segregated from free-tonnage raisins. 7 CFR §989.66(b)(2). Reserve raisins are sometimes left on the premises of handlers, but they are held “for the account” of the Government. §989.66(a). The Committee disposes of what become its raisins as it wishes, to promote the purposes of the raisin marketing order. Raisin growers subject to the reserve requirement thus lose the entire “bundle” of property rights in the appropriated raisins—“the rights to possess, use and dispose of ” them, Loretto , 458 U. S., at 435 (internal quotation marks omitted)—with the exception of the speculative hope that some residual proceeds may be left when the Government is done with the raisins and has deducted the expenses of implementing all aspects of the marketing order. The Government’s “actual taking of possession and control” of the reserve raisins gives rise to a taking as clearly “as if the Government held full title and ownership,” id. , at 431 (internal quotation marks omitted), as it essentially does. The Government’s formal demand that the Hornes turn over a percentage of their raisin crop without charge, for the Government’s control and use, is “of such a unique character that it is a taking without regard to other factors that a court might ordinarily examine.” Id. , at 432. The Government thinks it “strange” and the dissent “baffling” that the Hornes object to the reserve requirement, when they nonetheless concede that “the government may prohibit the sale of raisins without effecting a per se taking.” Brief for Respondent 35; post, at 12 (Sotomayor, J., dissenting). But that distinction flows naturally from the settled difference in our takings jurisprudence between appropriation and regulation. A physical taking of raisins and a regulatory limit on production may have the same economic impact on a grower. The Constitution, however, is concerned with means as well as ends. The Government has broad powers, but the means it uses to achieve its ends must be “consist[ent] with the letter and spirit of the constitution.” McCulloch v. Maryland , 4 Wheat. 316, 421 (1819). As Justice Holmes noted, “a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.” Pennsylvania Coal , 260 U. S., at 416. B The second question presented asks “Whether the government may avoid the categorical duty to pay just compensation for a physical taking of property by reserving to the property owner a contingent interest in a portion of the value of the property, set at the government’s discretion.” The answer is no. The Government and dissent argue that raisins are fungible goods whose only value is in the revenue from their sale. According to the Government, the raisin marketing order leaves that interest with the raisin growers: After selling reserve raisins and deducting expenses and subsidies for exporters, the Raisin Committee returns any net proceeds to the growers. 7 CFR §§989.67(d), 989.82, 989.53(a), 989.66(h). The Government contends that because growers are entitled to these net proceeds, they retain the most important property interest in the reserve raisins, so there is no taking in the first place. The dissent agrees, arguing that this possible future revenue means there has been no taking under Loretto . See post, at 2–6. But when there has been a physical appropriation, “we do not ask . . . whether it deprives the owner of all economically valuable use” of the item taken. Tahoe-Sierra Preservation Council , 535 U. S., at 323; see id. , at 322 (“When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.” (citation omitted)). For example, in Loretto , we held that the installation of a cable box on a small corner of Loretto’s rooftop was a per se taking, even though she could of course still sell and economically benefit from the property. 458 U. S., at 430, 436. The fact that the growers retain a contingent interest of indeterminate value does not mean there has been no physical taking, particularly since the value of the interest depends on the discretion of the taker, and may be worthless, as it was for one of the two years at issue here. The dissent points to Andrus v. Allard , 444 U. S. 51 (1979) , noting that the Court found no taking in that case, even though the owners’ artifacts could not be sold at all. Post , at 6. The dissent suggests that the Hornes should be happy, because they might at least get something from what had been their raisins. But Allard is a very different case. As the dissent recognizes, the owners in that case retained the rights to possess, donate, and devise their property. In finding no taking, the Court emphasized that the Government did not “compel the surrender of the artifacts, and there [was] no physical invasion or restraint upon them.” 444 U. S. , at 65–66. Here of course the raisin program requires physical surrender of the raisins and transfer of title, and the growers lose any right to control their disposition. The Government and dissent again confuse our inquiry concerning per se takings with our analysis for regulatory takings. A regulatory restriction on use that does not entirely deprive an owner of property rights may not be a taking under Penn Central . That is why, in PruneYard Shopping Center v. Robins , 447 U. S. 74 (1980) , we held that a law limiting a property owner’s right to exclude certain speakers from an already publicly accessible shopping center did not take the owner’s property. The owner retained the value of the use of the property as a shopping center largely unimpaired, so the regulation did not go “too far.” Id. , at 83 (quoting Pennsylvania Coal Co. , 260 U. S., at 415). But once there is a taking, as in the case of a physical appropriation, any payment from the Government in connection with that action goes, at most, to the question of just compensation. See Suitum v. Tahoe Regional Planning Agency , 520 U. S. 725 –748 (1997) (Scalia, J., concurring in part and concurring in judgment). That is not an issue here: The Hornes did not receive any net proceeds from Raisin Committee sales for the years at issue, because they had not set aside any reserve raisins in those years (and, in any event, there were no net proceeds in one of them). C The third question presented asks “Whether a governmental mandate to relinquish specific, identifiable prop-erty as a ‘condition’ on permission to engage in commerce effects a per se taking.” The answer, at least in this case, is yes. The Government contends that the reserve requirement is not a taking because raisin growers voluntarily choose to participate in the raisin market. According to the Government, if raisin growers don’t like it, they can “plant different crops,” or “sell their raisin-variety grapes as table grapes or for use in juice or wine.” Brief for Respondent 32 (brackets and internal quotation marks omitted). “Let them sell wine” is probably not much more comforting to the raisin growers than similar retorts have been to others throughout history. In any event, the Government is wrong as a matter of law. In Loretto , we rejected the argument that the New York law was not a taking because a landlord could avoid the requirement by ceasing to be a landlord. We held instead that “a landlord’s ability to rent his property may not be conditioned on his forfeiting the right to compensation for a physical occupation.” 458 U. S., at 439, n. 17. As the Court explained, the contrary argument “proves too much”: “For example, it would allow the government to require a landlord to devote a substantial portion of his building to vending and washing machines, with all profits to be retained by the owners of these services and with no compensation for the deprivation of space. It would even allow the government to requisition a certain number of apartments as permanent government offices.” Ibid. As the Court concluded, property rights “cannot be so easily manipulated.” Ibid. The Government and dissent rely heavily on Ruckelshaus v. Monsanto Co. , 467 U. S. 986 (1984) . There we held that the Environmental Protection Agency could require companies manufacturing pesticides, fungicides, and rodenticides to disclose health, safety, and environmental information about their products as a condition to receiving a permit to sell those products. While such information included trade secrets in which pesticide manufacturers had a property interest, those manufacturers were not subjected to a taking because they received a “valuable Government benefit” in exchange—a license to sell dangerous chemicals. Id., at 1007; see Nollan , 483 U. S., at 834, n. 2 (discussing Monsanto ). The taking here cannot reasonably be characterized as part of a similar voluntary exchange. In one of the years at issue here, the Government insisted that the Hornes turn over 47 percent of their raisin crop, in exchange for the “benefit” of being allowed to sell the remaining 53 percent. The next year, the toll was 30 percent. We have already rejected the idea that Monsanto may be extended by regarding basic and familiar uses of property as a “Government benefit” on the same order as a permit to sell hazardous chemicals. See Nollan , 483 U. S., at 834, n. 2 (distinguishing Monsanto on the ground that “the right to build on one’s own property—even though its exercise can be subjected to legitimate permitting requirements—cannot remotely be described as a ‘governmental benefit’ ”). Selling produce in interstate commerce, although certainly subject to reasonable government regulation, is similarly not a special governmental benefit that the Government may hold hostage, to be ransomed by the waiver of constitutional protection. Raisins are not dangerous pesticides; they are a healthy snack. A case about conditioning the sale of hazardous substances on disclosure of health, safety, and environmental information related to those hazards is hardly on point. Leonard & Leonard v. Earle , 279 U. S. 392 (1929) , is also readily distinguishable. In that case, the Court upheld a Maryland requirement that oyster packers remit ten percent of the marketable detached oyster shells or their monetary equivalent to the State for the privilege of harvesting the oysters. But the packers did “not deny the power of the State to declare their business a privilege,” and the power of the State to impose a “privilege tax” was “not questioned by counsel.” Id. , at 396. The oysters, unlike raisins, were “feræ naturæ” that belonged to the State under state law, and “[n]o individual ha[d] any property rights in them other than such as the state may permit him to acquire.” Leonard v. Earle , 155 Md. 252, 258, 141 A. 714, 716 (1928). The oyster packers did not simply seek to sell their property; they sought to appropriate the State’s. Indeed, the Maryland Court of Appeals saw the issue as a question of “a reasonable and fair compensation” from the packers to “the state, as owner of the oysters.” Id. , at 259, 141 A., at 717 (internal quotation marks omitted). Raisins are not like oysters: they are private property—the fruit of the growers’ labor—not “public things subject to the absolute control of the state,” id. , at 258, 141 A., at 716. Any physical taking of them for public use must be accompanied by just compensation. III The Government correctly points out that a taking does not violate the Fifth Amendment unless there is no just compensation, and argues that the Hornes are free to seek compensation for any taking by bringing a damages action under the Tucker Act in the Court of Federal Claims. See 28 U. S. C. §1491(a)(1); Monsanto , 467 U. S., at 1020. But we held in Horne I that the Hornes may, in their capacity as handlers, raise a takings-based defense to the fine levied against them. We specifically rejected the contention that the Hornes were required to pay the fine and then seek compensation under the Tucker Act. See 569 U. S., at ___ (slip op., at 13–14) (“We . . . conclude that the [Agricultural Marketing Agreement Act] withdraws Tucker Act jurisdiction over [the Hornes’] takings claim. [The Hornes] (as handlers) have no alternative remedy, and their takings claim was not ‘premature’ when presented to the Ninth Circuit.”). As noted, the Hornes are both growers and handlers. Their situation is unusual in that, as handlers, they have the full economic interest in the raisins the Government alleges should have been set aside for its account. They own the raisins they grew and are handling for themselves, and they own the raisins they handle for other growers, having paid those growers for all their raisins (not just the free-tonnage amount, as is true with respect to most handlers). See supra , at 2–3; Tr. of Oral Arg. 3–4. The penalty assessed against them as handlers included the dollar equivalent of the raisins they refused to set aside—their raisins. 750 F. 3d, at 1135, n. 6; Brief for Petitioners 15. They may challenge the imposition of that fine, and do not have to pay it first and then resort to the Court of Federal Claims. Finally, the Government briefly argues that if we conclude that the reserve requirement effects a taking, we should remand for the Court of Appeals to calculate “what compensation would have been due if petitioners had complied with the reserve requirement.” Brief for Respondent 55. The Government contends that the calculation must consider what the value of the reserve raisins would have been without the price support program, as well as “other benefits . . . from the regulatory program, such as higher consumer demand for raisins spurred by enforcement of quality standards and promotional activities.” Id. , at 55–56. Indeed, according to the Government, the Hornes would “likely” have a net gain under this theory. Id. , at 56. The best defense may be a good offense, but the Government cites no support for its hypothetical-based approach, or its notion that general regulatory activity such as enforcement of quality standards can constitute just compensation for a specific physical taking. Instead, our cases have set forth a clear and administrable rule for just compensation: “The Court has repeatedly held that just compensation normally is to be measured by ‘the market value of the property at the time of the taking.’ ” United States v. 50 Acres of Land , 469 U. S. 24, 29 (1984) (quoting Olson v. United States , 292 U. S. 246, 255 (1934) ). Justice Breyer is concerned that applying this rule in this case will affect provisions concerning whether a condemning authority may deduct special benefits—such as new access to a waterway or highway, or filling in of swampland—from the amount of compensation it seeks to pay a landowner suffering a partial taking. Post , at 5 (opinion concurring in part and dissenting in part); see Bauman v. Ross , 167 U. S. 548 (1897) (laying out of streets and subdivisions in the District of Columbia). He need not be. Cases of that sort can raise complicated questions involving the exercise of the eminent domain power, but they do not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here. Nothing in the cases Justice Breyer labels “ Bauman and its progeny,” post, at 5, suggests otherwise, which may be why the Solicitor General does not cite them.[ 1 ] In any event, this litigation presents no occasion to consider the broader issues discussed by Justice Breyer. The Government has already calculated the amount of just compensation in this case, when it fined the Hornes the fair market value of the raisins: $483,843.53. 750 F. 3d, at 1135, n. 6. The Government cannot now disavow that valuation, see Reply Brief 21–23, and does not suggest that the marketing order affords the Hornes compensation in that amount. There is accordingly no need for a remand; the Hornes should simply be relieved of the obligation to pay the fine and associated civil penalty they were assessed when they resisted the Government’s effort totake their raisins. This case, in litigation for more than a decade, has gone on long enough. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed. It is so ordered. Notes 1 For example, in United States v. Miller , 317 U. S. 369, 377 (1943) , the Court—in calculating the fair market value of land—discounted an increase in value resulting from speculation “as to what the Govern-ment would be compelled to pay as compensation” after the land was earmarked for acquisition. In United States v. Sponenbarger , 308 U. S. 256, 265 (1939) , the Court determined there was no taking in the first place, when the complaint was merely that a Government flood control plan provided insufficient protection for the claimant’s land. McCoy v. Union Elevated R. Co ., 247 U. S. 354, 363 (1918) , similarly involved a claim “for damages to property not actually taken.” So too Reichelderfer v. Quinn , 287 U. S. 315 (1932) . There the Court held that claimants who had paid a special assessment when Rock Creek Park in Washington, D. C., was created—because the Park increased the value of their property—did not thereby have the right to prevent Congress from altering use of part of the Park for a fire station 38 years later. In Dohany v. Rogers , 281 U. S. 362 (1930) , the law authorizing the taking did “not permit the offset of benefits for a railroad,” and therefore was “not subject to the objection that it fails to provide adequate compensation . . . and is therefore unconstitutional.” Id., at 367, and n. 1 (quoting Fitzsimons & Galvin, Inc. v. Rogers , 243 Mich. 649, 665, 220 N. W. 881, 886 (1928)). And in Norwood v. Baker , 172 U. S. 269 (1898) , the issue was whether an assessment to pay for improvements exceeded a village’s taxing power. Perhaps farthest afield are the Regional Rail Reorganization Act Cases , 419 U. S. 102, 153 (1974) , which involved valuation questions arising from the Government reorganization of northeast and midwest railroads. The Court in that case held that the legislation at issue was not “merely an eminent domain statute” but instead was enacted “pursuant to the bankruptcy power.” Id., at 151, 153. SUPREME COURT OF THE UNITED STATES _________________ No. 14–275 _________________ MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE on writ of certiorari to the united states court of appeals for the ninth circuit [June 22, 2015] Justice Thomas, concurring. I join the Court’s opinion in full. I write separatelyto offer an additional observation concerning Justice Breyer’s argument that we should remand the case. The Takings Clause prohibits the government from taking private property except “for public use,” even when it offers “just compensation.” U. S. Const., Amdt. 5. That requirement, as originally understood, imposes a meaningful constraint on the power of the state—“the government may take property only if it actually uses or gives the public a legal right to use the property.” Kelo v. New London , 545 U. S. 469, 521 (2005) (Thomas, J., dissenting). It is far from clear that the Raisin Administrative Committee’s conduct meets that standard. It takes the raisins of citizens and, among other things, gives them away or sells them to exporters, foreign importers, and foreign governments. 7 CFR §989.67(b) (2015). To the extent that the Committee is not taking the raisins “for public use,” having the Court of Appeals calculate “just compensation” in this case would be a fruitless exercise. SUPREME COURT OF THE UNITED STATES _________________ No. 14–275 _________________ MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE on writ of certiorari to the united states court of appeals for the ninth circuit [June 22, 2015] Justice Breyer, with whom Justice Ginsburg and Justice Kagan join, concurring in part and dissenting in part. I agree with Parts I and II of the Court’s opinion. However, I cannot agree with the Court’s rejection, in Part III, of the Government’s final argument. The Government contends that we should remand the case for a determination of whether any compensation would have been due if the Hornes had complied with the California Raisin Marketing Order’s reserve requirement. In my view, a remand for such a determination is necessary. The question of just compensation was not presented in the Hornes’ petition for certiorari. It was barely touched on in the briefs. And the courts below did not decide it. At the same time, the case law that I have found indicates that the Government may well be right: The marketing order may afford just compensation for the takings of raisins that it imposes. If that is correct, then the reserve requirement does not violate the Takings Clause. I The Takings Clause of the Fifth Amendment provides that “private property [shall not] be taken for public use, without just compensation.” The Clause means what it says: It “does not proscribe the taking of property; it proscribes taking without just compensation .” Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City , 473 U. S. 172, 194 (1985) (emphasis added). Under the Clause, a property owner “is entitled to be put in as good a position pecuniarily as if his property had not been taken,” which is to say that “[h]e must be made whole but is not entitled to more.” Olson v. United States , 292 U. S. 246, 255 (1934) . On the record before us, the Hornes have not established that the Government, through the raisin reserve program, takes raisins without just compensation . When the Government takes as reserve raisins a percentage of the annual crop, the raisin owners retain the remaining, free-tonnage, raisins. The reserve requirement is intended, at least in part, to enhance the price that free-tonnage raisins will fetch on the open market. See 7 CFR §989.55 (2015); 7 U. S. C. §602(1). And any such enhancement matters. This Court’s precedents indicate that, when calculating the just compensation that the Fifth Amendment requires, a court should deduct from the value of the taken (reserve) raisins any enhancement caused by the taking to the value of the remaining (free-tonnage) raisins. More than a century ago, in Bauman v. Ross , 167 U. S. 548 (1897) , this Court established an exception to the rule that “just compensation normally is to be measured by ‘the market value of the property at the time of the taking.’ ” United States v. 50 Acres of Land , 469 U. S. 24, 29 (1984) (quoting Olson , supra, at 255). We considered in Bauman how to calculate just compensation when the Government takes only a portion of a parcel of property: “[W]hen part only of a parcel of land is taken for a highway, the value of that part is not the sole measure of the compensation or damages to be paid to the owner; but the incidental injury or benefit to the part not taken is also to be considered. When the part not taken is left in such shape or condition, as to be in itself of less value than before, the owner is entitled to additional damages on that account. When, on the other hand, the part which he retains is specially and directly increased in value by the public improvement, the damages to the whole parcel by the appropriation of part of it are lessened.” 167 U. S., at 574. “The Constitution of the United States,” the Court stated, “contains no express prohibition against considering benefits in estimating the just compensation to be paid for private property taken for the public use.” Id., at 584. The Court has consistently applied this method for calculating just compensation: It sets off from the value of the portion that was taken the value of any benefits conferred upon the remaining portion of the property. See Regional Rail Reorganization Act Cases, 419 U. S. 102, 151 (1974) (“[C]onsideration other than cash—for example, any special benefits to a property owner’s remaining properties—may be counted in the determination of just compensation” (footnote omitted)); United States v. Miller , 317 U. S. 369, 376 (1943) (“[I]f the taking has in fact benefitted the remainder, the benefit may be set off against the value of the land taken”); United States v. Sponenbarger , 308 U. S. 256 –267 (1939) (“[I]f governmental activities inflict slight damage upon land in one respect and actually confer great benefits when measured in the whole, to compensate the landowner further would be to grant him a special bounty. Such activities in substance take nothing from the landowner”); Reichelderfer v. Quinn , 287 U. S. 315, 323 (1932) (“Just compensation . . . was awarded if the benefits resulting from the proximity of the improvement [were] set off against the value of the property taken from the same owners”); Dohany v. Rogers , 281 U. S. 362 –368 (1930) (a statute that “permits deduction of benefits derived from the construction of a highway” from the compensation paid to landowners “afford[s] no basis for anticipating that . . . just compensation will be denied”); Norwood v. Baker , 172 U. S. 269, 277 (1898) (“Except for [state law], the State could have authorized benefits to be deducted from the actual value of the land taken, without violating the constitutional injunction that compensation be made for private property taken for public use; for the benefits received could be properly regarded as compensation pro tanto for the property appropriated to public use”). The rule applies regardless of whether a taking enhances the value of one property or the value of many proper-ties. That is to say, the Government may “permi[t] consideration of actual benefits—enhancement in market value—flowing directly from a public work, although all in the neighborhood receive like advantages.” McCoy v. Union Elevated R. Co. , 247 U. S. 354, 366 (1918) . The Federal Constitution does not distinguish between “special” benefits, which specifically affect the property taken, and “general” benefits, which have a broader impact. Of course, a State may prefer to guarantee a greater payment to property owners, for instance by establishing a standard for compensation that does not account for general benefits (or for any benefits) afforded to a property owner by a taking. See id., at 365 (describing categories of rules applied in different jurisdictions); Schopflocher, Deduction of Benefits in Determining Compensation or Damages in Eminent Domain, 145 A. L. R. 7, 158–294 (1943) (describing particular rules applied in different jurisdictions). Similarly, “Congress . . . has the power to authorize compensation greater than the constitutional minimum.” 50 Acres of Land , supra , at 30, n. 14 (1984). Thus, Congress, too, may limit the types of benefits to be considered. See, e.g., 33 U. S. C. §595. But I am unaware of any congressional authorization that would increase beyond the constitutional floor the compensation owed for a taking of the Hornes’ raisins. If we apply Bauman and its progeny to the marketing order’s reserve requirement, “the benefit [to the free-tonnage raisins] may be set off against the value of the [reserve raisins] taken.” Miller , supra, at 376. The value of the raisins taken might exceed the value of the benefit conferred. In that case, the reserve requirement effects a taking without just compensation, and the Hornes’ decision not to comply with the requirement was justified. On the other hand, the benefit might equal or exceed the value of the raisins taken. In that case, the California Raisin Marketing Order does not effect a taking without just compensation. See McCoy, supra, at 366 (“In such [a] case the owner really loses nothing which he had before; and it may be said with reason, there has been no real injury”); Brown v. Legal Foundation of Wash. , 538 U. S. 216, 237 (2003) (“[I]f petitioners’ net loss was zero, the compensation that is due is also zero”). And even the Hornes agree that if the reserve requirement does not effect a taking without just compensation, then they cannot use the Takings Clause to excuse their failure to comply with the marketing order—or to justify their refusal to pay the fine and penalty imposed based on that failure. See Brief for Petitioners 31 (“The constitutionality of the fine rises or falls on the constitutionality of the Marketing Order’s reserve requirement and attendant transfer of reserve raisins” (internal quotation marks omitted)). II The majority believes the Bauman line of cases most likely does not apply here. It says that those cases do “not create a generally applicable exception to the usual compensation rule, based on asserted regulatory benefits of the sort at issue here.” Ante, at 16. But it is unclear to me what distinguishes this case from those. It seems unlikely that the majority finds a distinction in the fact that this taking is based on regulatory authority. Cf. Chrysler Corp. v. Brown , 441 U. S. 281, 295 (1979) (“It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the force and effect of law” (internal quotation marks omitted)). It similarly seems unlikely that the majority intends to distinguish between takings of real property and takings of personal property, given its recognition that the Takings Clause “protects ‘private property’ without any distinction between different types.” Ante, at 5. It is possible that the majority questions the Government’s argument because of its breadth—the Government argues that “it would be appropriate to consider what value all of the raisins would have had in the absence of the marketing order ,” and I am unaware of any precedent that allows a court to account for portions of the marketing order that are entirely separate from the reserve requirement. But neither am I aware of any precedent that would distinguish between how the Bauman doctrine applies to the reserve requirement itself and how it applies to other types of partial takings. Ultimately, the majority rejects the Government’s request for a remand because it believes that the Government “does not suggest that the marketing order affords the Hornes compensation” in the amount of the fine that the Government assessed. Ante, at 17. In my view, however, the relevant precedent indicates that the Takings Clause requires compensation in an amount equal to the value of the reserve raisins adjusted to account for the benefits received. And the Government does, indeed, suggest that the marketing order affords just compensation. See Brief for Respondent 56 (“It is likely that when all benefits and alleged losses from the marketing order are calculated, [the Hornes] would have a net gain rather than a net loss, given that a central point of the order is to benefit producers”). Further, the Hornes have not demonstrated the contrary. Before granting judgment in favor of the Hornes, a court should address the issue in light of all of the relevant facts and law. *  *  * Given the precedents, the parties should provide full briefing on this question. I would remand the case, permitting the lower courts to consider argument on the question of just compensation. For these reasons, while joining Parts I and II of the Court’s opinion, I respectfully dissent from Part III. SUPREME COURT OF THE UNITED STATES _________________ No. 14–275 _________________ MARVIN D. HORNE, et al., PETITIONERS v. DEPARTMENT OF AGRICULTURE on writ of certiorari to the united states court of appeals for the ninth circuit [June 22, 2015] Justice Sotomayor, dissenting. The Hornes claim, and the Court agrees, that the Raisin Marketing Order, 7 CFR pt. 989 (2015) (hereinafter Order), effects a per se taking under our decision in Loretto v. Teleprompter Manhattan CATV Corp. , 458 U. S. 419 (1982) . But Loretto sets a high bar for such claims: It requires that each and every property right be destroyed by governmental action before that action can be said to have effected a per se taking. Because the Order does not deprive the Hornes of all of their property rights, it does not effect a per se taking. I respectfully dissent from the Court’s contrary holding. I Our Takings Clause jurisprudence has generally eschewed “magic formula[s]” and has “recognized few invariable rules.” Arkansas Game and Fish Comm’n v. United States , 568 U. S. ___, ___–___ (2012) (slip op., at 6–7). Most takings cases therefore proceed under the fact-specific balancing test set out in Penn Central Transp. Co. v. New York City , 438 U. S. 104 (1978) . See Arkansas Game and Fish Comm’n , 568 U. S., at ___ (slip op., at 7); Lingle v. Chevron U. S. A. Inc. , 544 U. S. 528 –539 (2005). The Hornes have not made any argument under Penn Central . In order to prevail, they therefore must fit their claim into one of the three narrow categories in which we have assessed takings claims more categorically. In the “special context of land-use exactions,” we have held that “government demands that a landowner dedicate an easement allowing public access to her property as a condition of obtaining a development permit” constitute takings unless the government demonstrates a nexus and rough proportionality between its demand and the impact of the proposed development. Lingle, 544 U. S., at 538, 546; see Dolan v. City of Tigard , 512 U. S. 374, 386, 391 (1994) ; Nollan v. California Coastal Comm’n , 483 U. S. 825, 837 (1987) . We have also held that a regulation that deprives a property owner of “ all economically beneficial us[e]” of his or her land is a per se taking. Lucas v. South Carolina Coastal Council , 505 U. S. 1003, 1019 (1992) (emphasis in original). The Hornes have not relied on either of these rules in this Court. See Brief for Petitioners 42, 55. Finally—and this is the argument the Hornes do rely on—we have held that the government effects a per se taking when it requires a property owner to suffer a “permanent physical occupation” of his or her property. Lor-etto , 458 U. S., at 426. In my view, however, Loretto —when properly understood—does not encompass the circumstances of this case because it only applies where all property rights have been destroyed by governmental action. Where some property right is retained by the owner, no per se taking under Loretto has occurred. This strict rule is apparent from the reasoning in Lor-etto itself. We explained that “[p]roperty rights in a physical thing have been described as the rights ‘to possess, use and dispose of it.’ ” Id., at 435 (quoting United States v. General Motors Corp. , 323 U. S. 373, 378 (1945) ). A “permanent physical occupation” of property occurs, we said, when governmental action “destroys each of these rights.” 458 U. S., at 435 (emphasis in original); see ibid., n. 12 (requiring that an owner be “absolutely dispossess[ed]” of rights). When, as we held in Loretto , each of these rights is destroyed, the government has not simply “take[n] a single ‘strand’ from the ‘bundle’ of property rights”; it has “chop[ped] through the bundle” entirely. Id., at 435. In the narrow circumstance in which a property owner has suffered this “most serious form of invasion of [his or her] property interests,” a taking can be said to have occurred without any further showing on the property owner’s part. Ibid. By contrast, in the mine run of cases where governmental action impacts property rights in ways that do not chop through the bundle entirely, we have declined to apply per se rules and have instead opted for the more nuanced Penn Central test. See, e.g., Hodel v. Irving , 481 U. S. 704 (1987) (applying Penn Central to assess a requirement that title to land within Indian reservations escheat to the tribe upon the landowner’s death); PruneYard Shopping Center v. Robins , 447 U. S. 74 –83 (1980) (engaging in similar analysis where there was “literally . . . a ‘taking’ of th[e] right” to exclude); Kaiser Aetna v. United States , 444 U. S. 164 –180 (1979) (applying Penn Central to find that the Government’s imposition of a servitude requiring public access to a pond was a taking); see also Loretto , 458 U. S., at 433–434 (distinguishing PruneYard and Kaiser Aetna ). Even governmental action that reduces the value of property or that imposes “a significant restriction . . . on one means of disposing” of property is not a per se taking; in fact, it may not even be a taking at all. Andrus v. Allard , 444 U. S. 51 –66 (1979). What our jurisprudence thus makes plain is that a claim of a Loretto taking is a bold accusation that carries with it a heavy burden. To qualify as a per se taking under Lor-etto , the governmental action must be so completely destruc-tive to the property owner’s rights—all of them—as to render the ordinary, generally applicable protections of the Penn Central framework either a foregone conclusion or unequal to the task. Simply put, the retention of even one property right that is not destroyed is sufficient to defeat a claim of a per se taking under Loretto . II A When evaluating the Order under this rubric, it is important to bear two things in mind. The first is that Lor-etto is not concerned with whether the Order is a good idea now, whether it was ever a good idea, or whether it intrudes upon some property rights. The Order may well be an outdated, and by some lights downright silly, regulation. It is also no doubt intrusive. But whatever else one can say about the Order, it is not a per se taking if it does not result in the destruction of every property right. The second thing to keep in mind is the need for precision about whose property rights are at issue and about what property is at issue. Here, what is at issue are the Hornes’ property rights in the raisins they own and that are subject to the reserve requirement. The Order therefore effects a per se taking under Loretto if and only if each of the Hornes’ property rights in the portion of raisins that the Order designated as reserve has been destroyed. If not, then whatever fate the Order may reach under some other takings test, it is not a per se taking. The Hornes, however, retain at least one meaningful property interest in the reserve raisins: the right to receive some money for their disposition. The Order explicitly provides that raisin producers retain the right to “[t]he net proceeds from the disposition of reserve tonnage raisins,” 7 CFR §989.66(h), and ensures that reserve raisins will be sold “at prices and in a manner intended to maxim[ize] producer returns,” §989.67(d)(1). According to the Government, of the 49 crop years for which a reserve pool was operative, producers received equitable distributions of net proceeds from the disposition of reserve raisins in 42. See Letter from Donald B. Verrilli, Jr., Solicitor General, to Scott S. Harris, Clerk of Court (Apr. 29, 2015). Granted, this equitable distribution may represent less income than what some or all of the reserve raisins could fetch if sold in an unregulated market. In some years, it may even turn out (and has turned out) to represent no net income. But whether and when that occurs turns on market forces for which the Government cannot be blamed and to which all commodities—indeed, all property—are subject. In any event, we have emphasized that “a reduction in the value of property is not necessarily equated with a taking,” Andrus , 444 U. S., at 66, that even “a significant restriction . . . imposed on one means of disposing” of property is not necessarily a taking, id., at 65, and that not every “ ‘injury to property by governmental action’ ” amounts to a taking, PruneYard , 447 U. S., at 82. Indeed, we would not have used the word “destroy” in Loretto if we meant “damaged” or even “substantially damaged.” I take us at our word: Loretto ’s strict requirement that all property interests be “destroy[ed]” by governmental action before that action can be called a per se taking cannot be satisfied if there remains a property interest that is at most merely damaged. That is the case here; accordingly, no per se taking has occurred. Moreover, when, as here, the property at issue is a fungible commodity for sale, the income that the property may yield is the property owner’s most central interest. Cf. Ruckelshaus v. Monsanto Co. , 467 U. S. 986, 1002 (1984) (noting that the “nature” of particular property defines “the extent of the property right therein”). “[A]rticles of commerce,” in other words, are “desirable because [they are] convertible into money.” Leonard & Leonard v. Earle , 279 U. S. 392, 396 (1929) . The Hornes do not use the raisins that are subject to the reserve requirement—which are, again, the only raisins that have allegedly been unlawfully taken—by eating them, feeding them to farm animals, or the like. They wish to use those reserve raisins by selling them, and they value those raisins only because they are a means of acquiring money. While the Order infringes upon the amount of that potential income, it does not inexorably eliminate it. Unlike the law in Loretto , see 458 U. S., at 436, the Order therefore cannot be said to have prevented the Hornes from making any use of the relevant property. The conclusion that the Order does not effect a per se taking fits comfortably within our precedents. After all, we have observed that even “[r]egulations that bar trade in certain goods” altogether—for example, a ban on the sale of eagle feathers—may survive takings challenges. Andrus , 444 U. S., at 67. To be sure, it was important to our decision in Andrus that the regulation at issue did not prohibit the possession, donation, or devise of the prop-erty. See id., at 66. But as to those feathers the plaintiffs would have liked to sell, the law said they could not be sold at any price—and therefore categorically could not be converted into money. Here, too, the Hornes may do as they wish with the raisins they are not selling. But as to those raisins that they would like to sell, the Order subjects a subset of them to the reserve requirement, which allows for the conversion of reserve raisins into at least some money and which is thus more generous than the law in Andrus . We held that no taking occurred in Andrus , so rejecting the Hornes’ claim follows a fortiori . We made this principle even clearer in Lucas , when we relied on Andrus and said that where, as here, “property’s only economically productive use is sale or manufacture for sale,” a regulation could even “render [that] property economically worthless ” without effecting a per se taking. Lucas , 505 U. S., at 1027–1028 (citing Andrus , 444 U. S., at 66–67; emphasis added). The Order does not go nearly that far. It should easily escape our approbation, at least where a per se takings claim is concerned. B The fact that at least one property right is not destroyed by the Order is alone sufficient to hold that this case does not fall within the narrow confines of Loretto . But such a holding is also consistent with another line of cases that, when viewed together, teach that the government may require certain property rights to be given up as a condition of entry into a regulated market without effecting a per se taking. First, in Leonard & Leonard v. Earle , 279 U. S. 392 , we considered a state law that required those who wished to engage in the business of oyster packing to deliver to the State 10 percent of the empty oyster shells. We rejected the argument that this law effected a taking and held that it was “not materially different” from a tax upon the privilege of doing business in the State. Id., at 396. “[A]s the packer lawfully could be required to pay that sum in money,” we said, “nothing in the Federal Constitution preventsthe State from demanding that he give up the same per cent. of such shells.” Ibid. [ 1 ] Next, in Ruckelshaus v. Monsanto Co. , 467 U. S. 986 , we held that no taking occurred when a provision of the Federal Insecticide, Fungicide, and Rodenticide Act required companies that wished to sell certain pesticides to first submit sensitive data and trade secrets to the Environmental Protection Agency as part of a registration process. Even though the EPA was permitted to publicly disclose some of that submitted data—which would have had the effect of revealing trade secrets, thus substantially diminishing or perhaps even eliminating their value—we reasoned that, like the privilege tax in Leonard & Leonard , the disclosure requirement was the price Monsanto had to pay for “ ‘the advantage of living and doing business in a civilized community.’ ” 467 U. S., at 1007 (quoting Andrus , 444 U. S., at 67; some internal quotation marks omitted). We offered nary a suggestion that the law at issue could be considered a per se taking, and instead recognized that “a voluntary submission of data by an applicant” in exchange for the ability to participate in a regulated market “can hardly be called a taking.” 467 U. S., at 1007.[ 2 ] Finally, in Yee v. Escondido , 503 U. S. 519 (1992) , we addressed a mobile-home park rent-control ordinance that set rents at below-market rates. We held the ordinance did not effect a taking under Loretto , even when it was considered in conjunction with other state laws regarding eviction that effectively permitted tenants to remain at will, because it only regulated the terms of market participation. See 503 U. S., at 527–529. Understood together, these cases demonstrate that the Government may condition the ability to offer goods in the market on the giving-up of certain property interests without effecting a per se taking.[ 3 ] The Order is a similar regulation. It has no effect whatsoever on raisins that the Hornes grow for their own use. But insofar as the Hornes wish to sell some raisins in a market regulated by the Government and at a price supported by governmental intervention, the Order requires that they give up the right to sell a portion of those raisins at that price and instead accept disposal of them at a lower price. Given that we have held that the Government may impose a price on the privilege of engaging in a particular business without effecting a taking—which is all that the Order does—it follows that the Order at the very least does not run afoul of our per se takings jurisprudence. Under a different takings test, one might reach a different conclusion. But the Hornes have advanced only this narrow per se takings claim, and that claim fails. III The Court’s contrary conclusion rests upon two fundamental errors. The first is the Court’s breezy assertion that a per se taking has occurred because the Hornes “lose the entire ‘bundle’ of property rights in the appropriated raisins . . . with the exception of” the retained interest in the equitable distribution of the proceeds from the disposition of the reserve raisins. Ante , at 8–9. But if there is a property right that has not been lost, as the Court concedes there is, then the Order has not destroyed each of the Hornes’ rights in the reserve raisins and does not effect a per se taking. The Court protests that the retained interest is not substantial or certain enough. But while I see more value in that interest than the Court does, the bottom line is that Loretto does not distinguish among retained property interests that are substantial or certain enough to count and others that are not.[ 4 ] Nor is it at all clear how the Court’s approach will be administrable. How, after all, are courts, governments, or individuals supposed to know how much a property owner must be left with before this Court will bless the retained interest as sufficiently meaningful and certain? One virtue of the Loretto test was, at least until today, its clarity. Under Loretto , a total destruction of all prop-erty rights constitutes a per se taking; anything less does not. See 458 U. S., at 441 (noting the “very narrow” nature of the Loretto framework). Among the most significant doctrinal damage that the Court causes is the blurring of this otherwise bright line and the expansion of this otherwise narrow category. By the Court’s lights, perhaps a 95 percent destruction of property rights can be a per se taking. Perhaps 90? Perhaps 60, so long as the remaining 40 is viewed by a reviewing court as less than meaningful? And what makes a retained right meaningful enough? One wonders. Indeed, it is not at all clear what test the Court has actually applied. Such confusion would be bad enough in any context, but it is especially pernicious in the area of property rights. Property owners should be assured of where they stand, and the government needs to know how far it can permissibly go without tripping over a categorical rule. The second overarching error in the Court’s opinion arises from its reliance on what it views as the uniquely physical nature of the taking effected by the Order. This, it says, is why many of the cases having to do with so-called regulatory takings are inapposite. See ante, at 9–12. It is not the case, however, that Government agents acting pursuant to the Order are storming raisin farms in the dark of night to load raisins onto trucks. But see Tr. of Oral Arg. 30 (remarks of Roberts, C. J.). The Order simply requires the Hornes to set aside a portion of their raisins—a requirement with which the Hornes refused to comply. See 7 CFR §989.66(b)(2); Tr. of Oral Arg. 31. And it does so to facilitate two classic regulatory goals. One is the regulatory purpose of limiting the quantity of raisins that can be sold on the market. The other is the regula-tory purpose of arranging the orderly disposition of those raisins whose sale would otherwise exceed the cap. The Hornes and the Court both concede that a cap on the quantity of raisins that the Hornes can sell would not be a per se taking. See ante, at 9; Brief for Petitioners 23, 52. The Court’s focus on the physical nature of the intrusion also suggests that merely arranging for the sale of the reserve raisins would not be a per se taking. The rub for the Court must therefore be not that the Government is doing these things, but that it is accomplishing them by the altogether understandable requirement that the reserve raisins be physically set aside. I know of no principle, however, providing that if the Government achieves a permissible regulatory end by asking regulated individuals or entities to physically move the property subject to the regulation, it has committed a per se taking rather than a potential regulatory taking. After all, in Monsanto , the data that the pesticide companies had to turn over to the Government was presumably turned over in some physical form, yet even the Court does not call Monsanto a physical takings case. It therefore cannot be that any regulation that involves the slightest physical movement of property is necessarily evaluated as a per se taking rather than as a regulatory taking. The combined effect of these errors is to unsettle an important area of our jurisprudence. Unable to justify its holding under our precedents, the Court resorts to superimposing new limitations on those precedents, stretching the otherwise strict Loretto test into an unadministrable one, and deeming regulatory takings jurisprudence irrelevant in some undefined set of cases involving government regulation of property rights. And it does all of this in service of eliminating a type of reserve requirement that is applicable to just a few commodities in the entire country—and that, in any event, commodity producers could vote to terminate if they wished. See Letter from Solicitor General to Clerk of Court (Apr. 29, 2015); 7 U. S. C. §608c(16)(B); 7 CFR §989.91(c). This intervention hardly strikes me as worth the cost, but what makes the Court’s twisting of the doctrine even more baffling is that it ultimately instructs the Government that it can permissibly achieve its market control goals by imposing a quota without offering raisin producers a way of reaping any return whatsoever on the raisins they cannot sell. I have trouble understanding why anyone would prefer that. *  *  * Because a straightforward application of our precedents reveals that the Hornes have not suffered a per se taking, I would affirm the judgment of the Ninth Circuit. The Court reaches a contrary conclusion only by expanding our per se takings doctrine in a manner that is as unwarranted as it is vague. I respectfully dissent. Notes 1 The Court attempts to distinguish Leonard & Leonard because it involved wild oysters, not raisins. Ante , at 14. That is not an inaccurate factual statement, but I do not find in Leonard & Leonard any suggestion that its holding turned on this or any other of the facts to which the Court now points. Indeed, the only citation the Court offers for these allegedly crucial facts is the Maryland Court of Appeals’ opinion, not ours. See ante , at 14 . 2 The Court claims that Monsanto is distinguishable for three reasons, none of which hold up. First, it seems, the Court believes the degree of the intrusion on property rights is greater here than in Monsanto . See ante , at 13. Maybe, maybe not. But nothing in Monsanto suggests this is a relevant question, and the Court points to nothing saying that it is. Second, the Court believes that “[s]elling produce in interstate commerce” is not a government benefit. Ante , at 13. Again, that may be true, but the Hornes are not simply selling raisins in interstate commerce. They are selling raisins in a regulated market at a price artificially inflated by Government action in that market. That is the benefit the Hornes receive, and it does not matter that they “would rather not have” received it. United States v. Sperry Corp. , 493 U. S. 52 –63 (1989). Third, the Court points out that raisins “are not dangerous pesticides; they are a healthy snack.” Ante , at 13. I could not agree more, but nothing in Monsanto , or in Andrus for that matter, turned on the dangerousness of the commodity at issue. 3 The Court points out that, in a footnote in Loretto v . Teleprompter Manhattan CATV Corp., 458 U. S. 419 (1982) , we suggested that it did not matter for takings purposes whether a property owner could avoid an intrusion on her property rights by using her property differently. See ante , at 12 (quoting 458 U. S., at 439, n. 17). But in Yee v. Escondido, 503 U. S. 519 (1992) , we clarified that, where a law does not on its face effect a per se taking, the voluntariness of a particular use of property or of entry into a particular market is quite relevant. See id., at 531–532. In other words, only when a law requires the forfeiture of all rights in property does it effect a per se taking regardless of whether the law could be avoided by a different use of the property. As discussed above, the Order is not such a law. 4 The Court relies on Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency , 535 U. S. 302, 322 (2002) , for the proposition that “ ‘[w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof.’ ” Ante, at 10. But all that means is that a per se taking may be said to have occurred with respect to the portion of property that has been taken even if other portions of the property have not been taken. This is of no help to the Hornes, or to the Court, because it in no way diminishes a plaintiff’s burden to demonstrate a per se taking as to the portion of his or her property that he or she claims has been taken—here, the reserve raisins. As to that specific property, a per se taking occurs if and only if the Loretto conditions are satisfied.

The Supreme Court ruled that the government's physical taking of personal property (in this case, raisins) requires just compensation under the Fifth Amendment, regardless of the government's intentions or benefits provided to the growers. This case sets a precedent for government takings of personal property, emphasizing the rights of property owners.

Miranda Rights

Arizona v. Roberson

https://supreme.justia.com/cases/federal/us/486/675/

U.S. Supreme Court Arizona v. Roberson, 486 U.S. 675 (1988) Arizona v. Roberson No. 87-354 Argued March 29, 1988 Decided June 15, 1988 486 U.S. 675 CERTIORARI TO THE COURT OF APPEALS OF ARIZONA Syllabus Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485, held that a suspect who has "expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication." After being arrested at the scene of a burglary, and being advised by the arresting officer of his constitutional rights, as declared in Miranda v. Arizona, 384 U. S. 436 , to remain silent and to have an attorney present during any interrogation, respondent replied that he "wanted a lawyer before answering any questions," which fact was duly reported in the officer's written report. Three days later, while respondent was still in custody, a different officer, unaware that respondent had earlier requested counsel who had not yet been provided, advised him of his rights and interrogated him about a different burglary, obtaining an incriminating statement concerning that crime. In the prosecution for that offense, the Arizona trial court suppressed the statement in reliance upon a State Supreme Court decision that refused to distinguish Edwards with respect to a suspect who was reinterrogated about an unrelated offense after he had requested counsel, ruling that the fact that the further interrogation in Edwards had involved the same offense was not legally significant for Fifth Amendment purposes. The Arizona Court of Appeals affirmed the suppression. Held: The Edwards rule applies to bar police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation. Pp. 486 U. S. 680 -688. (a) The bright-line, prophylactic Edwards rule benefits the accused and the State alike. It protects against the inherently compelling pressures of custodial interrogation suspects who feel incapable of undergoing such questioning without the advice of counsel, by creating a presumption that any subsequent waiver of the right to counsel at the authorities' behest was coercive, and not purely voluntary. Moreover, it provides clear and unequivocal guidelines that inform police and prosecutors with specificity what they may do in conducting custodial interrogation, and that inform courts under what circumstances statements obtained during such interrogation are not admissible. Pp. 486 U. S. 680 -682. (b) This Court's decisions do not compel an exception to Edwards for post-request police-initiated custodial interrogation relating to a separate Page 486 U. S. 676 investigation. Michigan v. Mosley, 423 U. S. 96 ; Connecticut v. Barrett, 479 U. S. 523 ; Colorado v. Spring, 479 U. S. 564 ; and Maine v. Moulton, 474 U. S. 159 , distinguished. Pp. 486 U. S. 682 -685. (c) The nature and factual setting of this case do not compel an exception to the Edwards rule. The argument that the existence of separate investigations in itself precludes the type of badgering that led to the decision in Edwards is not persuasive. It is by no means clear that police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody. Moreover, to a suspect who has indicated his inability to cope with custodial interrogation by requesting counsel, any further interrogation without counsel will surely exacerbate whatever compulsion to speak the suspect may be feeling. The giving of fresh sets of Miranda warnings will not necessarily "reassure" a suspect who has been denied requested counsel that his rights have remained untrammeled. In fact, in a case such as this, in which three days elapsed between the unsatisfied request for counsel and the separate-offense interrogation, there is a serious risk that the mere repetition of the warnings would not overcome the presumption of coercion created by prolonged police custody. Furthermore, the fact that it may be in an uncounseled suspect's interests to know about, and give a statement concerning, the separate offense does not compel an exception to Edwards, since the suspect, having requested counsel, can determine how to deal with the separate investigations with counsel's advice, and since the police are free to inform the suspect of the facts of the second investigation, as long as they do not interrogate him, and he is free to initiate further communication. Finally, the fact that the officer who conducted respondent's second interrogation did not know that he had requested counsel cannot justify the failure to honor that request, since Edwards focuses on the state of mind of the suspect, and not of the police, and since the officer could have discovered the request simply by reading the arresting officer's report. Pp. 486 U. S. 685 -688. Affirmed. STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, and SCALIA, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 486 U. S. 688 . O'CONNOR, J., took no part in the consideration or decision of the case. Page 486 U. S. 677 JUSTICE STEVENS delivered the opinion of the Court. In Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485 (1981), we held that a suspect who has "expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." In this case, Arizona asks us to craft an exception to that rule for cases in which the police want to interrogate a suspect about an offense that is unrelated to the subject of their initial interrogation. Several years ago, the Arizona Supreme Court considered, and rejected, a similar argument, stating: "The only difference between Edwards and the appellant is that Edwards was questioned about the same offense Page 486 U. S. 678 after a request for counsel, while the appellant was reinterrogated about an unrelated offense. We do not believe that this factual distinction holds any legal significance for fifth amendment purposes." State v. Routhier, 137 Ariz. 90, 97, 669 P.2d 68 , 75 (1983), cert. denied, 464 U.S. 1073 (1984). We agree with the Arizona Supreme Court's conclusion. I On April 16, 1985, respondent was arrested at the scene of a just-completed burglary. The arresting officer advised him that he had a constitutional right to remain silent and also the right to have an attorney present during any interrogation. See Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 -479 (1966). Respondent replied that he "wanted a lawyer before answering any questions." [ Footnote 1 ] This fact was duly recorded in the officer's written report of the incident. In due course, respondent was convicted of the April 16, 1985, burglary. On April 19, 1985, while respondent was still in custody pursuant to the arrest three days earlier, a different officer interrogated him about a different burglary that had occurred on April 15. That officer was not aware of the fact that respondent had requested the assistance of counsel three days earlier. After advising respondent of his rights, the officer obtained an incriminating statement concerning the April 15 burglary. In the prosecution for that offense, the trial court suppressed that statement. In explaining his ruling, the trial judge relied squarely on the Arizona Supreme Court's opinion in State v. Routhier, 137 Ariz. at 97, 669 P.2d at 75, characterizing the rule of the Edwards case as "clear and unequivocal." [ Footnote 2 ] Page 486 U. S. 679 The Arizona Court of Appeals affirmed the suppression order in a brief opinion, stating: "In Routhier, as in the instant case, the accused was continuously in police custody from the time of asserting his Fifth Amendment right through the time of the impermissible questioning. The coercive environment never dissipated." App. to Pet. for Cert. 24. The Arizona Supreme Court denied a petition for review. Id. at 25. We granted certiorari to resolve a conflict with certain other state court decisions. [ Footnote 3 ] 484 U.S. 975 (1987). We now affirm. Page 486 U. S. 680 II A major purpose of the Court's opinion in Miranda v. Arizona, 384 U.S. at 384 U. S. 441 -442, was "to give concrete constitutional guidelines for law enforcement agencies and courts to follow." "As we have stressed on numerous occasions, '[o]ne of the principal advantages' of Miranda is the ease and clarity of its application. Berkemer v. McCarty, 468 U. S. 420 , 468 U. S. 430 (1984); See also New York v. Quarles , [ 467 U.S. 649 , 467 U. S. 662 -664 (1984)] (concurring opinion); Fare v. Michael C. , 442 U.S. [707, 442 U. S. 718 (1979)]." Moran v. Burbine, 475 U. S. 412 , 475 U. S. 425 (1986). The rule of the Edwards case came as a corollary to Miranda's admonition that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 384 U. S. 474 . In such an instance, we had concluded in Miranda, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 384 U. S. 475 . In Edwards, we "reconfirm[ed] these views and, to lend them substance, emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 451 U.S. at 451 U. S. 485 . We concluded that reinterrogation may only occur if "the accused himself initiates Page 486 U. S. 681 further communication, exchanges, or conversations with the police." Ibid. Thus, the prophylactic protections that the Miranda warnings provide to counteract the "inherently compelling pressures" of custodial interrogation and to "permit a full opportunity to exercise the privilege against self-incrimination," 384 U.S. at 384 U. S. 467 , are implemented by the application of the Edwards corollary that, if a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the "inherently compelling pressures" and not the purely voluntary choice of the suspect. As JUSTICE WHITE has explained, "the accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities' insistence to make a statement without counsel's presence may properly be viewed with skepticism." Michigan v. Mosley, 423 U. S. 96 , 423 U. S. 110 , n. 2 (1975) (concurring in result). We have repeatedly emphasized the virtues of a bright-line rule in cases following Edwards as well as Miranda. See Michigan v. Jackson, 475 U. S. 625 , 475 U. S. 634 (1986); Smith v. Illinois, 469 U. S. 91 , 469 U. S. 98 (1984) (per curiam); Solem v. Stumes, 465 U. S. 638 , 465 U. S. 646 (1984); see also Shea v. Louisiana, 470 U. S. 51 (1985); Oregon v. Bradshaw, 462 U. S. 1039 , 462 U. S. 1044 (1983) (plurality opinion) (REHNQUIST, J.). In Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979), we explained that the "relatively rigid requirement that interrogation must cease upon the accused's request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision Page 486 U. S. 682 in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis. [ Footnote 4 ]" The Edwards rule thus serves the purpose of providing "clear and unequivocal" guidelines to the law enforcement profession. Surely there is nothing ambiguous about the requirement that, after a person in custody has expressed his desire to deal with the police only through counsel, he "is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 451 U. S. 484 -485. III Petitioner contends that the bright-line, prophylactic Edwards rule should not apply when the police-initiated interrogation following a suspect's request for counsel occurs in the context of a separate investigation. According to petitioner, both our cases and the nature of the factual setting compel this distinction. We are unpersuaded. Page 486 U. S. 683 Petitioner points to our holding in Michigan v. Mosley, 423 U.S. at 423 U. S. 103 -104 (quoting Miranda v. Arizona, 384 U.S. at 479), that, when a suspect asserts his right to cut off questioning, the police may " scrupulously honor'" that right by "immediately ceas[ing] the interrogation, resum[ing] questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restrict[ing] the second interrogation to a crime that had not been a subject of the earlier interrogation." 423 U.S. at 423 U. S. 106 . The police in this case followed precisely that course, claims the State. However, as Mosley made clear, a suspect's decision to cut off questioning, unlike his request for counsel, does not raise the presumption that he is unable to proceed without a lawyer's advice. See id. at 423 U. S. 101 , n. 7; id. at 423 U. S. 110 , n. 2 (WHITE, J., concurring in result), quoted supra at 486 U. S. 681 . Petitioner points as well to Connecticut v. Barrett, 479 U. S. 523 , 479 U. S. 525 (1987), which concerned a suspect who had "told the officers that he would not give a written statement unless his attorney was present but had 'no problem' talking about the incident." We held that this was a limited request for counsel, that Barrett himself had drawn a distinction between oral and written statements, and thus that the officers could continue to question him. Petitioner argues that Roberson's request for counsel was similarly limited, this time to the investigation pursuant to which the request was made. This argument is flawed both factually and legally. As a matter of fact, according to the initial police report, respondent stated that "he wanted a lawyer before answering any questions." [ Footnote 5 ] As a matter of law, the presumption raised by a suspect's request for counsel -- that he considers himself unable to deal with the pressures of custodial interrogation without legal assistance -- does not disappear simply because the police have approached the suspect, still in custody, still without counsel, about a separate investigation. Page 486 U. S. 684 That a suspect's request for counsel should apply to any questions the police wish to pose follows, we think, not only from Edwards and Miranda, but also from a case decided the same day as Barrett. In Colorado v. Spring, 479 U. S. 564 , 479 U. S. 577 (1987), we held that "a suspect's awareness of all the possible subjects of questioning in advance of interrogation is not relevant to determining whether the suspect voluntarily, knowingly, and intelligently waived his Fifth Amendment privilege." In the face of the warning that anything he said could be used as evidence against him, Spring's willingness to answer questions, without limiting such a waiver, see Connecticut v. Barrett, supra, indicated that he felt comfortable enough with the pressures of custodial interrogation both to answer questions and to do so without an attorney. Since there is "no qualification of [the] broad and explicit warning" that " anything [a suspect] says may be used against him," 479 U.S. at 479 U. S. 577 (emphasis in original), Spring's decision to talk was properly considered to be equally unqualified. Conversely, Roberson's unwillingness to answer any questions without the advice of counsel, without limiting his request for counsel, indicated that he did not feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation; unless he otherwise states, see Connecticut v. Barrett, supra, there is no reason to assume that a suspect's state of mind is in any way investigation-specific, see Colorado v. Spring, supra. Finally, petitioner raises the case of Maine v. Moulton, 474 U. S. 159 , 474 U. S. 161 (1985), which held that Moulton's "Sixth Amendment right to the assistance of counsel was violated by the admission at trial of incriminating statements made by him to his codefendant, a secret government informant, after indictment and at a meeting of the two to plan defense strategy for the upcoming trial." That case did not involve any Page 486 U. S. 685 Miranda issue because Moulton was not in custody. In our opinion, we rejected an argument that the statements should be admissible because the police were seeking information regarding both the crime for which Moulton had already been indicted and a separate, inchoate scheme. Following Massiah v. United States, 377 U. S. 201 , 377 U. S. 207 (1964), we recognized, though, that the continuing investigation of uncharged offenses did not violate the defendant's Sixth Amendment right to the assistance of counsel. Our recognition of that fact, however, surely lends no support to petitioner's argument that, in the Fifth Amendment context, "statements about different offenses, developed at different times, by different investigators, in the course of two wholly independent investigations, should not be treated the same." Brief for Petitioner 32. This argument overlooks the difference between the Sixth Amendment right to counsel and the Fifth Amendment right against self-incrimination. The former arises from the fact that the suspect has been formally charged with a particular crime, and thus is facing a state apparatus that has been geared up to prosecute him. The latter is protected by the prophylaxis of having an attorney present to counteract the inherent pressures of custodial interrogation, which arise from the fact of such interrogation and exist regardless of the number of crimes under investigation or whether those crimes have resulted in formal charges. In sum, our cases do not support petitioner's position. IV Petitioner's attempts at distinguishing the factual setting here from that in Edwards are equally unavailing. Petitioner first relies on the plurality opinion in Oregon v. Bradshaw, 462 U.S. at 462 U. S. 1044 (REHNQUIST, J.), which stated that Edwards laid down "a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards Page 486 U. S. 686 was." Petitioner reasons that "the chances that an accused will be questioned so repeatedly and in such quick succession that it will 'undermine the will' of the person questioned, or will constitute 'badger[ing],' are so minute as not to warrant consideration, if the officers are truly pursuing separate investigations." Brief for Petitioner 16. It is by no means clear, though, that police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody. Further, to a suspect who has indicated his inability to cope with the pressures of custodial interrogation by requesting counsel, any further interrogation without counsel's having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling. Thus, we also disagree with petitioner's contention that fresh sets of Miranda warnings will "reassure" a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled. See ibid. Especially in a case such as this, in which a period of three days elapsed between the unsatisfied request for counsel and the interrogation about a second offense, there is a serious risk that the mere repetition of the Miranda warnings would not overcome the presumption of coercion that is created by prolonged police custody. [ Footnote 6 ] Page 486 U. S. 687 The United States, as amicus curiae supporting petitioner, suggests that a suspect in custody might have "good reasons for wanting to speak with the police about the offenses involved in the new investigation, or at least to learn from the police what the new investigation is about, so that he can decide whether it is in his interest to make a statement about that matter without the assistance of counsel." Brief for United States as Amicus Curiae 11. The simple answer is that the suspect, having requested counsel, can determine how to deal with the separate investigations with counsel's advice. Further, even if the police have decided temporarily not to provide counsel, see n. 6, supra, they are free to inform the suspect of the facts of the second investigation, as long as such communication does not constitute interrogation, see Rhode Island v. Innis, 446 U. S. 291 (1980). As we have made clear, any "further communication, exchanges, or conversations with the police" that the suspect himself initiates, Edwards v. Arizona, 451 U.S. at 451 U. S. 485 , are perfectly valid. Finally, we attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel. In addition to the fact that Edwards focuses on the state of mind of the suspect, and not of the police, custodial interrogation must be conducted pursuant to established procedures, and those procedures, in turn, must enable an officer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel. In this case, respondent's request had been properly memorialized in a written report, but the officer who conducted the interrogation simply failed to examine that report. Whether a contemplated reinterrogation concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine Page 486 U. S. 688 whether the suspect has requested counsel exists. [ Footnote 7 ] The police department's failure to honor that request cannot be justified by the lack of diligence of a particular officer. Cf. Giglio v. United States, 405 U. S. 150 , 405 U. S. 154 (1972). The judgment of the Arizona Court of Appeals is Affirmed. JUSTICE O'CONNOR took no part in the consideration or decision of this case. [ Footnote 1 ] Tr. 26 (Apr. 3, 1986). [ Footnote 2 ] "Routhier was based on Edwards versus Arizona, which held that, once the defendant has invoked his right to counsel, he may not be reinterrogated unless counsel has been made available to him or he initiates the conversation." "The Routhier court states that whether the defendant is reinterrogated about the same offense or an unrelated offense makes no difference for Fifth Amendment purposes." "The Routhier court further stated that Edwards is clear and unequivocal, there is to be no further interrogation by authorities once the right to counsel is invoked. The Court in that case finding that the assertion of the right to counsel is an assertion by the accused that he is not competent to deal with authorities without legal advice. And that the resumption of questioning by the police without the requested attorney being provided, strongly suggests to the accused that he has no choice but to answer." App. to Pet. for Cert. 15-16. [ Footnote 3 ] See State v. Dampier, 314 N. C. 292, 333 S.E.2d 230 (1985) ( Edwards inapplicable to interrogation by authorities from different State concerning unrelated matter); McFadden v. Commonwealth, 225 Va. 103, 300 S.E.2d 924 (1983) ( Edwards inapplicable when authorities from different county question suspect about different crime); see also Lofton v. State, 471 So. 2d 665 (Fla.App.) (no Edwards violation when suspect is represented by attorney in unrelated matter, then questioned without counsel present), review denied, 480 So. 2d 1294 (Fla.1985); State v. Newton, 682 P.2d 295 (Utah 1984) (same); State v. Cornethan, 38 Wash. App. 231, 684 P.2d 1355 (1984) (alternative holding: Edwards inapplicable to interrogation in unrelated investigation; court also holds that representation by attorney in related matter does not suffice as request for counsel for Edwards purposes); cf. State v. Harriman, 434 So. 2d 551 (La. App.) (adopts petitioner's view here, but only after holding that suspect had initiated conversation regarding second investigation), writ denied, 440 So. 2d 729 (La.1983); but see United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 124-126 (CA7), cert. denied, 483 U.S. 1010 (1987) (same rule as Arizona ); Luman v. State, 447 So. 2d 428 (Fla.App.1984) (same); Radovsky v. State, 296 Md. 386, 464 A.2d 239 (1983) (same); see also Boles v. Foltz, 816 F.2d 1132, 1137-1141 (CA6) (Gibson, J., dissenting) (same; majority does not reach issue), cert. denied, 484 U.S. 857 (1987); cf. United States v. Scalf, 708 F.2d 1540, 1544 (CA10 1983) (knowledge of request for counsel "is imputed to all law enforcement officers who subsequently deal with the suspect"); State v. Arceneaux, 425 So. 2d 740 (La.1983) (same). [ Footnote 4 ] It is significant that our explanation of the basis for the " per se aspect of Miranda " in Fare v. Michael C., 442 U.S. at 442 U. S. 719 , applies to the application of the Edwards rule in a case such as this. As we stated in Fare: "The rule in Miranda . . . was based on this Court's perception that the lawyer occupies a critical position in our legal system because of his unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that 'the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system' established by the Court. [384 U.S.] at 384 U. S. 469 . Moreover, the lawyer's presence helps guard against overreaching by the police and ensures that any statements actually obtained are accurately transcribed for presentation into evidence. Id. at 384 U. S. 470 ." "The per se aspect of Miranda was thus based on the unique role the lawyer plays in the adversary system of criminal justice in this country." 442 U.S. at 442 U. S. 719 . [ Footnote 5 ] Tr. 26 (Apr. 3, 1986) (emphasis added); see id. at 23; Tr. 12 (Oct. 17, 1985, a.m.). [ Footnote 6 ] The United States, as amicus curiae supporting petitioner, suggests similarly that "respondent's failure to reiterate his request for counsel to [the officer involved in the second investigation], even after [that officer] gave respondent complete Miranda warnings, could not have been the result of any doubt on respondent's part that the police would honor a request for counsel if one were made." Brief for United States as Amicus Curiae 10. This conclusion is surprising, considering that respondent had not been provided with the attorney he had already requested, despite having been subjected to police-initiated interrogation with respect to the first investigation as well. See n. 7, infra. We reiterate here, though, that the "right" to counsel to protect the Fifth Amendment right against self-incrimination is not absolute; that is, "[i]f authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time." Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 474 (1966). [ Footnote 7 ] Indeed, the facts of this case indicate that different officers investigating the same offense are just as likely to bypass proper procedures as an officer investigating a different offense, inasmuch as the record discloses no less than five violations of the Edwards rule, four concerning the April 16 burglary and only one concerning the April 15 burglary. See Tr. 23-24, 49 (Apr. 3, 1986); Tr. 8-12 (Oct. 17, 1985, p.m.). It is only the last violation that is at issue in this case. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE joins, dissenting. The majority frames the case as one in which we are asked to "craft an exception" to Edwards v. Arizona, 451 U. S. 477 (1981). Ante at 486 U. S. 677 . The implication from this, it would seem, is that the burden of proof falls on those who say no constitutional or preventative purpose is served by prohibiting the police from asking a suspect, once he has requested counsel, if he chooses to waive that right in a new and independent investigation of a different crime. But the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion. Our justification must be consistent with the practical realities of suspects' rights and police investigations. With all respect, I suggest the majority does not have a convincing case. The majority's rule is not necessary to protect the rights of suspects, and it will in many instances deprive our nationwide law enforcement network of a legitimate investigative technique now routinely used to resolve major crimes. Page 486 U. S. 689 When a suspect is in custody for even the most minor offense, his name and fingerprints are checked against master files. It is a frequent occurrence that the suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been apprehended. The rule announced today will bar law enforcement officials, even those from some other city or other jurisdiction, from questioning a suspect about an unrelated matter if he is in custody and has requested counsel to assist in answering questions put to him about the crime for which he was arrested. This is the first case in which we are asked to apply Edwards to separate and independent investigations. The statements deemed inadmissible in Edwards and in our later cases applying its doctrine were statements relating to the same investigation in which the right to counsel was invoked. See Connecticut v. Barrett, 479 U. S. 523 (1987); Smith v. Illinois, 469 U. S. 91 (1984); Solem v. Stumes, 465 U. S. 638 (1984); Oregon v. Bradshaw, 462 U. S. 1039 (1983); Wyrick v. Fields, 459 U. S. 42 (1982). The majority's extension of the Edwards rule to separate and independent investigations is unwarranted. The petitioner in Edwards, arrested on serious charges, first submitted to interrogation, but then requested an attorney. Questions ceased for a while, but when two detectives came to the jail the next morning, a guard advised him that he must talk with them. The petitioner in Edwards waived his right to silence and implicated himself in the crime. We reversed the conviction, holding that an accused who expresses his desire to face further questioning with counsel present will not be subject to further interrogation until counsel is made available, unless the accused initiates the exchange himself. Our ultimate concern in Edwards, and in the cases which follow it, is whether the suspect knows and understands his rights and is willing to waive them, and whether courts can be assured that coercion did not induce the waiver. That Page 486 U. S. 690 concern does not dictate the result reached by the Court today, for the dangers present in Edwards and later cases are insubstantial here. The rule in Edwards "was in effect a prophylactic rule, designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was." Oregon v. Bradshaw, supra, at 462 U. S. 1044 (plurality opinion). Where the subsequent questioning is confined to an entirely independent investigation, there is little risk that the suspect will be badgered into submission. The Court reasons that it is "by no means clear" that "police engaged in separate investigations will be any less eager than police involved in only one inquiry to question a suspect in custody." Ante at 686. That misses the point. Unless there are so many separate investigations that fresh teams of police are regularly turning up to question the suspect, the danger of badgering is minimal, and insufficient to justify a rigid per se rule. Whatever their eagerness, the police in a separate investigation may not commence any questioning unless the suspect is readvised of his Miranda rights and consents to the interrogation, and they are required by Edwards to cease questioning him if he invokes his right to counsel. Consequently, the legitimate interest of the suspect in not being subjected to coercive badgering is already protected. The reason for the Edwards rule is not that confessions are disfavored, but that coercion is feared. The rule announced today, however, prohibits the police from resuming questions, after a second Miranda warning, when there is no more likelihood of coercion than when the first interrogation began. The Court suggests that the suspect may believe his rights are fictitious if he must assert them a second time, but the support for this suggestion is weak. The suspect, having observed that his earlier invocation of rights was effective in terminating questioning and having been advised that further questioning may not relate to that crime, would understand Page 486 U. S. 691 that he may invoke his rights again with respect to the new investigation, and so terminate questioning regarding that investigation as well. Indeed, the new warnings and explanations will reinforce his comprehension of a suspect's rights. I note that the conduct of the police in this case was hardly exemplary; they reinitiated questioning of respondent regarding the first investigation after he had asserted his right to counsel in that investigation. The statements he gave in response, however, properly were excluded at trial for all purposes except impeachment. Any sense of coercion generated by this violation which carried over into the questioning on the second offense would of course be taken into account by a court reviewing whether the waiver of Miranda rights in the second investigation was voluntary, and the per se rule announced today is therefore not necessary to respond to such misconduct. Allowing authorities who conduct a separate investigation to read the suspect his Miranda rights and ask him whether he wishes to invoke them strikes an appropriate balance, which protects the suspect's freedom from coercion without unnecessarily disrupting legitimate law enforcement efforts. Balance is essential when the Court fashions rules which are preventative and do not themselves stem from violations of a constitutional right. Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974). By contrast with the Fourth Amendment exclusionary rule, for instance, the rule here operates even absent constitutional violation, see Oregon v. Elstad, 470 U. S. 298 , 470 U. S. 306 -307 (1985), and we should be cautious in extending it. The Court expresses a preference for bright lines, but the line it draws here is far more restrictive than necessary to protect the interests at stake. By prohibiting the police from questioning the suspect regarding a separate investigation, the Court chooses to presume that a suspect has made the decision that he does not wish to talk about that investigation without counsel present, Page 486 U. S. 692 although that decision was made when the suspect was unaware of even the existence of a separate investigation. The underlying premise seems to be that there are two types of people: those who never talk without a lawyer and those who always talk without a lawyer. The more realistic view of human nature suggests that a suspect will want the opportunity, when he learns of the separate investigations, to decide whether he wishes to speak to the authorities in a particular investigation with or without representation. In other contexts, we have taken a more realistic approach to separate and independent investigations. In Maine v. Moulton, 474 U. S. 159 (1985), we held that the Sixth Amendment right to counsel barred admission of statements elicited from a criminal defendant by a government informant when the statements related to the charge on which the defendant had been indicted. We were careful to note, however, that the rule would have been otherwise had the statements related to a different charge. "[T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities." Id. at 474 U. S. 180 . Similarly, we held in Michigan v. Mosley, 423 U. S. 96 (1975), that a suspect who had been arrested on charges of committing robbery and who had invoked his right to silence could be questioned later about an unrelated murder, if first read his Miranda rights. The Court correctly points out that neither of these cases necessarily control the one before us; Moulton involved the Sixth Amendment right to counsel, and Mosley involved the Fifth Amendment right to silence, while this case involves the Fifth Amendment right to counsel. Moulton and Mosley nevertheless reflected an understanding that the invocation of a criminal suspect's constitutional rights could be respected, and the opportunities for unfair coercion restricted, without the establishment of a broad-brush Page 486 U. S. 693 rule by which the assertion of a right in one investigation is automatically applied to a separate and independent one. In considering whether to extend the Edwards rule to this case, the choice is not between holding, as the Court does, that such statements will never be admissible, and holding that such statements will always be admissible. The choice is between the Court's absolute rule establishing an irrebuttable presumption of coercion, and one which relies upon known and tested warnings, applied to each investigation as required by Edwards and Miranda v. Arizona, 384 U. S. 436 (1966), to insure that a waiver is voluntary. The problems to which Edwards was addressed are not present here in any substantial degree. Today's rule will neither serve the interest of law enforcement nor give necessary protection to the rights of those suspected of crime. I respectfully dissent.

Here is a summary of the case: In Arizona v. Roberson, the US Supreme Court ruled that the Edwards rule applies to bar police-initiated interrogation when a suspect has requested counsel, even in the context of a separate investigation. The Edwards rule states that a suspect who has invoked their right to counsel cannot be interrogated further by authorities unless the suspect initiates further communication. The case involved a suspect, Roberson, who was arrested for burglary and advised of his Miranda rights. Roberson requested a lawyer, but three days later, a different officer, unaware of this request, interrogated him about a different burglary and obtained an incriminating statement. The Court held that Roberson's statement was inadmissible, as he had previously invoked his right to counsel. The Court rejected the argument for an exception to the Edwards rule when the subsequent interrogation relates to a separate investigation. It emphasized the importance of clear guidelines for police and prosecutors and the protection of suspects' rights. The ruling highlights the presumption that any waiver of the right to counsel during custodial interrogation is coercive unless initiated by the accused.

Miranda Rights

Colorado v. Connelly

https://supreme.justia.com/cases/federal/us/479/157/

U.S. Supreme Court Colorado v. Connelly, 479 U.S. 157 (1986) Colorado v. Connelly No. 85-660 Argued Oct. 8, 1986 Decided Dec. 10, 1986 479 U.S. 157 CERTIORARI TO THE SUPREME COURT OF COLORADO Syllabus Respondent approached a Denver police officer and stated that he had murdered someone and wanted to talk about it. The officer advised respondent of his Miranda rights, and respondent said that he understood those rights, but still wanted to talk about the murder. Shortly thereafter, a detective arrived and again advised respondent of his rights. After respondent answered that he had come all the way from Boston to confess to the murder, he was taken to police headquarters. He then openly detailed his story to the police and subsequently pointed out the exact location of the murder. He was held overnight, and the next day he became visibly disoriented during an interview with the public defender's office and was sent to a state hospital for evaluation. Interviews with a psychiatrist revealed that respondent was following the "voice of God" in confessing to the murder. On the basis of the psychiatrist's testimony that respondent suffered from a psychosis that interfered with his ability to make free and rational choices and, although not preventing him from understanding his rights, motivated his confession, the trial court suppressed respondent's initial statements and custodial confession because they were "involuntary," notwithstanding the fact that the police had done nothing wrong or coercive in securing the confession. The court also found that respondent's mental state vitiated his attempted waiver of the right to counsel and the privilege against self-incrimination. The Colorado Supreme Court affirmed, holding that the Federal Constitution requires a court to suppress a confession when the defendant's mental state, at the time he confessed, interfered with his "rational intellect" and his "free will," the very admission of the evidence in a court of law being sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment. The court further held that respondent's mental condition precluded his ability to make a valid waiver of his Miranda rights, and that the State had not met its burden of proving a waiver by "clear and convincing evidence." Held: 1. Coercive police activity is a necessary predicate to finding that a confession is not "voluntary" within the meaning of the Due Process Clause. Here, the taking of respondent's statements and their admission into evidence constituted no violation of that Clause. While a defendant's mental condition may be a "significant" factor in the "voluntariness" Page 479 U. S. 158 calculus, this does not justify a conclusion that his mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness." Pp. 479 U. S. 163 -167. 2. Whenever the State bears the burden of proof in a motion to suppress a statement allegedly obtained in violation of the Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. Lego v. Twomey, , 404 U. S. 477 , reaffirmed. Thus, the Colorado Supreme Court erred in applying a "clear and convincing evidence" standard. That court also erred in its analysis of the question whether respondent had waived his Miranda rights. Notions of "free will" have no place in this area of constitutional law. Respondent's perception of coercion flowing from the "voice of God" is a matter to which the Federal Constitution does not speak. Pp. 479 U. S. 167 -171. 702 P.2d 722 , reversed and remanded. REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined, and in all but Part III-A of which BLACKMUN, J., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 479 U. S. 171 . STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479 U. S. 171 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 479 U. S. 174 . Page 479 U. S. 159 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court. In this case, the Supreme Court of Colorado held that the United States Constitution requires a court to suppress a confession when the mental state of the defendant, at the time he made the confession, interfered with his "rational intellect" and his "free will." Because this decision seemed to conflict with prior holdings of this Court, we granted certiorari. 474 U. S. 1050 (1986). We conclude that the admissibility of this kind of statement is governed by state rules of evidence, rather than by our previous decisions regarding coerced confessions and Miranda waivers. We therefore reverse. Page 479 U. S. 160 I On August 18, 1983, Officer Patrick Anderson of the Denver Police Department was in uniform, working in an off-duty capacity in downtown Denver. Respondent Francis Connelly approached Officer Anderson and, without any prompting, stated that he had murdered someone and wanted to talk about it. Anderson immediately advised respondent that he had the right to remain silent, that anything he said could be used against him in court, and that he had the right to an attorney prior to any police questioning. See Miranda v. Arizona, 384 U. S. 436 (1966). Respondent stated that he understood these rights, but he still wanted to talk about the murder. Understandably bewildered by this confession, Officer Anderson asked respondent several questions. Connelly denied that he had been drinking, denied that he had been taking any drugs, and stated that, in the past, he had been a patient in several mental hospitals. Officer Anderson again told Connelly that he was under no obligation to say anything. Connelly replied that it was "all right," and that he would talk to Officer Anderson because his conscience had been bothering him. To Officer Anderson, respondent appeared to understand fully the nature of his acts. Tr. 19. Shortly thereafter, Homicide Detective Stephen Antuna arrived. Respondent was again advised of his rights, and Detective Antuna asked him "what he had on his mind." Id. at 24. Respondent answered that he had come all the way from Boston to confess to the murder of Mary Ann Junta, a young girl whom he had killed in Denver sometime during November, 1982. Respondent was taken to police headquarters, and a search of police records revealed that the body of an unidentified female had been found in April, 1983. Respondent openly detailed his story to Detective Antuna and Sergeant Thomas Haney, and readily agreed to take the officers to the scene of the killing. Under Connelly's sole direction, the two officers and respondent proceeded Page 479 U. S. 161 in a police vehicle to the location of the crime. Respondent pointed out the exact location of the murder. Throughout this episode, Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness. Id. at 33-34. Respondent was held overnight. During an interview with the public defender's office the following morning, he became visibly disoriented. He began giving confused answers to questions, and for the first time, stated that "voices" had told him to come to Denver and that he had followed the directions of these voices in confessing. Id. at 42. Respondent was sent to a state hospital for evaluation. He was initially found incompetent to assist in his own defense. By March, 1984, however, the doctors evaluating respondent determined that he was competent to proceed to trial. At a preliminary hearing, respondent moved to suppress all of his statements. Dr. Jeffrey Metzner, a psychiatrist employed by the state hospital, testified that respondent was suffering from chronic schizophrenia and was in a psychotic state at least as of August 17, 1983, the day before he confessed. Metzner's interviews with respondent revealed that respondent was following the "voice of God." This voice instructed respondent to withdraw money from the bank, to buy an airplane ticket, and to fly from Boston to Denver. When respondent arrived from Boston, God's voice became stronger and told respondent either to confess to the killing or to commit suicide. Reluctantly following the command of the voices, respondent approached Officer Anderson Page 479 U. S. 162 and confessed. Dr. Metzner testified that, in his expert opinion, respondent was experiencing "command hallucinations." Id. at 56. This condition interfered with respondent's "volitional abilities -- that is, his ability to make free and rational choices." Ibid. Dr. Metzner further testified that Connelly's illness did not significantly impair his cognitive abilities. Thus, respondent understood the rights he had when Officer Anderson and Detective Antuna advised him that he need not speak. Id. at 56-57. Dr. Metzner admitted that the "voices" could in reality be Connelly's interpretation of his own guilt, but explained that, in his opinion, Connelly's psychosis motivated his confession. On the basis of this evidence, the Colorado trial court decided that respondent's statements must be suppressed because they were "involuntary." Relying on our decisions in Townsend v. Sain, 372 U. S. 293 (1963), and Culombe v. Connecticut, 367 U. S. 568 (1961), the court ruled that a confession is admissible only if it is a product of the defendant's rational intellect and "free will." Tr. 88. Although the court found that the police had done nothing wrong or coercive in securing respondent's confession, Connelly's illness destroyed his volition and compelled him to confess. Id. at 89. The trial court also found that Connelly's mental state vitiated his attempted waiver of the right to counsel and the privilege against compulsory self-incrimination. Accordingly, respondent's initial statements and his custodial confession were suppressed. Id. at 90. The Colorado Supreme Court affirmed. 702 P.2d 722 (1985). In that court's view, the proper test for admissibility is whether the statements are "the product of a rational intellect and a free will." Id. at 728. Indeed, "the absence of police coercion or duress does not foreclose a finding of involuntariness. One's capacity for rational judgment and free choice may be overborne as much by certain forms of severe mental illness as by external pressure." Ibid. The court found that the very admission of the evidence in a court of law was sufficient state action to implicate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The evidence fully supported the conclusion that respondent's initial statement was not the product of a rational intellect and a free will. The court then considered respondent's attempted waiver of his constitutional rights and found that respondent's mental condition precluded his Page 479 U. S. 163 ability to make a valid waiver. Id. at 729. The Colorado Supreme Court thus affirmed the trial court's decision to suppress all of Connelly's statements. II The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." Just last Term, in Miller v. Fenton, 474 U. S. 104 , 474 U. S. 109 (1985), we held that, by virtue of the Due Process Clause, "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned." See also Moran v. Burbine, 475 U. S. 412 , 475 U. S. 432 -434 (1986). Indeed, coercive government misconduct was the catalyst for this Court's seminal confession case, Brown v. Mississippi, 297 U. S. 278 (1936). In that case, police officers extracted confessions from the accused through brutal torture. The Court had little difficulty concluding that, even though the Fifth Amendment did not at that time apply to the States, the actions of the police were "revolting to the sense of justice." Id. at 297 U. S. 286 . The Court has retained this due process focus, even after holding, in Malloy v. Hogan, 378 U. S. 1 (1964), that the Fifth Amendment privilege against compulsory self-incrimination applies to the States. See Miller v. Fenton, supra, at 474 U. S. 109 -110. Thus, the cases considered by this Court over the 50 years since Brown v. Mississippi have focused upon the crucial element of police overreaching. [ Footnote 1 ] While each confession case Page 479 U. S. 164 has turned on its own set of factors justifying the conclusion that police conduct was oppressive, all have contained a substantial element of coercive police conduct. Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. [ Footnote 2 ] Respondent correctly notes that, as interrogators have turned to more subtle forms of psychological persuasion, courTs have found the mental condition of the defendant a more significant factor in the "voluntariness" calculus. See Spano v. New York, 360 U. S. 315 (1959). But this fact does not justify a conclusion that a defendant's mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional "voluntariness." Respondent relies on Blackburn v. Alabama, 361 U. S. 199 (1960), and Townsend v. Sain, 372 U. S. 293 (1963), for the proposition that the "deficient mental condition of the defendants in those cases was sufficient to render their confessions involuntary." Brief for Respondent 20. But respondent's reading of Blackburn and Townsend ignores the integral element of police overreaching present in both cases. In Blackburn, the Court found that the petitioner was probably insane at the time of his confession, and the police learned during the interrogation that he had a history of mental problems. Page 479 U. S. 165 The police exploited this weakness with coercive tactics: "the eight- to nine-hour sustained interrogation in a tiny room which was upon occasion literally filled with police officers; the absence of Blackburn's friends, relatives, or legal counsel; [and] the composition of the confession by the Deputy Sheriff, rather than by Blackburn." 361 U.S. at 361 U. S. 207 -208. These tactics supported a finding that the confession was involuntary. Indeed, the Court specifically condemned police activity that "wrings a confession out of an accused against his will." Id. at 361 U. S. 206 -207. Townsend presented a similar instance of police wrongdoing. In that case, a police physician had given Townsend a drug with truth serum properties. 372 U.S. at 372 U. S. 298 -299. The subsequent confession, obtained by officers who knew that Townsend had been given drugs, was held involuntary. These two cases demonstrate that, while mental condition is surely relevant to an individual's susceptibility to police coercion, mere examination of the confessant's state of mind can never conclude the due process inquiry. Our "involuntary confession" jurisprudence is entirely consistent with the settled law requiring some sort of "state action" to support a claim of violation of the Due Process Clause of the Fourteenth Amendment. The Colorado trial court, of course, found that the police committed no wrongful acts, and that finding has been neither challenged by respondent nor disturbed by the Supreme Court of Colorado. The latter court, however, concluded that sufficient state action was present by virtue of the admission of the confession into evidence in a court of the State. 702 P.2d at 728-729. The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant, on the other. The flaw in respondent's constitutional argument is that it would expand our previous line of "voluntariness" cases into a far-ranging requirement that courts must divine a defendant's Page 479 U. S. 166 motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision. The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause. See Walter v. United States, 447 U. S. 649 , 447 U. S. 656 (1980); Coolidge v. New Hampshire, 403 U. S. 443 , 403 U. S. 487 -488 (1971); Burdeau v. McDowell, 256 U. S. 465 , 256 U. S. 476 (1921). We have also observed that "[j]urists and scholars uniformly have recognized that the exclusionary rule imposes a substantial cost on the societal interest in law enforcement by its proscription of what concededly is relevant evidence." United States v. Janis, 428 U. S. 433 , 428 U. S. 448 -449 (1976). See also United States v. Havens, 446 U. S. 620 , 446 U. S. 627 (1980); United States v. Calandra, 414 U. S. 338 (1974). Moreover, suppressing respondent's statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution. See United States v. Leon, 468 U. S. 897 , 468 U. S. 906 -913 (1984). Only if we were to establish a brand new constitutional right -- the right of a criminal defendant to confess to his crime only when totally rational and properly motivated -- could respondent's present claim be sustained. We have previously cautioned against expanding "currently applicable exclusionary rules by erecting additional barriers to placing truthful and probative evidence before state juries. . . ." Lego v. Twomey, 404 U. S. 477 , 404 U. S. 488 -489 (1972). We abide by that counsel now. "[T]he central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence," Delaware v. Van Arsdall, 475 U. S. 673 , 475 U. S. 681 (1986), and, while we have previously held that exclusion of evidence may be necessary to protect constitutional guarantees, both the necessity for the collateral inquiry and the exclusion of evidence deflect a criminal trial from its basic purpose. Respondent would now have us require Page 479 U. S. 167 sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evidence, and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum, see, e.g., Fed.Rule Evid. 601, and not by the Due Process Clause of the Fourteenth Amendment. "The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use of evidence, whether true or false." Lisenba v. California, 314 U. S. 219 , 314 U. S. 236 (1941). We hold that coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment. We also conclude that the taking of respondent's statements, and their admission into evidence, constitute no violation of that Clause. III The Supreme Court of Colorado went on to affirm the trial court's ruling that respondent's later statements made while in custody should be suppressed because respondent had not waived his right to consult an attorney and his right to remain silent. That court held that the State must bear its burden of proving waiver of these Miranda rights by "clear and convincing evidence." 702 P.2d at 729. Although we have stated in passing that the State bears a "heavy" burden in proving waiver, Tague v. Louisiana, 444 U. S. 469 (1980) (per curiam); North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 373 (1979); Miranda v. Arizona, 384 U.S. at 384 U. S. 475 , we have never Page 479 U. S. 168 held that the "clear and convincing evidence" standard is the appropriate one. In Lego v. Twomey, supra, this Court upheld a procedure in which the State established the voluntariness of a confession by no more than a preponderance of the evidence. We upheld it for two reasons. First, the voluntariness determination has nothing to do with the reliability of jury verdicts; rather, it is designed to determine the presence of police coercion. Thus, voluntariness is irrelevant to the presence or absence of the elements of a crime, which must be proved beyond a reasonable doubt. See In re Winship, 397 U. S. 358 (1970). Second, we rejected Lego's assertion that a high burden of proof was required to serve the values protected by the exclusionary rule. We surveyed the various reasons for excluding evidence, including a violation of the requirements of Miranda v. Arizona, supra, and we stated that, "[i]n each instance, and without regard to its probative value, evidence is kept from the trier of guilt or innocence for reasons wholly apart from enhancing the reliability of verdicts." Lego v. Twomey, 404 U.S. at 404 U. S. 488 . Moreover, we rejected the argument that "the importance of the values served by exclusionary rules is itself sufficient demonstration that the Constitution also requires admissibility to be proved beyond a reasonable doubt." Ibid. Indeed, the Court found that "no substantial evidence has accumulated that federal rights have suffered from determining admissibility by a preponderance of the evidence." Ibid. We now reaffirm our holding in Lego: whenever the State bears the burden of proof in a motion to suppress a statement that the defendant claims was obtained in violation of our Miranda doctrine, the State need prove waiver only by a preponderance of the evidence. See Nix v. Williams, 467 U. S. 431 , 467 U. S. 444 , and n. 5 (1984); United States v. Matlock, 415 U. S. 164 , 415 U. S. 178 , n. 14 (1974) ("[T]he controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence . . ."). Page 479 U. S. 169 Cf. Moore v. Michigan, 355 U. S. 155 , 355 U. S. 161 -162 (1957). If, as we held in Lego v. Twomey, supra, the voluntariness of a confession need be established only by a preponderance of the evidence, then a waiver of the auxiliary protections established in Miranda should require no higher burden of proof. "[E]xclusionary rules are very much aimed at deterring lawless conduct by police and prosecution, and it is very doubtful that escalating the prosecution's burden of proof in . . . suppression hearings would be sufficiently productive in this respect to outweigh the public interest in placing probative evidence before juries for the purpose of arriving at truthful decisions about guilt or innocence." Lego v. Twomey, supra, at 404 U. S. 489 . See also United States v. Leon, 468 U.S. at 468 U. S. 906 -913. B We also think that the Supreme Court of Colorado was mistaken in its analysis of the question whether respondent had waived his Miranda rights in this case. [ Footnote 3 ] Of course, a waiver must at a minimum be "voluntary" to be effective against an accused. Miranda, supra, at 384 U. S. 444 , 384 U. S. 476 ; North Carolina v. Butler, supra, at 441 U. S. 373 . The Supreme Court of Colorado, in addressing this question, relied on the testimony of the court-appointed psychiatrist to the effect that respondent was not capable of making a "free decision with respect to his constitutional right of silence . . . and his constitutional right to confer with a lawyer before talking to the police." 702 P.2d at 729. We think that the Supreme Court of Colorado erred in importing into this area of constitutional law notions of "free will" that have no place there. There is obviously no reason to require more in the way of a "voluntariness" inquiry in the Page 479 U. S. 170 Miranda waiver context than in the Fourteenth Amendment confession context. The sole concern of the Fifth Amendment, on which Miranda was based, is governmental coercion. See United States v. Washington, 431 U. S. 181 , 431 U. S. 187 (1977); Miranda, supra, at 479 U. S. 460 . Indeed, the Fifth Amendment privilege is not concerned "with moral and psychological pressures to confess emanating from sources other than official coercion." Oregon v. Elstad, 470 U. S. 298 , 470 U. S. 305 (1985). The voluntariness of a waiver of this privilege has always depended on the absence of police overreaching, not on "free choice" in any broader sense of the word. See Moran v. Burbine, 475 U.S. at 475 U. S. 421 ("[T]he relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice, rather than intimidation, coercion or deception. . . . [T]he record is devoid of any suggestion that police resorted to physical or psychological pressure to elicit the statements"); Fare v. Michael C., 442 U. S. 707 , 442 U. S. 726 -727 (1979) (The defendant was "not worn down by improper interrogation tactics or lengthy questioning or by trickery or deceit. . . . The officers did not intimidate or threaten respondent in any way. Their questioning was restrained and free from the abuses that so concerned the Court in Miranda "). Respondent urges this Court to adopt his "free will" rationale, and to find an attempted waiver invalid whenever the defendant feels compelled to waive his rights by reason of any compulsion, even if the compulsion does not flow from the police. But such a treatment of the waiver issue would "cut this Court's holding in [ Miranda ] completely loose from its own explicitly stated rationale." Beckwith v. United States, 425 U. S. 341 , 425 U. S. 345 (1976). Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. Respondent's perception of coercion flowing from the "voice of God," however important or significant such a Page 479 U. S. 171 perception may be in other disciplines, is a matter to which the United States Constitution does not speak. IV The judgment of the Supreme Court of Colorado is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. [ Footnote 4 ] It is so ordered. [ Footnote 1 ] E.g., Mincey v. Arizona, 437 U. S. 385 (1978) (defendant subjected to 4-hour interrogation while incapacitated and sedated in intensive-care unit); Greenwald v. Wisconsin, 390 U. S. 519 (1968) (defendant, on medication, interrogated for over 18 hours without food or sleep); Beecher v. Alabama, 389 U. S. 35 (1967) (police officers held gun to the head of wounded confessant to extract confession); Davis v. North Carolina, 384 U. S. 737 (1966) (16 days of incommunicado interrogation in closed cell without windows, limited food, and coercive tactics); Reck v. Pate, 367 U. S. 433 (1961) (defendant held for four days with inadequate food and medical attention until confession obtained); Culombe v. Connecticut, 367 U. S. 568 (1961) (defendant held for five days of repeated questioning during which police employed coercive tactics); Payne v. Arkansas, 356 U. S. 560 (1958) (defendant held incommunicado for three days with little food; confession obtained when officers informed defendant that Chief of Police was preparing to admit lynch mob into jail); Ashcraft v. Tennessee, 322 U. S. 143 (1944) (defendant questioned by relays of officers for 36 hours without an opportunity for sleep). [ Footnote 2 ] Even where there is causal connection between police misconduct and a defendant's confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, 394 U. S. 731 , 394 U. S. 739 (1969). [ Footnote 3 ] Petitioner conceded at oral argument that, when Officer Anderson handcuffed respondent, the custody requirement of Miranda was satisfied. For purposes of our decision, we accept that concession, and we similarly assume that the police officers "interrogated" respondent within the meaning of Miranda. [ Footnote 4 ] It is possible to read the opinion of the Supreme Court of Colorado as finding respondent's Miranda waiver invalid on other grounds. Even if that is the case, however, we nonetheless reverse the judgment in its entirety because of our belief that the Supreme Court of Colorado's analysis was influenced by its mistaken view of "voluntariness" in the constitutional sense. Reconsideration of other issues, not inconsistent with our opinion, is of course open to the Supreme Court of Colorado on remand. JUSTICE BLACKMUN, concurring in part and concurring in the judgment. I join Parts I, II, III-B, and IV of the Court's opinion and its judgment. I refrain, however, from joining Part III-A of the opinion. Whatever may be the merits of the issue discussed there, which concerns the level of the State's burden of proof in showing that respondent had waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), that issue was neither raised nor briefed by the parties, and, in my view, it is not necessary to the decision. JUSTICE STEVENS, concurring in the judgment in part and dissenting in part. Respondent made incriminatory statements both before and after he was handcuffed and taken into custody. The only question presented by the Colorado District Attorney in his certiorari petition concerned the admissibility of respondent's precustodial statements. Pet. for Cert. i, 14-15. [ Footnote 2/1 ] I Page 479 U. S. 172 agree with the State of Colorado that the United States Constitution does not require suppression of those statements, but, in reaching that conclusion, unlike the Court, I am perfectly willing to accept the state trial court's finding that the statements were involuntary. The state trial court found that, in view of the "overwhelming evidence presented by the Defense," the prosecution did not meet its burden of demonstrating that respondent's initial statements to Officer Anderson were voluntary. App. 47-48. Nevertheless, in my opinion, the use of these involuntary precustodial statements does not violate the Fifth Amendment, because they were not the product of state compulsion. Although they may well be so unreliable that they could not support a conviction, at this stage of the proceeding, I could not say that they have no probative force whatever. The fact that the statements were involuntary -- just as the product of Lady Macbeth's nightmare was involuntary [ Footnote 2/2 ] -- does not mean that their use for whatever evidentiary value they may have is fundamentally unfair or a denial of due process. The post-custodial statements raise an entirely distinct question. When the officer whom respondent approached elected to handcuff him and to take him into custody, the police assumed a fundamentally different relationship with him. Prior to that moment, the police had no duty to give respondent Miranda warnings, and had every right to continue their exploratory conversation with him. [ Footnote 2/3 ] Once the custodial relationship was established, however, the questioning assumed Page 479 U. S. 173 a presumptively coercive character. Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 (1966). In my opinion, the questioning could not thereafter go forward in the absence of a valid waiver of respondent's constitutional rights unless he was provided with counsel. Since it is undisputed that respondent was not then competent to stand trial, I would also conclude that he was not competent to waive his constitutional right to remain silent. [ Footnote 2/4 ] The Court seems to believe that a waiver can be voluntary even if it is not the product of an exercise of the defendant's " free will.'" Ante at 479 U. S. 169 . The Court's position is not only incomprehensible to me, it is also foreclosed by the Court's recent pronouncement in Moran v. Burbine, 475 U. S. 412 , 475 U. S. 421 (1986), that "the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice. . . . [ Footnote 2/5 ]" Because respondent's waiver was not voluntary in that sense, his custodial interrogation was presumptively coercive. The Colorado Supreme Court was unquestionably correct in concluding that his post-custodial incriminatory statements were inadmissible. Accordingly, I concur in the judgment insofar as it applies to respondent's precustodial statements, but respectfully dissent Page 479 U. S. 174 from the Court's disposition of the question that was not presented by the certiorari petition. [ Footnote 2/1 ] The petition states: "[Respondent's] later confession, which involved a Miranda issue, is not an issue in this petition." Pet. for Cert. 15. [ Footnote 2/2 ] "What, will these hands ne'er be clean?" " * * * *" "Here's the smell of the blood still: all the perfumes of Arabia will not sweeten this little hand." W. Shakespeare, Macbeth, Act V, scene 1, lines 41, 47. Lady Macbeth's "eyes are open," "but their sense is shut." Id. at line 23. [ Footnote 2/3 ] See Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 247 (1973) (" Miranda, of course, did not reach investigative questioning of a person not in custody . . . "). [ Footnote 2/4 ] The trial court found: "Here, in the Court's estimation, there's no question that the Defendant did not exercise free will in choosing to talk to the police. He exercised a choice both [ sic ] of which were mandated by auditory hallucination, had no basis in reality, and were the product of a psychotic break with reality. The Defendant at the time of the confession had absolutely, in the Court's estimation, no volition or choice to make. He was compelled by his illness to do that which he did, and he did so in a manner which is not unusual for people who suffer schizophrenia." App. 47. [ Footnote 2/5 ] The Court relies on the further statement in Moran v. Burbine, 475 U.S. at 475 U. S. 421 , that the waiver must result from "free and deliberate choice, rather than intimidation, coercion, or deception. . . ." Ante at 479 U. S. 170 . Obviously, this dichotomy does not exhaust the possibilities; the mere absence of police misconduct does not establish that the suspect has made a free and deliberate choice when the suspect is not competent to stand trial. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting. Today the Court denies Mr. Connelly his fundamental right to make a vital choice with a sane mind, involving a determination that could allow the State to deprive him of liberty or even life. This holding is unprecedented: "Surely, in the present stage of our civilization, a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane. . . ." Blackburn v. Alabama, 361 U. S. 199 , 361 U. S. 207 (1960). Because I believe that the use of a mentally ill person's involuntary confession is antithetical to the notion of fundamental fairness embodied in the Due Process Clause, I dissent. I The respondent's seriously impaired mental condition is clear on the record of this case. At the time of his confession, Mr. Connelly suffered from a "long-standing severe mental disorder," diagnosed as chronic paranoid schizophrenia. 1 Record 16. He had been hospitalized for psychiatric reasons five times prior to his confession; his longest hospitalization lasted for seven months. Id. at 12. Mr. Connelly heard imaginary voices and saw nonexistent objects. Tr. 56. He believed that his father was God, and that he was a reincarnation of Jesus. 1 Record 15. At the time of his confession, Mr. Connelly's mental problems included "grandiose and delusional thinking." Id. at 16. He had a known history of "thought withdrawal and insertion." Id. at 14. Although physicians had treated Mr. Connelly "with a wide variety of medications in the past, including antipsychotic medications," he had not taken any antipsychotic medications for at least six months prior to his confession. Id. at 12. Following his arrest, Mr. Connelly initially was found incompetent to stand trial because the Page 479 U. S. 175 court-appointed psychiatrist, Dr. Metzner, "wasn't very confident that he could consistently relate accurate information." Tr. 68. Dr. Metzner testified that Mr. Connelly was unable "to make free and rational choices" due to auditory hallucinations: "[W]hen he was read his Miranda rights, he probably had the capacity to know that he was being read his Miranda rights [but] he wasn't able to use that information, because of the command hallucinations that he had experienced." Id. at 56-57. He achieved competency to stand trial only after six months of hospitalization and treatment with antipsychotic and sedative medications. Id. at 68; 1 Record 16. The state trial court found that the "overwhelming evidence presented by the Defense" indicated that the prosecution did not meet its burden of demonstrating by a preponderance of the evidence that the initial statement to Officer Anderson was voluntary. While the court found no police misconduct, it held: "[T]here's no question that the Defendant did not exercise free will in choosing to talk to the police. He exercised a choice both [ sic ] of which were mandated by auditory hallucination, had no basis in reality, and were the product of a psychotic break with reality. The Defendant at the time of the confession had absolutely in the Court's estimation no volition or choice to make." App. 47. The trial court also held that the State had not shown by clear and convincing evidence that the defendant had waived his Miranda right to counsel and to self-incrimination "voluntarily, knowingly and intelligently." App. 48. The Supreme Court of Colorado affirmed after evaluating "the totality of circumstances" surrounding the unsolicited confession and the waiver of Miranda rights. 702 P.2d 722 , 728 (1985). Page 479 U. S. 176 II The absence of police wrongdoing should not, by itself, determine the voluntariness of a confession by a mentally ill person. The requirement that a confession be voluntary reflects a recognition of the importance of free will and of reliability in determining the admissibility of a confession, and thus demands an inquiry into the totality of the circumstances surrounding the confession. A Today's decision restricts the application of the term "involuntary" to those confessions obtained by police coercion. Confessions by mentally ill individuals or by persons coerced by parties other than police officers are now considered "voluntary." The Court's failure to recognize all forms of involuntariness or coercion as antithetical to due process reflects a refusal to acknowledge free will as a value of constitutional consequence. But due process derives much of its meaning from a conception of fundamental fairness that emphasizes the right to make vital choices voluntarily: "The Fourteenth Amendment secures against state invasion . . . the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will. . . ." Malloy v. Hogan, 378 U. S. 1 , 378 U. S. 8 (1964). This right requires vigilant protection if we are to safeguard the values of private conscience and human dignity. This Court's assertion that we would be required "to establish a brand new constitutional right" to recognize the respondent's claim, ante at 479 U. S. 166 , ignores 200 years of constitutional jurisprudence. [ Footnote 3/1 ] As we stated in Culombe v. Connecticut, 367 U. S. 568 (1961): Page 479 U. S. 177 "The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? . . . The line of distinction is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession." Id. at 367 U. S. 602 (emphasis added). A true commitment to fundamental fairness requires that the inquiry be "not whether the conduct of state officers in obtaining the confession is shocking, but whether the confession was 'free and voluntary.' . . ." Malloy v. Hogan, supra, at 378 U. S. 7 . We have never confined our focus to police coercion, because the value of freedom of will has demanded a broader inquiry. See Blackburn v. Alabama, 361 U.S. at 361 U. S. 206 -207. The confession cases decided by this Court over the 50 years since Brown v. Mississippi, 297 U. S. 278 (1936), have focused upon both police overreaching and free will. While it is true that police overreaching has been an element of every confession case to date, see ante at 479 U. S. 163 -164, n. 1, it is also true that, in every case, the Court has made clear that ensuring that a confession is a product of free will is an independent concern. [ Footnote 3/2 ] The fact that involuntary confessions Page 479 U. S. 178 have always been excluded, in part, because of police overreaching signifies only that this is a case of first impression. Until today, we have never upheld the admission of a confession that does not reflect the exercise of free will. The Court cites Townsend v. Sain, 372 U. S. 293 (1963), and Blackburn in support of its view that police wrongdoing should be the central focus of inquiry. In Townsend, we overturned a murder conviction because the defendant's conviction was determined to be involuntary. The defendant suffered from stomach pains induced by heroin withdrawal. The police properly contacted a physician, who administered medications alleviating the withdrawal symptoms. The defendant then confessed. 372 U.S. at 372 U. S. 298 . Although the physician denied that he purposely administered "truth serum," there was an indication that the medications could have had such a side effect upon a narcotic addict. Id. at 372 U. S. 302 . The Townsend Court examined "many relevant circumstances:" "Among these are [the defendant's] lack of counsel at the time, his drug addiction, the fact that he was a 'near mental defective,' and his youth and inexperience." Id. at 372 U. S. 308 , n. 4. According to today's Court, the police wrongdoing in Townsend was that the police physician had allegedly Page 479 U. S. 179 given the defendant a drug with truth-serum properties, and that the confession was obtained by officers who knew that the defendant had been given drugs. Ante at 479 U. S. 165 . But, in fact, "the police . . . did not know what [medications] the doctor had given [the defendant]." 372 U.S. at 372 U. S. 299 . And the Townsend Court expressly stated that police wrongdoing was not an essential factor: "It is not significant that the drug may have been administered and the questions asked by persons unfamiliar with hyoscine's properties as a 'truth serum,' if these properties exist. Any questioning by police officers which in fact produces a confession which is not the product of a free intellect renders that confession inadmissible. The Court has usually so stated the test." Id. at 372 U. S. 308 (footnote omitted; emphasis in original). Furthermore, in prescient refutation of this Court's "police wrongdoing" theory, the Townsend Court analyzed Blackburn, the other case relied upon by this Court to "demonstrate" that police wrongdoing was a more important factor than the defendant's state of mind. The Court in Townsend stated: "[I]n Blackburn v. Alabama, 361 U. S. 199 , we held irrelevant the absence of evidence of improper purpose on the part of the questioning officers. There the evidence indicated that the interrogating officers thought the defendant sane when he confessed, but we judged the confession inadmissible because the probability was that the defendant was in fact insane at the time." 372 U.S. at 372 U. S. 309 (emphasis added). Thus, the Townsend Court interpreted Blackburn as a case involving a confession by a mentally ill defendant in which the police harbored no improper purpose. This Court abandons this precedent in favor of the view that only confessions rendered involuntary by some state action are inadmissible, and that the only relevant form of state Page 479 U. S. 180 action is police conduct. But even if state action is required, police overreaching is not its only relevant form. The Colorado Supreme Court held that the trial court's admission of the involuntary confession into evidence is also state action. The state court's analysis is consistent with Brown v. Mississippi, 297 U. S. 278 (1936), on which this Court so heavily relies. Brown, a case involving the use of confessions at trial, makes clear that "[t]he due process clause requires" "that state action, whether through one agency or another, shall be consistent with the fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." Id. at 297 U. S. 286 (emphasis added), citing Hebert v. Louisiana, 272 U. S. 312 , 272 U. S. 316 (1926). Police conduct constitutes but one form of state action. "The objective of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system." Harris v. New York, 401 U. S. 222 , 401 U. S. 231 (1971) (BRENNAN, J., dissenting). [ Footnote 3/3 ] Page 479 U. S. 181 The only logical "flaw" which the Court detects in this argument is that it would require courts to "divine a defendant's motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision." Ante at 479 U. S. 165 . Such a criticism, however, ignores the fact that we have traditionally examined the totality of the circumstances, including the motivation and competence of the defendant, in determining whether a confession is voluntary. Even today's Court admits that, "as interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the 'voluntariness' calculus." Ante at 479 U. S. 164 . The Court's holding that involuntary confessions are only those procured through police misconduct is thus inconsistent with the Court's historical insistence that only confessions reflecting an exercise of free will be admitted into evidence. B Since the Court redefines voluntary confessions to include confessions by mentally ill individuals, the reliability of these confessions becomes a central concern. A concern for reliability is inherent in our criminal justice system, which relies upon accusatorial, rather than inquisitorial, practices. While an inquisitorial system prefers obtaining confessions from criminal defendants, an accusatorial system must place its faith in determinations of "guilt by evidence independently and freely secured." Rogers v. Richmond, 365 U. S. 534 , 365 U. S. 541 (1961). In Escobedo v. Illinois, 378 U. S. 478 (1964), we justified our reliance upon accusatorial practices: "We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the 'confession' will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation." Id. at 378 U. S. 488 -489 (footnotes omitted). Page 479 U. S. 182 Our interpretation of the Due Process Clause has been shaped by this preference for accusatorial practices, see Miller v. Fenton, 474 U. S. 104 , 474 U. S. 109 -110 (1985); Malloy v. Hogan, 378 U.S. at 378 U. S. 7 ; Watts v. Indiana, 338 U. S. 49 , 338 U. S. 54 (1949), and by a concern for reliability, see Barefoot v. Estelle, 463 U. S. 880 , 463 U. S. 925 (1983) (BLACKMUN, J., dissenting); Foster v. California, 394 U. S. 440 , 394 U. S. 442 (1969). Our distrust for reliance on confessions is due, in part, to their decisive impact upon the adversarial process. Triers of fact accord confessions such heavy weight in their determinations that "the introduction of a confession makes the other aspects of a trial in court superfluous, and the real trial, for all practical purposes, occurs when the confession is obtained." E. Cleary, McCormick on Evidence 316 (2d ed. 1972); see also Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 466 (1966); Mapp v. Ohio, 367 U. S. 643 , 367 U. S. 685 (1961). No other class of evidence is so profoundly prejudicial. See Saltzburg, Standards of Proof and Preliminary Questions of Fact, 27 Stan.L.Rev. 271, 293 (1975). "Thus the decision to confess before trial amounts in effect to a waiver of the right to require the state at trial to meet its heavy burden of proof." Cleary, supra, at 316. Because the admission of a confession so strongly tips the balance against the defendant in the adversarial process, we must be especially careful about a confession's reliability. We have to date not required a finding of reliability for involuntary confessions only because all such confessions have been excluded upon a finding of involuntariness, regardless of reliability. See Jackson v. Denno, 378 U. S. 368 , 378 U. S. 383 -386 (1964). [ Footnote 3/4 ] The Court's adoption today of a restrictive definition of an "involuntary" confession will require heightened scrutiny of a confession's reliability. Page 479 U. S. 183 The instant case starkly highlights the danger of admitting a confession by a person with a severe mental illness. The trial court made no findings concerning the reliability of Mr. Connelly's involuntary confession, since it believed that the confession was excludable on the basis of involuntariness. However, the overwhelming evidence in the record points to the unreliability of Mr. Connelly's delusional mind. Mr. Connelly was found incompetent to stand trial because he was unable to relate accurate information, and the court-appointed psychiatrist indicated that Mr. Connelly was actively hallucinating and exhibited delusional thinking at the time of his confession. See supra at 479 U. S. 174 . The Court, in fact, concedes that "[a] statement rendered by one in the condition of respondent might be proved to be quite unreliable. . . ." Ante at 479 U. S. 167 . Moreover, the record is barren of any corroboration of the mentally ill defendant's confession. No physical evidence links the defendant to the alleged crime. Police did not identify the alleged victim's body as the woman named by the defendant. Mr. Connelly identified the alleged scene of the crime, but it has not been verified that the unidentified body was found there or that a crime actually occurred there. There is not a shred of competent evidence in this record linking the defendant to the charged homicide. There is only Mr. Connelly's confession. Minimum standards of due process should require that the trial court find substantial indicia of reliability, on the basis of evidence extrinsic to the confession itself, before admitting the confession of a mentally in person into evidence. I would require the trial court to make such a finding on remand. To hold otherwise allows the State to imprison and possibly to execute a mentally ill defendant based solely upon an inherently unreliable confession. III This Court inappropriately reaches out to address two Miranda issues not raised by the prosecutor in his petition Page 479 U. S. 184 for certiorari: (1) the burden of proof upon the government in establishing the voluntariness of Miranda rights, and (2) the effect of mental illness on the waiver of those rights in the absence of police misconduct. [ Footnote 3/5 ] I emphatically dissent from the Court's holding that the government need prove waiver by only a preponderance of the evidence, and from its conclusion that a waiver is automatically voluntary in the absence of police coercion. A In holding that the government need only prove the voluntariness of the waiver of Miranda rights by a preponderance of the evidence, the Court ignores the explicit command of Miranda : "If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant Page 479 U. S. 185 knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. This Court has always set high standards of proof for the waiver of constitutional rights, and we re-assert these standards as applied to in-custody interrogation." Miranda v. Arizona, 384 U.S. at 384 U. S. 475 (emphasis added; citations omitted). In recognition of the importance of the Due Process Clause and the Fifth Amendment, we always have characterized the State's burden of proof on a Miranda waiver as "great" and "heavy." See, e.g., Tague v. Louisiana, 444 U. S. 469 , 444 U. S. 470 -471 (1980); North Carolina v. Butler, 441 U. S. 369 , 441 U. S. 373 (1979); Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 236 (1973). Furthermore, under the Sixth Amendment, we have required the prosecution to meet a clear and convincing standard in demonstrating that evidence is not tainted by the absence of counsel at police lineups. See United States v. Wade, 388 U. S. 218 , 388 U. S. 240 (1967). Imposing the weakest possible burden of proof for waiver of Miranda 's right to counsel plainly ignores this precedent. The Court bases its holding on Lego v. Twomey, 404 U. S. 477 (1972). The four-Member Lego Court concluded that a confession obtained when the defendant was not in custody could be admitted into evidence if the prosecution proved its voluntariness by a preponderance of the evidence. [ Footnote 3/6 ] The Lego Court's rationale rested on two related premises. First, since all involuntary confessions were excluded, even if truthful, the voluntariness determination was not based on reliability. Thus, the requirement of proof beyond reasonable doubt for every fact necessary to constitute the charged crime, In re Winship, 397 U. S. 358 , 397 U. S. 364 (1970), was not Page 479 U. S. 186 applicable, because the concern of the Winship Court was the reliability of verdicts. 404 U.S. at 404 U. S. 482 -486. Second, the four Justices constituting the majority in Lego rejected the petitioner's argument that proof beyond reasonable doubt would best serve the constitutional values that the exclusionary rule was meant to protect. The four again emphasized that reliability of evidence was not a concern, since all involuntary confessions were excluded. It found no evidence that federal rights had suffered by imposing the weakest standard of proof for exclusionary rules. Id. at 404 U. S. 487 -489. I adhere to my Lego dissent. The constitutional ideal that involuntary confessions should never be admitted against the defendant in criminal cases deserves protection by the highest standard of proof -- proof beyond a reasonable doubt. Id. at 404 U. S. 491 . The lower standard of proof results "in the admission of more involuntary confessions than would be admitted were the prosecution required to meet a higher standard." Id. at 404 U. S. 493 . "Compelled self-incrimination is so alien to the American sense of justice that I see no way that such a view could ever be justified." Id. at 404 U. S. 494 . But even if the four Justices in Lego were correct, their holding is irrelevant to this case. The presumption underlying the reasoning in Lego was that reliability was not an important concern, because involuntary confessions were always excluded. Today the Court redefines voluntariness so that involuntary confessions that are not the result of police wrongdoing are no longer excluded under the voluntariness standard. My analysis in Part II-B shows that reliability should now become a major concern in the admission of such confessions. Since the reliability of verdicts is at stake, proof beyond a reasonable doubt constitutes the appropriate standard. [ Footnote 3/7 ] Page 479 U. S. 187 Finally, Lego involved a situation in which the defendant was not in custody. By contrast, a Miranda waiver is found while a defendant is in police custody. The coercive custodial interrogation atmosphere poses an increased danger of police overreaching. The police establish the isolated conditions of custody, and can document the voluntary waiver of Miranda rights through disinterested witnesses or recordings. See Miranda v. Arizona, supra, at 384 U. S. 475 . It is therefore appropriate to place a higher burden of proof on the government in establishing a waiver of Miranda rights. The ultimate irony is that, even accepting the preponderance of the evidence as the correct standard, the prosecution still failed to meet this burden of proof. The Colorado Supreme Court found that Dr. Metzner, the court-appointed psychiatrist and the only expert to testify, "clearly established" that Mr. Connelly "was incapable" of making a "free decision" respecting his Miranda rights. 702 P.2d at 729. Thus, the prosecution failed -- even by the modest standard imposed today -- to prove that Mr. Connelly voluntarily waived his Miranda rights. B The Court imports its voluntariness analysis, which makes police coercion a requirement for a finding of involuntariness, into its evaluation of the waiver of Miranda rights. My reasoning in Part II-A, supra, at 479 U. S. 176 -181, applies a fortiori to involuntary confessions made in custody involving the waiver of constitutional rights. See also Miranda v. Arizona, supra, at 384 U. S. 460 . I will not repeat here what I said there. I turn then to the second requirement, apart from the voluntariness requirement, that the State must satisfy to establish a waiver of Miranda rights. Besides being voluntary, Page 479 U. S. 188 the waiver must be knowing and intelligent. See Moran v. Burbine, 475 U. S. 412 , 475 U. S. 421 (1986). We recently noted that "the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it." Ibid. The two requirements are independent: "Only if the 'totality of the circumstances surrounding the interrogation' reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived." Ibid. (emphasis added). Since the Colorado Supreme Court found that Mr. Connelly was "clearly" unable to make an "intelligent" decision, clearly its judgment should be affirmed. The Court reverses the entire judgment, however, without explaining how a "mistaken view of voluntariness" could "taint" this independent justification for suppressing the custodial confession, but leaving the Colorado Supreme Court free on remand to reconsider other issues, not inconsistent with the Court's opinion. Such would include, in my view, whether the requirement of a knowing and intelligent waiver was satisfied. See ante at 479 U. S. 171 , n. 4. Moreover, on the remand, today's holding does not, of course, preclude a contrary resolution of this case based upon the State's separate interpretation of its own Constitution. See South Dakota v. Opperman, 428 U. S. 364 , 428 U. S. 396 (1976) (MARSHALL, J., dissenting). I dissent. [ Footnote 3/1 ] Cf. Bram v. United States, 168 U. S. 532 , 168 U. S. 547 -548 (1897) (reviewing the "rule [of law] in England at the time of the adoption of the Constitution and of the Fifth Amendment" and citing W. Hawkins, Pleas of the Crown (6th ed. 1787): "[a] confession, therefore, whether made upon an official examination or in discourse with private persons, which is obtained from a defendant, either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, . . . is not admissible evidence; for the law will not suffer a prisoner to be made the deluded instrument of his own conviction") (emphasis added). [ Footnote 3/2 ] E.g., Mincey v. Arizona, 437 U. S. 385 , 437 U. S. 398 (1978) ("It is hard to imagine a situation less conducive to the exercise of a rational intellect and a free will' than Mincey's"); Greenwald v. Wisconsin, 390 U. S. 519 , 390 U. S. 521 (1968) ("Considering the totality of these circumstances, we do not think it credible that petitioner's statements were the product of his free and rational choice"); Beecher v. Alabama, 389 U. S. 35 , 389 U. S. 37 (1967) ("Still in a `kind of slumber' from his last morphine injection, feverish, and in intense pain, the petitioner signed the written confessions thus prepared for him"); Davis v. North Carolina, 384 U. S. 737 , 384 U. S. 742 (1966) ("His level of intelligence is such that it prompted the comment by the court below, even while deciding against him on his claim of involuntariness, that there is a moral question whether a person of Davis' mentality should be executed"); Reck v. Pate, 367 U. S. 433 , 367 U. S. 440 (1961) ("If [a defendant's will was overborne], the confession cannot be deemed `the product of a rational intellect and a free will"'); Culombe v. Connecticut, 367 U. S. 568 , 367 U. S. 583 (1961) ("[A]n extrajudicial confession, if it was to be offered in evidence against a man, must be the product of his own free choice"); Payne v. Arkansas, 356 U. S. 560 , 356 U. S. 567 (1958) (footnotes omitted) ("It seems obvious from the totality of this course of conduct, and particularly the culminating threat of mob violence, that the confession was coerced and did not constitute an `expression of free choice"'); Ashcraft v. Tennessee, 322 U. S. 143 , 322 U. S. 147 (1944) ("He was induced by the fear of violence at the hands of a mob and by fear of the officers"). [ Footnote 3/3 ] Even if police knowledge of the defendant's insanity is required to exclude an involuntary confession, the record supports a finding of police knowledge in this case. The Court accepts the trial court's finding of no police wrongdoing, since, in the trial judge's view, none of the police officers knew that Mr. Connelly was insane. Tr. 83-84. After plenary review of the record, see Miller v. Fenton, 474 U. S. 104 , 474 U. S. 115 (1985), I conclude that this finding is clearly erroneous. When the defendant confessed to Officer Anderson, the officer's first thought was that Mr. Connelly was a "crackpot." Tr. 8. Today's Court describes Officer Anderson as "[u]nderstandably bewildered." Ante at 479 U. S. 160 . After giving Miranda warnings, the officer questioned the defendant about whether he used drugs or alcohol. He also asked Mr. Connelly if he had been treated for any mental disorders, and the defendant responded that he had been treated in five different mental hospitals. Tr. 14, 17. While this Court concludes that "Detective Antuna perceived no indication whatsoever that respondent was suffering from any kind of mental illness," ante at 479 U. S. 161 , the record indicates that Officer Anderson informed the detective about the defendant's five hospitalizations in mental institutions. Tr. 18. Thus, even under this Court's test requiring police wrongdoing, the record indicates that the officers here had sufficient knowledge about the defendant's mental incapacity to render the confession "involuntary." [ Footnote 3/4 ] Prior to establishing this rule excluding all involuntary confessions, we held the view that the Fifth Amendment, at bottom, served as "a guarantee against conviction on inherently untrustworthy evidence." Stein v. New York, 346 U. S. 156 , 346 U. S. 192 (1953). [ Footnote 3/5 ] In deciding to hear this case, this Court took "the unprecedented step of rewriting a prosecutor's certiorari petition for him, enabling him to seek reversal on a ground he did not present himself." Colorado v. Connelly, 474 U.S. 1060, 1051 (1986) (BRENNAN, J., dissenting from briefing order). The prosecutor expressly limited his petition to this Court to the issue of the suppression of the involuntary confession. Pet. for Cert. 16. Despite this, the Court directed the parties to brief the question of whether the defendant's mental condition rendered his waiver of Miranda rights ineffective. In addition, the Court today decides yet another issue neither raised nor briefed by either party. It holds that the government may establish the defendant's voluntary waiver of his Miranda rights by only a preponderance of the evidence. The Court also requires the state court to readdress a separate and independent basis for finding the waiver invalid. Quite apart from finding the Miranda waiver involuntary, the Colorado Supreme Court found that it was not an intelligent and knowing decision. Although unaffected by this Court's new analysis of the voluntariness requirement, the state court is forced to reconsider this independent justification for its decision. Ante at 479 U. S. 171 , n. 4. Such actions reinforce the Court's "appearance of being not merely the champion, but actually an arm of the prosecution." 474 U.S. at 1052. [ Footnote 3/6 ] Contrary to this Court's assertion, nowhere does the Lego Court state that "the voluntariness determination . . . is designed to determine the presence of police coercion." Ante at 479 U. S. 168 . See Lego v. Twomey. The Lego Court did not distinguish coercion by police from coercion exerted from other sources. [ Footnote 3/7 ] Furthermore, Lego established only that proof beyond a reasonable doubt was an inappropriately high standard. The decision has been criticized for never demonstrating affirmatively that the choice of the preponderance-of-the-evidence standard was more appropriate than the use of the clear-and-convincing-evidence standard. See Saltzburg, Standards of Proof and Preliminary Questions of Fact, 27 Stan. L. Rev. 271, 278 (1975). Here, the Colorado Supreme Court chose to apply the clear-and-convincing-evidence standard, and the Lego analysis cannot justify rejection of this intermediate standard.

In the case of Colorado v. Connelly, the U.S. Supreme Court ruled that a defendant's mental condition alone does not determine whether a confession is voluntary under the Due Process Clause. Instead, coercive police activity is required to find a confession involuntary. The Court also held that the government must prove a defendant's voluntary waiver of Miranda rights by a preponderance of the evidence. The Colorado Supreme Court's decision to suppress the defendant's confession and statements was reversed, as there was no police coercion present.

Miranda Rights

Pennsylvania v. Muniz

https://supreme.justia.com/cases/federal/us/496/582/

U.S. Supreme Court Pennsylvania v. Muniz, 496 U.S. 582 (1990) Pennsylvania v. Muniz No. 89-213 Argued Feb. 27, 1990 Decided June 18, 1990 496 U.S. 582 CERTIORARI TO THE SUPERIOR COURT OF PENNSYLVANIA Syllabus Respondent Muniz was arrested for driving while under the influence on a Pennsylvania highway. Without being advised of his rights under Miranda v. Arizona, 384 U. S. 436 , he was taken to a Booking Center where, as was the routine practice, he was told that his actions and voice would be videotaped. He then answered seven questions regarding his name, address, height, weight, eye color, date of birth, and current age, stumbling over two responses. He was also asked, and was unable to give, the date of his sixth birthday. In addition, he made several incriminating statements while he performed physical sobriety tests and when he was asked to submit to a breathalyzer test. He refused to take the breathalyzer test and was advised, for the first time, of his Miranda rights. Both the video and audio portions of the tape were admitted at trial, and he was convicted. His motion for a new trial on the ground that the court should have excluded, inter alia, the videotape was denied. The Pennsylvania Superior Court reversed. While finding that the videotape of the sobriety testing exhibited physical rather than testimonial evidence within the meaning of the Fifth Amendment, the court concluded that Muniz's answers to questions and his other verbalizations were testimonial and, thus, the audio portion of the tape should have been suppressed in its entirety. Held: The judgment is vacated and remanded. 377 Pa.Super. 382, 547 A.2d 419 , (1988), vacated and remanded. Justice BRENNAN delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, and IV, concluding that only Muniz's response to the sixth birthday question constitutes a testimonial response to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth Amendment. Pp. 496 U. S. 588 -600, 496 U. S. 602 -605. (a) The privilege against self-incrimination protects an "accused from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature," Schmerber v. California, 384 U. S. 757 , 384 U. S. 761 , but not from being compelled by the State to produce "real or physical evidence," id. at 384 U. S. 764 . To be testimonial, the communication must, "explicitly or implicitly, relate a factual assertion or disclose information." Doe v. United States, 487 U. S. 201 , 487 U. S. 210 . Pp. 496 U. S. 588 -590. Page 496 U. S. 583 (b) Muniz's answers to direct questions are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. Under Schmerber and its progeny, any slurring of speech and other evidence of lack of muscular coordination revealed by his responses constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound of his voice by reading a transcript, see United States v. Dionisio, 410 U. S. 1 , does not, without more, compel him to provide a "testimonial" response for purposes of the privilege. Pp. 496 U. S. 590 -592. (c) However, Muniz's response to the sixth birthday question was incriminating not just because of his delivery, but also because the content of his answer supported an inference that his mental state was confused. His response was testimonial because he was required to communicate an express or implied assertion of fact or belief and, thus, was confronted with the "trilemma" of truth, falsity, or silence, the historical abuse against which the privilege against self-incrimination was aimed. By hypothesis, the custodial interrogation's inherently coercive environment precluded the option of remaining silent, so he was left with the choice of incriminating himself by admitting the truth that he did not then know the date of his sixth birthday, or answering untruthfully by reporting a date that he did not know was accurate (which would also have been incriminating). Since the state court's holdings that the sixth birthday question constituted an unwarned interrogation and that Muniz's answer was incriminating were not challenged, this testimonial response should have been suppressed. Pp. 496 U. S. 592 -600. (d) Muniz's incriminating utterances during the sobriety and breathalyzer tests were not prompted by an interrogation within the meaning of Miranda, and should not have been suppressed. The officer's dialogue with Muniz concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed that were not likely to be perceived as calling for any verbal response. Therefore, they were not "words or actions" constituting custodial interrogation, and Muniz's incriminating utterances were "voluntary." The officer administering the breathalyzer test also carefully limited her role to providing Muniz with relevant information about the test and the implied consent law. She questioned him only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily "attendant to" a legitimate police procedure, and were not likely to be perceived as calling for any incriminating response. Pp. 496 U. S. 602 -605. Justice BRENNAN, joined by Justice O'CONNOR, Justice SCALIA, and Justice KENNEDY, concluded in Part III-C that the first seven Page 496 U. S. 584 questions asked Muniz fall outside Miranda protections and need not be suppressed. Although they constituted custodial interrogation, see Rhode Island v. Innis, 446 U. S. 291 , they are nonetheless admissible because the questions were asked "for recordkeeping purposes only," and therefore they fall within a "routine booking question" exception which exempts from Miranda's coverage questions to secure the "biographical data necessary to complete booking or pretrial services," United States v. Horton, 873 F.2d 180, 181, n. 2. Pp. 496 U. S. 600 -602. THE CHIEF JUSTICE, joined by Justice WHITE, Justice BLACKMUN, and Justice STEVENS, concluded that Muniz's responses to the "booking" questions were not testimonial, and therefore do not warrant application of the privilege. P. 496 U. S. 608 . BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, and IV, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, the opinion of the Court with respect to Part III-B, in which MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ., joined, and an opinion with respect to Part III-C, in which O'CONNOR, SCALIA, and KENNEDY, JJ., joined. REHNQUIST, C.J., filed an opinion concurring in part, concurring in the result in part, and dissenting in part, in which WHITE, BLACKMUN, and STEVENS, JJ., joined, post, p. 496 U. S. 606 . MARSHALL, J., filed an opinion concurring in part and dissenting in part, post, p. 496 U. S. 608 . Justice BRENNAN delivered the opinion of the Court, except as to Part III-C. We must decide in this case whether various incriminating utterances of a drunk-driving suspect, made while performing a series of sobriety tests, constitute testimonial responses to custodial interrogation for purposes of the Self-Incrimination Clause of the Fifth Amendment. Page 496 U. S. 585 I During the early morning hours of November 30, 1986, a patrol officer spotted respondent Inocencio Muniz and a passenger parked in a car on the shoulder of a highway. When the officer inquired whether Muniz needed assistance, Muniz replied that he had stopped the car so he could urinate. The officer smelled alcohol on Muniz's breath and observed that Muniz's eyes were glazed and bloodshot and his face was flushed. The officer then directed Muniz to remain parked until his condition improved, and Muniz gave assurances that he would do so. But as the officer returned to his vehicle, Muniz drove off. After the officer pursued Muniz down the highway and pulled him over, the officer asked Muniz to perform three standard field sobriety tests: a "horizontal gaze nystagmus" test, a "walk and turn" test, and a "one leg stand" test. [ Footnote 1 ] Muniz performed these tests poorly, and he informed the officer that he had failed the tests because he had been drinking. The patrol officer arrested Muniz and transported him to the West Shore facility of the Cumberland County Central Booking Center. Following its routine practice for receiving persons suspected of driving while intoxicated, the Booking Center' videotaped the ensuing proceedings. Muniz was informed that his actions and voice were being recorded, but he Page 496 U. S. 586 was not at this time (nor had he been previously) advised of his rights under Miranda v. Arizona, 384 U. S. 436 (1966). Officer Hosterman first asked Muniz his name, address, height, weight, eye color, date of birth, and current age. He responded to each of these questions, stumbling over his address and age. The officer then asked Muniz, "Do you know what the date was of your sixth birthday?" After Muniz offered an inaudible reply, the officer repeated, "When you turned six years old, do you remember what the date was?" Muniz responded, "No, I don't." Officer Hosterman next requested Muniz to perform each of the three sobriety tests that Muniz had been asked to perform earlier during the initial roadside stop. The videotape reveals that his eyes jerked noticeably during the gaze test, that he did not walk a very straight line, and that he could not balance himself on one leg for more than several seconds. During the latter two tests, he did not complete the requested verbal counts from one to nine and from one to thirty. Moreover, while performing these tests, Muniz "attempted to explain his difficulties in performing the various tasks, and often requested further clarification of the tasks he was to perform." 377 Pa.Super. 382, 390, 547 A.2d 419 , 423 (1988). Finally, Officer Deyo asked Muniz to submit to a breathalyzer test designed to measure the alcohol content of his expelled breath. Officer Deyo read to Muniz the Commonwealth's Implied Consent Law, 75 Pa.Cons.Stat. § 1547 (1987), and explained that, under the law, his refusal to take the test would result in automatic suspension of his drivers' license for one year. Muniz asked a number of questions about the law, commenting in the process about his state of inebriation. Muniz ultimately refused to take the breath test. At this point, Muniz was for the first time advised of his Miranda rights. Muniz then signed a statement waiving his rights and admitted in response to further questioning that he had been driving while intoxicated. Page 496 U. S. 587 Both the video and audio portions of the videotape were admitted into evidence at Muniz' bench trial, [ Footnote 2 ] along with the arresting officer's testimony that Muniz failed the roadside sobriety tests and made incriminating remarks at that time. Muniz was convicted of driving under the influence of alcohol in violation of 75 Pa.Cons.Stat. § 3731(a)(1) (1987). Muniz filed a motion for a new trial, contending that the court should have excluded the testimony relating to the field sobriety tests and the videotape taken at the Booking Center "because they were incriminating and completed prior to [Muniz's] receiving his Miranda warnings." App. to Pet. for Cert. C5-C6. The trial court denied the motion, holding that "requesting a driver, suspected of driving under the influence of alcohol, to perform physical tests or take a breath analysis does not violate [his] privilege against self-incrimination because [the] evidence procured is of a physical nature rather than testimonial, and therefore no Miranda warnings are required." id. at C6, quoting Commonwealth v. Benson, 280 Pa.Super. 20, 29, 421 A.2d 383 , 387 (1980). On appeal, the Superior Court of Pennsylvania reversed. The appellate court agreed that when Muniz was asked "to submit to a field sobriety test, and later perform these tests before the videotape camera, no Miranda warnings were required" because such sobriety tests elicit physical rather than testimonial evidence within the meaning of the Fifth Amendment. 377 Pa.Super. at 387, 547 A.2d at 422. The court concluded, however, that "when the physical nature of the tests begins to yield testimonial and communicative statements . . . the protections afforded by Miranda are invoked." Ibid. The court explained that Muniz's answer to the question regarding his sixth birthday and the statements and inquiries he made while performing the physical Page 496 U. S. 588 dexterity tests and discussing the breathalyzer test "are precisely the sort of testimonial evidence that we expressly protected in [previous cases]," id. at 390, 547 A.2d at 423, because they "reveal[ed] his thought processes." Id. at 389, 547 A.2d at 423. The court further explained: "[N]one of Muniz's utterances were spontaneous, voluntary verbalizations. Rather, they were clearly compelled by the questions and instructions presented to him during his detention at the Booking Center. Since the . . . responses and communications were elicited before Muniz received his Miranda warnings, they should have been excluded as evidence." Id. at 390, 547 A.2d at 423. [ Footnote 3 ] Concluding that the audio portion of the videotape should have been suppressed in its entirety, the court reversed Muniz's conviction and remanded the case for a new trial. [ Footnote 4 ] After the Pennsylvania Supreme Court denied the Commonwealth's application for review, 522 Pa. 575, 559 A.2d 36 (1989), we granted certiorari. 493 U.S. 916 (1989). II The Self-Incrimination Clause of the Fifth Amendment [ Footnote 5 ] provides that no "person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const., Amdt. 5. Although the text does not delineate the ways in which a person might be made Page 496 U. S. 589 a "witness against himself," cf. Schmerber v. California, 384 U. S. 757 , 384 U. S. 761 -762, n. 6 (1966), we have long held that the privilege does not protect a suspect from being compelled by the State to produce "real or physical evidence." Id. at 384 U. S. 764 . Rather, the privilege "protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature." Id. at 384 U. S. 761 . "[I]n order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information. Only then is a person compelled to be a 'witness' against himself." Doe v. United States, 487 U. S. 201 , 487 U. S. 210 (1988). In Miranda v. Arizona, 384 U. S. 436 (1966), we reaffirmed our previous understanding that the privilege against self-incrimination protects individuals not only from legal compulsion to testify in a criminal courtroom but also from "informal compulsion exerted by law-enforcement officers during in-custody questioning." Id. at 384 U. S. 461 . Of course, voluntary statements offered to police officers "remain a proper element in law enforcement." Id. at 384 U. S. 478 . But "without proper safeguards, the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Id. at 384 U. S. 467 . Accordingly, we held that protection of the privilege against self-incrimination during pretrial questioning requires application of special "procedural safeguards." Id. at 384 U. S. 444 . "Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Ibid. Unless a suspect "voluntarily, knowingly and intelligently" waives these rights, ibid., any incriminating responses to questioning may not be introduced into evidence in the prosecution's case in chief in a subsequent criminal proceeding. Page 496 U. S. 590 This case implicates both the "testimonial" and "compulsion" components of the privilege against self-incrimination in the context of pretrial questioning. Because Muniz was not advised of his Miranda rights until after the videotaped proceedings at the Booking Center were completed, any verbal statements that were both testimonial in nature and elicited during custodial interrogation should have been suppressed. We focus first on Muniz's responses to the initial informational questions, then on his questions and utterances while performing the physical dexterity and balancing tests, and finally on his questions and utterances surrounding the breathalyzer test. III In the initial phase of the recorded proceedings, Officer Hosterman asked Muniz his name, address, height, weight, eye color, date of birth, current age, and the date of his sixth birthday. Both the delivery and content of Muniz's answers were incriminating. As the state court found, "Muniz's videotaped responses . . . certainly led the finder of fact to infer that his confusion and failure to speak clearly indicated a state of drunkenness that prohibited him from safely operating his vehicle." 377 Pa.Super. at 390, 547 A.2d at 423. The Commonwealth argues, however, that admission of Muniz's answers to these questions does not contravene Fifth Amendment principles because Muniz's statement regarding his sixth birthday was not "testimonial" and his answers to the prior questions were not elicited by custodial interrogation. We consider these arguments in turn. A We agree with the Commonwealth's contention that Muniz's answers are not rendered inadmissible by Miranda merely because the slurred nature of his speech was incriminating. The physical inability to articulate words in a clear manner due to "the lack of muscular coordination of his tongue and mouth," Brief for Petitioner 16, is not itself a testimonial Page 496 U. S. 591 component of Muniz's responses to Officer Hosterman's introductory questions. In Schmerber v. California, supra, we drew a distinction between "testimonial" and "real or physical evidence" for purposes of the privilege against self-incrimination. We noted that, in Holt v. United States, 218 U. S. 245 , 218 U. S. 252 -253 (1910), Justice Holmes had written for the Court that "[t]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." 384 U.S. at 384 U. S. 763 . We also acknowledged that "both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture." Id. at 384 U. S. 764 . Embracing this view of the privilege's contours, we held that "the privilege is a bar against compelling 'communications' or 'testimony,' but that compulsion which makes a suspect or accused the source of 'real or physical evidence' does not violate it." Ibid. Using this "helpful framework for analysis," ibid., we held that a person suspected of driving while intoxicated could be forced to provide a blood sample, because that sample was "real or physical evidence" outside the scope of the privilege and the sample was obtained in manner by which "[p]etitioner's testimonial capacities were in no way implicated." Id. at 384 U. S. 765 . We have since applied the distinction between "real or physical" and "testimonial" evidence in other contexts where the evidence could be produced only through some volitional act on the part of the suspect. In United States v. Wade, 388 U. S. 218 (1967), we held that a suspect could be compelled to participate in a lineup and to repeat a phrase provided by the police so that witnesses could view him and listen to his voice. We explained that requiring his presence and speech at a lineup reflected "compulsion of the accused to Page 496 U. S. 592 exhibit his physical characteristics, not compulsion to disclose any knowledge he might have." Id. at 388 U. S. 222 ; see id. at 388 U. S. 222 -223 (suspect was "required to use his voice as an identifying physical characteristic"). In Gilbert v. California, 388 U. S. 263 (1967), we held that a suspect could be compelled to provide a handwriting exemplar, explaining that such an exemplar, "in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege's] protection." Id. at 388 U. S. 266 -267. And in United States v. Dionisio, 410 U. S. 1 (1973), we held that suspects could be compelled to read a transcript in order to provide a voice exemplar, explaining that the "voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said." Id. at 410 U. S. 7 . Under Schmerber and its progeny, we agree with the Commonwealth that any slurring of speech and other evidence of lack of muscular coordination revealed by Muniz's responses to Officer Hosterman's direct questions constitute nontestimonial components of those responses. Requiring a suspect to reveal the physical manner in which he articulates words, like requiring him to reveal the physical properties of the sound produced by his voice, see Dionisio, supra, does not, without more, compel him to provide a "testimonial" response for purposes of the privilege. B This does not end our inquiry, for Muniz's answer to the sixth birthday question was incriminating, not just because of his delivery, but also because of his answer's content; the trier of fact could infer from Muniz's answer (that he did not know the proper date) that his mental state was confused. [ Footnote 6 ] Page 496 U. S. 593 The Commonwealth and United States as amicus curiae, argue that this incriminating inference does not trigger the protections of the Fifth Amendment privilege because the inference concerns "the physiological functioning of [Muniz's] brain," Brief for Petitioner 21, which is asserted to be every bit as "real or physical" as the physiological makeup of his blood and the timbre of his voice. But this characterization addresses the wrong question; that the "fact" to be inferred might be said to concern the physical status of Muniz's brain merely describes the way in which the inference is incriminating. The correct question for present purposes is whether the incriminating inference of mental confusion is drawn from a testimonial act or from physical evidence. In Schmerber, for example, we held that the police could compel a suspect to provide a blood sample in order to determine the physical makeup of his blood, and thereby draw an inference about whether he was intoxicated. This compulsion was outside of the Fifth Amendment's protection, not simply because the evidence concerned the suspect's physical body, but rather because the evidence was obtained in a manner that did not entail any testimonial act on the part of the suspect: "[n]ot even a shadow of testimonial compulsion upon or enforced communication by the accused was involved either in the extraction or in the chemical analysis." 384 U.S. at 384 U. S. 765 . In contrast, had the police instead asked the suspect directly whether his blood contained a high concentration of alcohol, his affirmative response would have been testimonial even though it would have been used to draw the same inference concerning his physiology. See ibid. ("[T]he blood test evidence . . . was neither [suspect's] testimony nor evidence relating to some communicative act"). In this case, the question is not whether a suspect's "impaired mental faculties" can fairly be characterized as an aspect of his physiology, but rather whether Muniz's response Page 496 U. S. 594 to the sixth birthday question that gave rise to the inference of such an impairment was testimonial in nature. [ Footnote 7 ] We recently explained in Doe v. United States, 487 U. S. 201 (1988), that "in order to be testimonial, an accused's communication must itself, explicitly or implicitly, relate a factual assertion or disclose information." Id. at 487 U. S. 210 . We reached this conclusion after addressing our reasoning in Schmerber, supra, and its progeny: "The Court accordingly held that the privilege was not implicated in [the line of cases beginning with Schmerber ] because the suspect was not required 'to disclose any knowledge he might have,' or 'to speak his guilt.' Wade, 388 U.S. at 388 U. S. 222 -223. See Dionisio, 410 U.S. at 410 U. S. 7 ; Gilbert, 388 U.S. at 388 U. S. 266 -267. It is the 'extortion of information from the accused,' Couch v. United States , 409 U.S. [322] at 409 U. S. 328 , the attempt to force him 'to disclose the contents of his own mind,' Curcio v. United States, 354 U. S. 118 , 354 U. S. 128 (1957), that implicates the Self-Incrimination Clause. . . . 'Unless some attempt is made to secure a communication -- written, oral or otherwise -- upon which reliance is to be placed as involving [the accused's] consciousness of the facts and the operations of his mind in expressing it, the demand made upon Page 496 U. S. 595 him is not a testimonial one.' 8 Wigmore § 2265, p. 386." 487 U.S. at 487 U. S. 210 -211. After canvassing the purposes of the privilege recognized in prior cases, [ Footnote 8 ] we concluded that "[t]hese policies are served when the privilege is asserted to spare the accused from having to reveal, directly or indirectly, his knowledge of facts relating him to the offense or from having to share his thoughts and beliefs with the Government. [ Footnote 9 ]" Id. at 487 U. S. 213 . This definition of testimonial evidence reflects an awareness of the historical abuses against which the privilege against self-incrimination was aimed. "Historically, the privilege was intended to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him. Such was the process of the Page 496 U. S. 596 ecclesiastical courts and the Star Chamber -- the inquisitorial method of putting the accused upon his oath and compelling him to answer questions designed to uncover uncharged offenses, without evidence from another source. The major thrust of the policies undergirding the privilege is to prevent such compulsion." Id. at 487 U. S. 212 (citations omitted); see also Andresen v. Maryland, 427 U. S. 463 , 427 U. S. 470 -471 (1976). At its core, the privilege reflects our fierce " unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt,'" Doe, supra, at 487 U. S. 212 (citation omitted), that defined the operation of the Star Chamber, wherein suspects were forced to choose between revealing incriminating private thoughts and forsaking their oath by committing perjury. See United States v. Nobles, 422 U. S. 225 , 422 U. S. 233 (1975) ("The Fifth Amendment privilege against compulsory self-incrimination . . . protects `a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation'") (quoting Couch v. United States, 409 U. S. 322 , 409 U. S. 327 (1973)). We need not explore the outer boundaries of what is "testimonial" today, for our decision flows from the concept's core meaning. Because the privilege was designed primarily to prevent "a recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality," Ullmann v. United States, 350 U. S. 422 , 350 U. S. 428 (1956), it is evident that a suspect is "compelled . . . to be a witness against himself" at least whenever he must face the modern-day analog of the historic trilemma -- either during a criminal trial where a sworn witness faces the identical three choices or during custodial interrogation where, as we explained in Miranda, the choices are analogous and hence raise similar concerns. [ Footnote 10 ] Whatever Page 496 U. S. 597 else it may include, therefore, the definition of "testimonial" evidence articulated in Doe must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the "cruel trilemma." This conclusion is consistent with our recognition in Doe that "[t]he vast majority of verbal statements thus will be testimonial" because "[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts." 487 U.S. at 487 U. S. 213 . Whenever a suspect is asked for a response requiring him to communicate an express or implied assertion of fact or belief, [ Footnote 11 ] the suspect confronts the "trilemma" of truth, falsity, or silence, and hence the response (whether based on truth or falsity) contains a testimonial component. This approach accords with each of our post- Schmerber cases finding that a particular oral or written response to express or implied questioning was nontestimonial; the questions presented in these cases did not confront the suspects with this trilemma. As we noted in Doe, 487 U.S. at 487 U. S. 210 -211, the cases upholding compelled writing and voice exemplars did not involve situations in which suspects were asked to communicate any personal beliefs or knowledge of facts, and therefore the suspects were not forced to choose between Page 496 U. S. 598 truthfully or falsely revealing their thoughts. We carefully noted in Gilbert v. California, 388 U. S. 263 (1967), for example, that a "mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside [the privilege's] protection." Id. at 388 U. S. 266 -267 (emphasis added). Had the suspect been asked to provide a writing sample of his own composition, the content of the writing would have reflected his assertion of facts or beliefs, and hence would have been testimonial; but in Gilbert, "[n]o claim [was] made that the content of the exemplars was testimonial or communicative matter." Id. at 388 U. S. 267 . [ Footnote 12 ] And in Doe, the suspect was asked merely to sign a consent form waiving a privacy interest in foreign bank records. Because the consent form spoke in the hypothetical and did not identify any particular banks, accounts, or private records, the form neither "communicate[d] any factual assertions, implicit or explicit, [n]or convey[ed] any information to the Government." 487 U.S. at 487 U. S. 215 . We concluded, therefore, that compelled execution of the consent directive did not "forc[e] [the suspect] to express the contents of his mind," id. at 487 U. S. 210 , n. 9, but rather forced the suspect only to make a "nonfactual statement." Id. at 487 U. S. 213 , n. 11. In contrast, the sixth birthday question in this case required a testimonial response. When Officer Hosterman Page 496 U. S. 599 asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma. By hypothesis, the inherently coercive environment created by the custodial interrogation precluded the option of remaining silent, see n 10, supra. Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful). The content of his truthful answer supported an inference that his mental faculties were impaired, because his assertion (he did not know the date of his sixth birthday) was different from the assertion (he knew the date was [correct date]) that the trier of fact might reasonably have expected a lucid person to provide. Hence, the incriminating inference of impaired mental faculties stemmed, not just from the fact that Muniz slurred his response, but also from a testimonial aspect of that response. [ Footnote 13 ] Page 496 U. S. 600 The state court held that the sixth birthday question constituted an unwarned interrogation for purposes of the privilege against self-incrimination, 377 Pa.Super. at 390, 547 A.2d at 423, and that Muniz's answer was incriminating. Ibid. The Commonwealth does not question either conclusion. Therefore, because we conclude that Muniz's response to the sixth birthday question was testimonial, the response should have been suppressed. C The Commonwealth argues that the seven questions asked by Officer Hosterman just prior to the sixth birthday question -- regarding Muniz's name, address, height, weight, eye color, date of birth, and current age -- did not constitute custodial interrogation as we have defined the term in Miranda and subsequent cases. In Miranda, the Court referred to "interrogation" as actual "questioning initiated by law enforcement officers." 384 U.S. at 384 U. S. 444 . We have since clarified that definition, finding that the "goals of the Miranda safeguards could be effectuated if those safeguards extended not only to express questioning, but also to 'its functional equivalent.'" Arizona v. Mauro, 481 U. S. 520 , 481 U. S. 526 (1987). In Rhode Island v. Innis, 446 U. S. 291 (1980), the Court defined the phrase "functional equivalent" of express questioning to include "any words or actions on the part of the police (other than those normally attendant to arrest and custody) Page 496 U. S. 601 that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Id. at 446 U. S. 301 (footnotes omitted); see also Illinois v. Perkins, ante at 496 U. S. 296 . However, "[a]ny knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining" what the police reasonably should have known. Innis, supra, 446 U.S. at 446 U. S. 302 , n. 8. Thus, custodial interrogation for purposes of Miranda includes both express questioning and also words or actions that, given the officer's knowledge of any special susceptibilities of the suspect, the officer knows or reasonably should know are likely to "have . . . the force of a question on the accused," Harryman v. Estelle, 616 F.2d 870, 874 (CA5 1980), and therefore be reasonably likely to elicit an incriminating response. We disagree with the Commonwealth's contention that Officer Hosterman's first seven questions regarding Muniz's name, address, height, weight, eye color, date of birth, and current age do not qualify as custodial interrogation as we defined the term in Innis, supra, merely because the questions were not intended to elicit information for investigatory purposes. As explained above, the Innis test focuses primarily upon "the perspective of the suspect." Perkins, ante, at 496 U. S. 296 . We agree with amicus United States, however, that Muniz's answers to these first seven questions are nonetheless admissible because the questions fall within a "routine booking question" exception which exempts from Miranda's coverage questions to secure the "biographical data necessary to complete booking or pretrial services." Brief for the United States as Amicus Curiae 12, quoting United States v. Horton, 873 F.2d 180, 181, n. 2 (CA8 1989). The state court found that the first seven questions were "requested for recordkeeping purposes only," App. B16, and therefore the questions appear reasonably related to the police's administrative Page 496 U. S. 602 concerns. [ Footnote 14 ] In this context, therefore, the first seven questions asked at the Booking Center fall outside the protections of Miranda and the answers thereto need not be suppressed. IV During the second phase of the videotaped proceedings, Officer Hosterman asked Muniz to perform the same three sobriety tests that he had earlier performed at roadside prior to his arrest: the "horizontal gaze nystagmus" test, the "walk and turn" test, and the "one leg stand" test. While Muniz was attempting to comprehend Officer Hosterman's instructions and then perform the requested sobriety tests, Muniz made several audible and incriminating statements. [ Footnote 15 ] Muniz argued to the state court that both the videotaped performance of the physical tests themselves and the audiorecorded verbal statements were introduced in violation of Miranda . The court refused to suppress the videotaped evidence of Muniz's paltry performance on the physical sobriety tests, reasoning that "[r]equiring a driver to perform physical [sobriety] tests . . . does not violate the privilege against self-incrimination because the evidence procured is of a physical nature rather than testimonial." 377 Pa.Super. at 387, 547 A.2d at 422 (quoting Commonwealth v. Benson, 280 Pa.Super. Page 496 U. S. 603 at 29, 421 A.2d at 387). [ Footnote 16 ] With respect to Muniz's verbal statements, however, the court concluded that "none of Muniz's utterances were spontaneous, voluntary verbalizations," 377 Pa.Super. at 390, 547 A.2d at 423, and because they were "elicited before Muniz received his Miranda warnings, they should have been excluded as evidence." Ibid. We disagree. Officer Hosterman's dialogue with Muniz concerning the physical sobriety tests consisted primarily of carefully scripted instructions as to how the tests were to be performed. These instructions were not likely to be perceived as calling for any verbal response, and therefore were not "words or actions" constituting custodial interrogation, with two narrow exceptions not relevant here. [ Footnote 17 ] The dialogue also contained limited and carefully worded inquiries as to whether Muniz understood those instructions, but these focused inquiries were necessarily "attendant to" the police Page 496 U. S. 604 procedure held by the court to be legitimate. Hence, Muniz's incriminating utterances during this phase of the videotaped proceedings were "voluntary" in the sense that they were not elicited in response to custodial interrogation. [ Footnote 18 ] See South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 564 , n. 15 (1983) (drawing analogy to "police request to submit to fingerprinting or photography" and holding that police inquiry whether suspect would submit to blood-alcohol test was not "interrogation within the meaning of Miranda "). Similarly, we conclude that Miranda does not require suppression of the statements Muniz made when asked to submit to a breathalyzer examination. Officer Deyo read Muniz a prepared script explaining how the test worked, the nature of Pennsylvania's Implied Consent Law, and the legal consequences that would ensue should he refuse. Officer Deyo then asked Muniz whether he understood the nature of the test and the law and whether he would like to submit to the test. Muniz asked Officer Deyo several questions concerning the legal consequences of refusal, which Deyo answered directly, and Muniz then commented upon his state of inebriation. 377 Pa.Super. at 387, 547 A.2d at 422. After offering to take the test only after waiting a couple of hours or drinking some water, Muniz ultimately refused. [ Footnote 19 ] Page 496 U. S. 605 We believe that Muniz's statements were not prompted by an interrogation within the meaning of Miranda, and therefore the absence of Miranda warnings does not require suppression of these statements at trial. [ Footnote 20 ] As did Officer Hosterman when administering the three physical sobriety tests, see supra, at 496 U. S. 603 -604, Officer Deyo carefully limited her role to providing Muniz with relevant information about the breathalyzer test and the implied consent law. She questioned Muniz only as to whether he understood her instructions and wished to submit to the test. These limited and focused inquiries were necessarily "attendant to" the legitimate police procedure, see Neville, supra, at 496 U. S. 564 , n. 15, and were not likely to be perceived as calling for any incriminating response. [ Footnote 21 ] V We agree with the state court's conclusion that Miranda requires suppression of Muniz's response to the question regarding the date of his sixth birthday, but we do not agree that the entire audio portion of the videotape must be suppressed. [ Footnote 22 ] Accordingly, the court's judgment reversing Page 496 U. S. 606 Muniz's conviction is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. [ Footnote 1 ] The "horizontal gaze nystagmus" test measures the extent to which a person's eyes jerk as they follow an object moving from one side of the person's field of vision to the other. The test is premised on the understanding that, whereas everyone's eyes exhibit some jerking while turning to the side, when the subject is intoxicated "the onset of the jerking occurs after fewer degrees of turning, and the jerking at more extreme angles becomes more distinct." I. R. Erwin et al., Defense of Drunk Driving Cases § 8 A. 99, pp. 8A-43, 8A-45 (1989). The "walk and turn" test requires the subject to walk heel-to-toe along a straight line for nine paces, pivot, and then walk back heel-to-toe along the line for another nine paces. The subject is required to count each pace aloud from one to nine. The "one leg stand" test requires the subject to stand on one leg with the other leg extended in the air for 30 seconds, while counting aloud from one to thirty. [ Footnote 2 ] There was a 14-minute delay between the completion of the physical sobriety tests and the beginning of the breathalyzer test. During this period, Muniz briefly engaged in conversation with Officer Hosterman. This 14-minute segment of the videotape was not shown at trial. App. 29. [ Footnote 3 ] The court did not suppress Muniz's verbal admissions to the arresting officer during the roadside tests, ruling that Muniz was not taken into custody for purposes of Miranda until he was arrested after the roadside tests were completed. See Pennsylvania v. Bruder, 488 U. S. 9 (1988). [ Footnote 4 ] The Superior Court's opinion refers to Art. 1, § 9 of the Pennsylvania Constitution, but explains that this provision " offers a protection against self-incrimination identical to that provided by the Fifth Amendment.'" 377 Pa.Super. 382, 386, 547 A.2d 419 , 421 (1988) (quoting Commonwealth v. Conway, 368 Pa.Super. 488, 498, 534 A.2d 541 , 546 (1987)). The decision therefore does not rest on an independent and adequate state ground. See Michigan v. Long, 463 U. S. 1032 (1983). [ Footnote 5 ] In Malloy v. Hogan, 378 U. S. 1 (1964), we held the privilege against self-incrimination applicable to the States through the Fourteenth Amendment. [ Footnote 6 ] Under Pennsylvania law, driving under the influence of alcohol consists of driving while intoxicated to a degree "which substantially impairs [suspect's] judgment, or clearness of intellect, or any of the normal faculties essential to the safe operation of an automobile." Commonwealth v. Griscavage, 512 Pa. 540, 545, 517 A.2d 1256 , 1258 (1986). [ Footnote 7 ] See, e.g., Doe v. United States, 487 U. S. 201 , 487 U. S. 211 , n. 10 (1988) ("[T]he Schmerber line of cases does not draw a distinction between unprotected evidence sought for its physical characteristics and protected evidence sought for its [other] content. Rather, the Court distinguished between the suspect's being compelled himself to serve as evidence and the suspect's being compelled to disclose or communicate information or facts that might serve as or lead to incriminating evidence") (emphasis added); cf. Baltimore Dept. of Social Serv. v. Bouknight, 493 U. S. 549 , 493 U. S. 555 (1990) (individual compelled to produce document or other tangible item to State "may not claim the [Fifth] Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded" but may "clai[m] the benefits of the privilege because the act of production would amount to testimony"). [ Footnote 8 ] See Doe, supra, at 487 U. S. 212 -213 (quoting Murphy v. Waterfront Comm'n of New York Harbor, 378 U. S. 52 , 378 U. S. 55 (1964) (internal citations omitted)): "[T]he privilege is founded on "our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates a fair state-individual balance by requiring the government . . . in its contest with the individual to shoulder the entire load,' . . . ; our respect for the inviolability of the human personality and of the right of each individual `to a private enclave where he may lead a private life,' . . . ; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes `a shelter to the guilty,' is often `a protection to the innocent."" [ Footnote 9 ] This definition applies to both verbal and nonverbal conduct; nonverbal conduct contains a testimonial component whenever the conduct reflects the actor's communication of his thoughts to another. See Doe, supra, at 487 U. S. 209 -210, and n. 8; Schmerber v. California, 384 U. S. 757 , 384 U. S. 761 , n. 5 (1966) ("A nod or head-shake is as much a testimonial' or `communicative' act in this sense as are spoken words"); see also Braswell v. United States, 487 U. S. 99 , 487 U. S. 122 (1988) (KENNEDY, J., dissenting) ("Those assertions [contained within the act of producing subpoenaed documents] can convey information about that individual's knowledge and state of mind as effectively as spoken statements, and the Fifth Amendment protects individuals from having such assertions compelled by their own acts"). [ Footnote 10 ] During custodial interrogation, the pressure on the suspect to respond flows not from the threat of contempt sanctions, but rather from the "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 467 (1966). Moreover, false testimony does not give rise directly to sanctions (either religious sanctions for lying under oath or prosecutions for perjury), but only indirectly (false testimony might itself prove incriminating, either because it links (albeit falsely) the suspect to the crime or because the prosecution might later prove at trial that the suspect lied to the police, giving rise to an inference of guilty conscience). Despite these differences, however, "[w]e are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law enforcement officers during in-custody questioning." Id. at 384 U. S. 461 ; see id. at 384 U. S. 458 (noting "intimate connection between the privilege against self-incrimination and police custodial questioning"). [ Footnote 11 ] As we explain infra at 496 U. S. 600 -601, for purposes of custodial interrogation, such a question may be either express, as in this case, or else implied through words or actions reasonably likely to elicit a response. [ Footnote 12 ] See also United States v. Wade, 388 U. S. 218 , 388 U. S. 222 -223 (1967) ("[T]o utter words purportedly uttered by the robber [and dictated to the suspect by the police] was not compulsion to utter statements of a testimonial' nature; [the suspect] was required to use his voice as an identifying physical characteristic, not to speak his guilt" because the words did not reflect any facts or beliefs asserted by the suspect); United States v. Dionisio, 410 U. S. 1 , 410 U. S. 7 (1973) (where suspects were asked to create voice exemplars by reading already-prepared transcripts, the "voice recordings were to be used solely to measure the physical properties of the witnesses' voices, not for the testimonial or communicative content of what was to be said" because the content did not reflect any facts or beliefs asserted by the suspects). [ Footnote 13 ] The Commonwealth's protest that it had no investigatory interest in the actual date of Muniz's sixth birthday, see Tr. of Oral Arg. 18, is inapposite. The critical point is that the Commonwealth had an investigatory interest in Muniz's assertion of belief that was communicated by his answer to the question. Putting it another way, the Commonwealth may not have cared about the correct answer, but it cared about Muniz's answer. The incriminating inference stems from the then-existing contents of Muniz's mind as evidenced by his assertion of his knowledge at that time. This distinction is reflected in Estelle v. Smith, 451 U. S. 454 (1981), where we held that a defendant's answers to questions during a psychiatric examination were testimonial in nature. The psychiatrist asked a series of questions, some focusing on the defendant's account of the crime. After analyzing both the "statements [the defendant] made, and remarks he omitted," id. at 451 U. S. 464 , the psychiatrist made a prognosis as to the defendant's "future dangerousness" and testified to this effect at his capital sentencing hearing. The psychiatrist had no investigative interest in whether the defendant's account of the crime and other disclosures were either accurate or complete as a historical matter; rather, he relied on the remarks -- both those made and omitted -- to infer that the defendant would likely pose a threat to society in the future because of his state of mind. We nevertheless explained that the "Fifth Amendment privilege . . . is directly involved here because the State used as evidence against [the defendant] the substance of his disclosures during the pretrial psychiatric examination." Id. at 451 U. S. 464 -465 (emphasis added). The psychiatrist may have presumed the defendant's remarks to be truthful for purposes of drawing his inferences as to the defendant's state of mind, see South Dakota v. Neville, 459 U. S. 553 , 459 U. S. 561 -562, n. 12 (1983), but that is true in Muniz's case as well: the incriminating inference of mental confusion is based on the premise that Muniz was responding truthfully to Officer Hosterman's question when he stated that he did not then know the date of his sixth birthday. [ Footnote 14 ] As amicus United States explains, "[r]ecognizing a 'booking exception' to Miranda does not mean, of course, that any question asked during the booking process falls within that exception. Without obtaining a waiver of the suspect's Miranda rights, the police may not ask questions, even during booking, that are designed to elicit incriminatory admissions." Brief for United States as Amicus Curiae 13. See, e.g., United States v. Avery, 717 F.2d 1020, 1024-1025 (CA6 1983); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (CA9 1983); United States v. Glen-Archila, 677 F.2d 809, 816, n. 18 (CA11 1982). [ Footnote 15 ] Most of Muniz's utterances were not clearly discernible, though several of them suggested excuses as to why he could not perform the physical tests under these circumstances. [ Footnote 16 ] This conclusion is in accord with that of many other state courts, which have reasoned that standard sobriety tests measuring reflexes, dexterity, and balance do not require the performance of testimonial acts. See, e.g., Weatherford v. State, 286 Ark. 376, 692 S.W.2d 605 (1985); People v. Boudreau, 115 App.Div.2d 652, 496 N.Y.S.2d 489 (1985); Commonwealth v. Brennan, 386 Mass. 772, 438 N.E.2d 60 (1982); State v. Badon, 401 So. 2d 1178 (La.1981); State v. Arsenault, 115 N.H. 109, 336 A.2d 244 (1975). Muniz does not challenge the state court's conclusion on this point, and therefore we have no occasion to review it. [ Footnote 17 ] The two exceptions consist of Officer Hosterman's requests that Muniz count aloud from one to nine while performing the "walk-the-line" test and that he count aloud from one to thirty while balancing during the "one leg stand" test. Muniz's counting at the officer's request qualifies as a response to custodial interrogation. However, as Muniz counted accurately (in Spanish) for the duration of his performance on the "one leg stand" test (though he did not complete it), his verbal response to this instruction was not incriminating except to the extent that it exhibited a tendency to slur words, which we have already explained is a nontestimonial component of his response. See supra at 496 U. S. 590 -592. Muniz did not count during the "walk and turn" test, and he does not argue that his failure to do so has any independent incriminating significance. We therefore need not decide today whether Muniz's counting (or not) itself was "testimonial" within the meaning of the privilege. [ Footnote 18 ] We cannot credit the state court's contrary determination that Muniz's utterances (both during this phase of the proceedings and during the next when he was asked to provide a breath sample) were compelled rather than voluntary. 377 Pa.Super. at 390, 547 A.2d at 423. The court did not explain how it reached this conclusion, nor did it cite Innis or any other case defining custodial interrogation. [ Footnote 19 ] Muniz does not and cannot challenge the introduction into evidence of his refusal to submit to the breathalyzer test. In South Dakota v. Neville, 459 U. S. 553 (1983), we held that, since submission to a blood test could itself be compelled, see Schmerber v. California, 384 U. S. 757 (1966), a State's decision to permit a suspect to refuse to take the test but then to comment upon that refusal at trial did not "compel" the suspect to incriminate himself, and hence did not violate the privilege. Neville, supra, 459 U.S. at 459 U. S. 562 -564. We see no reason to distinguish between chemical blood tests and breathalyzer tests for these purposes. Cf. Schmerber, supra, 384 U.S. at 384 U. S. 765 -766, n. 9. [ Footnote 20 ] We noted in Schmerber that "there may be circumstances in which the pain, danger, or severity of an operation [or other test seeking physical evidence] would almost inevitably cause a person to prefer confession to undergoing the 'search,' 384 U.S. at 384 U. S. 765 , n. 9, and in such cases," "[i]f it wishes to compel persons to submit to such attempts to discover evidence, the State may have to forgo the advantage of any testimonial products of administering the test." Ibid. See also Neville, supra, 459 U.S. at 459 U. S. 563 ("Fifth Amendment may bar the use of testimony obtained when the proffered alternative was to submit to a test so painful, dangerous, or severe, or so violative of religious beliefs, that almost inevitably a person would prefer confession'"). But Muniz claims no such extraordinary circumstance here. [ Footnote 21 ] See n 18, supra. [ Footnote 22 ] The parties have not asked us to decide whether any error in this case was harmless. The state court is free, of course, to consider this question upon remand. Chief Justice REHNQUIST, with whom Justice WHITE, Justice BLACKMUN and Justice STEVENS join, concurring in part, concurring in the result in part, and dissenting in part. I join Parts I, II, III-A, and IV of the Court's opinion. In addition, although I agree with the conclusion in Part III-C that the seven "booking" questions should not be suppressed, I do so for a reason different from that of Justice BRENNAN. I dissent from the Court's conclusion that Muniz's response to the "sixth birthday question" should have been suppressed. The Court holds that the sixth birthday question Muniz was asked required a testimonial response, and that its admission at trial therefore violated Muniz's privilege against compulsory self-incrimination. The Court says that "[w]hen Officer Hosterman asked Muniz if he knew the date of his sixth birthday and Muniz, for whatever reason, could not remember or calculate that date, he was confronted with the trilemma [ i.e. the 'trilemma' of 'truth, falsity, or silence,' see ante at 496 U. S. 597 . . . . Muniz was left with the choice of incriminating himself by admitting that he did not then know the date of his sixth birthday or answering untruthfully by reporting a date that he did not then believe to be accurate (an incorrect guess would be incriminating as well as untruthful)." Ante at 496 U. S. 598 -599. As an assumption about human behavior, this statement is wrong. Muniz would no more have felt compelled to fabricate a false date than one who cannot read the letters on an eye-chart feels compelled to fabricate false letters; nor does a wrong guess call into question a speaker's veracity. The Court's statement is also a flawed predicate on which to base its conclusion that Muniz's answer to this question was "testimonial" for purposes of the Fifth Amendment. Page 496 U. S. 607 The need for the use of the human voice does not automatically make an answer testimonial, United States v. Wade, 388 U. S. 218 , 388 U. S. 222 -223 (1967), any more than does the fact that a question calls for the exhibition of one's handwriting in written characters. Gilbert v. California, 388 U. S. 263 , 388 U. S. 266 -267 (1967). In Schmerber v. California, 384 U. S. 757 (1966), we held that the extraction and chemical analysis of a blood sample involved no "shadow of testimonial compulsion upon or enforced communication by the accused." Id. at 384 U. S. 765 . All of these holdings were based on Justice Holmes' opinion in Holt v. United States, 218 U. S. 245 (1910), where he said for the Court that "the prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material." Id. at 218 U. S. 252 -253. The sixth birthday question here was an effort on the part of the police to check how well Muniz was able to do a simple mathematical exercise. Indeed, had the question related only to the date of his birth, it presumably would have come under the "booking exception" to Miranda v. Arizona, 384 U. S. 436 (1966), to which the Court refers elsewhere in its opinion. The Court holds in this very case that Muniz may be required to perform a "horizontal gaze nystagmus" test, the "walk and turn" test, and the "one leg stand" test, all of which are designed to test a suspect's physical coordination. If the police may require Muniz to use his body in order to demonstrate the level of his physical coordination, there is no reason why they should not be able to require him to speak or write in order to determine his mental coordination. That was all that was sought here. Since it was permissible for the police to extract and examine a sample of Schmerber's blood to determine how much that part of his system had been affected by alcohol, I see no reason why they may not examine the functioning of Muniz's mental processes for the same purpose. Page 496 U. S. 608 Surely, if it were relevant, a suspect might be asked to take an eye examination in the course of which he might have to admit that he could not read the letters on the third line of the chart. At worst, he might utter a mistaken guess. Muniz likewise might have attempted to guess the correct response to the sixth birthday question instead of attempting to calculate the date or answer "I don't know." But the potential for giving a bad guess does not subject the suspect to the truth-falsity-silence predicament that renders a response testimonial and, therefore, within the scope of the Fifth Amendment privilege. For substantially the same reasons, Muniz's responses to the videotaped "booking" questions were not testimonial and do not warrant application of the privilege. Thus, it is unnecessary to determine whether the questions fall within the "routine booking question" exception to Miranda JUSTICE BRENNAN recognizes. I would reverse in its entirety the judgment of the Superior Court of Pennsylvania. But given the fact that five members of the Court agree that Muniz's response to the sixth birthday question should have been suppressed, I agree that the judgment of the Superior Court should be vacated so that, on remand, the court may consider whether admission of the response at trial was harmless error. Justice MARSHALL, concurring in part and dissenting in part. I concur in Part III-B of the Court's opinion that the "sixth birthday question" required a testimonial response from respondent Muniz. For the reasons discussed below, see infra, at ___, n. 1, that question constituted custodial interrogation. Because the police did not apprise Muniz of his Miranda rights before asking the question, his response should have been suppressed. I disagree, however, with the plurality's recognition in Part III-C of a "routine booking question" exception to Miranda. Moreover, even were such an exception warranted, Page 496 U. S. 609 it should not extend to booking questions that the police should know are reasonably likely to elicit incriminating responses. Because the police in this case should have known that the seven booking questions were reasonably likely to elicit incriminating responses, and because those questions were not preceded by Miranda warnings, Muniz's testimonial responses should have been suppressed. I dissent from the Court's holding in Part IV that Muniz's testimonial statements in connection with the three sobriety tests and the breathalyzer test were not the products of custodial interrogation. The police should have known that the circumstances in which they confronted Muniz, combined with the detailed instructions and questions concerning the tests and the State's Implied Consent Law, were reasonably likely to elicit an incriminating response, and therefore constituted the "functional equivalent" of express questioning. Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 301 (1980). Muniz's statements to the police in connection with these tests thus should have been suppressed because he was not first given the Miranda warnings. Finally, the officer's directions to Muniz to count aloud during two of the sobriety tests sought testimonial responses, and Muniz's responses were incriminating. Because Muniz was not informed of his Miranda rights prior to the tests, those responses also should have been suppressed. I A The plurality would create yet another exception to Miranda v. Arizona, 384 U. S. 436 (1966): the "routine booking question" exception. See also Illinois v. Perkins, ante at 496 U. S. 292 (1990) (creating exception to Miranda for custodial interrogation by an undercover police officer posing as the suspect's fellow prison inmate). Such exceptions undermine Miranda's fundamental principle that the doctrine should be clear so that it can be easily applied by both police and courts. See Miranda, supra, 384 U.S. at 384 U. S. 441 -442; Page 496 U. S. 610 Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979); Perkins, ante, at 496 U. S. 308 -309 (MARSHALL, J., dissenting). The plurality's position, were it adopted by a majority of the Court, would necessitate difficult, time-consuming litigation over whether particular questions asked during booking are "routine," whether they are necessary to secure biographical information, whether that information is itself necessary for recordkeeping purposes, and whether the questions are -- despite their routine nature -- designed to elicit incriminating testimony. The far better course would be to maintain the clarity of the doctrine by requiring police to preface all direct questioning of a suspect with Miranda warnings if they want his responses to be admissible at trial. B The plurality nonetheless asserts that Miranda does not apply to express questioning designed to secure " biographical data necessary to complete booking or pretrial services,'" ante at 496 U. S. 601 (citation omitted), so long as the questioning is not "`designed to elicit incriminatory admissions,'" ante at 496 U. S. 602 , n. 14 (quoting Brief for United States as Amicus Curiae 13; citing United States v. Avery, 717 F.2d 1020, 1024-1025 (CA6 1983) (acknowledging that "[e]ven a relatively innocuous series of questions may, in light of the factual circumstances and the susceptibility of a particular suspect, be reasonably likely to elicit an incriminating response"); United States v. Mata-Abundiz, 717 F.2d 1277, 1280 (CA9 1983) (holding that routine booking question exception does not apply if "the questions are reasonably likely to elicit an incriminating response in a particular situation"); United States v. Glen-Archila, 677 F.2d 809, 816, n. 18 (CA11 1982) ("Even questions that are usually routine must be proceeded [sic] by Miranda warnings if they are intended to produce answers that are incriminating")). Even if a routine booking question exception to Miranda were warranted, that exception should not extend to any booking question Page 496 U. S. 611 that the police should know is reasonably likely to elicit an incriminating response, cf. Innis, 446 U.S. at 446 U. S. 301 , regardless of whether the question is "designed" to elicit an incriminating response. Although the police's intent to obtain an incriminating response is relevant to this inquiry, the key components of the analysis are the nature of the questioning, the attendant circumstances, and the perceptions of the suspect. Cf. id. at 446 U. S. 301 , n. 7. Accordingly, Miranda warnings are required before the police may engage in any questioning reasonably likely to elicit an incriminating response. Here, the police should have known that the seven booking questions -- regarding Muniz's name, address, height, weight, eye color, date of birth, and age -- were reasonably likely to elicit incriminating responses from a suspect whom the police believed to be intoxicated. Cf. id. at 446 U. S. 302 , n. 8 ("Any knowledge the police may have had concerning the unusual susceptibility of a defendant to a particular form of persuasion might be an important factor in determining whether the police should have known that their words or actions were reasonably likely to elicit an incriminating response from the suspect"). Indeed, as the Court acknowledges, Muniz did in fact "stumbl[e] over his address and age," ante at 496 U. S. 586 ; more specifically, he was unable to give his address without looking at his license and initially told police the wrong age. Moreover, the very fact that, after a suspect has been arrested for driving under the influence, the Pennsylvania police regularly videotape the subsequent questioning strongly implies a purpose to the interrogation other than "recordkeeping." The seven questions in this case, then, do not fall within the routine booking question exception even under the majority's standard. [ Footnote 1/1 ] Page 496 U. S. 612 C Although the plurality does not address this issue, the booking questions sought "testimonial" responses for the same reason the sixth birthday question did: because the content of the answers would indicate Muniz's state of mind. Ante at 496 U. S. 598 -599, and n. 12. See also Estelle v. Smith, 451 U. S. 454 , 451 U. S. 464 -465 (1981). The booking questions, like the sixth birthday question, required Muniz to (1) answer correctly, indicating lucidity, (2) answer incorrectly, implying that his mental faculties were impaired, or (3) state that he did not know the answer, also indicating impairment. Muniz's initial incorrect response to the question about his age and his inability to give his address without looking at his license, like his inability to answer the sixth birthday question, in fact gave rise to the incriminating inference that his mental faculties were impaired. Accordingly, because the police did not inform Muniz of his Miranda rights before asking the booking questions, his responses should have been suppressed. II A The Court finds in Part IV of its opinion that Miranda is inapplicable to Muniz's statements made in connection with the three sobriety tests and the breathalyzer examination because those statements (which were undoubtedly testimonial) were not the products of "custodial interrogation." In my view, however, the circumstances of this case -- in particular, Muniz's apparent intoxication -- rendered the officers' words and actions the "functional equivalent" of express questioning Page 496 U. S. 613 because the police should have known that their conduct was "reasonably likely to evoke an incriminating response." Innis, supra, 446 U.S. at 446 U. S. 301 . As the Court recounts ante at 496 U. S. 602 -604, Officer Hosterman instructed Muniz how to perform the sobriety tests, inquired whether Muniz understood the instructions, and then directed Muniz to perform the tests. Officer Deyo later explained the breathalyzer examination and the nature of the State's Implied Consent Law, and asked several times if Muniz understood the Law and wanted to take the examination. Ante at 496 U. S. 604 . Although these words and actions might not prompt most sober persons to volunteer incriminating statements, Officers Hosterman and Deyo had good reason to believe -- from the arresting officer's observations, App. 13-19 (testimony of Officer Spotts), from Muniz's failure of the three roadside sobriety tests, id. at 19, and from their own observations -- that Muniz was intoxicated. The officers thus should have known that Muniz was reasonably likely to have trouble understanding their instructions and their explanation of the Implied Consent Law, and that he was reasonably likely to indicate, in response to their questions, that he did not understand the tests or the Law. Moreover, because Muniz made several incriminating statements regarding his intoxication during and after the roadside tests, id. at 20-21, the police should have known that the same tests at the Booking Center were reasonably likely to prompt similar incriminating statements. The Court today, however, completely ignores Muniz's condition and focuses solely on the nature of the officers' words and actions. As the Court held in Innis, however, the focus in the "functional equivalent" inquiry is on "the perceptions of the suspect," not on the officers' conduct viewed in isolation. 446 U.S. at 446 U. S. 301 . Moreover, the Innis Court emphasized that the officers' knowledge of any "unusual susceptibility" of a suspect to a particular means of eliciting information is relevant to the question whether they should have known that their conduct was reasonably likely to elicit Page 496 U. S. 614 an incriminating response. Id. at 446 U. S. 302 , n. 8; supra at 496 U. S. 610 -611. See also Arizona v. Mauro, 481 U. S. 520 , 481 U. S. 531 (1987) (STEVENS, J., dissenting) (police "interrogated" suspect by allowing him to converse with his wife "at a time when they knew [the conversation] was reasonably likely to produce an incriminating statement"). Muniz's apparent intoxication, then, and the police's knowledge of his statements during and after the roadside tests compel the conclusion that the police should have known that their words and actions were reasonably likely to elicit an incriminating response. [ Footnote 1/2 ] Muniz's statements were thus the product of custodial interrogation and should have been suppressed because Muniz was not first given the Miranda warnings. B The Court concedes that Officer Hosterman's directions that Muniz count aloud to 9 while performing the "walk-the-line" test and to 30 while performing the "one-leg-stand" test constituted custodial interrogation. Ante at 496 U. S. 603 , and n. 17. Also indisputable is the testimonial nature of the responses sought by those directions; the content of Muniz's counting, just like his answers to the sixth birthday and the booking questions, would provide the basis for an inference regarding his state of mind. Cf. ante at 496 U. S. 599 ; supra at 496 U. S. 612 . The Court finds the admission at trial of Muniz's responses permissible, however, because they were not incriminating "except to the extent [they] exhibited a tendency to slur words, Page 496 U. S. 615 which [the Court already found to be] nontestimonial [evidence]." Ante at 496 U. S. 603 , n. 17. The Court's conclusion is wrong for two reasons. First, as a factual matter, Muniz's responses were incriminating for a reason other than his apparent slurring. Muniz did not count at all during the walk-the-line test, supporting the inference that he was unable to do so. [ Footnote 1/3 ] And, contrary to the Court's assertion, ibid. during the one-leg-stand test, Muniz incorrectly counted in Spanish from one to six, skipping the number two. Even if Muniz had not skipped "two," his failure to complete the count was incriminating in itself. Second, and more importantly, Muniz's responses would have been "incriminating" for purposes of Miranda even if he had fully and accurately counted aloud during the two tests. As the Court stated in Innis, "[b]y incriminating response' we refer to any response -- whether inculpatory or exculpatory -- that the prosecution may seek to introduce at trial." 446 U.S. at 446 U. S. 301 , n. 5. See also Miranda, 384 U.S. at 384 U. S. 476 -477 ("The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely `exculpatory'"). Thus, any response by Page 496 U. S. 616 Muniz that the prosecution sought to use against him was incriminating under Miranda. That the majority thinks Muniz's responses were incriminating only because of his slurring is therefore irrelevant. Because Muniz did not receive the Miranda warnings, then, his responses should have been suppressed. III All of Muniz's responses during the videotaped session were prompted by questions that sought testimonial answers during the course of custodial interrogation. Because the police did not read Muniz the Miranda warnings before he gave those responses, the responses should have been suppressed. I would therefore affirm the judgment of the state court. [ Footnote 1/4 ] [ Footnote 1/1 ] The sixth birthday question also clearly constituted custodial interrogation because it was a form of "express questioning." Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 300 -301 (1980). Furthermore, that question would not fall within the plurality's proposed routine booking question exception. The question serves no apparent recordkeeping need, as the police already possessed Muniz's date of birth. The absence of any administrative need for the question, moreover, suggests that the question was designed to obtain an incriminating response. Regardless of any administrative need for the question and regardless of the officer's intent, Miranda warnings were required because the police should have known that the question was reasonably likely to elicit an incriminating response. Supra, at 496 U. S. 610 -611. [ Footnote 1/2 ] An additional factor strongly suggests that the police expected Muniz to make incriminating statements. Pursuant to their routine in such cases, App. 28-29, the police allotted 20 minutes for the three sobriety tests and for "observation." Because Muniz finished the tests in approximately 6 minutes, the police required him to wait another 14 minutes before they asked him to submit to the breathalyzer examination. Given the absence of any apparent technical or administrative reason for the delay and the stated purpose of "observing" Muniz, the delay appears to have been designed in part to give Muniz the opportunity to make incriminating statements. [ Footnote 1/3 ] The Commonwealth could not use Muniz's failure to count against him regardless of whether his silence during the walk-the-line test was itself testimonial in those circumstances. Cf. ante at 496 U. S. 603 , n. 17. A defendant's silence in response to police questioning is not admissible at trial, even if the silence is not, in the particular circumstances, a form of communicative conduct. Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 468 , n. 37 (1966) ("[I]t is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation"). Cf. Griffin v. California, 380 U. S. 609 , 380 U. S. 615 (1965) ("[T]he Fifth Amendment . . . forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt"). [ Footnote 1/4 ] I continue to have serious reservations about the Court's limitation of the Fifth Amendment privilege to "testimonial" evidence. See United States v. Mara, 410 U. S. 19 , 410 U. S. 32 -38 (1973) (MARSHALL, J., dissenting). I believe that privilege extends to any evidence that a person is compelled to furnish against himself. Id. at 410 U. S. 33 -35. At the very least, the privilege includes evidence that can be obtained only through the person's affirmative cooperation. Id. at 410 U. S. 36 -37. Of course, a person's refusal to incriminate himself also cannot be used against him. See 496 U.S. 582 fn1/3|>n. 3, supra. Muniz's performance of the sobriety tests and his refusal to take the breathalyzer examination are thus protected by the Fifth Amendment under this interpretation. But cf. ante at 496 U. S. 604 -605, n. 19. Because Muniz does not challenge the admission of the video portion of the videotape showing the sobriety tests or of his refusal to take the breathalyzer examination, however, those issues are not before this Court.

Here is a summary of the Supreme Court case Pennsylvania v. Muniz (1990): The case concerned a man, Muniz, who was arrested for driving under the influence and taken to a booking center without being read his Miranda rights. He was told his actions and voice were being videotaped and was asked several questions, including his name, address, and date of birth. He also performed physical sobriety tests and was asked to submit to a breathalyzer test, which he refused. The audio and video portions of the tape were admitted as evidence at his trial, and he was convicted. The Supreme Court considered whether Muniz's answers to the questions and his verbalizations during the sobriety tests were testimonial and should have been suppressed under the Fifth Amendment's Self-Incrimination Clause. The Court held that only Muniz's response to the question about his sixth birthday constituted a testimonial response to custodial interrogation under the Fifth Amendment. The Court reasoned that Muniz's slurred speech and lack of muscular coordination revealed by his responses were nontestimonial components of his responses. However, the Court also noted that the police should have known that the question about his sixth birthday was reasonably likely to elicit an incriminating response, and thus, Miranda warnings were required for that question. The case discusses the distinction between testimonial and nontestimonial evidence and the protection provided by the Fifth Amendment's Self-Incrimination Clause.

Miranda Rights

Minnick v. Mississippi

https://supreme.justia.com/cases/federal/us/498/146/

U.S. Supreme Court Minnick v. Mississippi, 498 U.S. 146 (1990) Minnick v. Mississippi No. 89-6332 Argued Oct. 3, 1990 Decided Dec. 3, 1990 498 U.S. 146 CERTIORARI TO THE SUPREME COURT OF MISSISSIPPI Syllabus Petitioner Minnick was arrested on a Mississippi warrant for capital murder. An interrogation by federal law enforcement officials ended when he requested a lawyer, and he subsequently communicated with appointed counsel two or three times. Interrogation was reinitiated by a county deputy sheriff after Minnick was told that he could not refuse to talk to him, and Minnick confessed. The motion to suppress the confession was denied, and he was convicted and sentenced to death. The State Supreme Court rejected his argument that the confession was taken in violation of, inter alia, his Fifth Amendment right to counsel, reasoning that the rule of Edwards v. Arizona, 451 U. S. 477 -- that once an accused requests counsel, officials may not reinitiate questioning "until counsel has been made available" to him -- did not apply, since counsel had been made available. Held: When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. In context, the requirement that counsel be "made available" to the accused refers not to the opportunity to consult with an attorney outside the interrogation room, but to the right to have the attorney present during custodial interrogation. This rule is appropriate and necessary, since a single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights and from the coercive pressures that accompany custody and may increase as it is prolonged. The proposed exception is inconsistent with Edwards' purpose to protect a suspect's right to have counsel present at custodial interrogation and with Miranda v. Arizona, 384 U. S. 436 , where the theory that the opportunity to consult with one's attorney would substantially counteract the compulsion created by custodial interrogation was specifically rejected. It also would undermine the advantages flowing from Edwards' clear and unequivocal character. Since, under respondent's formulation of the rule, Edwards' protection could be reinstated by a subsequent request for counsel, it could pass in and out of existence multiple times, a vagary that would spread confusion through the justice system and lead to a loss of respect for the underlying constitutional principle. And such an exception would leave uncertain the sort of consultation required to displace Edwards. In addition, allowing a suspect whose counsel is Page 498 U. S. 147 prompt to lose Edwards' protection while one whose counsel is dilatory would not distort the proper conception of an attorney's duty to his client and set a course at odds with what ought to be effective representation. Since Minnick's interrogation was initiated by the police in a formal interview which he was compelled to attend, after Minnick had previously made a specific request for counsel, it was impermissible. Pp. 498 U. S. 150 -156. 551 So. 2d 77 (Miss.1988), reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 498 U. S. 156 . SOUTER, J., took no part in the consideration or decision of the case. Justice KENNEDY delivered the opinion of the Court. To protect the privilege against self-incrimination guaranteed by the Fifth Amendment, we have held that the police must terminate interrogation of an accused in custody if the accused requests the assistance of counsel. Miranda v. Arizona, 384 U. S. 436 , 384 U. S. 474 (1966). We reinforced the protections of Miranda in Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485 (1981), which held that, once the accused requests counsel, officials may not reinitiate questioning "until counsel has been made available" to him. The issue in the case before us is whether Edwards' protection ceases once the suspect has consulted with an attorney. Page 498 U. S. 148 Petitioner Robert Minnick and fellow prisoner James Dyess escaped from a county jail in Mississippi and, a day later, broke into a mobile home in search of weapons. In the course of the burglary, they were interrupted by the arrival of the trailer's owner, Ellis Thomas, accompanied by Lamar Lafferty and Lafferty's infant son. Dyess and Minnick used the stolen weapons to kill Thomas and the senior Lafferty. Minnick's story is that Dyess murdered one victim and forced Minnick to shoot the other. Before the escapees could get away, two young women arrived at the mobile home. They were held at gunpoint, then bound hand and foot. Dyess and Minnick fled in Thomas' truck, abandoning the vehicle in New Orleans. The fugitives continued to Mexico, where they fought, and Minnick then proceeded alone to California. Minnick was arrested in Lemon Grove, California, on a Mississippi warrant, some four months after the murders. The confession at issue here resulted from the last interrogation of Minnick while he was held in the San Diego jail, but we first recount the events which preceded it. Minnick was arrested on Friday, August 22, 1986. Petitioner testified that he was mistreated by local police during and after the arrest. The day following the arrest, Saturday, two FBI agents came to the jail to interview him. Petitioner testified that he refused to go to the interview, but was told he would "have to go down or else." App. 45. The FBI report indicates that the agents read petitioner his Miranda warnings, and that he acknowledged he understood his rights. He refused to sign a rights waiver form, however, and said he would not answer "very many" questions. Minnick told the agents about the jail break and the flight, and described how Dyess threatened and beat him. Early in the interview, he sobbed "[i]t was my life or theirs," but otherwise he hesitated to tell what happened at the trailer. The agents reminded him he did not have to answer questions without a lawyer present. According to the report, "Minnick stated 'Come back Monday when I have a lawyer,' Page 498 U. S. 149 and stated that he would make a more complete statement then with his lawyer present." App. 16. The FBI interview ended. After the FBI interview, an appointed attorney met with petitioner. Petitioner spoke with the lawyer on two or three occasions, though it is not clear from the record whether all of these conferences were in person. On Monday, August 25, Deputy Sheriff J.C. Denham of Clarke County, Mississippi, came to the San Diego jail to question Minnick. Minnick testified that his jailers again told him he would "have to talk" to Denham, and that he "could not refuse." Id. at 45. Denham advised petitioner of his rights, and petitioner again declined to sign a rights waiver form. Petitioner told Denham about the escape, and then proceeded to describe the events at the mobile home. According to petitioner, Dyess jumped out of the mobile home and shot the first of the two victims, once in the back with a shotgun and once in the head with a pistol. Dyess then handed the pistol to petitioner and ordered him to shoot the other victim, holding the shotgun on petitioner until he did so. Petitioner also said that, when the two girls arrived, he talked Dyess out of raping or otherwise hurting them. Minnick was tried for murder in Mississippi. He moved to suppress all statements given to the FBI or other police officers, including Denham. The trial court denied the motion with respect to petitioner's statements to Denham, but suppressed his other statements. Petitioner was convicted on two counts of capital murder, and sentenced to death. On appeal, petitioner argued that the confession to Denham was taken in violation of his rights to counsel under the Fifth and Sixth Amendments. The Mississippi Supreme Court rejected the claims. With respect to the Fifth Amendment aspect of the case, the court found "the Edwards bright-line rule as to initiation" inapplicable. 551 So. 2d 77 , 83 (1988). Relying on language in Edwards indicating that the bar on interrogating the accused after a request for counsel Page 498 U. S. 150 applies " until counsel has been made available to him,'" ibid., quoting Edwards v. Arizona, supra, 451 U.S. at 451 U. S. 484 -485, the court concluded that "[s]ince counsel was made available to Minnick, his Fifth Amendment right to counsel was satisfied." 551 So. 2d at 83. The court also rejected the Sixth Amendment claim, finding that petitioner waived his Sixth Amendment right to counsel when he spoke with Denham. Id. at 83-85. We granted certiorari, 495 U.S. (1990), and, without reaching any Sixth Amendment implications in the case, we decide that the Fifth Amendment protection of Edwards is not terminated or suspended by consultation with counsel. In Miranda v. Arizona, supra, 384 U.S. at 384 U. S. 474 , we indicated that, once an individual in custody invokes his right to counsel, interrogation "must cease until an attorney is present"; at that point, "the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning." Edwards gave force to these admonitions, finding it "inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel." 451 U.S. at 451 U. S. 485 . We held that "when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 451 U. S. 484 . Further, an accused who requests an attorney, "having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. at 451 U. S. 484 -485. Edwards is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights." Michigan v. Harvey, 494 U. S. 344 , 494 U. S. 350 (1990). Page 498 U. S. 151 See also Smith v. Illinois, 469 U. S. 91 , 469 U. S. 98 (1984). The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures. Edwards conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness, and implements the protections of Miranda in practical and straightforward terms. The merit of the Edwards decision lies in the clarity of its command and the certainty of its application. We have confirmed that the Edwards rule provides " clear and unequivocal' guidelines to the law enforcement profession." Arizona v. Roberson, 486 U. S. 675 , 486 U. S. 682 (1988). Cf. Moran v. Burbine, 475 U. S. 412 , 475 U. S. 425 -426 (1986). Even before Edwards, we noted that Miranda's "relatively rigid requirement that interrogation must cease upon the accused's request for an attorney . . . has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trustworthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis." Fare v. Michael C., 442 U. S. 707 , 442 U. S. 718 (1979). This pre- Edwards explanation applies as well to Edwards and its progeny. Arizona v. Roberson, supra, 486 U.S. at 486 U. S. 681 -682. The Mississippi Supreme Court relied on our statement in Edwards that an accused who invokes his right to counsel "is not subject to further interrogation by the authorities until counsel has been made available to him. . . ." 451 U.S. at 451 U. S. 484 -485. We do not interpret this language to mean, as the Mississippi court thought, that the protection of Edwards terminates once counsel has consulted with the suspect. In Page 498 U. S. 152 context, the requirement that counsel be "made available" to the accused refers to more than an opportunity to consult with an attorney outside the interrogation room. In Edwards, we focused on Miranda's instruction that when the accused invokes his right to counsel, "the interrogation must cease until an attorney is present, " 384 U.S. at 384 U. S. 474 (emphasis added), agreeing with Edwards' contention that he had not waived his right "to have counsel present during custodial interrogation." 451 U.S. at 451 U. S. 482 (emphasis added). In the sentence preceding the language quoted by the Mississippi Supreme Court, we referred to the "right to have counsel present during custodial interrogation," and in the sentence following, we again quoted the phrase " interrogation must cease until an attorney is present '" from Miranda. 451 U.S. at 451 U. S. 484 -485 (emphasis added). The full sentence relied on by the Mississippi Supreme Court, moreover, says: "We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Ibid. (emphasis added). Our emphasis on counsel's presence at interrogation is not unique to Edwards. It derives from Miranda, where we said that, in the cases before us, "[t]he presence of counsel . . . would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the [Fifth Amendment] privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion." 384 U.S. at 384 U. S. 466 . See Fare v. Michael C., supra, 442 U.S. at 442 U. S. 719 . Our cases following Edwards have interpreted the decision to mean that the authorities may not initiate questioning of the accused in counsel's absence. Writing for a plurality of the Court, for instance, then-justice REHNQUIST described the holding of Page 498 U. S. 153 Edwards to be "that subsequent incriminating statements made without [Edwards'] attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution." Oregon v. Bradshaw, 462 U. S. 1039 , 462 U. S. 1043 (1983) (emphasis added). See also Arizona v. Roberson, supra, 486 U.S. at 486 U. S. 680 ("The rule of the Edwards case came as a corollary to Miranda's admonition that [i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present'"); Shea v. Louisiana, 470 U. S. 51 , 470 U. S. 52 (1985) ("In Edwards v. Arizona, . . . this Court ruled that a criminal defendant's rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation -- without counsel present -- after he requested an attorney"). These descriptions of Edwards' holding are consistent with our statement that "[p]reserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards and its progeny." Patterson v. Illinois, 487 U. S. 285 , 487 U. S. 291 (1988). In our view, a fair reading of Edwards and subsequent cases demonstrates that we have interpreted the rule to bar police-initiated interrogation unless the accused has counsel with him at the time of questioning. Whatever the ambiguities of our earlier cases on this point, we now hold that, when counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney. We consider our ruling to be an appropriate and necessary application of the Edwards rule. A single consultation with an attorney does not remove the suspect from persistent attempts by officials to persuade him to waive his rights, or from the coercive pressures that accompany custody and that may increase as custody is prolonged. The case before us well illustrates the pressures, and abuses, that may be concomitants of custody. Petitioner testified that, though he resisted, he was required to submit to both the FBI and the Page 498 U. S. 154 Denham interviews. In the latter instance, the compulsion to submit to interrogation followed petitioner's unequivocal request during the FBI interview that questioning cease until counsel was present. The case illustrates also that consultation is not always effective in instructing the suspect of his rights. One plausible interpretation of the record is that petitioner thought he could keep his admissions out of evidence by refusing to sign a formal waiver of rights. If the authorities had complied with Minnick's request to have counsel present during interrogation, the attorney could have corrected Minnick's misunderstanding, or indeed counseled him that he need not make a statement at all. We decline to remove protection from police-initiated questioning based on isolated consultations with counsel who is absent when the interrogation resumes. The exception to Edwards here proposed is inconsistent with Edwards' purpose to protect the suspect's right to have counsel present at custodial interrogation. It is inconsistent as well with Miranda, where we specifically rejected respondent's theory that the opportunity to consult with one's attorney would substantially counteract the compulsion created by custodial interrogation. We noted in Miranda that "[e]ven preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Thus the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires." 384 U.S. at 384 U. S. 470 (citation omitted). The exception proposed, furthermore, would undermine the advantages flowing from Edwards' "clear and unequivocal" character. Respondent concedes that, even after consultation with counsel, a second request for counsel should reinstate the Edwards protection. We are invited by this formulation to adopt a regime in which Edwards' protection could pass in and out of existence multiple times prior to arraignment, Page 498 U. S. 155 at which point the same protection might reattach by virtue of our Sixth Amendment jurisprudence, see Michigan v. Jackson, 475 U. S. 625 (1986). Vagaries of this sort spread confusion through the justice system and lead to a consequent loss of respect for the underlying constitutional principle. In addition, adopting the rule proposed would leave far from certain the sort of consultation required to displace Edwards. Consultation is not a precise concept, for it may encompass variations from a telephone call to say that the attorney is in route, to a hurried interchange between the attorney and client in a detention facility corridor, to a lengthy in-person conference in which the attorney gives full and adequate advice respecting all matters that might be covered in further interrogations. And even with the necessary scope of consultation settled, the officials in charge of the case would have to confirm the occurrence and, possibly, the extent of consultation to determine whether further interrogation is permissible. The necessary inquiries could interfere with the attorney-client privilege. Added to these difficulties in definition and application of the proposed rule is our concern over its consequence that the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not. There is more than irony to this result. There is a strong possibility that it would distort the proper conception of the attorney's duty to the client and set us on a course at odds with what ought to be effective representation. Both waiver of rights and admission of guilt are consistent with the affirmation of individual responsibility that is a principle of the criminal justice system. It does not detract from this principle, however, to insist that neither admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause. The Edwards rule sets forth a specific standard to fulfill these purposes, and we have declined Page 498 U. S. 156 to confine it in other instances. See Arizona v. Roberson, 486 U. S. 675 (1988). It would detract from the efficacy of the rule to remove its protections based on consultation with counsel. Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities; but that is not the case before us. There can be no doubt that the interrogation in question was initiated by the police; it was a formal interview which petitioner was compelled to attend. Since petitioner made a specific request for counsel before the interview, the police-initiated interrogation was impermissible. Petitioner's statement to Denham was not admissible at trial. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion. It is so ordered. Justice SOUTER took no part in the consideration or decision of this case. Justice SCALIA, with whom THE CHIEF JUSTICE joins, dissenting. The Court today establishes an irrebuttable presumption that a criminal suspect, after invoking his Miranda right to counsel, can never validly waive that right during any police-initiated encounter, even after the suspect has been provided multiple Miranda warnings and has actually consulted his attorney. This holding builds on foundations already established in Edwards v. Arizona, 451 U. S. 477 (1981), but "the rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion." Arizona v. Roberson, 486 U. S. 675 , 486 U. S. 688 (1988) (KENNEDY, J., dissenting). Because I see no justification for applying the Edwards irrebuttable presumption when a criminal suspect has actually consulted with his attorney, I respectfully dissent. Page 498 U. S. 157 I Some recapitulation of pertinent facts is in order, given the Court's contention that "[t]he case before us well illustrates the pressures, and abuses, that may be concomitants of custody." Ante at 498 U. S. 153 . It is undisputed that the FBI agents who first interviewed Minnick on Saturday, August 23, 1986, advised him of his Miranda rights before any questioning began. Although he refused to sign a Page 498 U. S. 158 waiver form, he agreed to talk to the agents, and described his escape from prison in Mississippi and the ensuing events. When he came to what happened at the trailer, however, Minnick hesitated. The FBI agents then reminded him that he did not have to answer questions without a lawyer present. Minnick indicated that he would finish his account on Monday, when he had a lawyer, and the FBI agents terminated the interview forthwith. Minnick was then provided with an attorney, with whom he consulted several times over the weekend. As Minnick testified at a subsequent suppression hearing: "I talked to [my attorney] two different times and -- it might have been three different times. . . . He told me that first day that he was my lawyer and that he was appointed to me and not to talk to nobody and not tell nobody nothing and to not sign no waivers and not sign no extradition papers or sign anything and that he was going to get a court order to have any of the police -- I advised him of the FBI talking to me and he advised me not to tell anybody anything that he was going to get a court order drawn up to restrict anybody talking to me outside of the San Diego Police Department." App. 46-47. On Monday morning, Minnick was interviewed by Deputy Sheriff J.C. Denham, who had come to San Diego from Mississippi. Before the interview, Denham reminded Minnick of his Miranda rights. Minnick again refused to sign a waiver form, but he did talk with Denham, and did not ask for his attorney. As Minnick recalled at the hearing, he and Denham "went through several different conversations about -- first, about how everybody was back in the county jail and what everybody was doing, had he heard from Mama and had -- he went and talked to Mama and had he seen my brother, Tracy, and several different other questions pertaining to such things as that. And, we went off into how the escape went down at the county jail. . . ." App. 50. Minnick then proceeded to describe his participation in the double murder at the trailer. Minnick was later extradited and tried for murder in Mississippi. Before trial, he moved to suppress the statements he had given the FBI agents and Denham in the San Diego jail. The trial court granted the motion with respect to the statements made to the FBI agents, but ordered a hearing on the admissibility of the statements made to Denham. After receiving testimony from both Minnick and Denham, the court concluded that Minnick's confession had been "freely and voluntarily given from the evidence beyond a reasonable doubt," id. at 25, and allowed Denham to describe Minnick's confession to the jury. The Court today reverses the trial court's conclusion. It holds that, because Minnick had asked for counsel during the interview with the FBI agents, he could not -- as a matter of law -- validly waive the right to have counsel present during the conversation initiated by Denham. That Minnick's original request to see an attorney had been honored, that Minnick had consulted with his attorney on several occasions, and that the attorney had specifically warned Minnick not to speak to the authorities, are irrelevant. That Minnick was familiar with the criminal justice system in general or Miranda warnings in particular (he had previously been convicted of robbery in Mississippi and assault with a deadly Page 498 U. S. 159 weapon in California) is also beside the point. The confession must be suppressed, not because it was "compelled," nor even because it was obtained from an individual who could realistically be assumed to be unaware of his rights, but simply because this Court sees fit to prescribe as a "systemic assuranc[e]," ante at 498 U. S. 155 , that a person in custody who has once asked for counsel cannot thereafter be approached by the police unless counsel is present. Of course the Constitution's proscription of compelled testimony does not remotely authorize this incursion upon state practices; and even our recent precedents are not a valid excuse. II In Miranda v. Arizona, 384 U. S. 436 (1966), this Court declared that a criminal suspect has a right to have counsel present during custodial interrogation, as a prophylactic assurance that the "inherently compelling pressures," id. at 384 U. S. 467 , of such interrogation will not violate the Fifth Amendment. But Miranda did not hold that these "inherently compelling pressures" precluded a suspect from waiving his right to have counsel present. On the contrary, the opinion recognized that a State could establish that the suspect "knowingly and intelligently waived . . . his right to retained or appointed counsel." Id. at 384 U. S. 475 . For this purpose, the Court expressly adopted the "high standar[d] of proof for the waiver of constitutional rights," ibid., set forth in Johnson v. Zerbst, 304 U. S. 458 (1938). The Zerbst waiver standard, and the means of applying it, are familiar: Waiver is "an intentional relinquishment or abandonment of a known right or privilege," id. at 304 U. S. 464 , and whether such a relinquishment or abandonment has occurred depends "in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused," ibid. We have applied the Zerbst approach in many contexts where a State bears the burden of showing a waiver of constitutional criminal Page 498 U. S. 160 procedural rights. See, e.g., Faretta v. California, 422 U. S. 806 , 422 U. S. 835 (1975) (right to the assistance of counsel at trial); Brookhart v. Janis, 384 U. S. 1 , 384 U. S. 4 (1966) (right to confront adverse witnesses); Adams v. United States ex rel. McCann, 317 U. S. 269 , 317 U. S. 275 -280 (1942) (right to trial by jury). Notwithstanding our acknowledgment that Miranda rights are "not themselves rights protected by the Constitution, but . . . instead measures to insure that the right against compulsory self-incrimination [is] protected," Michigan v. Tucker, 417 U. S. 433 , 417 U. S. 444 (1974), we have adhered to the principle that nothing less than the Zerbst standard for the waiver of constitutional rights applies to the waiver of Miranda rights. Until Edwards, however, we refrained from imposing on the States a higher standard for the waiver of Miranda rights. For example, in Michigan v. Mosley, 423 U. S. 96 (1975), we rejected a proposed irrebuttable presumption that a criminal suspect, after invoking the Miranda right to remain silent, could not validly waive the right during any subsequent questioning by the police. In North Carolina v. Butler, 441 U. S. 369 (1979) we rejected a proposed rule that waivers of Miranda rights must be deemed involuntary absent an explicit assertion of waiver by the suspect. And in Fare v. Michael C., 442 U. S. 707 , 442 U. S. 723 -727 (1979) we declined to hold that waivers of Miranda rights by juveniles are per se involuntary. Edwards, however, broke with this approach, holding that a defendant's waiver of his Miranda right to counsel, made in the course of a police-initiated encounter after he had requested counsel but before counsel had been provided, was per se involuntary. The case stands as a solitary exception to our waiver jurisprudence. It does, to be sure, have the desirable consequences described in today's opinion. In the narrow context in which it applies, it provides 100% assurance against confessions that are "the result of coercive pressures," ante at 498 U. S. 151 ; it " prevent[s] police from badgering a Page 498 U. S. 161 defendant,'" ibid. (quoting Michigan v. Harvey, 494 U. S. 344 , 494 U. S. 350 (1990)); it "conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness," ante at 498 U. S. 151 ; and it provides " `"clear and unequivocal" guidelines to the law enforcement profession,'" ibid. (quoting Arizona v. Roberson, 486 U.S. at 486 U. S. 682 ). But so would a rule that simply excludes all confessions by all persons in police custody. The value of any prophylactic rule (assuming the authority to adopt a prophylactic rule) must be assessed not only on the basis of what is gained, but also on the basis of what is lost. In all other contexts, we have thought the above-described consequences of abandoning Zerbst outweighed by "`the need for police questioning as a tool for effective enforcement of criminal laws,'" Moran v. Burbine, 475 U. S. 412 , 475 U. S. 426 (1986). "Admissions of guilt," we have said, "are more than merely 'desirable;' they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Ibid. (citation omitted). III In this case, of course, we have not been called upon to reconsider Edwards, but simply to determine whether its irrebuttable presumption should continue after a suspect has actually consulted with his attorney. Whatever justifications might support Edwards are even less convincing in this context. Most of the Court's discussion of Edwards -- which stresses repeatedly, in various formulations, the case's emphasis upon "the right to have counsel present during custodial interrogation,'" ante at 498 U. S. 152 , quoting 451 U.S. at 451 U. S. 482 (emphasis added by the Court) -- is beside the point. The existence and the importance of the Miranda -created right "to have counsel present " are unquestioned here. What is questioned is why a State should not be given the opportunity to prove (under Zerbst ) that the right was voluntarily waived by a suspect who, after having been read his Miranda rights twice and Page 498 U. S. 162 having consulted with counsel at least twice, chose to speak to a police officer (and to admit his involvement in two murders) without counsel present. Edwards did not assert the principle that no waiver of the Miranda right "to have counsel present " is possible. It simply adopted the presumption that no waiver is voluntary in certain circumstances, and the issue before us today is how broadly those circumstances are to be defined. They should not, in my view, extend beyond the circumstances present in Edwards itself -- where the suspect in custody asked to consult an attorney, and was interrogated before that attorney had ever been provided. In those circumstances, the Edwards rule rests upon an assumption similar to that of Miranda itself: that, when a suspect in police custody is first questioned, he is likely to be ignorant of his rights and to feel isolated in a hostile environment. This likelihood is thought to justify special protection against unknowing or coerced waiver of rights. After a suspect has seen his request for an attorney honored, however, and has actually spoken with that attorney, the probabilities change. The suspect then knows that he has an advocate on his side, and that the police will permit him to consult that advocate. He almost certainly also has a heightened awareness (above what the Miranda warning itself will provide) of his right to remain silent -- since, at the earliest opportunity, "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to the police under any circumstances." Watts v. Indiana, 338 U. S. 49 , 338 U. S. 59 (1949) (Opinion of Jackson, J.). Under these circumstances, an irrebuttable presumption that any police-prompted confession is the result of ignorance of rights, or of coercion, has no genuine basis in fact. After the first consultation, therefore, the Edwards exclusionary rule should cease to apply. Does this mean, as the Court implies, that the police will thereafter have license to "badger" the suspect? Only if all one means by "badger" is asking, without such insistence or frequency as would constitute coercion, Page 498 U. S. 163 whether he would like to reconsider his decision not to confess. Nothing in the Constitution (the only basis for our intervention here) prohibits such inquiry, which may often produce the desirable result of a voluntary confession. If and when post-consultation police inquiry becomes so protracted or threatening as to constitute coercion, the Zerbst standard will afford the needed protection. One should not underestimate the extent to which the Court's expansion of Edwards constricts law enforcement. Today's ruling, that the invocation of a right to counsel permanently prevents a police-initiated waiver, makes it largely impossible for the police to urge a prisoner who has initially declined to confess to change his mind -- or indeed, even to ask whether he has changed his mind. Many persons in custody will invoke the Miranda right to counsel during the first interrogation, so that the permanent prohibition will attach at once. Those who do not do so will almost certainly request or obtain counsel at arraignment. We have held that a general request for counsel, after the Sixth Amendment right has attached, also triggers the Edwards prohibition of police-solicited confessions, see Michigan v. Jackson, 475 U. S. 625 (1986), and I presume that the perpetuality of prohibition announced in today's opinion applies in that context as well. "Perpetuality" is not too strong a term, since, although the Court rejects one logical moment at which the Edwards presumption might end, it suggests no alternative. In this case, Minnick was reapproached by the police three days after he requested counsel, but the result would presumably be the same if it had been three months, or three years, or even three decades. This perpetual irrebuttable presumption will apply, I might add, not merely to interrogations involving the original crime, but to those involving other subjects as well. See Arizona v. Roberson, 486 U. S. 675 (1988). Besides repeating the uncontroverted proposition that the suspect has a "right to have counsel present," the Court stresses the clarity and simplicity that are achieved by today's Page 498 U. S. 164 holding. Clear and simple rules are desirable, but only in pursuance of authority that we possess. We are authorized by the Fifth Amendment to exclude confessions that are "compelled," which we have interpreted to include confessions that the police obtain from a suspect in custody without a knowing and voluntary waiver of his right to remain silent. Undoubtedly some bright-line rules can be adopted to implement that principle, marking out the situations in which knowledge or voluntariness cannot possibly be established -- for example, a rule excluding confessions obtained after five hours of continuous interrogation. But a rule excluding all confessions that follow upon even the slightest police inquiry cannot conceivably be justified on this basis. It does not rest upon a reasonable prediction that all such confessions, or even most such confessions, will be unaccompanied by a knowing and voluntary waiver. It can be argued that the same is true of the category of confessions excluded by the Edwards rule itself. I think that is so, but, as I have discussed above, the presumption of involuntariness is at least more plausible for that category. There is, in any event, a clear and rational line between that category and the present one, and I see nothing to be said for expanding upon a past mistake. Drawing a distinction between police-initiated inquiry before consultation with counsel and police-initiated inquiry after consultation with counsel is assuredly more reasonable than other distinctions Edwards has already led us into -- such as the distinction between police-initiated inquiry after assertion of the Miranda right to remain silent, and police-initiated inquiry after assertion of the Miranda right to counsel, see Kamisar, The Edwards and Bradshaw Cases: The Court Giveth and the Court Taketh Away, in 5 The Supreme Court: Trends and Developments 157 (J. Choper, Y. Kamisar, & L. Tribe eds. 1984) ("[E]ither Mosley was wrongly decided or Edwards was"); or the distinction between what is needed to prove waiver of the Page 498 U. S. 165 Miranda right to have counsel present and what is needed to prove waiver of rights found in the Constitution. The rest of the Court's arguments can be answered briefly. The suggestion that it will either be impossible or ethically impermissible to determine whether a "consultation" between the suspect and his attorney has occurred is alarmist. Since, as I have described above, the main purpose of the consultation requirement is to eliminate the suspect's feeling of isolation and to assure him the presence of legal assistance, any discussion between him and an attorney whom he asks to contact, or who is provided to him, in connection with his arrest, will suffice. The precise content of the discussion is irrelevant. As for the "irony" that "the suspect whose counsel is prompt would lose the protection of Edwards, while the one whose counsel is dilatory would not," ante at 498 U. S. 155 : There seems to me no irony in applying a special protection only when it is needed. The Edwards rule is premised on an (already tenuous) assumption about the suspect's psychological state, and, when the event of consultation renders that assumption invalid, the rule should no longer apply. One searching for ironies in the state of our law should consider, first, the irony created by Edwards itself: The suspect in custody who says categorically "I do not wish to discuss this matter" can be asked to change his mind; but if he should say, more tentatively, "I do not think I should discuss this matter without my attorney present" he can no longer be approached. To that there is added, by today's decision, the irony that it will be far harder for the state to establish a knowing and voluntary waiver of Fifth Amendment rights by a prisoner who has already consulted with counsel than by a newly arrested suspect. Finally, the Court's concern that " Edwards' protection could pass in and out of existence multiple times," ante at 498 U. S. 154 , does not apply to the resolution of the matter I have proposed. Page 498 U. S. 166 Edwards would cease to apply, permanently, once consultation with counsel has occurred. * * * * Today's extension of the Edwards prohibition is the latest stage of prophylaxis built upon prophylaxis, producing a veritable fairyland castle of imagined constitutional restriction upon law enforcement. This newest tower, according to the Court, is needed to avoid "inconsisten[cy] with [the] purpose" of Edwards' prophylactic rule, ante at 498 U. S. 154 , which was needed to protect Miranda's prophylactic right to have counsel present, which was needed to protect the right against compelled self-incrimination found (at last!) in the Constitution. It seems obvious to me that, even in Edwards itself but surely in today's decision, we have gone far beyond any genuine concern about suspects who do not know their right to remain silent, or who have been coerced to abandon it. Both holdings are explicable, in my view, only as an effort to protect suspects against what is regarded as their own folly. The sharp-witted criminal would know better than to confess; why should the dull-witted suffer for his lack of mental endowment? Providing him an attorney at every stage where he might be induced or persuaded (though not coerced) to incriminate himself will even the odds. Apart from the fact that this protective enterprise is beyond our authority under the Fifth Amendment or any other provision of the Constitution, it is unwise. The procedural protections of the Constitution protect the guilty as well as the innocent, but it is not their objective to set the guilty free. That some clever criminals may employ those protections to their advantage is poor reason to allow criminals who have not done so to escape justice. Thus, even if I were to concede that an honest confession is a foolish mistake, I would welcome rather than reject it; a rule that foolish mistakes do not count would leave most offenders Page 498 U. S. 167 not only unconvicted but undetected. More fundamentally, however, it is wrong, and subtly corrosive of our criminal justice system, to regard an honest confession as a "mistake." While every person is entitled to stand silent, it is more virtuous for the wrongdoer to admit his offense and accept the punishment he deserves. Not only for society, but for the wrongdoer himself, "admissio[n] of guilt . . . , if not coerced, [is] inherently desirable," United States v. Washington, 431 U. S. 181 , 431 U. S. 187 (1977), because it advances the goals of both "justice and rehabilitation." Michigan v. Tucker, 417 U.S. at 417 U. S. 448 , n. 23 (emphasis added). A confession is rightly regarded by the sentencing guidelines as warranting a reduction of sentence, because it "demonstrates a recognition and affirmative acceptance of personal responsibility for . . . criminal conduct," U.S. Sentencing Commission, Guidelines Manual § 3E1.1 (1988), which is the beginning of reform. We should, then, rejoice at an honest confession, rather than pity the "poor fool" who has made it; and we should regret the attempted retraction of that good act, rather than seek to facilitate and encourage it. To design our laws on premises contrary to these is to abandon belief in either personal responsibility or the moral claim of just government to obedience. Cf. Caplan, Questioning Miranda, 38 Vand.L.Rev. 1417, 1471-1473 (1985). Today's decision is misguided, it seems to me, in so readily exchanging, for marginal, super- Zerbst protection against genuinely compelled testimony, investigators' ability to urge, or even ask, a person in custody to do what is right.

The Supreme Court ruled that once a suspect in custody requests an attorney, officials may not reinitiate interrogation without an attorney present, regardless of whether the suspect has consulted with their attorney. This ruling is to protect the suspect's Fifth Amendment right to counsel during custodial interrogation. Justice Scalia, in his dissenting opinion, argues that the majority decision goes beyond protecting suspects who are unaware of their rights or coerced into abandoning them. He believes that the ruling aims to protect suspects from their own folly, which is beyond the Court's authority and unwise. He suggests that while procedural protections should apply to the guilty and innocent alike, they should not be used to set the guilty free.

Miranda Rights

McNeil v. Wisconsin

https://supreme.justia.com/cases/federal/us/501/171/

U.S. Supreme Court McNeil v. Wisconsin, 501 U.S. 171 (1991) McNeil v. Wisconsin No. 90-5319 Argued Feb. 25, 1991 Decided June 13, 1991 501 U.S. 171 CERTIORARI TO THE SUPREME COURT OF WISCONSIN Syllabus Charged with an armed robbery in West Allis, Wisconsin, petitioner McNeil was represented by a public defender at a bail hearing. While in jail on that charge, he was questioned by police about a murder and related crimes in Caledonia, Wisconsin. He was advised of his Miranda rights, signed forms waiving them, and made statements incriminating himself in the Caledonia offenses. He was then formally charged with the latter crimes, his pretrial motion to suppress his statements was denied, and he was convicted. His conviction was affirmed on appeal, the State Supreme Court holding that an accused's request for counsel at an initial appearance on a charged offense does not constitute an invocation of his Fifth Amendment right to counsel that precludes police interrogation on unrelated, uncharged offenses. Held: An accused's invocation of his Sixth Amendment right to counsel during a judicial proceeding does not constitute an invocation of the right to counsel derived by Miranda v. Arizona, 384 U. S. 436 , from the Fifth Amendment's guarantee against compelled self-incrimination. Pp. 501 U. S. 175 -182. (a) The identity between the two rights that McNeil asserts is false as a matter of fact. The Sixth Amendment right, which does not attach until the initiation of adversary judicial proceedings, is offense-specific, Maine v. Moulton, 474 U. S. 159 , 474 U. S. 179 -180 and n. 16, as is its effect, under Michigan v. Jackson, 475 U. S. 625 , of invalidating subsequent waivers during police-initiated questioning. Thus, McNeil's invocation of that right with respect to the West Allis robbery poses no bar to the admission of his statements regarding the Caledonia crimes, with which he had not been charged at the time he made the statements. Moreover, although the Miranda right to counsel is non-offense-specific, Arizona v. Roberson, 486 U. S. 675 , and, once asserted, prevents any further police-initiated interrogation outside the presence of counsel, Edwards v. Arizona, 451 U. S. 477 , 451 U. S. 484 -485, its assertion cannot be inferred from the invocation of the Sixth Amendment right in light of the differing purposes and effects of the two rights. The Sixth Amendment right is intended to protect the unaided layman at critical confrontations with the government after the initiation of the adversary process with respect to a particular crime, United States v. Gouveia, 467 U. S. 180 , 467 U. S. 189 . The Miranda-Edwards guarantee is intended to protect the suspect's Page 501 U. S. 172 "desire to deal with the police only through counsel," Edwards, supra, 451 U.S. at 451 U. S. 484 . Requesting the assistance of an attorney at a bail hearing does not satisfy the minimum requirement of some statement that can reasonably be construed as an expression of a desire for counsel in dealing with custodial interrogation by the police. Pp. 501 U. S. 175 -1780. (b) Nor will this Court declare as a matter of sound policy (assuming the existence of such expansive power) that assertion of the Sixth Amendment right implies invocation of the Miranda right. McNeil's proposed rule offers only insignificant advantages, and would seriously impede effective law enforcement by precluding uncounseled but uncoerced admissions of guilt pursuant to valid Miranda waivers. Pp. 501 U. S. 180 -182. 155 Wis.2d 24, 454 N.W.2d 742 (1990), affirmed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. KENNEDY, J., filed a concurring opinion, post, p. 501 U. S. 183 . STEVENS, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 501 U. S. 183 . Page 501 U. S. 173 JUSTICE SCALIA delivered the opinion of the Court. This case presents the question whether an accused's invocation of his Sixth Amendment right to counsel during a judicial proceeding constitutes an invocation of his Miranda right to counsel. I Petitioner Paul McNeil was arrested in Omaha, Nebraska, in May, 1987, pursuant to a warrant charging him with an armed robbery in West Allis, Wisconsin, a suburb of Milwaukee. Shortly after his arrest, two Milwaukee County deputy sheriffs arrived in Omaha to retrieve him. After advising him of his Miranda rights, the deputies sought to question him. He refused to answer any questions, but did not request an attorney. The deputies promptly ended the interview. Once back in Wisconsin, petitioner was brought before a Milwaukee County court commissioner on the armed robbery charge. The Commissioner set bail and scheduled a preliminary examination. An attorney from the Wisconsin Public Defender's office represented petitioner at this initial appearance. Later that evening, Detective Joseph Butts of the Milwaukee County Sheriff's Department visited petitioner in jail. Butts had been assisting the Racine County, Wisconsin, police in their investigation of a murder, attempted murder, and armed burglary in the town of Caledonia; petitioner was a suspect. Butts advised petitioner of his Miranda rights, and petitioner signed a form waiving them. In this Page 501 U. S. 174 first interview, petitioner did not deny knowledge of the Caledonia crimes, but said that he had not been involved. Butts returned two days later with detectives from Caledonia. He again began the encounter by advising petitioner of his Miranda rights, and providing a waiver form. Petitioner placed his initials next to each of the warnings and signed the form. This time, petitioner admitted that he had been involved in the Caledonia crimes, which he described in detail. He also implicated two other men, Willie Pope and Lloyd Crowley. The statement was typed up by a detective and given to petitioner to review. Petitioner placed his initials next to every reference to himself and signed every page. Butts and the Caledonia Police returned two days later, having in the meantime found and questioned Pope, who convinced them that he had not been involved in the Caledonia crimes. They again began the interview by administering the Miranda warnings, and obtaining petitioner's signature and initials on the waiver form. Petitioner acknowledged that he had lied about Pope's involvement to minimize his own role in the Caledonia crimes, and provided another statement recounting the events, which was transcribed, signed, and initialed as before. The following day, petitioner was formally charged with the Caledonia crimes and transferred to that jurisdiction. His pretrial motion to suppress the three incriminating statements was denied. He was convicted of second-degree murder, attempted first-degree murder, and armed robbery, and sentenced to 60 years in prison. On appeal, petitioner argued that the trial court's refusal to suppress the statements was reversible error. He contended that his courtroom appearance with an attorney for the West Allis crime constituted an invocation of the Miranda right to counsel, and that any subsequent waiver of that right during police-initiated questioning regarding any offense was invalid. Observing that the State's Supreme Page 501 U. S. 175 Court had never addressed this issue, the Court of Appeals certified to that court the following question: "Does an accused's request for counsel at an initial appearance on a charged offense constitute an invocation of his fifth amendment right to counsel that precludes police interrogation on unrelated, uncharged offenses?" App. 16. The Wisconsin Supreme Court answered "no." 155 Wis.2d 24, 454 N.W.2d 742 (1990). We granted certiorari, 498 U.S. 937 (1990). II The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." In Michigan v. Jackson, 475 U. S. 625 (1986), we held that, once this right to counsel has attached and has been invoked, any subsequent waiver during a police-initiated custodial interview is ineffective. It is undisputed, and we accept for purposes of the present case, that at the time petitioner provided the incriminating statements at issue, his Sixth Amendment right had attached and had been invoked with respect to the West Allis armed robbery, for which he had been formally charged. The Sixth Amendment right, however, is offense-specific. It cannot be invoked once for all future prosecutions, for it does not attach until a prosecution is commenced, that is, "'at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" United States v. Gouveia, 467 U. S. 180 , 467 U. S. 188 (1984) (quoting Kirby v. Illinois, 406 U. S. 682 , 406 U. S. 689 (1972) (plurality opinion)). And just as the right is offense-specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific. "The police have an interest . . . in investigating new or additional crimes [after an individual is formally charged Page 501 U. S. 176 with one crime.] . . . [T]o exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. . . ." Maine v. Moulton, 474 U. S. 159 , 474 U. S. 179 -180 (1985). "Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right has not yet attached, are, of course, admissible at a trial of those offenses." Id. at 474 U. S. 180 , n. 16. See also Moran v. Burbine, 475 U. S. 412 , 475 U. S. 431 (1986). Because petitioner provided the statements at issue here before his Sixth Amendment right to counsel with respect to the Caledonia offenses had been (or even could have been) invoked, that right poses no bar to the admission of the statements in this case. Petitioner relies, however, upon a different "right to counsel," found not in the text of the Sixth Amendment, but in this Court's jurisprudence relating to the Fifth Amendment guarantee that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." In Miranda v. Arizona, 384 U. S. 436 (1966), we established a number of prophylactic rights designed to counteract the "inherently compelling pressures" of custodial interrogation, including the right to have counsel present. Miranda did not hold, however, that those rights could not be waived. On the contrary, the opinion recognized that statements elicited during custodial interrogation would be admissible if the prosecution could establish that the suspect "knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 384 U. S. 475 . In Edwards v. Arizona, 451 U. S. 477 (1981), we established a second layer of prophylaxis for the Miranda right to counsel: once a suspect asserts the right, not only must the Page 501 U. S. 177 current interrogation cease, but he may not be approached for further interrogation "until counsel has been made available to him," 451 U.S. at 451 U. S. 484 -485 -- which means, we have most recently held, that counsel must be present, Minnick v. Mississippi, 498 U. S. 146 (1990). If the police do subsequently initiate an encounter in the absence of counsel (assuming there has been no break in custody), the suspect's statements are presumed involuntary and therefore inadmissible as substantive evidence at trial, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U. S. 344 , 494 U. S. 350 (1990). The Edwards rule, moreover, is not offense-specific: once a suspect invokes the Miranda right to counsel for interrogation regarding one offense, he may not be reapproached regarding any offense unless counsel is present. Arizona v. Roberson, 486 U. S. 675 (1988). Having described the nature and effects of both the Sixth Amendment right to counsel and the Miranda-Edwards "Fifth Amendment" right to counsel, we come at last to the issue here: Petitioner seeks to prevail by combining the two of them. He contends that, although he expressly waived his Miranda right to counsel on every occasion he was interrogated, those waivers were the invalid product of impermissible approaches, because his prior invocation of the offense-specific Sixth Amendment right with regard to the West Allis burglary was also an invocation of the non-offense-specific Miranda-Edwards right. We think that is false as a matter of fact and inadvisable (if even permissible) as a contrary-to-fact presumption of policy. As to the former: The purpose of the Sixth Amendment counsel guarantee -- and hence the purpose of invoking it -- is to "protec[t] the unaided layman at critical confrontations" with his "expert adversary," the government, after "the adverse Page 501 U. S. 178 positions of government and defendant have solidified" with respect to a particular alleged crime. Gouveia, 467 U.S. at 467 U. S. 189 . The purpose of the Miranda-Edwards guarantee, on the other hand -- and hence the purpose of invoking it -- is to protect a quite different interest: the suspect's "desire to deal with the police only through counsel," Edwards, 451 U.S. at 451 U. S. 484 . This is in one respect narrower than the interest protected by the Sixth Amendment guarantee (because it relates only to custodial interrogation), and in another respect broader (because it relates to interrogation regarding any suspected crime and attaches whether or not the "adversarial relationship" produced by a pending prosecution has yet arisen). To invoke the Sixth Amendment interest is, as a matter of fact, not to invoke the Miranda-Edwards interest. One might be quite willing to speak to the police without counsel present concerning many matters, but not the matter under prosecution. It can be said, perhaps, that it is likely that one who has asked for counsel's assistance in defending against a prosecution would want counsel present for all custodial interrogation, even interrogation unrelated to the charge. That is not necessarily true, since suspects often believe that they can avoid the laying of charges by demonstrating an assurance of innocence through frank and unassisted answers to questions. But even if it were true, the likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards. The rule of that case applies only when the suspect "ha[s] expressed " his wish for the particular sort of lawyerly assistance that is the subject of Miranda. Edwards, supra, 451 U.S. at 451 U. S. 484 (emphasis added). It requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction. "[T]o find that [the defendant] invoked his Fifth Amendment right to counsel on the present charges merely by requesting Page 501 U. S. 179 the appointment of counsel at his arraignment on the unrelated charge is to disregard the ordinary meaning of that request." State v. Stewart, 113 Wash. 2d 462 , 471, 780 P.2d 844 , 849 (1989), cert. denied, 494 U.S. 1020 (1990). Our holding in Michigan v. Jackson, 475 U. S. 625 (1986), does not, as petitioner asserts, contradict the foregoing distinction; to the contrary, it rests upon it. That case, it will be recalled, held that after the Sixth Amendment right to counsel attaches and is invoked, any statements obtained from the accused during subsequent police-initiated custodial questioning regarding the charge at issue (even if the accused purports to waive his rights) are inadmissible. The State in Jackson opposed that outcome on the ground that assertion of the Sixth Amendment right to counsel did not realistically constitute the expression (as Edwards required) of a wish to have counsel present during custodial interrogation. See 475 U.S. at 475 U. S. 632 -633. Our response to that contention was not that it did constitute such an expression, but that it did not have to, since the relevant question was not whether the Miranda "Fifth Amendment" right had been asserted, but whether the Sixth Amendment right to counsel had been waived. We said that, since our "settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel, . . . we presume that the defendant requests the lawyer's services at every critical stage of the prosecution." 475 U.S. at 475 U. S. 633 (emphasis added). The holding of Jackson implicitly rejects any equivalence in fact between invocation of the Sixth Amendment right to counsel and the expression necessary to trigger Edwards. If such invocation constituted a real (as opposed to merely a legally presumed) request for the assistance of counsel in custodial interrogation, it would have been quite unnecessary for Jackson to go on to establish, as it did, a new Sixth Amendment rule of no police-initiated Page 501 U. S. 180 interrogation; we could simply have cited and relied upon Edwards. [ Footnote 1 ] There remains to be considered the possibility that, even though the assertion of the Sixth Amendment right to counsel does not, in fact, imply an assertion of the Miranda "Fifth Amendment" right, we should declare it to be such as a matter of sound policy. Assuming we have such an expansive power under the Constitution, it would not wisely be exercised. Petitioner's proposed rule has only insignificant advantages. If a suspect does not wish to communicate with the police except through an attorney, he can simply tell them that when they give him the Miranda warnings. There is not the remotest chance that he will feel "badgered" by their asking to talk to him without counsel present, since the subject will not be the charge on which he has already requested counsel's assistance (for in that event, Jackson would preclude initiation of the interview), and he will not have rejected uncounseled interrogation on any subject before (for, in that event, Edwards would preclude initiation of the interview). The proposed rule would, however, seriously impede effective law enforcement. The Sixth Amendment right to Page 501 U. S. 181 counsel attaches at the first formal proceeding against an accused, and in most States, at least with respect to serious offenses, free counsel is made available at that time and ordinarily requested. Thus, if we were to adopt petitioner's rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. Since the ready ability to obtain uncoerced confessions is not an evil, but an unmitigated good, society would be the loser. Admissions of guilt resulting from valid Miranda waivers "are more than merely 'desirable;' they are essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Moran, 475 U.S. at 475 U. S. 426 (citation omitted). [ Footnote 2 ] Petitioner urges upon us the desirability of providing a "clear and unequivocal" guideline for the police: no police-initiated questioning of any person in custody who has requested counsel to assist him in defense or in interrogation. But the police do not need our assistance to establish such a Page 501 U. S. 182 guideline; they are free, if they wish, to adopt it on their own. Of course, it is our task to establish guidelines for judicial review. We like them to be "clear and unequivocal," see, e.g., Roberson, 486 U.S. at 486 U. S. 681 -682, but only when they guide sensibly, and in a direction we are authorized to go. Petitioner's proposal would, in our view, do much more harm than good, and is not contained within, or even in furtherance of, the Sixth Amendment's right to counsel or the Fifth Amendment's right against compelled self-incrimination. [ Footnote 3 ] * * * * "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added." Douglas v. Jeannette, 319 U. S. 157 , 319 U. S. 181 (1943) (opinion of Jackson, J.). We decline to add yet another story to Miranda. The judgment of the Wisconsin Supreme Court is Affirmed. Page 501 U. S. 183 [ Footnote 1 ] A footnote in Jackson, 475 U.S. at 475 U. S. 633 -634, n. 7, quoted with approval statements by the Michigan Supreme Court to the effect that the average person does not " understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel,'" that it "'makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes an identical request to a judge,'" and that "'[t]he simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries single-handedly.'" Michigan v. Bladel, 421 Mich. 39, 63-64, 365 N.W.2d 56 , 67 (1984). Those observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an "intermediary" for all further interrogation on that charge. They are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present. [ Footnote 2 ] The dissent condemns these sentiments as "revealing a preference for an inquisitorial system of justice." Post at 501 U. S. 189 . We cannot imagine what this means. What makes a system adversarial, rather than inquisitorial, is not the presence of counsel, much less the presence of counsel where the defendant has not requested it, but rather the presence of a judge who does not (as an inquisitor does) conduct the factual and legal investigation himself, but instead decides on the basis of facts and arguments pro and con adduced by the parties. In the inquisitorial criminal process of the civil law, the defendant ordinarily has counsel; and in the adversarial criminal process of the common law, he sometimes does not. Our system of justice is, and has always been, an inquisitorial one at the investigatory stage (even the grand jury is an inquisitorial body), and no other disposition is conceivable. Even if detectives were to bring impartial magistrates around with them to all interrogations, there would be no decision for the impartial magistrate to umpire. If all the dissent means by a "preference for an inquisitorial system" is a preference not to require the presence of counsel during an investigatory interview where the interviewee has not requested it -- that is a strange way to put it, but we are guilty. [ Footnote 3 ] The dissent predicts that the result in this case will routinely be circumvented when, "[i]n future preliminary hearings, competent counsel . . . make sure that they, or their clients, make a statement on the record" invoking the Miranda right to counsel. Post at 501 U. S. 184 . We have, in fact, never held that a person can invoke his Miranda rights anticipatorily, in a context other than "custodial interrogation" -- which a preliminary hearing will not always, or even usually, involve, cf. Pennsylvania v. Muniz, 496 U. S. 582 , 496 U. S. 601 -602 (1990) (plurality opinion); Rhode Island v. Innis, 446 U. S. 291 , 446 U. S. 298 -303 (1980). If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against. The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation with similar future effect. Assuming, however that an assertion at arraignment would be effective, and would be routinely made, the mere fact that adherence to the principle of our decisions will not have substantial consequences is no reason to abandon that principle. It would remain intolerable that a person in custody who had expressed no objection to being questioned would be unapproachable. JUSTICE KENNEDY, concurring. I join the opinion of the Court in all respects. Its sensible recognition that invocation of the Sixth Amendment right to counsel is specific to the offense in question should apply as well to requests for counsel under the Fifth Amendment. See Arizona v. Roberson, 486 U. S. 675 , 486 U. S. 688 (1988) (KENNEDY, J., dissenting). For those in custody, Edwards v. Arizona, 451 U. S. 477 (1981), and its progeny go far to protect an individual who desires the assistance of counsel during interrogation. Limiting the extraordinary protections of Edwards to a particular investigation would not increase the risk of confessions induced by official efforts to wear down the will of a suspect. Having adopted an offense-specific rule for invocation of the Sixth Amendment right to counsel, the Court should devote some attention to bringing its Fifth and Sixth Amendment jurisprudence into a logical alignment, and should give uniform, fair, and workable guidelines for the criminal justice system. Even if petitioner had invoked his Fifth Amendment right with respect to the West Allis armed robbery, I do not believe the authorities should have been prohibited from questioning him in connection with the Caledonia offenses. The Court's opinion demeans the importance of the right to counsel. As a practical matter, the opinion probably will have only a slight impact on current custodial interrogation procedures. As a theoretical matter, the Court's innovative development of an "offense-specific" limitation on the scope of the attorney-client relationship can only generate confusion in the law and undermine the protections that undergird our adversarial system of justice. As a symbolic matter, today's decision is ominous, because it reflects a preference for an inquisitorial system that regards the defense lawyer as an impediment, rather than a servant to the cause of justice. Page 501 U. S. 184 I The predicate for the Court's entire analysis is the failure of the defendant at the preliminary hearing to make a "statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. " Ante at 501 U. S. 178 . If petitioner in this case had made such a statement indicating that he was invoking his Fifth Amendment right to counsel as well as his Sixth Amendment right to counsel, the entire offense-specific house of cards that the Court has erected today would collapse, pursuant to our holding in Arizona v. Roberson, 486 U. S. 675 (1988), that a defendant who invokes the right to counsel for interrogation on one offense may not be reapproached regarding any offense unless counsel is present. In future preliminary hearings, competent counsel can be expected to make sure that they, or their clients, make a statement on the record that will obviate the consequences of today's holding. That is why I think this decision will have little, if any, practical effect on police practices. II The outcome of this case is determined by the Court's parsimonious "offense-specific" description of the right to counsel guaranteed by the Sixth Amendment. The Court's definition is inconsistent with the high value our prior cases have placed on this right, with the ordinary understanding of the scope of the right, and with the accepted practice of the legal profession. In Michigan v. Jackson, 475 U. S. 625 (1986), we held that the defendant's invocation of his right to the assistance of counsel at arraignment prohibited the police from initiating a post-arraignment custodial interrogation without notice to his lawyer. After explaining that our prior cases required us "to give a broad, rather than a narrow, interpretation to a defendant's request for counsel," we squarely rejected "the Page 501 U. S. 185 State's suggestion that respondents' requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings." Id. at 475 U. S. 633 . Instead, we noted that "it is the State that has the burden of establishing a valid waiver [of the right to counsel]. Doubts must be resolved in favor of protecting the constitutional claim." Ibid. (citation omitted). Today, however, the Court accepts a narrow, rather than a broad, interpretation of the same right. It accepts the State's suggestion that although, under our prior holding in Michigan v. Jackson, a request for the assistance of counsel at a formal proceeding such as an arraignment constitutes an invocation of the right to counsel at police-initiated custodial interrogation as well, such a request only covers interrogation about the specific charge that has already been filed and for which the formal proceeding was held. Today's approach of construing ambiguous requests for counsel narrowly and presuming a waiver of rights is the opposite of that taken in Jackson. The Court's holding today, moreover, rejects the common sense evaluation of the nature of an accused's request for counsel that we expressly endorsed in Jackson: "We also agree with the comments of the Michigan Supreme Court about the nature of an accused's request for counsel:" " Although judges and lawyers may understand and appreciate the subtle distinctions between the Fifth and Sixth Amendment rights to counsel, the average person does not. When an accused requests an attorney, either before a police officer or a magistrate, he does not know which constitutional right he is invoking; he therefore should not be expected to articulate exactly why or for what purposes he is seeking counsel. It makes little sense to afford relief from further interrogation to a defendant who asks a police officer for an attorney, but permit further interrogation to a defendant who makes Page 501 U. S. 186 an identical request to a judge. The simple fact that defendant has requested an attorney indicates that he does not believe that he is sufficiently capable of dealing with his adversaries single-handedly." "421 Mich. at 63-64, 365 N.W.2d at 67." Id., 475 U.S. at 475 U. S. 633 -634, n. 7. The Court explains away this common sense understanding by stating that, although "[t]hose observations were perhaps true in the context of deciding whether a request for the assistance of counsel in defending against a particular charge implied a desire to have that counsel serve as an 'intermediary' for all further interrogation on that charge[, t]hey are assuredly not true in the quite different context of deciding whether such a request implies a desire never to undergo custodial interrogation, about anything, without counsel present." Ante at 501 U. S. 180 , n. 1. Even assuming that this explanation by the Court could be supported if the custodial interrogation related to an offense that was entirely separate from the charge for which a suspect had invoked his Sixth Amendment right to counsel, it cannot explain away the common sense reality that petitioner in this case could not have known that his invocation of his Sixth Amendment right to counsel was restricted to the Milwaukee County offense, given that investigations of the Milwaukee County offense and the Caledonia offense were concurrent and conducted by overlapping personnel. [ Footnote 2/1 ] Page 501 U. S. 187 Finally, the Court's "offense-specific" characterization of the constitutional right to counsel ignores the substance of the attorney-client relationship that the legal profession has developed over the years. The scope of the relationship between an individual accused of crime and his attorney is as broad as the subject matter that might reasonably be encompassed by negotiations for a plea bargain or the contents of a presentence investigation report. Any notion that a constitutional right to counsel is, or should be, narrowly defined by the elements of a pending charge is both unrealistic and invidious. Particularly given the implication that McNeil would be given favorable treatment if he told "his side of the story" as to either or both crimes to the Milwaukee County officers, I find the Court's restricted construal of McNeil's relationship with his appointed attorney at the arraignment on the armed robbery charges to be unsupported. In any case, the offense-specific limitation on the Sixth Amendment right to counsel can only generate confusion in the law. The parties and the Court have assumed in this case, for the purposes of analyzing the legal issues, that the custodial interrogation of McNeil involved an offense (murder) that was completely unrelated to the pending charge of armed robbery. The Court therefore does not flesh out the precise boundaries of its newly created "offense-specific" limitation on a venerable constitutional right. I trust its boundaries will not be patterned after the Court's double jeopardy jurisprudence, cf. Blockburger v. United States, 284 U. S. 299 (1932), and I can only wonder how much leeway it will accord the police to file charges selectively in order to preserve opportunities for custodial interrogation, particularly if the Court is so unquestioningly willing to treat the offenses in this case as separate even though the investigations were Page 501 U. S. 188 concurrent and conducted by overlapping personnel. Whatever the future may portend, the Court's new rule can only dim the "bright-line" quality of prior cases such as Edwards v. Arizona, 451 U. S. 477 (1981), Solem v. Stumes, 465 U. S. 638 (1984), and Michigan v. Jackson, 475 U. S. 625 (1986). III In the final analysis, the Court's decision is explained by its fear that making counsel available to persons held in custody would "seriously impede effective law enforcement." Ante at 501 U. S. 180 . The magnitude of the Court's alarm is illuminated by its use of italics: "Thus, if we were to adopt petitioner's rule, most persons in pretrial custody for serious offenses would be unapproachable by police officers suspecting them of involvement in other crimes, even though they have never expressed any unwillingness to be questioned. " Ibid. Of course, the Court is quite wrong, and its fears are grossly exaggerated. The fears are exaggerated because, as I have explained, today's holding will probably affect very few cases in the future. The fears are misguided because a contrary rule would not make all pretrial detainees "unapproachable"; it would merely serve to ensure that a suspect's statements during custodial interrogation are truly voluntary. A contrary rule would also comport with respect to tradition. Undergirding our entire line of cases requiring the police to follow fair procedures when they interrogate presumptively innocent citizens suspected of criminal wrongdoing is the longstanding recognition that an adversarial system of justice can function effectively only when the adversaries communicate with one another through counsel and when laypersons are protected from overreaching by more experienced and skilled professionals. Whenever the Court ignores the importance of fair procedure in this context, and describes the societal interest in obtaining "uncoerced confessions" Page 501 U. S. 189 from pretrial detainees as an "unmitigated good," the Court is revealing a preference for an inquisitorial system of justice. As I suggested in Moran v. Burbine, 475 U. S. 412 (1986): "This case turns on a proper appraisal of the role of the lawyer in our society. If a lawyer is seen as a nettlesome obstacle to the pursuit of wrongdoers -- as in an inquisitorial society -- then the Court's decision today makes a good deal of sense. If a lawyer is seen as an aid to the understanding and protection of constitutional rights -- as in an accusatorial society -- then today's decision makes no sense at all." Id. at 475 U. S. 468 (STEVENS, J., dissenting). The Court's refusal to acknowledge any "danger of 'subtle compulsion'" [ Footnote 2/2 ] in a case of this kind evidences an inability to recognize the difference between an inquisitorial and an adversarial system of justice. Accordingly, I respectfully dissent. [ Footnote 2/1 ] After McNeil was first apprehended in Omaha pursuant to the Milwaukee County arrest warrant, Deputy Sheriff Smukowski of Milwaukee County and a colleague from the same department traveled to Omaha for purposes of transporting McNeil back to Wisconsin. Smukowski testified at trial that, prior to going to Omaha, he had been aware that McNeil was a suspect in the Caledonia murder as well as in the Milwaukee County armed robbery. Tr. 5 (Nov. 9, 1987). He further testified that, on May 21, 1987, he and his colleague talked to McNeil during the transport back to Wisconsin "about the murder case and the armed robbery," id. at 7, and that they were operating under the understanding that they would take "a statement as to either case" if McNeil would provide one. Id. at 9. Smukowski testified that they urged petitioner to "tell his side of the story" in order that his cooperation might help him later, id. at 8, and that, prior to leaving Omaha with petitioner, Smukowski and his colleague used petitioner's help in trying to locate Crowley, another suspect in the Caledonia murder, in Omaha. Id. at 13. [ Footnote 2/2 ] In his opinion dissenting for himself and two other members of the Wisconsin Supreme Court, Chief Justice Heffernan wrote: "It is apparent that there is danger of 'subtle compulsion' when a defendant requests the assistance of an attorney at an initial appearance and is nevertheless subjected to further interrogation while custody continues. Whether a request for an attorney is made to a police officer or to a judge, whether in the jail or during an initial appearance, the dangers of the inherent pressure of custodial interrogation when not having an attorney present are the same. Just as the Edwards [v. Arizona, 451 U. S. 477 (1981),] protection is not dependant upon the subject matter of the interrogation, neither is this protection dependent upon whether the request for assistance of counsel is made to a police officer while in custody or to a magistrate at an initial appearance before the defendant is interrogated." 155 Wis.2d 24, 50, 454 N.W.2d 742 , 752-753 (1990). See also United States ex rel. Espinoza v. Fairman, 813 F.2d 117 (CA7 1987).

Here is a summary of the Supreme Court case McNeil v. Wisconsin: The case centers around the question of whether an accused individual's invocation of their Sixth Amendment right to counsel during a judicial proceeding also constitutes an invocation of their Miranda right to counsel, derived from the Fifth Amendment's guarantee against self-incrimination. The Court held that these are two distinct rights with different purposes and effects. The Sixth Amendment right is offense-specific and attaches only to charged crimes, while the Miranda right is non-offense-specific. Invoking the Sixth Amendment right for a specific offense does not prevent police interrogation on unrelated, uncharged offenses. In this case, McNeil's invocation of his Sixth Amendment right for the West Allis robbery did not extend to the uncharged Caledonia crimes. His statements regarding the Caledonia crimes, made after waiving his Miranda rights, were admissible. The dissent, on the other hand, argued that the majority failed to recognize the "subtle compulsion" present in custodial interrogations and that the request for counsel, whether to a judge or a police officer, should have the same effect in protecting the accused from self-incrimination.

Miranda Rights

Stansbury v. California

https://supreme.justia.com/cases/federal/us/511/318/

OCTOBER TERM, 1993 Syllabus STANSBURY v. CALIFORNIA CERTIORARI TO THE SUPREME COURT OF CALIFORNIA No. 93-5770. Argued March 30, 1994-Decided April 26, 1994 When California police first questioned petitioner Stansbury as a possible witness to the rape and murder of a 10-year-old girl, they had another suspect. However, Stansbury became a suspect during the interview, when he told police that, on the night of the murder, he drove a car matching the one seen where the girl's body was found. After he also admitted to prior convictions for rape, kidnaping, and child molestation, officers stopped the interview, advised him of his rights under Miranda v. Arizona, 384 U. S. 436 , and arrested him. The trial court denied his pretrial motion to suppress his statements to the police, reasoning that he was not "in custody" for purposes of Miranda until the officers began to suspect him. He was convicted of, inter alia, first-degree murder and sentenced to death. In affirming, the State Supreme Court concluded that one of the relevant factors in determining whether Stansbury was in custody was whether the investigation was focused on him. Agreeing that suspicion focused on him only when he mentioned the car, the court found that Miranda did not bar the admission of statements made before that point. Held: Because the initial determination of custody depends on the objective circumstances of the interrogation, an officer's subjective and undisclosed view concerning whether the interrogee is a suspect is irrelevant to the assessment whether that person is in custody. See, e. g., Beckwith v. United States, 425 U. S. 341 . Numerous statements in the State Supreme Court's opinion are open to the interpretation that the court regarded the officers' subjective beliefs regarding Stansbury's status as a suspect as significant in and of themselves, rather than as relevant only to the extent they influenced the objective conditions surrounding his interrogation. The State Supreme Court should consider in the first instance whether objective circumstances show that Stansbury was in custody during the entire interrogation. 4 Cal. 4th 1017,846 P. 2d 756, reversed and remanded. Robert M. Westberg, by appointment of the Court, 510 U. S. 1009, argued the cause for petitioner. With him on the briefs were David S. Winton and Joseph A. Hearst. 319 Aileen Bunney, Deputy Attorney General of California, argued the cause for respondent. With her on the brief were Daniel E. Lungren, Attorney General, George Will iamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, and Ronald E. Niver, Deputy Attorney General. * PER CURIAM. This case concerns the rules for determining whether a person being questioned by law enforcement officers is held in custody, and thus entitled to the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966). We hold, not for the first time, that an officer's subjective and undisclosed view concerning whether the person being interrogated is a suspect is irrelevant to the assessment whether the person is in custody. I Ten-year-old Robyn Jackson disappeared from a playground in Baldwin Park, California, at around 6:30 p.m. on September 28, 1982. Early the next morning, about 10 miles away in Pasadena, Andrew Zimmerman observed a large man emerge from a turquoise American sedan and throw something into a nearby flood control channel. Zimmerman called the police, who arrived at the scene and discovered the girl's body in the channel. There was evidence that she had been raped, and the cause of death was determined to be asphyxia complicated by blunt force trauma to the head. Lieutenant Thomas Johnston, a detective with the Los Angeles County Sheriff's Department, investigated the hom- *Briefs of amici curiae urging affirmance were filed for the Orange County District Attorney, State of California, by Michael R. Capizzi and Devallis Rutledge; for Americans for Effective Law Enforcement, Inc., by Bernard J. Farber, Fred E. Inbau, Wayne W Schmidt, and James P. Manak; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. 320 Per Curiam icide. From witnesses interviewed on the day the body was discovered, he learned that Robyn had talked to two ice cream truck drivers, one being petitioner Robert Edward Stansbury, in the hours before her disappearance. Given these contacts, Johnston thought Stansbury and the other driver might have some connection with the homicide or knowledge thereof, but for reasons unimportant here Johnston considered only the other driver to be a leading suspect. After the suspect driver was brought in for interrogation, Johnston asked Officer Lee of the Baldwin Park Police Department to contact Stansbury to see if he would come in for questioning as a potential witness. Lee and three other plainclothes officers arrived at Stansbury's trailer home at about 11:00 that evening. The officers surrounded the door and Lee knocked. When Stansbury answered, Lee told him the officers were investigating a homicide to which Stansbury was a possible witness and asked if he would accompany them to the police station to answer some questions. Stansbury agreed to the interview and accepted a ride to the station in the front seat of Lee's police car. At the station, Lieutenant Johnston, in the presence of another officer, questioned Stansbury about his whereabouts and activities during the afternoon and evening of September 28. Neither Johnston nor the other officer issued Mi randa warnings. Stansbury told the officers (among other things) that on the evening of the 28th he spoke with the victim at about 6:00, returned to his trailer home after work at 9:00, and left the trailer at about midnight in his housemate's turquoise, American-made car. This last detail aroused Johnston's suspicions, as the turquoise car matched the description of the one Andrew Zimmerman had observed in Pasadena. When Stansbury, in response to a further question, admitted to prior convictions for rape, kidnaping, and child molestation, Johnston terminated the interview and another officer advised Stansbury of his Miranda rights. 321 Stansbury declined to make further statements, requested an attorney, and was arrested. Respondent State of California charged Stansbury with first-degree murder and other crimes. Stansbury filed a pretrial motion to suppress all statements made at the station, and the evidence discovered as a result of those statements. The trial court denied the motion in relevant part, ruling that Stansbury was not "in custody"-and thus not entitled to Miranda warnings-until he mentioned that he had taken his housemate's turquoise car for a midnight drive. Before that stage of the interview, the trial court reasoned, "the focus in [Lieutenant Johnston's] mind certainly was on the other ice cream [truck] driver," Tr. 2368; only "after Mr. Stansbury made the comment ... describing the ... turquoise-colored automobile" did Johnston's suspicions "shif[t] to Mr. Stansbury," ibid. Based upon its conclusion that Stansbury was not in custody until Johnston's suspicions had focused on him, the trial court permitted the prosecution to introduce in its case in chief the statements Stansbury made before that time. At trial, the jury convicted Stansbury of first-degree murder, rape, kidnaping, and lewd act on a child under the age of 14, and fixed the penalty for the first-degree murder at death. The California Supreme Court affirmed. Before determining whether Stansbury was in custody during the interview at the station, the court set out what it viewed as the applicable legal standard: "In deciding the custody issue, the totality of the circumstances is relevant, and no one factor is dispositive. However, the most important considerations include (1) the site of the interrogation, (2) whether the investigation has focused on the subject, (3) whether the objective indicia of arrest are present, and (4) the length and form of questioning." 4 Cal. 4th 1017, 1050, 846 P. 2d 756, 775 (1993) (internal quotation marks omitted). 322 Per Curiam The court proceeded to analyze the second factor in detail, in the end accepting the trial court's factual determination "that suspicion focused on [Stansbury] only when he mentioned that he had driven a turquoise car on the night of the crime." Id., at 1052, 846 P. 2d, at 776. The court "conclude[d] that [Stansbury] was not subject to custodial interrogation before he mentioned the turquoise car," and thus approved the trial court's ruling that Miranda v. Arizona did not bar the admission of statements Stansbury made before that point. 4 Cal. 4th, at 1054, 846 P. 2d, at 777-778. We granted certiorari. 510 U. S. 943 (1993). II We held in Miranda that a person questioned by law enforcement officers after being "taken into custody or otherwise deprived of his freedom of action in any significant way" must first "be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." 384 U. S., at 444. Statements elicited in noncompliance with this rule may not be admitted for certain purposes in a criminal trial. Compare id., at 492, 494, with Harris v. New York, 401 U. S. 222 (1971). An officer's obligation to administer Miranda warnings attaches, however, "only where there has been such a restriction on a person's freedom as to render him 'in custody.'" Oregon v. Mathiason, 429 U. S. 492 , 495 (1977) (per curiam); see also Illinois v. Perkins, 496 U. S. 292 , 296 (1990). In determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but "the ultimate inquiry is simply whether there [was] a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U. S. 1121 , 1125 (1983) (per curiam) (quoting Mathiason, supra, at 495). 323 Our decisions make clear that the initial determination of custody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned. In Beckwith v. United States, 425 U. S. 341 (1976), for example, the defendant, without being advised of his Miranda rights, made incriminating statements to Government agents during an interview in a private home. He later asked that Miranda "be extended to cover interrogation in noncustodial circumstances after a police investigation has focused on the suspect." 425 U. S., at 345 (internal quotation marks omitted). We found his argument unpersuasive, explaining that it "was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning." Id., at 346-347 (internal quotation marks omitted). As a result, we concluded that the defendant was not entitled to Miranda warnings: "Although the 'focus' of an investigation may indeed have been on Beckwith at the time of the interview ... , he hardly found himself in the custodial situation described by the Mi randa Court as the basis for its holding." 425 U. S., at 347. Berkemer v. McCarty, 468 U. S. 420 (1984), reaffirmed the conclusions reached in Beckwith. Berkemer concerned the roadside questioning of a motorist detained in a traffic stop. We decided that the motorist was not in custody for purposes of Miranda even though the traffic officer "apparently decided as soon as [the motorist] stepped out of his car that [the motorist] would be taken into custody and charged with a traffic offense." 468 U. S., at 442. The reason, we explained, was that the officer "never communicated his intention to" the motorist during the relevant questioning. Ibid. The lack of communication was crucial, for under Miranda "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was 'in custody' at a particular 324 Per Curiam time"; rather, "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." 468 U. S., at 442. Other cases of ours have been consistent in adhering to this understanding of the custody element of Miranda. See, e. g., Mathiason, supra, at 495 ("Nor is the requirement of warnings to be imposed simply because ... the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him 'in custody' "); Beheler, supra, at 1124, n. 2 ("Our holding in Mathiason reflected our earlier decision in [Beckwith], in which we rejected the notion that the 'in custody' requirement was satisfied merely because the police interviewed a person who was the 'focus' of a criminal investigation"); Minnesota v. Murphy, 465 U. S. 420 , 431 (1984) ("The mere fact that an investigation has focused on a suspect does not trigger the need for Miranda warnings in noncustodial settings, and the probation officer's knowledge and intent have no bearing on the outcome of this case") (citation omitted); cf. Pennsylvania v. Bruder, 488 U. S. 9 , 11, n. 2 (1988). It is well settled, then, that a police officer's subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda. See F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 232, 236, 297-298 (3d ed. 1986). The same principle obtains if an officer's undisclosed assessment is that the person being questioned is not a suspect. In either instance, one cannot expect the person under interrogation to probe the officer's innermost thoughts. Save as they are communicated or otherwise manifested to the person being questioned, an officer's evolving but unarticulated suspicions do not affect the objective circumstances of an interrogation or interview, and thus cannot affect the Miranda custody inquiry. "The threat to a citizen's Fifth Amendment rights 325 that Miranda was designed to neutralize has little to do with the strength of an interrogating officer's suspicions." Berkemer, supra, at 435, n. 22. An officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned. Cf. Michigan v. Chesternut, 486 U. S. 567 , 575, n. 7 (1988) (citing United States v. Mendenhall, 446 U. S. 544 , 554, n. 6 (1980) (opinion of Stewart, J.)). Those beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her" 'freedom of action.'" Berkemer, supra, at 440. Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest. The weight and pertinence of any communications regarding the officer's degree of suspicion will depend upon the facts and circumstances of the particular case. In sum, an officer's views concerning the nature of an interrogation, or beliefs concerning the potential culpability of the individual being questioned, may be one among many factors that bear upon the assessment whether that individual was in custody, but only if the officer's views or beliefs were somehow manifested to the individual under interrogation and would have affected how a reasonable person in that position would perceive his or her freedom to leave. (Of course, instances may arise in which the officer's undisclosed views are relevant in testing the credibility of his or her account of what happened during an interrogation; but it is the objective surroundings, and not any undisclosed views, that control the Miranda custody inquiry.) We decide on this state of the record that the California Supreme Court's analysis of whether Stansbury was in custody is not consistent in all respects with the foregoing principles. Numerous statements in the court's opinion are open 326 Per Curiam to the interpretation that the court regarded the officers' subjective beliefs regarding Stansbury's status as a suspect (or nonsuspect) as significant in and of themselves, rather than as relevant only to the extent they influenced the objective conditions surrounding his interrogation. See 4 Cal. 4th, at 1050, 846 P. 2d, at 775 ("whether the investigation ha[d] focused on the" person being questioned is among the "most important considerations" in assessing whether the person was in custody). So understood, the court's analysis conflicts with our precedents. The court's apparent conclusion that Stansbury's Miranda rights were triggered by virtue of the fact that he had become the focus of the officers' suspicions, see 4 Cal. 4th, at 1052, 1054, 846 P. 2d, at 776, 777-778; cf., e. g., State v. Blanding, 69 Haw. 583, 586-587, 752 P. 2d 99, 101 (1988); State v. Hartman, 703 S. W. 2d 106, 120 (Tenn. 1985), cert. denied, 478 U. S. 1010 (1986); People v. Herdon, 42 Cal. App. 3d 300, 307, n. 10, 116 Cal. Rptr. 641, 645, n. 10 (1974), is incorrect as well. Our cases make clear, in no uncertain terms, that any inquiry into whether the interrogating officers have focused their suspicions upon the individual being questioned (assuming those suspicions remain undisclosed) is not relevant for purposes of Miranda. See generally 1 W. LaFave & J. Israel, Criminal Procedure §6.6(a), pp. 489-490 (1984). The State acknowledges that Lieutenant Johnston's and the other officers' subjective and undisclosed suspicions (or lack thereof) do not bear upon the question whether Stansbury was in custody, for purposes of Miranda, during the station house interview. It maintains, however, that the objective facts in the record support a finding that Stansbury was not in custody until his arrest. Stansbury, by contrast, asserts that the objective circumstances show that he was in custody during the entire interrogation. We think it appropriate for the California Supreme Court to consider this question in the first instance. We therefore reverse its 327 judgment and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BLACKMUN, concurring. I join the Court's per curiam opinion and merely add that, even if I were not persuaded that the judgment must be reversed for the reasons stated in that opinion, I would adhere to my view that the death penalty cannot be imposed fairly within the constraints of our Constitution. See my dissent in Callins v. Collins, 510 U. S. 1141, 1143 (1994). I therefore would vacate the death sentence on that ground, too.

The Supreme Court reversed and remanded the decision of the California Supreme Court, holding that an officer's subjective and undisclosed view of whether an individual is a suspect is irrelevant to the assessment of whether that person is in custody and entitled to Miranda warnings. The Court found that the California Supreme Court's analysis of whether the petitioner was in custody considered the officers' subjective beliefs, which conflicted with the Court's precedents. The Court remanded the case for the California Supreme Court to determine whether the objective circumstances showed that the petitioner was in custody during the entire interrogation.

Miranda Rights

Stone v. Powell

https://supreme.justia.com/cases/federal/us/428/465/

U.S. Supreme Court Stone v. Powell, 428 U.S. 465 (1976) Stone v. Powell No. 74-1055 Argued February 24, 1976 Decided July 6, 1976 428 U.S. 465 ast|>* 428 U.S. 465 CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Syllabus Respondent in No. 74-1055, was convicted of murder in state court, in part on the basis of testimony concerning a revolver found on his person when he was arrested for violating a vagrancy ordinance. The trial court rejected respondent's contention that the testimony should have been excluded because the ordinance was unconstitutional and the arrest therefore invalid. The appellate court affirmed, finding it unnecessary to pass upon the legality of the arrest and search because of the court's conclusion that the error, if any, in admitting the challenged testimony was harmless, beyond a reasonable doubt. Respondent then applied for habeas corpus relief in the Federal District Court, which concluded that the arresting officer had probable cause, and that, even if the vagrancy ordinance was unconstitutional, the deterrent purpose of the exclusionary rule did not require that it be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. The court held, alternatively, that any error in admission of the challenged evidence was harmless. The Court of Appeals reversed, concluding that the ordinance was unconstitutional; that respondent's arrest was therefore illegal; and that, although exclusion of the evidence would serve no deterrent purpose with regard to officers who were enforcing statutes in good faith, exclusion would deter legislators from enacting unconstitutional statutes. The court also held that admission of the evidence was not harmless error. In No. 74-1222, respondent was also convicted of murder in a state court, in part on the basis of evidence seized pursuant to a search warrant which respondent on a suppression motion claimed was invalid. The trial court denied respondent's motion to suppress, and was upheld on appeal. Respondent then filed a habeas corpus petition in Federal District Court. The court concluded that the warrant was invalid, and rejected the State's contention that, in any event, probable cause justified the Page 428 U. S. 466 search. The Court of Appeals affirmed. Held: Where the State, as in each of these cases, has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced at his trial. In this context, the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal as compared to the substantial societal costs of applying the rule. Pp. 428 U. S. 474 -495. (a) Until these cases, this Court has had no occasion fully to examine the validity of the assumption made in Kaufman v. United States, 394 U. S. 217 , that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth, requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, 367 U. S. 643 , to require exclusion of such evidence at trial and reversal of conviction upon direct review. Pp. 428 U. S. 480 -481. (b) The Mapp majority justified application of the exclusionary rule chiefly upon the belief that exclusion would deter future unlawful police conduct, and though preserving the integrity of the judicial process has been alluded to as also justifying the rule, that concern is minimal where federal habeas corpus relief is sought by a prisoner who has already been given the opportunity for full and fair consideration of his search and seizure claim at trial and on direct review. Pp. 428 U. S. 484 -486. (c) Despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons; in various situations, the Court has found the policies behind the rule outweighed by countervailing considerations. Pp. 428 U. S. 486 -489. (d) The ultimate question of guilt or innocence should be the central concern in a criminal proceeding. Application of the exclusionary rule, however, deflects the truthfinding process and often frees the guilty. Though the rule is thought to deter unlawful police activity, in part through nurturing respect for Fourth Amendment values, indiscriminate application of the rule may well generate disrespect for the law and the administration of justice. Pp. 428 U. S. 489 -491. (e) Despite the absence of supportive empirical evidence, the assumption has been that the exclusionary rule deters law enforcement Page 428 U. S. 467 officers from violating the Fourth Amendment by removing the incentives to disregard it. Though the Court adheres to that view as applied to the trial and direct appeal stages, there is no reason to believe that the effect of applying the rule would be appreciably diminished if search and seizure claims could not be raised in federal habeas corpus review of state convictions. Even if some additional deterrent effect existed from application of the rule in isolated habeas corpus cases, the furtherance of Fourth Amendment goals would be outweighed by the detriment to the criminal justice system. Pp. 428 U. S. 492 -494. No. 74-1055, 507 F.2d 93; No. 74-1222, 513 F.2d 1280, reversed. POWELL, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. BURGER, C.J., filed a concurring opinion, post, p. 428 U. S. 496 . BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 428 U. S. 502 . WHITE, J., filed a dissenting opinion, post, p. 428 U. S. 536 . Page 428 U. S. 468 MR. JUSTICE POWELL delivered the opinion of the Court. Respondents in these cases were convicted of criminal offenses in state courts, and their convictions were affirmed on appeal. The prosecution in each case relied upon evidence obtained by searches and seizures alleged by respondents to have been unlawful. Each respondent subsequently sought relief in a Federal District Court by filing a petition for a writ of federal habeas corpus under Page 428 U. S. 469 28 U.S.C. § 2254. The question presented is whether a federal court should consider, in ruling on a petition for habeas corpus relief filed by a state prisoner, a claim that evidence obtained by an unconstitutional search or seizure was introduced at his trial, when he has previously been afforded an opportunity for full and fair litigation of his claim in the state courts. The issue is of considerable importance to the administration of criminal justice. I We summarize first the relevant facts and procedural history of these cases. A Respondent Lloyd Powell was convicted of murder in June, 1968, after trial in a California state court. At about midnight on February 17, 1968, he and three companions entered the Bonanza Liquor Store in San Bernardino, Cal., where Powell became involved in an altercation with Gerald Parsons, the store manager, over the theft of a bottle of wine. In the scuffling that followed, Powell shot and killed Parsons' wife. Ten hours later, an officer of the Henderson, Nev., Police Department arrested Powell for violation of the Henderson vagrancy ordinance, [ Footnote 1 ] and in the search incident to the arrest discovered a .38-caliber revolver with six expended cartridges in the cylinder. Powell was extradited to California and convicted of Page 428 U. S. 470 second-degree murder in the Superior Court of San Bernardino County. Parsons and Powell's accomplices at the liquor store testified against him. A criminologist testified that the revolver found on Powell was the gun that killed Parsons' wife. The trial court rejected Powell's contention that testimony by the Henderson police officer as to the search and the discovery of the revolver should have been excluded because the vagrancy ordinance was unconstitutional. In October, 1969, the conviction was affirmed by a California District Court of Appeal. Although the issue was duly presented, that court found it unnecessary to pass upon the legality of the arrest and search because it concluded that the error, if any, in admitting the testimony of the Henderson officer was harmless beyond a reasonable doubt under Chapman v. California, 386 U. S. 18 (1967). The Supreme Court of California denied Powell's petition for habeas corpus relief. In August, 1971, Powell filed an amended petition for a writ of federal habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of California, contending that the testimony concerning the .38-caliber revolver should have been excluded as the fruit of an illegal search. He argued that his arrest had been unlawful because the Henderson vagrancy ordinance was unconstitutionally vague and that the arresting officer lacked probable cause to believe that he was violating it. The District Court concluded that the arresting officer had probable cause, and held that, even if the vagrancy ordinance was unconstitutional, the deterrent purpose of the exclusionary rule does not require that it be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. In the alternative, that court agreed with the California District Court of Appeal that the admission of the evidence concerning Page 428 U. S. 471 Powell's arrest, if error, was harmless beyond a reasonable doubt. In December, 1974, the Court of Appeals for the Ninth Circuit reversed. 507 F.2d 93. The court concluded that the vagrancy ordinance was unconstitutionally vague, [ Footnote 2 ] that Powell's arrest was therefore illegal, and that, although exclusion of the evidence would serve no deterrent purpose with regard to police officers who were enforcing statutes in good faith, exclusion would serve the public interest by deterring legislators from enacting unconstitutional statutes. Id. at 98. After an independent review of the evidence, the court concluded that the admission of the evidence was not harmless error, since it supported the testimony of Parsons and Powell's accomplices. Id. at 99. B Respondent David Rice was convicted of murder in April, 1971, after trial in a Nebraska state court. At 2:05 a.m. on August 17, 1970, Omaha police received a telephone call that a woman had been heard screaming at 2867 Ohio Street. As one of the officers sent to that address examined a suitcase lying in the doorway, it exploded, killing him instantly. By August, 22 the investigation of the murder centered on Duane Peak, a 15-year-old member of the National Committee to Combat Page 428 U. S. 472 Fascism (NCCF), and that afternoon, a warrant was issued for Peak's arrest. The investigation also focused on other known members of the NCCF, including Rice, some of whom were believed to be planning to kill Peak before he could incriminate them. In their search for Peak, the police went to Rice's home at 10:30 that night and found lights and a television on, but there was no response to their repeated knocking. While some officers remained to watch the premises, a warrant was obtained to search for explosives and illegal weapons believed to be in Rice's possession. Peak was not in the house, but, upon entering, the police discovered, in plain view, dynamite, blasting caps and other materials useful in the construction of explosive devices. Peak subsequently was arrested, and, on August 27, Rice voluntarily surrendered. The clothes Rice was wearing at that time were subjected to chemical analysis, disclosing dynamite particles. Rice was tried for first-degree murder in the District Court of Douglas County. At trial, Peak admitted planting the suitcase and making the telephone call, and implicated Rice in the bombing plot. As corroborative evidence the State introduced items seized during the search, as well as the results of the chemical analysis of Rice's clothing. The court denied Rice's motion to suppress this evidence. On appeal, the Supreme Court of Nebraska affirmed the conviction, holding that the search of Rice's home had been pursuant to a valid search warrant. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972). In September, 1972, Rice filed a petition for a writ of habeas corpus in the United States District Court for Nebraska. Rice's sole contention was that his incarceration was unlawful because the evidence underlying his conviction had been discovered as the result of an illegal Page 428 U. S. 473 search of his home. The District Court concluded that the search warrant was invalid, as the supporting affidavit was defective under Spinelli v. United States, 393 U. S. 410 (1969), and Aguilar v. Texas, 378 U. S. 108 (1964). 388 F. Supp. 185 , 19194 (1974). [ Footnote 3 ] The court also rejected the State's contention that, even if the warrant was invalid, the search was justified because of the valid arrest warrant for Peak and because of the exigent circumstances of the situation -- danger to Peak and search for bombs and explosives believed in possession of the NCCF. The court reasoned that the arrest warrant did not justify the entry, as the police lacked probable cause to believe Peak was in the house, and further concluded tat the circumstances were not sufficiently exigent to justify an immediate warrantless Page 428 U. S. 474 search. Id. at 194-202. [ Footnote 4 ] The Court of Appeals for the Eighth Circuit affirmed, substantially for the reasons stated by the District Court. 513 F.2d 1280 (1975). Petitioners Stone and Wolff, the wardens of the respective state prisons where Powell and Rice are incarcerated, petitioned for review of these decisions, raising questions concerning the scope of federal habeas corpus and the role of the exclusionary rule upon collateral review of cases involving Fourth Amendment claims. We granted their petitions for certiorari. 4 22 U.S. 1055 (1975). [ Footnote 5 ] We now reverse. II The authority of federal courts to issue the writ of habeas corpus ad subjiciendum [ Footnote 6 ] was included in the first Page 428 U. S. 475 grant of federal court jurisdiction, made by the Judiciary Act of 1789, c. 20, § 14, 1 Stat. 81, with the limitation that the writ extend only to prisoners held in custody by the United States. The original statutory authorization did not define the substantive reach of the writ. It merely stated that the courts of the United States "shall have power to issue writs of . . . habeas corpus. . . ." Ibid. The courts defined the scope of the writ in accordance with the common law, and limited it to an inquiry as to the jurisdiction of the sentencing tribunal. See, e.g., 28 U. S. 3 Pet. 193 (1830) (Marshall, C.J.). In 1867, the writ was extended to state prisoners. Act of Feb. 5, 1867, c. 28, § 1, 14 Stat. 385. Under the 1867 Act, federal courts were authorized to give relief in "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States. . . ." But the limitation of federal habeas corpus jurisdiction to consideration of the jurisdiction of the sentencing court persisted. See, e.g., In re Wood, 140 U. S. 278 (1891); In re Rahrer, 140 U. S. 545 (1891); Andrews v. Swartz, 156 U. S. 272 (1895); Bergemann v. Backer, 157 U. S. 655 (1895); Pettibone v. Nichols, 203 U. S. 192 (1906). And, although the concept of "jurisdiction" was subjected to considerable strain as the substantive scope of the writ was expanded, [ Footnote 7 ] this Page 428 U. S. 476 expansion was limited to only a few classes of cases [ Footnote 8 ] until Frank v. Mangum, 237 U. S. 309 , in 1915. In Frank, the prisoner had claimed in the state courts that the proceedings which resulted in his conviction for murder had been dominated by a mob. After the State Supreme Court rejected his contentions, Frank unsuccessfully sought habeas corpus relief in the Federal District Court. This Court affirmed the denial of relief because Frank's federal claims had been considered by a competent and unbiased state tribunal. The Court recognized, however, that, if a habeas corpus court found that the State had failed to provide adequate "corrective process" for the full and fair litigation of federal claims, whether or not "jurisdictional," the court could inquire into the merits to determine whether a detention was lawful. Id. at 237 U. S. 333 -336. In the landmark decision in Brown v. Allen, 344 U. S. 443 , 344 U. S. 482 -487 (1953), the scope of the writ was expanded still further. [ Footnote 9 ] In that case and its companion case, Daniels v. Allen, state prisoners applied for federal habeas corpus relief, claiming that the trial courts had erred Page 428 U. S. 477 in failing to quash their indictments due to alleged discrimination in the selection of grand jurors and in ruling certain confessions admissible. In Brown, the highest court of the State had rejected these claims on direct appeal, State v. Brown, 233 N.C. 202, 63 S.E.2d 99 , and this Court had denied certiorari, 341 U.S. 943 (1951). Despite the apparent adequacy of the state corrective process, the Court reviewed the denial of the writ of habeas corpus and held that Brown was entitled to a full reconsideration of these constitutional claims, including, if appropriate, a hearing in the Federal District Court. In Daniels, however, the State Supreme Court, on direct review, had refused to consider the appeal because the papers were filed out of time. This Court held that, since the state court judgment rested on a reasonable application of the State's legitimate procedural rules, a ground that would have barred direct review of his federal claims by this Court, the District Court lacked authority to grant habeas corpus relief. See 344 U.S. at 344 U. S. 458 , 486. This final barrier to broad collateral reexamination of state criminal convictions in federal habeas corpus proceedings was removed in Fay v. Noia, 372 U. S. 391 (1963). [ Footnote 10 ] Noia and two codefendants had been convicted Page 428 U. S. 478 of felony murder. The sole evidence against each defendant was a signed confession. Noia's codefendants, but not Noia himself, appealed their convictions. Although their appeals were unsuccessful, in subsequent state proceedings, they were able to establish that their confessions had been coerced, and their convictions therefore procured in violation of the Constitution. In a subsequent federal habeas corpus proceeding, it was stipulated that Noia's confession also had been coerced, but the District Court followed Daniels in holding that Noia's failure to appeal barred habeas corpus review. See United States v. Fay, 183 F. Supp. 222 , 225 (SDNY 1960). The Court of Appeals reversed, ordering that Noia's conviction be set aside and that he be released from custody or that a new trial be granted. This Court affirmed the grant of the writ, narrowly restricting the circumstances in which a federal court may refuse to consider the merits of federal constitutional claims. [ Footnote 11 ] During the period in which the substantive scope of the writ was expanded, the Court did not consider whether exceptions to full review might exist with respect Page 428 U. S. 479 to particular categories of constitutional claims. Prior to the Court's decision in Kaufman v. United States, 394 U. S. 217 (1969), however, a substantial majority of the Federal Courts of Appeals had concluded that collateral review of search and seizure claims was inappropriate on motions filed by federal prisoners under 28 U.S.C. § 2255, the modern post-conviction procedure available to federal prisoners in lieu of habeas corpus. [ Footnote 12 ] The primary rationale advanced in support of those decisions was that Fourth Amendment violations are different in kind from denials of Fifth or Sixth Amendment rights, in that claims of illegal search and seizure do not "impugn the integrity of the factfinding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers." 394 U.S. at 394 U. S. 224 . See Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822 (1966). Kaufman rejected this rationale and held that search and seizure claims are cognizable in § 2255 proceedings. The Court noted that "the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial," 394 U.S. at 394 U. S. 225 , citing, e.g., 392 U. S. DeForte, 392 Page 428 U. S. 480 U.S. 364 (1968); Carafas v. LaVallee, 391 U. S. 234 (1968), and concluded, as a matter of statutory construction, that there was no basis for restricting "access by federal prisoners with illegal search and seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners," 394 U.S. at 394 U. S. 226 . Although, in recent years, the view has been expressed that the Court should reexamine the substantive scope of federal habeas jurisdiction and limit collateral review of search and seizure claims "solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts," Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 250 (1973) (POWELL, J., concurring), [ Footnote 13 ] the Court, without discussion or consideration of the issue, has continued to accept jurisdiction in cases raising such claims. See Lefkowitz v. Newsome, 420 U. S. 283 (1975); Cady v. Dombrowski, 413 U. S. 433 (1973); Cardwell v. Lewis, 417 U. S. 583 (1974) (plurality opinion). [ Footnote 14 ] The discussion in Kaufman of the scope of federal habeas corpus rests on the view that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, requires the granting of habeas corpus relief when a prisoner has been convicted Page 428 U. S. 481 in state court on the basis of evidence obtained in an illegal search or seizure, since those Amendments were held in Mapp v. Ohio, 367 U. S. 643 (1961), to require exclusion of such evidence at trial and reversal of conviction upon direct review. [ Footnote 15 ] Until these cases, we have not had occasion fully to consider the validity of this view. See, e.g., Schneckloth v. Bustamonte, supra at 412 U. S. 249 n. 3; Cardwell v. Lewis, supra at 417 U. S. 596 , and n. 12. Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified. [ Footnote 16 ] We hold, therefore, that Page 428 U. S. 482 where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. [ Footnote 17 ] III The Fourth Amendment assures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Amendment was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies, Stanford v. Texas, 379 U. S. 476 , 379 U. S. 481 -485 (1965); Frank v. Maryland, 359 U. S. 360 , 359 U. S. 363 -365 (1959), and was intended to protect the "sanctity of a man's home and the privacies of life," Boyd v. United States, 116 U. S. 616 , 116 U. S. 630 (1886), from searches under unchecked general authority. [ Footnote 18 ] The exclusionary rule was a judicially created means of effectuating the rights secured by the Fourth Amendment. Prior to the Court's decisions in Weeks v. United States, 232 U. S. 383 (1914), and Gouled v. United States, 255 U. S. 298 (1921), there existed no barrier to the introduction in criminal trials of evidence obtained in violation of the Amendment. See Adams v. New York , Page 428 U. S. 483 192 U. S. 585 (1904). [ Footnote 19 ] In Weeks, the Court held that the defendant could petition before trial for the return of property secured through an illegal search or seizure conducted by federal authorities. In Gouled, the Court held broadly that such evidence could not be introduced in a federal prosecution. See Warden v. Hayden, 387 U. S. 294 , 387 U. S. 304 -305 (1967). See also Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920) (fruits of illegally seized evidence). Thirty-five years after Weeks, the Court held in Wolf v. Colorado, 338 U. S. 25 (1949), that the right to be free from arbitrary intrusion by the police that is protected by the Fourth Amendment is "implicit in 'the concept of ordered liberty,' and, as such, enforceable against the States through the [Fourteenth Amendment] Due Process Clause." Id. at 338 U. S. 27 -28. The Court concluded, however, that the Weeks exclusionary rule would not be imposed upon the States as "an essential ingredient of [that] right." 338 U.S. at 338 U. S. 29 . The full force of Wolf was eroded in subsequent decisions, see Elkins v. United States, 364 U. S. 206 (1960); Rea v. United States, 350 U. S. 214 (1956), and, a little more than a decade later, the exclusionary rule was held applicable to the States in Mapp v. Ohio, 367 U. S. 643 (1961). Page 428 U. S. 484 Decisions prior to Mapp advanced two principal reasons for application of the rule in federal trials. The Court in Elkins, for example, in the context of its special supervisory role over the lower federal courts, referred to the "imperative of judicial integrity," suggesting that exclusion of illegally seized evidence prevents contamination of the judicial process. 364 U.S. at 364 U. S. 222 . [ Footnote 20 ] But even in that context, a more pragmatic ground was emphasized: "The rule is calculated to prevent, not to repair. Its purpose is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it." Id. at 364 U. S. 217 . The Mapp majority justified the application of the rule to the States on several grounds, [ Footnote 21 ] but relied principally upon the belief that exclusion would deter future unlawful police conduct. 367 U.S. at 367 U. S. 658 . Page 428 U. S. 485 Although our decisions often have alluded to the "imperative of judicial integrity," e.g., United States v. Peltier, 422 U. S. 531 , 422 U. S. 536 -539 (1975), they demonstrate the limited role of this justification in the determination whether to apply the rule in a particular context. [ Footnote 22 ] Logically extended, this justification would require that courts exclude unconstitutionally seized evidence despite lack of objection by the defendant, or even over his assent. Cf. Henry v. Mississippi, 379 U. S. 443 (1965). It also would require abandonment of the standing limitations on who may object to the introduction of unconstitutionally seized evidence, Alderman v. United States, 394 U. S. 165 (1969), and retreat from the proposition that judicial proceedings need not abate when the defendant's person is unconstitutionally seized, Gerstein v. Pugh, 420 U. S. 103 , 420 U. S. 119 (1975); Frisbie v. Collins, 342 U. S. 519 (1952). Similarly, the interest in promoting judicial integrity does not prevent the use of illegally seized evidence in grand jury proceedings. United States v. Calandra, 414 U. S. 338 (1974). Nor does it require that the trial court exclude such evidence from use for impeachment of a defendant, even though its introduction is certain to result in conviction in some cases. Walder v. United States, 347 U. S. 62 (1954). The teaching of these cases is clear. While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence. [ Footnote 23 ] Page 428 U. S. 486 The force of this justification becomes minimal where federal habeas corpus relief is sought by a prisoner who previously has been afforded the opportunity for full and fair consideration of his search and seizure claim at trial and on direct review. The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post- Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any "[r]eparation comes too late." Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 637 (196). Instead, "the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. . . ." United States v. Calandra, supra at 414 U. S. 348 . Accord, United States v. Peltier, supra at 422 U. S. 538 -539; Terry v. Ohio, 392 U. S. 1 , 392 U. S. 28 -29 (1968); Linkletter v. Walker, supra at 381 U. S. 636 -637; Tehan v. United States ex rel. Shott, 382 U. S. 406 , 382 U. S. 416 (1966). Mapp involved the enforcement of the exclusionary rule at state trials and on direct review. The decision in Kaufman, as noted above, is premised on the view that implementation of the Fourth Amendment also requires the consideration of search and seizure claims upon collateral review of state convictions. But despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons. As in the case of any remedial device, "the application of the rule has been restricted to those areas where its remedial Page 428 U. S. 487 objectives are thought most efficaciously served." United States v. Calandra, supra at 414 U. S. 348 . [ Footnote 24 ] Thus, our refusal to extend the exclusionary rule to grand jury proceedings was based on a balancing of the potential injury to the historic role and function of the grand jury by such extension against the potential contribution to the effectuation of the Fourth Amendment through deterrence of police misconduct: "Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain, at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation. . . . We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially Page 428 U. S. 488 impeding the role of the grand jury." 414 U.S. at 414 U. S. 351 -352 (footnote omitted). The same pragmatic analysis of the exclusionary rule's usefulness in a particular context was evident earlier in Walder v. United States, supra, where the Court permitted the Government to use unlawfully seized evidence to impeach the credibility of a defendant who had testified broadly in his own defense. The Court held, in effect, that the interests safeguarded by the exclusionary rule in that context were outweighed by the need to prevent perjury and to assure the integrity of the trial process. The judgment in Walder revealed most clearly that the policies behind the exclusionary rule are not absolute. Rather, they must be evaluated in light of competing policies. In that case, the public interest in determination of truth at trial [ Footnote 25 ] was deemed to outweigh the incremental contribution that might have been made to the protection of Fourth Amendment values by application of the rule. The balancing process at work in these cases also finds expression in the standing requirement. Standing to invoke the exclusionary rule has been found to exist only when the Government attempts to use illegally obtained evidence to incriminate the victim of the illegal search. Brown v. United States, 411 U. S. 223 (1973); Alderman v. United States, 394 U. S. 165 (1969); Wong Sun v. United States, 371 U. S. 471 , 371 U. S. 491 -492 (1963). See Jones v. United States, 362 U. S. 257 , 362 U. S. 261 (1960). The standing requirement is premised on the view that the "additional benefits of extending the . . . rule" to defendants other than the victim of the search or seizure are outweighed by the "further encroachment upon the Page 428 U. S. 489 public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, supra at 394 U. S. 174 -175. [ Footnote 26 ] IV We turn now to the specific question presented by these cases. Respondents allege violations of Fourth Amendment rights guaranteed them through the Fourteenth Amendment. The question is whether state prisoners -- who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and on direct review -- may invoke their claim again on federal habeas corpus review. The answer is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims. The costs of applying the exclusionary rule even at trial and on direct review are well known: [ Footnote 27 ] the focus Page 428 U. S. 490 of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding. [ Footnote 28 ] Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman: "A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily, the evidence seized can in no way have been rendered untrustworthy by the means of its seizure, and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." 394 U.S. at 394 U. S. 237 . Application of the rule thus deflects the truthfinding process, and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice. [ Footnote 29 ] Thus, Page 428 U. S. 491 although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately, it may well have the opposite effect of generating disrespect for the law and administration of justice. [ Footnote 30 ] These long-recognized costs of the rule persist when a criminal conviction is sought to be overturned on collateral review on the ground that a search and seizure claim was erroneously rejected by two or more tiers of state courts. [ Footnote 31 ] Page 428 U. S. 492 Evidence obtained by police officers in violation of the Fourth Amendment is excluded at trial in the hope that the frequency of future violations will decrease. Despite the absence of supportive empirical evidence, [ Footnote 32 ] we have assumed that the immediate effect of exclusion will be to discourage law enforcement officials from violating the Fourth Amendment by removing the incentive to disregard it. More importantly, over the long-term, this demonstration that our society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system. [ Footnote 33 ] Page 428 U. S. 493 We adhere to the view that these considerations support the implementation of the exclusionary rule at trial and its enforcement on direct appeal of state court convictions. But the additional contribution, if any, of the consideration of search and seizure claims of state prisoners on collateral review is small in relation to the costs. To be sure, each case in which such claim is considered may add marginally to an awareness of the values protected by the Fourth Amendment. There is no reason to believe, however, that the overall educative effect of the exclusionary rule would be appreciably diminished if search and seizure claims could not be raised in federal habeas corpus review of state convictions. [ Footnote 34 ] Nor is there reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk that a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant. The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal. [ Footnote 35 ] Even if one rationally could assume that Page 428 U. S. 494 some additional incremental deterrent effect would be present in isolated cases, the resulting advance of the legitimate goal of furthering Fourth Amendment rights would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice. In sum, we conclude that, where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, [ Footnote 36 ] a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial. [ Footnote 37 ] In this context, the Page 428 U. S. 495 contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force. [ Footnote 38 ] Page 428 U. S. 496 Accordingly, the judgments of the Courts of Appeals are Reversed. * Together with No. 74-1222, Wolff, Warden v. Rice, on certiorari to the United States Court of Appeals for the Eighth Circuit. [ Footnote 1 ] The ordinance provides: "Every person is a vagrant who:" "[1] Loiters or wanders upon the streets or from place to place without apparent reason or business and [2] who refuses to identify himself and to account for his presence when asked by a police officer to do so [3] if surrounding circumstances are such as to indicate to a reasonable man that the public safety demands such identification." [ Footnote 2 ] In support of the vagueness holding, the court relied principally on Papachristou v. Jacksonville, 405 U. S. 156 (1972), where we invalidated a city ordinance in part defining vagrants as "persons wandering or strolling around from place to place without any lawful purpose or object. . . ." Id. at 405 U. S. 156 -157, n. 1. Noting the similarity between the first element of the Henderson ordinance, see n 1, supra, and the Jacksonville ordinance, it concluded that the second and third elements of the Henderson ordinance were not sufficiently specific to cure its overall vagueness. 507 F.2d at 95-97. Petitioner Stone challenges these conclusions, but, in view of our disposition of the case, we need not consider this issue. [ Footnote 3 ] The sole evidence presented to the magistrate was the affidavit in support of the warrant application. It indicated that the police believed explosives and illegal weapons were present in Rice's home because (1) Rice was an official of the NCCF, (2) a violent killing of an officer had occurred and it appeared that the NCCF was involved, and (3) police had received information in the past that Rice possessed weapons and explosives, which he had said should be used against the police. See 388 F. Supp. at 189 n. 1. In concluding that there existed probable cause for issuance of the warrant, although the Nebraska Supreme Court found the affidavit alone sufficient, it also referred to information contained in testimony adduced at the suppression hearing but not included in the affidavit. 188 Neb. 728, 738-739, 199 N.W.2d 480 , 487-488. See also id. at 754, 199 N.W.2d at 495 (concurring opinion). The District Court limited its probable cause inquiry to the face of the affidavit, see Spinelli v. United States, 393 U.S. at 393 U. S. 413 n. 3; Aguilar v. Texas, 378 U.S. at 378 U. S. 109 n. 1, and concluded probable cause was lacking. Petitioner Wolff contends that police should be permitted to supplement the information contained in an affidavit for a search warrant at the hearing on a motion to suppress, a contention that we have several times rejected, see, e.g., Whiteley v. Warden, 401 U. S. 560 , 401 U. S. 565 n. 8 (1971); Aguilar v. Texas, supra at 378 U. S. 109 n. 1, and need not reach again here. [ Footnote 4 ] The District Court further held that the evidence of dynamite particles found on Rice's clothing should have been suppressed as the tainted fruit of an arrest warrant that would not have been issued but for the unlawful search of his home. 388 F. Supp. at 202-207. See Wong Sun v. United States, 371 U. S. 471 (1963); Silverthorne Lumber Co. v. United States, 251 U. S. 385 (1920). [ Footnote 5 ] In the orders granting certiorari in these cases, we requested that counsel in Stone v. Powell and Wolff v. Rice, respectively, address the questions: "Whether, in light of the fact that the District Court found that the Henderson, Nev., police officer had probable cause to arrest respondent for violation of an ordinance which at the time of the arrest had not been authoritatively determined to be unconstitutional, respondent's claim that the gun discovered as a result of a search incident to that arrest violated his rights under the Fourth and Fourteenth Amendments to the United States Constitution is one cognizable under 28 U.S.C. § 2254." "Whether the constitutional validity of the entry and search of respondent's premises by Omaha police officers under the circumstances of this case is a question properly cognizable under 28 U.S.C. § 2254." [ Footnote 6 ] It is now well established that the phrase "habeas corpus," used alone, refers to the common law writ of habeas corpus ad subjiciendum, known as the "Great Writ." Ex parte Bollman , 4 Cranch 75, 8 U. S. 95 (1807) (Marshall, C.J.). [ Footnote 7 ] Prior to 1889, there was, in practical effect, no appellate review in federal criminal cases. The possibility of Supreme Court review on certificate of division of opinion in the circuit court was remote because of the practice of single district judges' holding circuit court. See P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler's The Federal Courts and the Federal System 1539-1540 (2d ed.1973); F. Frankfurter & J. Landis, The Business of the Supreme Court 31-32, 79-80, and n. 107 (1927). Pressure naturally developed for expansion of the scope of habeas corpus to reach otherwise unreviewable decisions involving fundamental rights. See Ex parte Siebold, 100 U. S. 371 , 100 U. S. 376 -377 (1880); Bator, Finality in Criminal Law and Federal Habeas Corpus For State Prisoners, 76 Harv.L.Rev. 441, 473, and n. 75 (1963). [ Footnote 8 ] The expansion occurred primarily with regard to (i) convictions based on assertedly unconstitutional statutes, e.g., Ex parte Siebold, supra, or (ii) detentions based upon an allegedly illegal sentence, e.g., 85 U. S. 18 Wall. 163 (1874). See Bator, supra, n 7, at 465-474. [ Footnote 9 ] There has been disagreement among scholars as to whether the result in Brown v. Allen was foreshadowed by the Court's decision in Moore v. Dempsey, 261 U. S. 86 (1923). Compare Hart, Foreword: The Time Chart of the Justices, 73 Harv.L.Rev. 84, 105 (1959); Reitz, Federal Habeas Corpus; Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1315, 1328-1329 (1961), with Bator, supra, n 7, at 488-491. See also Fay v. Noia, 372 U. S. 391 , 372 U. S. 421 , and n. 30 (1963); id. at 372 U. S. 457 -460 (Harlan, J., dissenting). [ Footnote 10 ] Despite the expansion of the scope of the writ, there has been no change in the established rule with respect to nonconstitutional claims. The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, "will not be allowed to do service for an appeal." Sunal v. Large, 332 U. S. 174 , 332 U. S. 178 (1947). For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. Id. at 332 U. S. 178 -179; Davis v. United States, 417 U. S. 333 , 417 U. S. 345 -346, and n. 15 (1974). Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted " a fundamental defect which inherently results in a complete miscarriage of justice,'" id. at 417 U. S. 346 , quoting Hill v. United States, 368 U. S. 424 , 368 U. S. 428 (1962). [ Footnote 11 ] In construing broadly the power of a federal district court to consider constitutional claims presented in a petition for writ of habeas corpus, the Court in Fay also reaffirmed the equitable nature of the writ, noting that "[d]iscretion is implicit in the statutory command that the judge . . . dispose of the matter as law and justice require.' 28 U.S.C. § 2243." 372 U.S. at 372 U. S. 438 . More recently, in Francis v. Henderson, 425 U. S. 536 (1976), holding that a state prisoner who failed to make a timely challenge to the composition of the grand jury that indicted him cannot bring such a challenge in a post-conviction federal habeas corpus proceeding absent a claim of actual prejudice, we emphasized: "This Court has long recognized that, in some circumstances, considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power. See Fay v. Noia, 372 U. S. 391 , 372 U. S. 425 -426." Id. at 425 U. S. 539 . [ Footnote 12 ] Compare, e.g., United States v. Re, 372 F.2d 641 (CA2), cert. denied, 388 U.S. 912 (1967); United States v. Jenkins, 281 F.2d 193 (CA3 1960); Eisner v. United States, 351 F.2d 55 (CA6 1965); De Welles v. United States, 372 F.2d 67 (CA7), cert. denied, 388 U.S. 919 (1987); Williams v. United States, 307 F.2d 366 (CA9 1962); Armstead v. United States, 318 F.2d 725 (CA5 1963), with, e.g., United States v. Sutton, 321 F.2d 221 (CA4 1963); Gaitan v. United States, 317 F.2d 494 (CA10 1963). See also Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822 (1966) (search and seizure claims not cognizable under § 2255 absent special circumstances). [ Footnote 13 ] See, e.g., Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970). [ Footnote 14 ] In Newsome, the Court focused on the issue whether a state defendant's plea of guilty waives federal habeas corpus review where state law does not foreclose review of the plea on direct appeal, and did not consider the substantive scope of the writ. See 420 U.S. at 420 U. S. 287 n. 4. Similarly, in Cardwell and Cady, the question considered here was not presented in the petition for certiorari, and in neither case was relief granted on the basis of a search and seizure claim. In Cardwell, the plurality expressly noted that it was not addressing the issue of the substantive scope of the writ. See 417 U.S. at 417 U. S. 596 , and n. 12. [ Footnote 15 ] As Mr. Justice Black commented in dissent, 394 U.S. at 394 U. S. 231 , 239, the Kaufman majority made no effort to justify its result in light of the long-recognized deterrent purpose of the exclusionary rule. Instead, the Court relied on a series of prior cases as implicitly establishing the proposition that search and seizure claims are cognizable in federal habeas corpus proceedings. See Mancusi v. DeForte, 392 U. S. 364 (1968); Carafas v. LaVollee, 391 U. S. 234 (1968); Warden v. Hayden, 387 U. S. 294 (1967). But only in Mancusi did this Court order habeas relief on the basis of a search and seizure claim, and in that case, as well as in Warden, the issue of the substantive scope of the writ was not presented to the Court in the petition for writ of certiorari. Moreover, of the other numerous occasions cited by MR. JUSTICE BRENNAN s dissent, post at 428 U. S. 518 -519, in which the Court has accepted jurisdiction over collateral attacks by state prisoners raising Fourth Amendment claims, in only one case -- Whiteley v. Warden, 401 U. S. 560 (1971) -- was relief granted on that basis. And in Whiteley, as in Mancusi, the issue of the substantive scope of the writ was not presented in the petition for certiorari. As emphasized by Mr. Justice Black, only in the most exceptional cases will we consider issues not raised in the petition. 394 U.S. at 394 U. S. 239 , and n. 7. [ Footnote 16 ] The issue in Kaufman was the scope of § 2255. Our decision today rejects the dictum in Kaufman concerning the applicability of the exclusionary rule in federal habeas corpus review of state court decisions pursuant to § 2254. To the extent the application of the exclusionary rule in Kaufman did not rely upon the supervisory role of this Court over the lower federal courts, cf. Elkins v. United States, 364 U. S. 206 (1960), see infra at 428 U. S. 484 , the rationale for its application in that context is also rejected. [ Footnote 17 ] We find it unnecessary to consider the other issues concerning the exclusionary rule, or the statutory scope of the habeas corpus statute, raised by the parties. These include, principally, whether, in view of the purpose of the rule, it should be applied on a per se basis without regard to the nature of the constitutional claim or the circumstances of the police action. [ Footnote 18 ] See generally J. Landynski, Search and Seizure and the Supreme Court (1966); N. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937). [ Footnote 19 ] The roots of the Weeks decision lay in an early decision, Boyd v. United States, 116 U. S. 616 (1886), where the Court held that the compulsory production of a person's private books and papers for introduction against him at trial violated the Fourth and Fifth Amendments. Boyd, however, had been severely limited in Adams v. New York, where the Court, emphasizing that the "law held unconstitutional [in Boyd ] virtually compelled the defendant to furnish testimony against himself," 192 U.S. at 192 U. S. 598 , adhered to the common law rule that a trial court must not inquire, on Fourth Amendment grounds, into the method by which otherwise competent evidence was acquired. See, e.g., Commonwealth v. Dana, 43 Mass. 329 (1841). [ Footnote 20 ] See Terry v. Ohio, 392 U. S. 1 , 392 U. S. 12 -13 (1968); Weeks v. United States, 232 U. S. 383 , 232 U. S. 391 -392, 232 U. S. 394 (1914); Olmstead v. United States, 277 U. S. 438 , 277 U. S. 470 (1928) (Holmes, J., dissenting); id. at 277 U. S. 484 (Brandeis, J., dissenting). [ Footnote 21 ] See 367 U.S. at 367 U. S. 656 (prevention of introduction of evidence where introduction is "tantamount" to a coerced confession); id. at 367 U. S. 658 (deterrence of Fourth Amendment violations); id. at 367 U. S. 659 (preservation of judicial integrity). Only four Justices adopted the view that the Fourth Amendment itself requires the exclusion of unconstitutionally seized evidence in state criminal trials. See id. at 367 U. S. 656 ; id. at 367 U. S. 666 (Douglas, J., concurring). Mr. Justice Black adhered to his view that the Fourth Amendment, standing alone, was not sufficient, see Wolf v. Colorado, 338 U. S. 25 , 338 U. S. 39 (1949) (concurring opinion), but concluded that, when the Fourth Amendment is considered in conjunction with the Fifth Amendment ban against compelled self-incrimination, a constitutional basis emerges for requiring exclusion. 367 U.S. at 367 U. S. 661 (concurring opinion). See n 19, supra. [ Footnote 22 ] Harv.L.Rev. 1, 5-6, and n. 33 (1975). [ Footnote 23 ] As we recognized last Term, judicial integrity is "not offended if law enforcement officials reasonably believed in good faith that their conduct was in accordance with the law even if decisions subsequent to the search and seizure have held that conduct of the type engaged in by the law enforcement officials is not permitted by the Constitution." United States v. Peltier, 422 U. S. 531 , 422 U. S. 538 (1975) (emphasis omitted). [ Footnote 24 ] As Professor Amsterdam has observed: "The rule is unsupportable as reparation or compensatory dispensation to the injured criminal; its sole rational justification is the experience of its indispensability in 'exert[ing] general legal pressures to secure obedience to the Fourth Amendment on the part of . . . law-enforcing officers.' As it serves this function, the rule is a needed, but grud[g]ingly taken, medicament; no more should be swallowed than is needed to combat the disease. Granted that so many criminals must go free as will deter the constables from blundering, pursuance of this policy of liberation beyond the confines of necessity inflicts gratuitous harm on the public interest. . . ." Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 388-389 (1964) (footnotes omitted). [ Footnote 25 ] See generally M. Frankel, The Search For Truth -- An Umpireal View, 31st Annual Benjamin N. Cardozo Lecture, Association of the Bar of the City of New York, Dec. 16, 1974. [ Footnote 26 ] Cases addressing the question whether search and seizure holdings should be applied retroactively also have focused on the deterrent purpose served by the exclusionary rule, consistently with the balancing analysis applied generally in the exclusionary rule context. See Desist v. United States, 394 U. S. 244 , 394 U. S. 249 -251, 253-254, and n. 21 (1969); Linkletter v. Walker, 381 U. S. 618 , 381 U. S. 636 -637 (1965) Cf. Fuller v. Alaska, 393 U. S. 80 , 393 U. S. 81 (1968). The "attenuation of the taint" doctrine also is consistent with the balancing approach. See Brown v. Illinois, 422 U. S. 590 (1975); Wong Sun v. United States, 371 U.S. at 371 U. S. 491 -492; Amsterdam, supra, n 24, at 389-390. [ Footnote 27 ] See, e.g., Irvine v. California, 347 U. S. 128 , 347 U. S. 136 (1954); Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 411 (1971) (BURGER, C.J., dissenting); People v. Defore, 242 N.Y. 13, 150 N.E. 585 (1926) (Cardozo, J.); 8 J. Wigmore, Evidence § 2184a, pp. 51-52 (McNaughton ed.1961); Amsterdam, supra, n 24, at 388-391; Friendly, supra, n 13, at 161; Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665, 736-754 (1970), and sources cited therein; Paulsen, The Exclusionary Rule and Misconduct by the Police, 52 J.Crim.L.C. & P.S. 255, 256 (1961); Wright. Must the Criminal Go Free If the Constable Blunders?, 50 Tex.L.Rev. 736 (1972). [ Footnote 28 ] See address by Justice Schaefer of the Supreme Court of Illinois, Is the Adversary System Working in Optimal Fashion?, delivered at the National Conference on the Causes of Popular Dissatisfaction With the Administration of Justice, pp. 8-9, Apr. 8, 1976; cf. Frankel, supra, n 25. [ Footnote 29 ] Many of the proposals for modification of the scope of the exclusionary rule recognize at least implicitly the role of proportionality in the criminal justice system and the potential value of establishing a direct relationship between the nature of the violation and the decision whether to invoke the rule. See ALI, A Model Code of Pre-arraignment Procedure, § 290.2, pp. 181-183 (1975) ("substantial violations"); H. Friendly, Benchmarks 260-262 (1967) (even at trial, exclusion should be limited to "the fruit of activity intentionally or flagrantly illegal"); 8 Wigmore, supra, n 27, at 52-53. See n 17, supra. [ Footnote 30 ] In a different context, Dallin H. Oaks has observed: "I am criticizing not our concern with procedures, but our preoccupation, in which we may lose sight of the fact that our procedures are not the ultimate goals of our legal system. Our goals are truth and justice, and procedures are but means to these ends. . . ." "Truth and justice are ultimate values, so understood by our people, and the law and the legal profession will not be worthy of public respect and loyalty if we allow our attention to be diverted from these goals." Ethics, Morality and Professional Responsibility, 1975 B.Y.U.L.Rev. 591, 596. [ Footnote 31 ] Resort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government. They include "(i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded." Schneckloth v. Bustamonte, 412 U.S. at 412 U. S. 259 (POWELL, J., concurring). See also Kaufman v. United States, 394 U.S. at 394 U. S. 231 (Black, J., dissenting); Friendly, supra, n 13. We nevertheless afford broad habeas corpus relief, recognizing the need in a free society for an additional safeguard against compelling an innocent man to suffer an unconstitutional loss of liberty. The Court in Fay v. Noia described habeas corpus as a remedy for "whatever society deems to be intolerable restraints," and recognized that those to whom the writ should be granted "are persons whom society has grievously wronged." 372 U.S. at 372 U. S. 401 , 372 U. S. 441 . But in the case of a typical Fourth Amendment claim, asserted on collateral attack, a convicted defendant is usually asking society to redetermine an issue that has no bearing on the basic justice of his incarceration. [ Footnote 32 ] The efficacy of the exclusionary rule has long been the subject of sharp debate. Until recently, scholarly empirical research was unavailable. Elkins v. United States, 364 U.S. at 364 U. S. 218 . And the evidence derived from recent empirical research is still inconclusive. Compare, e.g., Oaks, supra, n 27; Spiotto, Search and Seizure: An Empirical Study of the Exclusionary Rule and Its Alternatives, 2 J. Legal Studies 243 (1973), with, e.g., Canon, Is the Exclusionary Rule in Failing Health?, Some New Data and a Plea Against a Precipitous Conclusion, 62 Ky.L.J. 681 (1974). See United States v. Janis, ante at 428 U. S. 450 -452, n. 22; Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 475 n. 593 (1974); Comment, On the Limitations of Empirical Evaluations of the Exclusionary Rule: A Critique of the Spiotto Research and United States v. Calandra, 69 Nw.U.L.Rev. 740 (1974). [ Footnote 33 ] See Oaks, supra, n 27, at 756. [ Footnote 34 ] "As the exclusionary rule is applied time after time, it seems that its deterrent efficacy at some stage reaches a point of diminishing returns, and beyond that point, its continued application is a public nuisance." Amsterdam, supra, n 2, at 389. [ Footnote 35 ] The policy arguments that respondents marshal in support of the view that federal habeas corpus review is necessary to effectuate the Fourth Amendment stem from a basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights. The argument is that state courts cannot be trusted to effectuate Fourth Amendment values through fair application of the rule, and the oversight jurisdiction of this Court on certiorari is an inadequate safeguard. The principal rationale for this view emphasizes the broad differences in the respective institutional settings within which federal judges and state judges operate. Despite differences in institutional environment and the unsympathetic attitude to federal constitutional claims of some state judges in years past, we are unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States. State courts, like federal courts, have a constitutional obligation to safeguard personal liberties and to uphold federal law. Martin v. Hunter's Lessee , 1 Wheat. 304, 14 U. S. 341 -344 (1816). Moreover, the argument that federal judges are more expert in applying federal constitutional law is especially unpersuasive in the context of search and seizure claims, since they are dealt with on a daily basis by trial level judges in both systems. In sum, there is "no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to the [consideration of Fourth Amendment claims] than his neighbor in the state courthouse." Bator, supra, n 7, at 509. [ Footnote 36 ] Cf. Townsend v. Sain, 372 U. S. 293 (1963). [ Footnote 37 ] MR. JUSTICE BRENNAN's dissent characterizes the Court's opinion as laying the groundwork for a "drastic withdrawal of federal habeas jurisdiction, if not for all grounds . . then at lest [for many]. . . ." Post at 428 U. S. 517 . It refers variously to our opinion as a "novel reinterpretation of the habeas statutes," post at 428 U. S. 515 ; as a "harbinger of future eviscerations of the habeas statutes," post at 428 U. S. 516 ; as "rewrit[ing] Congress' jurisdictional statutes . . . and [barring] access to federal courts by state prisoners with constitutional claims distasteful to a majority" of the Court, post at 428 U. S. 522 ; and as a "denigration of constitutional guarantees [that] must appall citizens taught to expect judicial respect" of constitutional rights, post at 428 U. S. 523 . With all respect, the hyperbole of the dissenting opinion is misdirected. Our decision today is not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally. We do reaffirm that the exclusionary rule is a judicially created remedy, rather than a personal constitutional right, see supra at 428 U. S. 486 , and we emphasize the minimal utility of the rule when sought to be applied to Fourth Amendment claims in a habeas corpus proceeding. As Mr. Justice Black recognized in this context, "ordinarily, the evidence seized can in no way have been rendered untrustworthy . . . , and indeed often . . . alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." Kaufman v. United States, 394 U.S. at 394 U. S. 237 (dissenting opinion). In sum, we hold only that a federal court need not apply the exclusionary rule on habeas review of a Fourth Amendment claim absent a showing that the state prisoner was denied an opportunity for a full and fair litigation of that claim at trial and on direct review. Our decision does not mean that the federal court lacks jurisdiction over such a claim, but only that the application of the rule is limited to cases in which there has been both such a showing and a Fourth Amendment violation. [ Footnote 38 ] See n 31, supra. Respondents contend that, since they filed petitions for federal habeas corpus rather than seeking direct review by this Court through an application for a writ of certiorari, and since the time to apply for certiorari has now passed, any diminution in their ability to obtain habeas corpus relief on the ground evidence obtained in an unconstitutional search or seizure was introduced at their trials should be prospective. Cf. England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 , 375 U. S. 422 -423 (1964). We reject these contentions. Although not required to do so under the Court's prior decisions, see Fay v. Noia, 372 U. S. 391 (1963), respondents were, of course, free to file a timely petition for certiorari prior to seeking federal habeas corpus relief. MR. CHIEF JUSTICE BURGER, concurring. I concur in the Court's opinion. By way of dictum, and somewhat hesitantly, the Court notes that the holding in this case leaves undisturbed the exclusionary rule as applied to criminal trials. For reasons stated in my dissent in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 , 403 U. S. 411 (1971), it seems clear to me that the exclusionary rule has been operative long enough to demonstrate its flaws. The time has come to modify its reach, even if it is retained for a small and limited category of cases. Over the years, the strains imposed by reality, in terms of the costs to society and the bizarre miscarriages of justice that have been experienced because of the exclusion of reliable evidence when the "constable blunders," have led the Court to vacillate as to the rationale for deliberate exclusion of truth from the factfinding process. The rhetoric has varied with the rationale to the point where the rule has become a doctrinaire result in search of validating reasons. In evaluating the exclusionary rule, it is important to bear in mind exactly what the rule accomplishes. Its function is simple -- the exclusion of truth from the factfinding process. Cf. M. Frankel, The Search for Truth -- An Umpireal View, 31st Annual Benjamin N. Cardozo Lecture, Association of the Bar of the City of New York, Dec. 16, 1974. The operation of the rule is therefore unlike that of the Fifth Amendment's protection against compelled self-incrimination. A confession produced after intimidating or coercive interrogation is inherently dubious. If a suspect's will has been overborne, a cloud Page 428 U. S. 497 hangs over his custodial admissions; the exclusion of such statements is based essentially on their lack of reliability. This is not the case as to reliable evidence -- a pistol, a packet of heroin, counterfeit money, or the body of a murder victim -- which may be judicially declared to be the result of an "unreasonable" search. The reliability of such evidence is beyond question; its probative value is certain. This remarkable situation -- one unknown to the common law tradition -- had its genesis in a case calling for the protection of private papers against governmental intrusions. Boyd v. United States, 116 U.-S. 616 (1886). See also Weeks v. United States, 232 U. S. 383 (1914). In Boyd, the Court held that private papers were inadmissible because of the Government's violation of the Fourth and Fifth Amendments. In Weeks, the Court excluded private letters seized from the accused's home by a federal official acting without a warrant. In both cases, the Court had a clear vision of what it was seeking to protect. What the Court said in Boyd shows how far we have strayed from the original path: "The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man's private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo. " 116 U.S. at 116 U. S. 623 . (Emphasis added.) In Weeks, the Court emphasized that the Government, under settled principles of common law, had no right to keep a person's private papers. The Court noted that the case did not involve "burglar's tools or other proofs of guilt. . . ." 232 U.S. at 232 U. S. 392 . (Emphasis added.) From this origin, the exclusionary rule has been Page 428 U. S. 498 changed in focus entirely. It is now used almost exclusively to exclude from evidence articles which are unlawful to be possessed or tools and instruments of crime. Unless it can be rationally thought that the Framers considered it essential to protect the liberties of the people to hold that which it is unlawful to possess, then it becomes clear that our constitutional course has taken a most bizarre tack. The drastically changed nature of judicial concern -- from the protection of personal papers or effects in one's private quarters, to the exclusion of that which the accused had no right to possess -- is only one of the more recent anomalies of the rule. The original incongruity was the rule's inconsistency with the general proposition that "our legal system does not attempt to do justice incidentally and to enforce penalties by indirect means." 8 J. Wigmore, Evidence § 2181, p. 6 (McNaughton ed.1961). The rule is based on the hope that events in the courtroom or appellate chambers, long after the crucial acts took place, will somehow modify the way in which policemen conduct themselves. A more clumsy, less direct means of imposing sanctions is difficult to imagine, particularly since the issue whether the policeman did indeed run afoul of the Fourth Amendment is often not resolved until years after the event. The "sanction" is particularly indirect when, as in No. 74-1222, the police go before a magistrate, who issues a warrant. Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Imposing an admittedly indirect "sanction" on the police officer in that instance is nothing less than sophisticated nonsense. Despite this anomaly, the exclusionary rule now rests upon its purported tendency to deter police misconduct, United States v. Janis, ante p. 428 U. S. 433 ; United States v. Page 428 U. S. 499 Calandra, 414 U. S. 338 , 414 U. S. 347 (1974), although, as we know, the rule has long been applied to wholly good faith mistakes and to purely technical deficiencies in warrants. Other rhetorical generalizations, including the "imperative of judicial integrity," have not withstood analysis as more and more critical appraisals of the rule's operation have appeared. See, e.g., Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U.Chi.L.Rev. 665 (1970). Indeed, settled rules demonstrate that the "judicial integrity" rationalization is fatally flawed. First, the Court has refused to entertain claims that evidence was unlawfully seized unless the claimant could demonstrate that he had standing to press the contention. Alderman v. United States, 394 U. S. 165 (1969). If he could not, the evidence, albeit secured in violation of the Fourth Amendment, is admissible. Second, as one scholar has correctly observed: "[I]t is difficult to accept the proposition that the exclusion of improperly obtained evidence is necessary for 'judicial integrity' when no such rule is observed in other common law jurisdictions such as England and Canada, whose courts are otherwise regarded as models of judicial decorum and fairness." Oaks, supra, at 669. Despite its avowed deterrent objective, proof is lacking that the exclusionary rule, a purely judge-created device based on "hard cases," serves the purpose of deterrence. Notwithstanding Herculean efforts, no empirical study has been able to demonstrate that the rule does in fact have any deterrent effect. In the face of dwindling support for the rule, some would go so far as to extend it to civil cases. United States v. Janis, ante p. 428 U. S. 433 . To vindicate the continued existence of this judge-made rule, it is incumbent upon those who seek its retention -- and surely its extension -- to demonstrate that Page 428 U. S. 500 it serves its declared deterrent purpose and to show that the results outweigh the rule's heavy costs to rational enforcement of the criminal law. See, e.g., Killough v. United States, 114 U.S.App.D.C. 305, 315 F.2d 241 (1962). The burden rightly rests upon those who ask society to ignore trustworthy evidence of guilt at the expense of setting obviously guilty criminals free to ply their trade. In my view, it is an abdication of judicial responsibility to exact such exorbitant costs from society purely on the basis of speculative and unsubstantiated assumptions. Judge Henry Friendly has observed: "[T]he same authority that empowered the Court to supplement the [fourth] amendment by the exclusionary rule a hundred and twenty-five years after its adoption likewise allows it to modify that rule as the 'lessons of experience' may teach." The Bill of Rights as a Code of Criminal Procedure, 53 Calif.L.Rev. 929, 952-953 (1965). In Bivens, I suggested that, despite its grave shortcomings, the rule need not be totally abandoned until some meaningful alternative could be developed to protect innocent persons aggrieved by police misconduct. With the passage of time, it now appears that the continued existence of the rule, as presently implemented, inhibits the development of rational alternatives. The reason is quite simple: incentives for developing new procedures or remedies will remain minimal or nonexistent so long as the exclusionary rule is retained in its present form. It can no longer be assumed that other branches of government will act while judges cling to this Draconian, discredited device in its present absolutist form. Legislatures are unlikely to create statutory alternatives, or impose Page 428 U. S. 501 direct sanctions on errant police officers or on the public treasury by way of tort actions, so long as persons who commit serious crimes continue to reap the enormous and undeserved benefits of the exclusionary rule. And of course, by definition, the direct beneficiaries of this rule can be none but persons guilty of crimes. With this extraordinary "remedy" for Fourth Amendment violations, however slight, inadvertent, or technical, legislatures might assume that nothing more should be done, even though a grave defect of the exclusionary rule is that it offers no relief whatever to victims of overzealous police work who never appear in court. Schaefer, The Fourteenth Amendment and Sanctity of the Person, 4 Nw U.L.Rev. 1, 14 (1969). And even if legislatures were inclined to experiment with alternative remedies, they have no assurance that the judicially created rule will be abolished or even modified in response to such legislative innovations. The unhappy result, as I see it, is that alternatives will inevitably be stymied by rigid adherence on our part to the exclusionary rule. I venture to predict that overruling this judicially contrived doctrine -- or limiting its scope to egregious, bad-faith conduct -- would inspire a surge of activity toward providing some kind of statutory remedy for persons injured by police mistakes or misconduct. The Court's opinion today eloquently reflects something of the dismal social costs occasioned by the rule. Ante at 428 U. S. 489 -491. As MR. JUSTICE WHITE correctly observes today in his dissent, the exclusionary rule constitutes a "senseless obstacle to arriving at the truth in many criminal trials." Post at 428 U. S. 538 . He also suggests that the rule be substantially modified "so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good faith belief that his conduct comported with existing Page 428 U. S. 502 law and having reasonable grounds for this belief." Ibid. From its genesis in the desire to protect private papers, the exclusionary rule has now been carried to the point of potentially excluding from evidence the traditional corpus delicti in a murder or kidnaping case. See People v. Mitchell, 39 N.Y.2d 173, 347 N.E.2d 607, cert. denied, 426 U.S. 953 (1976). Cf. Killough v. United States, supra. Expansion of the reach of the exclusionary rule has brought Cardozo's grim prophecy in People v. Defore, 242 N.Y. 13, 24, 150 N.E. 585, 588 (1926), nearer to fulfillment: "A room is searched against the law, and the body of a murdered man is found. If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed, and the murderer goes free. . . . We may not subject society to these dangers until the Legislature has spoken with a clearer voice." MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL concurs, dissenting. The Court today holds "that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Ante at 428 U. S. 494 . To be sure, my Brethren are hostile to the continued vitality of the exclusionary rule as part and parcel of the Fourth Amendment's prohibition of unreasonable searches and seizures, as today's decision in United States v. Janis, ante p. 428 U. S. 433 , confirms. But these cases, despite the veil of Fourth Amendment terminology employed by the Page 428 U. S. 503 Court, plainly do not involve any question of the right of a defendant to have evidence excluded from use against him in his criminal trial when that evidence was seized in contravention of rights ostensibly secured [ Footnote 2/1 ] by the Fourth and Fourteenth Amendments. Rather, they involve the question of the availability of a federal form for vindicating those federally guaranteed rights. Today's holding portends substantial evisceration of federal habeas corpus jurisdiction, and I dissent. The Court's opinion does not specify the particular basis on which it denies federal habeas jurisdiction over claims of Fourth Amendment violations brought by state prisoners. The Court insists that its holding is based on the Constitution, see, e.g., ante at 428 U. S. 482 , but in light of the explicit language of 28 U.S.C. § 2254 [ Footnote 2/2 ] (significantly Page 428 U. S. 504 not even mentioned by the Court), I can only presume that the Court intends to be understood to hold either that respondents are not, as a matter of statutory Page 428 U. S. 505 construction; "in custody in violation of the Constitution or laws . . . of the United States," or that " considerations of comity and concerns for the orderly administration of criminal justice,'" ante at 428 U. S. 478 n. 11, [ Footnote 2/3 ] are sufficient Page 428 U. S. 506 to allow this Court to rewrite jurisdictional statutes enacted by Congress. Neither ground of decision is tenable; the former is simply illogical, and the latter is an arrogation of power committed solely to the Congress. I Much of the Court's analysis implies that respondents are not entitled to habeas relief because they are not being unconstitutionally detained. Although purportedly adhering to the principle that the Fourth and Fourteenth Amendments "require exclusion" of evidence seized in violation of their commands, ante at 428 U. S. 481 , the Court informs us that there has merely been a "view" in our cases that "the effectuation of the Fourth Amendment . . . requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure. . . ." Ante at 428 U. S. 480 -481. [ Footnote 2/4 ] Applying a "balancing Page 428 U. S. 507 test," see, e.g., ante at 428 U. S. 487 -489, 428 U. S. 489 -490, 428 U. S. 493 -494, the Court then concludes that this "view" is unjustified, and that the policies of the Fourth Amendment would not be implemented if claims to the benefits of the exclusionary rule were cognizable in collateral attacks on state court convictions. [ Footnote 2/5 ] Understandably, the Court must purport to cast its holding in constitutional terms, because that avoids a direct confrontation with the incontrovertible facts that the habeas statutes have heretofore always been construed to grant jurisdiction to entertain Fourth Amendment claims of both state and federal prisoners, that Fourth Amendment principles have been applied in decisions on the merits in numerous cases on collateral review of final convictions, and that Congress has legislatively accepted our interpretation of congressional intent as to Page 428 U. S. 508 the necessary scope and function of habeas relief. Indeed, the Court reaches its result without explicitly overruling any of our plethora of precedents inconsistent with that result or even discussing principles of stare decisis. Rather, the Court asserts, in essence, that the Justices joining those prior decisions or reaching the merits of Fourth Amendment claims simply overlooked the obvious constitutional dimension to the problem in adhering to the "view" that granting collateral relief when state courts erroneously decide Fourth Amendment issues would effectuate the principles underlying that Amendment. [ Footnote 2/6 ] But, shorn of the rhetoric of "interest balancing" Page 428 U. S. 509 used to obscure what is at stake in this case, it is evident that today's attempt to rest the decision on the Constitution must fail so long as Mapp v. Ohio, 367 U. S. 643 (1961), remains undisturbed. Under Mapp, as a matter of federal constitutional law, a state court must exclude evidence from the trial of an individual whose Fourth and Fourteenth Amendment rights were violated by a search or seizure that directly or indirectly resulted in the acquisition of that evidence. As United States v. Calandra, 414 U. S. 338 , 414 U. S. 347 (1974), reaffirmed, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure. [ Footnote 2/7 ]" When a state court admits such evidence, it has committed a constitutional error, and, unless that error is harmless under federal standards, see, e.g., Chapman v. California, 386 U. S. 18 (1967), it follows ineluctably that the defendant has been placed "in custody in violation of the Constitution" within the comprehension of 28 U.S.C. § 2254. In short, it escapes me as to what logic can support the assertion that the defendant's unconstitutional confinement obtains during the process of direct review, no matter how long that process takes, [ Footnote 2/8 ] Page 428 U. S. 510 but that the unconstitutionality then suddenly dissipates at the moment the claim is asserted in a collateral attack on the conviction. The only conceivable rationale upon which the Court's "constitutional" thesis might rest is the statement that "the [exclusionary] rule is not a personal constitutional right. . . . Instead, 'the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.'" Ante at 428 U. S. 486 , quoting United States v. Calandra, supra at 414 U. S. 348 . Although my dissent in Calandra rejected, in light of contrary decisions establishing the role of the exclusionary rule, the premise that an individual has no constitutional right to have unconstitutionally seized evidence excluded from all use by the government, I need not dispute that point here. [ Footnote 2/9 ] For today's holding is not logically defensible even under Calandra. However the Court reinterprets Mapp, and whatever the rationale now attributed to Mapp's holding or the purpose ascribed to the exclusionary rule, the prevailing constitutional rule is that unconstitutionally seized evidence cannot be admitted in the criminal trial of a person whose federal constitutional rights were violated by the search or seizure. The erroneous admission of such evidence is a violation of the Federal Constitution -- Mapp inexorably means at least this much, or there would be no basis for applying the exclusionary rule in state criminal proceedings -- and an Page 428 U. S. 511 accused against whom such evidence is admitted has been convicted in derogation of rights mandated by, and is "in custody in violation of," the Constitution of the United States. Indeed, since state courts violate the strictures of the Federal Constitution by admitting such evidence, then, even if federal habeas review did not directly effectuate Fourth Amendment values, a proposition I deny, that review would nevertheless serve to effectuate what is concededly a constitutional principle concerning admissibility of evidence at trial. The Court, assuming without deciding that respondents were convicted on the basis of unconstitutionally obtained evidence erroneously admitted against them by the state trial courts, acknowledges that respondents had the right to obtain a reversal of their convictions on appeal in the state courts or on certiorari to this Court. Indeed, since our rules relating to the time limits for applying for certiorari in criminal cases are nonjurisdictional, certiorari could be granted respondents even today and their convictions could be reversed despite today's decisions. See also infra at 428 U. S. 533 -534. And the basis for reversing those convictions would of course have to be that the States, in rejecting respondents' Fourth Amendment claims, had deprived them of a right in derogation of the Federal Constitution. It is simply inconceivable that that constitutional deprivation suddenly vanishes after the appellate process has been exhausted. And as between this Court on certiorari and federal district courts on habeas, it is for Congress to decide what the most efficacious method is for enforcing federal constitutional rights and asserting the primacy of federal law. See infra at 428 U. S. 522 , 428 U. S. 525 -530. The Court, however, simply ignores the settled principle that, for purposes of adjudicating constitutional claims, Congress, which has the power to do so under Art. III of the Constitution, has effectively Page 428 U. S. 512 cast the district courts sitting in habeas in the role of surrogate Supreme Courts. [ Footnote 2/10 ] Today's opinion itself starkly exposes the illogic of the Court's seeming premise that the rights recognized Page 428 U. S. 513 in Mapp somehow suddenly evaporate after all direct appeals are exhausted. For the Court would not bar assertion of Fourth Amendment claims on habeas if the Page 428 U. S. 514 defendant was not accorded "an opportunity for full and fair litigation of his claim in the state courts." Ante at 428 U. S. 469 . See also ante at 428 U. S. 480 , quoting Schneckloth v. Bustamonte, 412 U. S. 218 , 412 U. S. 250 (1973) (POWELL, J., concurring); ante at 428 U. S. 482 , 428 U. S. 486 , 428 U. S. 489 -490, 428 U. S. 493 -494, and n. 37. But this "exception" is impossible if the Court really means that the "rule" that Fourth Amendment claims are not cognizable on habeas is constitutionally based. For if the Constitution mandates that "rule" because it is a "dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal," ante at 428 U. S. 493 , is it not an equally "dubious assumption" that those same police officials would fear that federal habeas review might reveal that the state courts had denied the defendant an opportunity to have a full and fair hearing on his claim that went undetected at trial and on appeal? [ Footnote 2/11 ] And to the extent the Court is making the unjustifiable assumption that our certiorari jurisdiction is adequate to correct "routine" condonation of Fourth Amendment violations by state courts, surely it follows a fortiori that our jurisdiction is adequate to redress the "egregious" situation in which the state courts did not even accord a fair hearing on the Fourth Amendment claim. The "exception" thus may appear to make the holding more palatable, but it merely highlights the lack of a "constitutional" rationale for today's constriction of habeas jurisdiction. The Court adheres to the holding of Mapp that the Constitution "require[d] exclusion" of the evidence admitted at respondents' trials. Ante at 428 U. S. 481 . However, Page 428 U. S. 515 the Court holds that the Constitution "does not require" that respondents be accorded habeas relief if they were accorded "an opportunity for full and fair litigation of [their] Fourth Amendment claim[s]" in state courts. Ante at 428 U. S. 482 ; see also ante at 428 U. S. 495 n. 37. Yet once the Constitution was interpreted by Mapp to require exclusion of certain evidence at trial, the Constitution became irrelevant to the manner in which that constitutional right was to be enforced in the federal courts; that inquiry is only a matter of respecting Congress' allocation of federal judicial power between this Court's appellate jurisdiction and a federal district court's habeas jurisdiction. Indeed, by conceding that today's "decision does not mean that the federal [district] court lacks jurisdiction over [respondents'] claim[s]," ibid., the Court admits that respondents have sufficiently alleged that they are "in custody in violation of the Constitution" within the meaning of § 2254, and that there is no "constitutional" rationale for today's holding. Rather, the constitutional "interest balancing" approach to this case is untenable, and I can only view the constitutional garb in which the Court dresses its result as a disguise for rejection of the longstanding principle that there are no "second class" constitutional rights for purposes of federal habeas jurisdiction; it is nothing less than an attempt to provide a veneer of respectability for an obvious usurpation of Congress' Art. III power to delineate the jurisdiction of the federal courts. II Therefore, the real ground of today's decision -- a ground that is particularly troubling in light of its portent for habeas jurisdiction generally -- is the Court's novel reinterpretation of the habeas statutes; this would read the statutes as requiring the district courts routinely Page 428 U. S. 516 to deny habeas relief to prisoners "in custody in violation of the Constitution or laws . . . of the United States" as a matter of judicial "discretion" -- a "discretion" judicially manufactured today contrary to the express statutory language -- because such claims are "different in kind" from other constitutional violations in that they "do not impugn the integrity of the factfinding process,'" ante at 428 U. S. 479 , and because application of such constitutional strictures "often frees the guilty." Ante at 428 U. S. 490 . Much in the Court's opinion suggests that a construction of the habeas statutes to deny relief for non-"guilt-related" constitutional violations, based on this Court's vague notions of comity and federalism, see, e.g., ante at 428 U. S. 478 n. 11, is the actual premise for today's decision, and, although the Court attempts to bury its underlying premises in footnotes, those premises mark this case as a harbinger of future eviscerations of the habeas statutes that plainly does violence to congressional power to frame the statutory contours of habeas jurisdiction. [ Footnote 2/12 ] For we are told that "[r]esort to habeas corpus, especially for purposes other than to assure that no innocent person suffers an unconstitutional loss of liberty, results in serious intrusions on values important to our system of government," including waste of judicial resources, lack of finality of criminal convictions, friction between the federal and state judiciaries, and incursions on "federalism." Ante at 428 U. S. 491 n. 31. We are told that federal determination of Fourth Amendment claims merely involves "an issue that has no bearing on the basic justice of [the defendant's] Page 428 U. S. 517 incarceration," ante at 428 U. S. 492 n. 31, and that "the ultimate question [in the criminal process should invariably be] guilt or innocence." Ante at 428 U. S. 490 ; see also ante at 428 U. S. 491 n. 30; ante at 428 U. S. 490 , quoting Kaufman v. United States, 394 U. S. 217 , 394 U. S. 237 (1969) (Black, J., dissenting). We are told that the "policy arguments" of respondents to the effect that federal courts must be the ultimate arbiters of federal constitutional rights, and that our certiorari jurisdiction is inadequate to perform this task, "stem from a basic mistrust of the state courts as fair and competent forums for the adjudication of federal constitutional rights"; the Court, however, finds itself "unwilling to assume that there now exists a general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States," and asserts that it is "unpersuaded" by "the argument that federal judges are more expert in applying federal constitutional law" because "there is 'no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to the [consideration of Fourth Amendment claims] than his neighbor in the state courthouse.'" Ante at 428 U. S. 493 -494, n. 35. Finally, we are provided a revisionist history of the genesis and growth of federal habeas corpus jurisdiction. Ante at 428 U. S. 471 -482 (Part II). If today's decision were only that erroneous state court resolution of Fourth Amendment claims did not render the defendant's resultant confinement "in violation of the Constitution," these pronouncements would have been wholly irrelevant and unnecessary. I am therefore justified in apprehending that the groundwork is being laid today for a drastic withdrawal of federal habeas jurisdiction, if not for all grounds of alleged unconstitutional detention, then at least for claims -- for example, of double jeopardy, entrapment, self-incrimination, Miranda violations, Page 428 U. S. 518 and use of invalid identification procedures [ Footnote 2/13 ] -- that this Court later decides are not "guilt-related." To the extent the Court is actually premising its holding on an interpretation of 28 U.S.C. § 2241 or § 2254, it is overruling the heretofore settled principle that federal habeas relief is available to redress any denial of asserted constitutional rights, whether or not denial of the right affected the truth or fairness of the factfinding process. As MR JUSTICE POWELL recognized in proposing that the Court reevaluate the scope of habeas relief as a statutory matter in Schneckloth v. Bustamonte, 412 U.S. at 412 U. S. 251 (concurring opinion), "on petition for habeas corpus or collateral review filed in a federal district court, whether by state prisoners under 28 U.S.C. § 2254 or federal prisoners under § 2255, the present rule is that Fourth Amendment claims may be asserted and the exclusionary rule must be applied in precisely the same manner as on direct review." This Court has on numerous occasions accepted jurisdiction over collateral attacks by state prisoners premised on Fourth Amendment violations, often over dissents that as a statutory matter such claims should not be cognizable. See, e.g., Lefkowitz v. Newsome, 420 U. S. 283 , 420 U. S. 291 -292, and nn. 8, 9 (1975); Cardwell v. Lewis, 417 U. S. 583 (1974); Cady v. Dombrowski, 413 U. S. 433 (1973); Adams v. Williams, 407 U. S. 143 (1972); Whiteley v. Warden, 401 U. S. 560 (1971); Chambers v. Maroney, 399 U. S. 42 (1970); Harris Page 428 U. S. 519 v. Nelson, 394 U. S. 286 (1969); Mancusi v. DeForte, 392 U. S. 364 (1968); Carafas v. LaVallee, 391 U. S. 234 (1968); Warden v. Hayden, 387 U. S. 294 (1967). Consideration of the merits in each of these decisions reaffirmed the unrestricted scope of habeas jurisdiction, but each decision must be deemed overruled by today's holding. [ Footnote 2/14 ] Federal habeas corpus review of Fourth Amendment claims of state prisoners was merely one manifestation of the principle that "conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review." Fay v. Noia, 372 U. S. 391 , 372 U. S. 424 (1963). This Court's precedents have been "premised in large part on a recognition that the availability of collateral remedies is necessary to insure the integrity of proceedings at and before trial where constitutional rights are at stake. Our decisions leave no doubt that the federal habeas remedy extends Page 428 U. S. 520 to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial." Kaufman v. United States, 394 U.S. at 394 U. S. 225 . Some of those decisions explicitly considered and rejected the "policies" referred to by the Court, ante at 428 U. S. 491 -492, n. 31. E.g., Brown v. Allen, 344 U. S. 443 (1953); Fay v. Noia, supra; Kaufman v. United States, supra. There were no "assumptions" with respect to the construction of the habeas statutes, but reasoned decisions that those policies were an insufficient justification for shutting the federal habeas door to litigants with federal constitutional claims in light of such countervailing considerations as "the necessity that federal courts have the 'last say' with respect to questions of federal law, the inadequacy of state procedures to raise and preserve federal claims, the concern that state judges may be unsympathetic to federally created rights, [and] the institutional constraints on the exercise of this Court's certiorari jurisdiction to review state convictions," 394 U.S. at 394 U. S. 225 -226, as well as the fundamental belief "that adequate protection of constitutional rights relating to the criminal trial process requires the continuing availability of a mechanism for relief." Id. at 394 U. S. 226 . See generally, e.g., Fay v. Noia, supra; Townsend v. Sain, 372 U. S. 293 (1963). As Mr. Justice Harlan, who had dissented from many of the cases initially construing the habeas statutes, readily recognized, habeas jurisdiction as heretofore accepted by this Court was "not only concerned with those rules which substantially affect the factfinding apparatus of the original trial. Under the prevailing notions, Kaufman v. United States, supra at 394 U. S. 224 -226, the threat of habeas serves as a necessary additional incentive for trial and appellate courts throughout the land to conduct their proceedings in a manner consistent with established constitutional standards. " Desist v. Page 428 U. S. 521 United States, 394 U. S. 244 , 394 U. S. 262 -263 (1969) (dissenting) (emphasis supplied). The availability of collateral review assures "that the lower federal and state courts toe the constitutional line." Id. at 394 U. S. 264 . "[H]abeas lies to inquire into every constitutional defect in any criminal trial, where the petitioner remains 'in custody' because of the judgment in that trial, unless the error committed was knowingly and deliberately waived or constitutes mere harmless error. That seems to be the implicit premise of Brown v. Allen, supra, and the clear purport of Kaufman v. United States, supra. . . . The primary justification given by the Court for extending the scope of habeas to all alleged constitutional errors is that it provides a quasi -appellate review function, forcing trial and appellate courts in both the federal and state system to toe the constitutional mark." Mackey v. United States, 401 U. S. 667 , 401 U. S. 685 -687 (1971) (opinion of Harlan, J.). See also Brown v. Allen, supra at 344 U. S. 508 (opinion of Frankfurter, J.) ("[N]o binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration of what procedurally may be deemed fairness, may have misconceived a federal constitutional right"); Fay v. Noia, supra at 372 U. S. 422 . In effect, habeas jurisdiction is a deterrent to unconstitutional actions by trial and appellate judges, and a safeguard to ensure that rights secured under the Constitution and federal laws are not merely honored in the breach. "[I]ts function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints." Id. at 372 U. S. 401 -402. "[T]he historical role of the writ of habeas corpus [is that of] an effective and imperative remedy for detentions contrary to fundamental law." Id. at 372 U. S. 438 . At least since Brown v. Allen, supra, detention emanating Page 428 U. S. 522 from judicial proceedings in which constitutional rights were denied has been deemed "contrary to fundamental law," and all constitutional claims have thus been cognizable on federal habeas corpus. There is no foundation in the language or history of the habeas statutes for discriminating between types of constitutional transgressions, and efforts to relegate certain categories of claims to the status of "second-class rights" by excluding them from that jurisdiction have been repulsed. [ Footnote 2/15 ] Today's opinion, however, marks the triumph of those who have sought to establish a hierarchy of constitutional rights, and to deny for all practical purposes a federal forum for review of those rights that this Court deems less worthy or important. Without even paying the slightest deference to principles of stare decisis or acknowledging Congress' failure for two decades to alter the habeas statutes in light of our interpretation of congressional intent to render all federal constitutional contentions cognizable on habeas, the Court today rewrites Congress' jurisdictional statutes as heretofore construed, and bars access to federal courts by state prisoners with constitutional claims distasteful to a majority of my Brethren. But even ignoring principles of stare decisis dictating that Congress is the appropriate vehicle for embarking on such a fundamental shift in the jurisdiction of the federal courts, I can find no adequate justification elucidated by the Court for concluding that habeas relief for all federal constitutional claims is no longer compelled under the reasoning of Brown, Fay, and Kaufman. I would address the Court's concerns for effective utilization Page 428 U. S. 523 of scarce judicial resources, finality principles, federal-state friction, and notions of "federalism" only long enough to note that such concerns carry no more force with respect to non-"guilt-related" constitutional claims than they do with respect to claims that affect the accuracy of the factfinding process. Congressional conferral of federal habeas jurisdiction for the purpose of entertaining petitions from state prisoners necessarily manifested a conclusion that such concerns could not be controlling, and any argument for discriminating among constitutional rights must therefore depend on the nature of the constitutional right involved. The Court, focusing on Fourth Amendment rights as it must to justify such discrimination, thus argues that habeas relief for non-"guilt-related" constitutional claims is not mandated, because such claims do not affect the "basic justice" of a defendant's detention, see ante at 428 U. S. 492 n. 31; this is presumably because the "ultimate goal" of the criminal justice system is "truth and justice." E.g., ante at 428 U. S. 490 , and 428 U. S. 491 n. 30. [ Footnote 2/16 ] This denigration of constitutional guarantees and constitutionally mandated procedures, relegated by the Court to the status of mere utilitarian tools, must appall citizens taught to expect judicial respect and support for their constitutional rights. Even if punishment of the "guilty" were society's highest value -- and procedural safeguards denigrated to this end -- in a constitution that a majority of the Members of this Court would prefer, that is not the ordering of priorities under the Constitution forged by the Framers, and this Court's sworn duty is to uphold that Constitution, Page 428 U. S. 524 and not to frame its own. The procedural safeguards mandated in the Framers' Constitution are not admonitions to be tolerated only to the extent they serve functional purposes that ensure that the "guilty" are punished and the "innocent" freed; rather, every guarantee enshrined in the Constitution, our basic charter and the guarantor of our most precious liberties, is by it endowed with an independent vitality and value, and this Court is not free to curtail those constitutional guarantees even to punish the most obviously guilty. Particular constitutional rights that do not affect the fairness of factfinding procedures cannot for that reason be denied at the trial itself. What possible justification then can there be for denying vindication of such rights on federal habeas when state courts do deny those rights at trial? To sanction disrespect and disregard for the Constitution in the name of protecting society from lawbreakers is to make the government itself lawless, and to subvert those values upon which our ultimate freedom and liberty depend. [ Footnote 2/17 ] "The history of American freedom Page 428 U. S. 525 is, in no small measure, the history of procedure," Malinski v. New York, 324 U. S. 401 , 324 U. S. 414 (1945) (opinion of Frankfurter, J.), and, as Mr. Justice Holmes so succinctly reminded us, it is "a less evil that some criminals should escape than that the Government should play an ignoble part." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 470 (1928) (dissenting opinion). "[I]t is an abuse to deal too casually and too lightly with rights guaranteed by the Federal Constitution, even though they involve limitations upon State power and may be invoked by those morally unworthy." Brown v. Allen, 344 U.S. at 344 U. S. 498 (opinion of Frankfurter, J.). Enforcement of federal constitutional rights that redress constitutional violations directed against the "guilty" is a particular function of federal habeas review, lest judges trying the "morally unworthy" be tempted not to execute the supreme law of the land. State judges popularly elected may have difficulty resisting popular pressures not experienced by federal judges given lifetime tenure designed to immunize them from such influences, and the federal habeas statutes reflect the congressional judgment that such detached federal review is a salutary safeguard against any detention of an individual "in violation of the Constitution or laws . . . of the United States." Federal courts have the duty to carry out the congressionally Page 428 U. S. 526 assigned responsibility to shoulder the ultimate burden of adjudging whether detentions violate federal law, and today's decision substantially abnegates that duty. The Court does not, because it cannot, dispute that institutional constraints totally preclude any possibility that this Court can adequately oversee whether state courts have properly applied federal law, [ Footnote 2/18 ] and does not controvert the fact that federal habeas jurisdiction is partially designed to ameliorate that inadequacy. Thus, although I fully agree that state courts "have a constitutional obligation to safeguard personal liberties and to uphold federal law," and that there is no "general lack of appropriate sensitivity to constitutional rights in the trial and appellate courts of the several States," ante at 428 U. S. 494 n. 35, I cannot agree that it follows that, as the Court today holds, federal court determination of almost all Fourth Amendment claims of state prisoners should be barred, and that state court resolution of those issues should be insulated from the federal review Congress intended. For, as Mr. Justice Frankfurter so aptly framed the issue in rejecting similar contentions in construing the habeas statutes in Brown v. Allen, supra: "Congress could have left the enforcement of federal constitutional rights governing the administration of criminal justice in the States exclusively to the State courts. These tribunals are under the same duty as the federal courts to respect rights under the United States Constitution. . . . It is not for us to determine whether this power should have been vested in the federal courts. . . . [T]he wisdom of such a modification in the law is for Congress to Page 428 U. S. 527 consider, particularly in view of the effect of the expanding concept of due process upon enforcement by the States of their criminal laws. It is for this Court to give fair effect to the habeas corpus jurisdiction as enacted by Congress. By giving the federal courts that jurisdiction, Congress has imbedded into federal legislation the historic function of habeas corpus adapted to reaching an enlarged area of claims. . . ." ". . . But the prior State determination of a claim under the United States Constitution cannot foreclose consideration of such a claim, else the State court would have the final say which the Congress, by the Act of 1867, provided it should not have." 344 U.S. at 344 U. S. 499 -50 (emphasis supplied). "State adjudication of questions of law cannot, under the habeas corpus statute, be accepted as binding. It is precisely these questions that the federal judge is commanded to decide." Id. at 344 U. S. 506 . "Congress has the power to distribute among the courts of the States and of the United States jurisdiction to determine federal claims. It has seen fit to give this Court power to review errors of federal law in State determinations, and in addition to give to the lower federal courts power to inquire into federal claims by way of habeas corpus. But it would be in disregard of what Congress has expressly required to deny State prisoners access to the federal courts." ". . . Insofar as this jurisdiction enables federal district courts to entertain claims that State Supreme Courts have denied rights guaranteed by the United States Constitution, it is not a case of a lower court sitting in judgment on a higher court. It is merely one aspect of respecting the Supremacy Clause of the Page 428 U. S. 528 Constitution whereby federal law is higher than State law. It is for the Congress to designate the member in the hierarchy of the federal judiciary to express the higher law. The fact that Congress has authorized district courts to be the organ of the higher law, rather than a Court of Appeals, or exclusively this Court, does not mean that it allows a lower court to overrule a higher court. It merely expresses the choice of Congress how the superior authority of federal law should be asserted." 344 U.S. at 344 U. S. 508 -510 (emphasis supplied). Congress' action following Townsend v. Sain, 372 U. S. 293 (1963), and Fay v. Noia, 372 U. S. 391 (1963), emphasized "the choice of Congress how the superior authority of federal law should be asserted" in federal courts. Townsend v. Sain outlined the duty of federal habeas courts to conduct factfinding hearings with respect to petitions brought by state prisoners, and Fay v. Noia defined the contours of the "exhaustion of state remedies" prerequisite in § 2254 in light of its purpose of according state courts the first opportunity to correct their own constitutional errors. Congress expressly modified the habeas statutes to incorporate the Townsend standards so as to accord a limited and carefully circumscribed res judicata effect to the factual determinations of state judges. But Congress did not alter the principle of Brown, Fay, and Kaufman that collateral relief is to be available with respect to any constitutional deprivation, and that federal district judges, subject to review in the courts of appeals and this Court, are to be the spokesmen of the supremacy of federal law. Indeed, subsequent congressional efforts to amend those jurisdictional statutes to effectuate the result that my Brethren accomplish by judicial fiat have Page 428 U. S. 529 consistently proved unsuccessful. There remains, as noted before, no basis whatsoever in the language or legislative history of the habeas statutes for establishing such a hierarchy of federal rights; certainly there is no constitutional warrant in this Court to override a congressional determination respecting federal court review of decisions of state judges determining constitutional claims of state prisoners. In any event, respondents' contention that Fourth Amendment claims, like all other constitutional claims, must be cognizable on habeas does not rest on the ground attributed to them by the Court -- that the state courts are rife with animosity to the constitutional mandates of this Court. It is one thing to assert that state courts, as a general matter, accurately decide federal constitutional claims; it is quite another to generalize from that limited proposition to the conclusion that, despite congressional intent that federal courts sitting in habeas must stand ready to rectify any constitutional errors that are nevertheless committed, federal courts are to be judicially precluded from ever considering the merits of whole categories of rights that are to be accorded less procedural protection merely because the Court proclaims that they do not affect the accuracy or fairness of the factfinding process. "Under the guise of fashioning a procedural rule, we are not justified in wiping out the practical efficacy of a jurisdiction conferred by Congress on the District Courts. Rules which in effect treat all these cases indiscriminately as frivolous do not fall far short of abolishing this head of jurisdiction." Brown v. Allen, 344 U.S. at 344 U. S. 498 -499 (opinion of Frankfurter, J.). To the extent state trial and appellate judges faithfully, accurately, and assiduously apply federal law and the constitutional principles enunciated by the federal Page 428 U. S. 530 courts, such determinations will be vindicated on the merits when collaterally attacked. But to the extent federal law is erroneously applied by the state courts, there is no authority in this Court to deny defendants the right to have those errors rectified by way of federal habeas; [ Footnote 2/19 ] indeed, the Court's reluctance to accept Congress' desires along these lines can only be a manifestation of this Court's mistrust for federal judges. Furthermore, some might be expected to dispute the academic's dictum seemingly accepted by the Court that a federal judge is not necessarily more skilled than a state judge in applying federal law. See ante at 428 U. S. 494 n. 35. For the Supremacy Clause of the Constitution proceeds on a different premise, and Congress, as it was constitutionally empowered to do, made federal judges (and initially federal district court judges) "the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States." Zwickler v. Koota, 389 U. S. 241 , 389 U. S. 247 (1967). If proof of the necessity of the federal habeas jurisdiction were required, the disposition by the state courts of the underlying Fourth Amendment issues presented by these cases supplies it. In No. 74-1055, respondent was arrested pursuant to a statute which obviously is unconstitutional under Papachristou v. City of Jacksonville, 405 U. S. 156 (1972). Even apart from its vagueness and concomitant potential for arbitrary and discriminatory enforcement, the statute purports to criminalize the presence of one unable to account for his presence in a situation where a reasonable person might believe that public Page 428 U. S. 531 safety demands identification. See ante at 428 U. S. 469 n. 1. It is no crime in a free society not to have "identification papers" on one's person, and the statute is a palpable effort to enable police to arrest individuals on the basis of mere suspicion and to facilitate detention even when there is no probable cause to believe a crime has been or is likely to be committed. See 405 U.S. at 405 U. S. 168 -170. Without elaborating on the various arguments buttressing this result, including the self-incrimination aspects of the ordinance and its attempt to circumvent Fourth Amendment safeguards in a situation that, under Terry v. Ohio, 392 U. S. 1 (1968), would, at most, permit law enforcement officials to conduct a protective search for weapons, I would note only that the ordinance, due to the Court's failure to address its constitutionality today, remains in full force and effect, thereby affirmatively encouraging further Fourth Amendment violations. Moreover, the fact that only a single state judge ever addressed the validity of the ordinance, and the lack of record evidence as to why or how he rejected respondent's claim, gives me pause as to whether there is any real content to the Court's "exception" for bringing Fourth Amendment claims on habeas in situations in which state prisoners were not accorded an opportunity for a full and fair state court resolution of those claims; that fact also makes irrelevant the Court's presumption that deterrence is not furthered when there is federal habeas review of a search and seizure claim that was erroneously rejected by "two or more tiers of state courts." Ante at 428 U. S. 491 . Even more violative of constitutional safeguards is the manner in which the Nebraska courts dealt with the merits in respondent Rice's case. Indeed, the manner in which Fourth Amendment principles were applied in the Nebraska Supreme Court is paradigmatic of Congress' Page 428 U. S. 532 concern respecting attempts by state courts to structure Fourth Amendment jurisprudence so as not to upset convictions of the "guilty" or the "unworthy." As Judge Urbom fully detailed in two thorough and thoughtful opinions in the District Court on Rice's petition for habeas, the affidavit upon which the Omaha police obtained a warrant and thereby searched Rice's apartment was clearly deficient under prevailing constitutional standards, and no extant exception to the warrant requirement justified the search absent a valid warrant. Yet the Nebraska Supreme Court upheld the search on the alternative and patently untenable ground that there is no Fourth Amendment violation if a defective warrant is supplemented at a suppression hearing by facts that theoretically could have been, but were not, presented to the issuing magistrate. Such a construction of the Fourth Amendment would obviously abrogate the warrant requirement of the Fourth Amendment and the principle that its "protection consists in requiring that those inferences [as to whether the data available justify an intrusion upon a person's privacy] be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, 333 U. S. 10 , 333 U. S. 14 (1948). Yet the Court today, by refusing to reaffirm our precedents, see ante at 428 U. S. 473 n. 3, even casts some doubt on that heretofore unquestioned precept of Fourth Amendment jurisprudence that "an otherwise insufficient affidavit cannot be rehabilitated by testimony concerning information possessed by the affiant when he sought the warrant but not disclosed to the issuing magistrate. See Aguilar v. Texas, 378 U. S. 108 , 378 U. S. 109 n. 1. A contrary rule would, of course, render the warrant requirements of the Fourth Amendment meaningless." Whiteley v. Warden, 401 U.S. at 401 U. S. 565 Page 428 U. S. 533 n. 8. Of course, for the Court strongly to reiterate the fundamentality of this principle would only highlight the Nebraska Supreme Court's distortion of the Fourth Amendment in an emotionally charged case, and thereby accentuate the general potential for erroneous state court adjudication of Fourth Amendment claims. [ Footnote 2/20 ] III Other aspects of today's decision are deserving of comment, but one particularly merits special attention. For the Court's failure to limit today's ruling to prospective application stands in sharp contrast to recent cases that have so limited decisions expanding or affirming constitutional rights. Respondents, relying on the explicit holding of Fay v. Noia, 372 U. S. 391 (1963), that a petition for a writ of certiorari is not a necessary predicate for federal habeas relief, and accepting at face value the clear import of our prior habeas cases that all unconstitutional confinements may be challenged on federal habeas, contend that any new restriction on state prisoners' ability to obtain habeas relief should be held to be prospective only. The Court, however, dismisses respondents' effective inability to have a single federal court pass on their federal constitutional claims with the offhand remark that "respondents were, of course, free to file a timely petition for certiorari prior to seeking federal habeas corpus relief." Ante at 428 U. S. 495 n. 38. To be sure, the fact that the time limits for invoking our certiorari jurisdiction with respect to criminal cases emanating from state courts are Page 428 U. S. 534 non -jurisdictional would dictate that respondents are at least free to file out-of-time certiorari petitions; under the Court's "direct review" distinction delineated today, we would still have authority to address the substance of respondents' eminently and concededly meritorious Fourth Amendment claims. Of course, federal review by certiorari in this Court is a matter of grace, and it is grace now seldom bestowed at the behest of a criminal defendant. I have little confidence that three others of the Brethren would join in voting to grant such petitions, thereby reinforcing the notorious fact that our certiorari jurisdiction is inadequate for containing state criminal proceedings within constitutional bounds, and underscoring Congress' wisdom in mandating a broad federal habeas jurisdiction for the district courts. In any event, since we are fully familiar with the records in these cases, respondents are owed at least review in this Court, particularly since it shuts the doors of the district courts in a decision that marks such a stark break with out precedents on the scope of habeas relief; indeed, if the Court were at all disposed to safeguard constitutional rights and educate state and federal judges concerning the contours of Fourth Amendment jurisprudence in various situations, it would decide these cases on the merits, rather than employ a procedural ruse that ensures respondents' continued unconstitutional confinement. IV In summary, while, unlike the Court, I consider that the exclusionary rule is a constitutional ingredient of the Fourth Amendment, any modification of that rule should at least be accomplished with some modicum of logic and justification not provided today. See, e.g., Dershowitz & Ely, Harris v. New York: Some Anxious Observations Page 428 U. S. 535 on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198 (1971). The Court does not disturb the holding of Mapp v. Ohio that, as a, matter of federal constitutional law, illegally obtained evidence must be excluded from the trial of a criminal defendant whose rights were transgressed during the search that resulted in acquisition of the evidence. In light of that constitutional rule it is a matter for Congress, not this Court, to prescribe what federal courts are to review state prisoners' claims of constitutional error committed by state courts. Until this decision, our cases have never departed from the construction of the habeas statutes as embodying a congressional intent that, however substantive constitutional rights are delineated or expanded, those rights may be asserted as a procedural matter under federal habeas jurisdiction. Employing the transparent tactic that today's is a decision construing the Constitution, the Court usurps the authority -- vested by the Constitution in the Congress -- to reassign federal judicial responsibility for reviewing state prisoners' claims of failure of state courts to redress violations of their Fourth Amendment rights. Our jurisdiction is eminently unsuited for that task, and, as a practical matter, the only result of today's holding will be that denials by the state courts of claims by state prisoners of violations of their Fourth Amendment rights will go unreviewed by a federal tribunal. I fear that the same treatment ultimately will be accorded state prisoners' claims of violations of other constitutional rights; thus, the potential ramifications of this case for federal habeas jurisdiction generally are ominous. The Court, no longer content just to restrict forthrightly the constitutional rights of the citizenry, has embarked on a campaign to water down even such constitutional rights as it purports to acknowledge Page 428 U. S. 536 by the device of foreclosing resort to the federal habeas remedy for their redress. I would affirm the judgments of the Courts of Appeals. [ Footnote 2/1 ] I say "ostensibly" secured both because it is clear that the Court has yet to make its final frontal assault on the exclusionary rule, and because the Court has recently moved in the direction of holding that the Fourth Amendment has no substantive content whatsoever. See, e.g., United States v. Martinez-Fuerte, post at 428 U. S. 567 -569 (BRENNAN, J., dissenting), and cases cited therein. [ Footnote 2/2 ] Title 28 U.S.C. § 2254 provides: "§ 2254. State custody; remedies in State courts." "(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." "(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." "(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented." "(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit -- " "(1) that the merits of the factual dispute were not resolved in the State court hearing;" "(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;" "(3) that the material facts were not adequately developed at the State court hearing;" "(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;" "(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;" "(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or" "(7) that the applicant was otherwise denied due process of law in the State court proceeding;" "(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:" "And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered(1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous." "(e) If the applicant challenges the sufficiency of the evidence adduced in such State court proceeding to support the State court's determination of a factual issue made therein, the applicant, if able, shall produce that part of the record pertinent to a determination of the sufficiency of the evidence to support such determination. If the applicant, because of indigency or other reason is unable to produce such part of the record, then the State shall produce such part of the record and the Federal court shall direct the State to do so by order directed to an appropriate State official. If the State cannot provide such pertinent part of the record, then the court shall determine under the existing facts and circumstances what weight shall be given to the State court's factual determination." "(f) A copy of the official records of the State court, duly certified by the clerk of such court to be a true and correct copy of a finding, judicial opinion, or other reliable written indicia showing such a factual determination by the State court shall be admissible in the Federal court proceeding." [ Footnote 2/3 ] Title 28 U.S.C. § 2243 provides: "§ 2243. Issuance of writ; return; hearing; decision." "A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto." "The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed." "The person to whom the writ or order is directed shall make a return certifying the true cause of the detention." "When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed." "Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained." "The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts." "The return and all suggestions made against it may be amended, by leave of court, before or after being filed." "The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require." [ Footnote 2/4 ] See also, e.g., ante at 428 U. S. 486 ("The decision in Kaufman [v. United States, 394 U. S. 217 (1969),] is premised on the view that implementation of the Fourth Amendment also requires the consideration of search and seizure claims upon collateral review of state convictions"); ante at 428 U. S. 489 ("The answer [to the question whether Fourth Amendment claims may be raised by state prisoners in federal habeas corpus proceedings] is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims"); ante at 428 U. S. 493 ("[T]he additional contribution, if any, of the consideration of search and seizure claims of state prisoners on collateral review is small in relation to the costs. . . . The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal"); ante at 428 U. S. 494 -495 ("In this context, the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal, and the substantial societal costs of application of the rule persist with special force"). [ Footnote 2/5 ] To the extent the Court is rendering a constitutional holding, there is obviously no distinction between claims brought by state prisoners under 28 U.S.C. 2254 and those brought by federal prisoners under 28 U.S.C. § 2255. Thus, the Court overrules not only a long line of cases concerning availability of habeas relief for state prisoners, but also a similarly inveterate line of cases concerning availability of counterpart § 2255 relief for federal prisoners. [ Footnote 2/6 ] Mr. Justice Black, dissenting in Kaufman v. United States, 394 U. S. 217 (1969), argued that, in light of his view of the purposes of the exclusionary rule, Fourth Amendment claims should not, as a matter of statutory construction, be cognizable on federal habeas. However, he never made the suggestion, apparently embraced by the Court today, that such claims cannot, as a constitutional matter, be entertained on habeas jurisdiction, even though Congress fashioned that jurisdiction at least in part to compensate for the inadequacies inherent in our certiorari jurisdiction on direct review. Cf. ante at 428 U. S. 481 n. 15, and 428 U. S. 490 . Indeed, Kaufman did not ignore the dissenting Justices' arguments; rather, it noted that habeas jurisdiction, apart from any effect on police behavior, serves the independent function of "insur[ing] the integrity of proceedings at and before trial where constitutional rights are at stake." 394 U.S. at 394 U. S. 225 . See also infra at 428 U. S. 519 -522. As to the argument that our prior cases do not resolve the issue decided today because "only in the most exceptional cases will we consider issues not raised in the petition," see ante at 428 U. S. 481 n. 15, that claim is only valid to the extent the issue is one of construing congressional intent as to when, with respect to cases properly within the district court's power to grant relief, habeas relief should nevertheless be denied as a matter of discretion. But, to the extent a person against whom unconstitutionally seized evidence was admitted at trial after a full and fair hearing is not "in custody in violation of the Constitution," there would be no jurisdiction even to entertain a habeas petition, see 428 U.S. 465 fn2/2|>n. 2, supra, and such subject matter jurisdiction questions are always open -- and must be resolved -- at any stage of federal litigation. See, e.g., Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908); Fed.Rule Civ.Proc. 12(h). It borders on the incredible to suggest that so many Justices for so long merely "assumed" the answer to such a basic jurisdictional question. [ Footnote 2/7 ] See also 414 U.S. at 414 U. S. 351 , noting "inadmissibility of the illegally seized evidence in a subsequent criminal prosecution of the search victim." [ Footnote 2/8 ] Only once does the Court advert to any temporal distinction between direct review and collateral review as a possible reason for precluding the raising of Fourth Amendment claims during the former, and not during the latter, proceedings. See ante at 428 U. S. 493 (arguing that deterrence would not be "enhanced" by the risk "that a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant"). Of course, it is difficult to see how the Court could constitutionalize any such asserted temporal distinctions, particularly in light of the differential speed with which criminal cases proceed even on direct appeal. [ Footnote 2/9 ] It is unnecessary here to expand upon my reasons for disagreement, which are stated fully in my dissents in United States v. Calandra, 414 U.S. at 414 U. S. 355 -367, and United States v. Peltier, 422 U. S. 531 , 422 U. S. 550 -562 (1975). [ Footnote 2/10 ] The failure to confront this fact forthrightly is obviously a core defect in the Court's analysis. For to the extent Congress has accorded the federal district courts a role in our constitutional scheme functionally equivalent to that of the Supreme Court with respect to review of state court resolutions of federal constitutional claims, it is evident that the Court's direct/collateral review distinction for constitutional purposes simply collapses. Indeed, logically extended, the Court's analysis, which basically turns on the fact that law enforcement officials cannot anticipate a second court's finding constitutional errors after one court has fully and fairly adjudicated the claim and found it to be meritless, would preclude any Supreme Court review on direct appeal, or even state appellate review if the trial court fairly addressed the Fourth Amendment claim on the merits. The proposition is certainly frivolous if Mapp is constitutionally grounded; yet such is the essential thrust of the Court's view that the unconstitutional admission of evidence is tolerable merely because police official.s cannot be deterred from unconstitutional conduct by the possibility that a favorable "admission" decision would be followed by an unfavorable "exclusion" decision. The Court's arguments respecting the cost/benefit analysis of applying the exclusionary rule on collateral attack also have no merit. For all of the "costs" of applying the exclusionary rule on habeas should already have been incurred at the trial or on direct review if the state court had not misapplied federal constitutional principles. As such, these "costs" were evaluated and deemed to be outweighed when the exclusionary rule was fashioned. The only proper question on habeas is whether federal courts, acting under congressional directive to have the last say as to enforcement of federal constitutional principles, are to permit the States free enjoyment of the fruits of a conviction which by definition were only obtained through violations of the Constitution as interpreted in Mapp. And as to the question whether any "educative" function is served by such habeas review, see ante at 428 U. S. 493 , today's decision will certainly provide a lesson that, tragically for an individual's constitutional rights, will not be lost on state courts. See infra at 428 U. S. 530 -533. Another line of analysis exposes the fallacy of treating today's holding as a constitutional decision. Constitutionally, no barrier precludes a state defendant from immediately seeking a federal court's injunction against any state use of unconstitutionally seized evidence against him at trial. However, equitable principles have operated to foreclose cutting short the normal initial adjudication of such constitutional defenses in the course of a criminal prosecution, Dombrowski v. Pfister, 380 U. S. 479 , 380 U. S. 485 n. 3 (1965), subject to ultimate federal review either on direct review or collaterally through habeas. See also, e.g., Younger v. Harris, 401 U. S. 37 (1971). Moreover, considerations of comity, now statutorily codified as the exhaustion requirement of § 2254, and not lack of power, dictate that federal habeas review be delayed pending the initial state court determination. But delay only was the price, "else a rule of timing would become a rule circumscribing the power of the federal courts on habeas, in defiance of unmistakable congressional intent." Fay v. Noia, 372 U. S. 391 , 372 U. S. 420 (1963); see id. at 372 U. S. 417 -426. The Court today, however, converts this doctrine dictating the timing of federal review into a doctrine precluding federal review, see Francis v. Henderson, 425 U. S. 536 , 425 U. S. 542 (1976) (BRENNAN, J., dissenting); such action is in keeping with the regrettable recent trend of barring the federal courthouse door to individuals with meritorious claims. See, e.g., Warth v. Seldin, 422 U. S. 490 (1975); Rizzo v. Goode, 423 U. S. 362 (1976); Simon v. Eastern Kentucky Welfare Rights Org., 426 U. S. 26 (1976). Although the federal courts could have been the forum for the initial "opportunity for a full and fair hearing" of Fourth Amendment claims of state prisoners that the Court finds constitutionally sufficient, nonconstitutional concerns dictated temporary abstention; but having so abstained, federal courts are now ousted by this Court from ever determining the claims, since the courts to which they initially deferred are all that this Court deems necessary for protecting rights essential to preservation of the Fourth Amendment. Such hostility to federal jurisdiction to redress violations of rights secured by the Federal Constitution, despite congressional conferral of that jurisdiction, is profoundly disturbing. [ Footnote 2/11 ] In arguing in the Court's "deterrence" idiom, I emphasize that I am accepting the Court's assumptions concerning the purposes of the exclusionary rule only to demonstrate that, on its own premises, today's decision is unsupportable. [ Footnote 2/12 ] For proof that my fears concerning the precedential use to which today's opinion will be put are not groundless, see, e.g., Francis v. Henderson, 425 U. S. 536 (1976), and Estelle v. Williams, 425 U. S. 501 (1976), which illustrate the Court's willingness to construe the habeas statutes so as to cabin the scope of habeas relief for criminal defendants. [ Footnote 2/13 ] Others might be claims of official surveillance of attorney-client communications, government acquisition of evidence through unconscionable means, see, e.g., Rochin v. California, 342 U. S. 165 (1952), denial of the right to a speedy trial, government administration of a "truth serum," see Townsend v. Sain, 372 U. S. 293 (1963), denial of the right to jury trial, see Ludwig v. Massachusetts, 427 U. S. 618 , 427 U. S. 627 n. 3 (1976), or the obtaining of convictions under statutes that contravene First Amendment rights when a properly drawn statute could have been applied to the particular defendant's conduct. [ Footnote 2/14 ] The overruling of Lefkowitz v. Newsome, decided only last Term, is particularly ironic. That case held that a state defendant could file a federal habeas corpus petition asserting Fourth Amendment claims, despite a subsequent guilty plea, when the State provided for appellate review of those claims. Three Justices dissented, and would have held, as a statutory matter, that Fourth Amendment claims are not cognizable on federal habeas, but none suggested the "constitutional" thesis embraced by the Court as the ostensible ratio decidendi for today's cases. Although the Court does not expressly overrule Kaufman v. United States, 394 U. S. 217 (1969), and its progeny involving collateral review of Fourth Amendment claims of federal prisoners (indeed, the Court accomplishes today's results without expressly overruling or distinguishing any of our diametrically contrary precedents), Kaufman obviously does not survive. This tactic has become familiar in earlier decisions this Term. See, e.g., Hudgens v. NLRB, 424 U. S. 507 (1976); Francis v. Henderson, 425 U. S. 536 (1976); Greer v. Spock, 424 U. S. 828 (1976). [ Footnote 2/15 ] My Brother WHITE's hypothesis of two confederates in crime, see post at 428 U. S. 536 -537, fully demonstrates the type of discrimination that Congress clearly sought to avoid if, out of the full universe of constitutional rights, certain rights could be vindicated only by resort to this Court's certiorari jurisdiction. [ Footnote 2/16 ] The Court also notes that "attention . . . [is] diverted" when trial courts address exclusionary rule issues, ante at 428 U. S. 490 , and with the result that application of the rule "often frees the guilty." Ibid. Of course, these "arguments" are true with respect to every constitutional guarantee governing administration of the criminal justice system. [ Footnote 2/17 ] "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well meaning but without understanding." Olmstead v. United States, 277 U. S. 438 , 277 U. S. 479 (1928) (Brandeis, J., dissenting). See also id. at 277 U. S. 483 , 277 U. S. 485 . "We are duly mindful of the reliance that society must place for achieving law and order upon the enforcing agencies of the criminal law. But insistence on observance by law officers of traditional fair procedural requirements is, from the long point of view, best calculated to contribute to that end. However much in a particular case insistence upon such rules may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves that tolerance of short-cut methods in law enforcement impairs its enduring effectiveness." Miller v. United States, 357 U. S. 301 , 357 U. S. 313 (1958). See also Boyd v. United States, 116 U. S. 616 , 116 U. S. 635 (1886); Weeks v. United States, 232 U. S. 383 , 232 U. S. 392 -394 (1914) The Court asserts that "the hyperbole of the dissenting opinion is misdirected," ante at 428 U. S. 495 n. 37, but I take seriously this Court's continuing incursions on constitutionally guaranteed rights. "[I]llegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. . . . It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." Boyd v. United States, supra at 116 U. S. 635 . [ Footnote 2/18 ] These considerations were powerfully articulated in Brown v. Allen, 344 U. S. 443 , 344 U. S. 491 -494 (1953) (opinion of Frankfurter, J.). Cf. also Fay v. Noia, 372 U.S. at 372 U. S. 432 -433; England v. Louisiana State Board of Medical Examiners, 375 U. S. 411 , 375 U. S. 415 -417 (1964). [ Footnote 2/19 ] See Brown v. Allen, 344 U.S. at 344 U. S. 497 -499 (opinion of Frankfurter, J.). "The meritorious claims are few, but our procedures must ensure that those few claims are not stifled by undiscriminating generalities." Id. at 344 U. S. 498 . [ Footnote 2/20 ] The Nebraska Supreme Court fell into patent error in citing Whiteley for the proposition that "the affidavit may be supplemented by testimony of additional evidence known to the police." State v. Rice, 188 Neb. 728, 739, 199 N.W.2d 480 , 488 (1972). MR. JUSTICE WHITE, dissenting. For many of the reasons stated by MR. JUSTICE BRENNAN, I cannot agree that the writ of habeas corpus should be any less available to those convicted of state crimes where they allege Fourth Amendment violations than where other constitutional issues are presented to the federal court. Under the amendments to the habeas corpus statute, which were adopted after Fay v. Noia, 372 U. S. 391 (1963), and represented an effort by Congress to lend a modicum of finality to state criminal judgments, I cannot distinguish between Fourth Amendment and other constitutional issues. Suppose, for example, that two confederates in crime, Smith and Jones, are tried separately for a state crime and convicted on the very same evidence, including evidence seized incident to their arrest allegedly made without probable cause. Their constitutional claims are fully aired, rejected, and preserved on appeal. Their convictions are affirmed by the State's highest court. Smith, the first to be tried, does not petition for certiorari, or does so, but his petition is denied. Jones, whose conviction was considerably later, is more successful. His petition for certiorari is granted and his conviction reversed because this Court, without making any new rule of law, simply concludes that, on the undisputed facts, the arrests were made without probable cause and the challenged evidence was therefore seized in violation of the Fourth Amendment. The State must either retry Jones or release him, necessarily because he is deemed in custody in violation of the Constitution. It turns out that, without the evidence illegally seized, the State has no case; Page 428 U. S. 537 and Jones goes free. Smith then files his petition for habeas corpus. He makes no claim that he did not have a full and fair hearing in the state courts, but asserts that his Fourth Amendment claim had been erroneously decided, and that he is being held in violation of the Federal Constitution. He cites this Court's decision in Jones' case to satisfy any burden placed on him by § 2254 to demonstrate that the state court was in error. Unless the Court's reservation, in its present opinion, of those situations where the defendant has not had a full and fair hearing in the state courts is intended to encompass all those circumstances under which a state criminal judgment may be reexamined under § 2254 -- in which event the opinion is essentially meaningless and the judgment erroneous -- Smith's petition would be dismissed, and he would spend his life in prison while his colleague is a free man. I cannot believe that Congress intended this result. Under the present habeas corpus statute, neither Rice's nor Powell's application for habeas corpus should be dismissed on the grounds now stated by the Court. I would affirm the judgments of the Courts of Appeals as being acceptable applications of the exclusionary rule applicable in state criminal trials by virtue of Mapp v. Ohio, 367 U. S. 643 (1961). I feel constrained to say, however, that I would join four or more other Justices in substantially limiting the reach of the exclusionary rule as presently administered under the Fourth Amendment in federal and state criminal trials. Whether I would have joined the Court's opinion in Mapp v. Ohio, supra, had I then been a Member of the Court, I do not know. But, as time went on after coming to this bench, I became convinced that both Page 428 U. S. 538 Weeks v. United States, 232 U. S. 383 (1914), and Mapp v. Ohio had overshot their mark insofar as they aimed to deter lawless action by law enforcement personnel, and that, in many of its applications, the exclusionary rule was not advancing that aim in the slightest, and that, in this respect, it was a senseless obstacle to arriving at the truth in many criminal trials. The rule has been much criticized, and suggestions have been made that it should be wholly abolished, but I would overrule neither Weeks v. United States nor Mapp v. Ohio. I am nevertheless of the view that the rule should be substantially modified so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good faith belief that his conduct comported with existing law and having reasonable grounds for this belief. These are recurring situations, and, recurringly, evidence is excluded without any realistic expectation that its exclusion will contribute in the slightest to the purposes of the rule, even though the trial will be seriously affected or the indictment dismissed. An officer sworn to uphold the law and to apprehend those who break it inevitably must make judgments regarding probable cause to arrest: is there reasonable ground to believe that a crime has been committed and that a particular suspect has committed it? Sometimes, the historical facts are disputed, or are otherwise in doubt. In other situations, the facts may be clear, so far as they are known, yet the question of probable cause remains. In still others, there are special worries about the reliability of second-hand information such as that coming from informants. In any of these situations, which occur repeatedly, when the officer is convinced that he has probable cause to arrest he will very Page 428 U. S. 539 likely make the arrest. Except in emergencies, it is probable that his colleagues or superiors will participate in the decision, and it may be that the officer will secure a warrant, although warrantless arrests on probable cause are not forbidden by the Constitution or by state law. Making the arrest in such circumstances is precisely what the community expects the police officer to do. Neither officers nor judges issuing arrest warrants need delay apprehension of the suspect until unquestioned proof against him has accumulated. The officer may be shirking his duty if he does so. In most of these situations, it is hoped that the officer's judgment will be correct; but experience tells us that there will be those occasions where the trial or appellate court will disagree on the issue of probable cause, no matter how reasonable the grounds for arrest appeared to the officer and though reasonable men could easily differ on the question. It also happens that, after the events at issue have occurred, the law may change, dramatically or ever so slightly, but, in any event, sufficiently to require the trial judge to hold that there was not probable cause to make the arrest and to seize the evidence offered by the prosecution. It may also be, as in the Powell case now before us, that there is probable cause to make an arrest under a particular criminal statute, but, when evidence seized incident to the arrest is offered in support of still another criminal charge, the statute under which the arrest and seizure were made is declared unconstitutional, and the evidence ruled inadmissible under the exclusionary rule as presently administered. In these situations, and perhaps many others, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that, in each of them, the officer is acting as a Page 428 U. S. 540 reasonable officer would, and should act in similar circumstances. Excluding the evidence can in no way affect his future conduct unless it is to make him less willing to do his duty. It is true that, in such cases, the courts have ultimately determined that, in their view, the officer was mistaken; but it is also true that, in making constitutional judgments under the general language used in some parts of our Constitution, including the Fourth Amendment, there is much room for disagreement among judges, each of whom is convinced that both he and his colleagues are reasonable men. Surely when this Court divides five to four on issues of probable cause, it is not tenable to conclude that the officer was at fault or acted unreasonably in making the arrest. When law enforcement personnel have acted mistakenly, but in good faith and on reasonable grounds, and yet the evidence they have seized is later excluded, the exclusion can have no deterrent effect. The officers, if they do their duty, will act in similar fashion in similar circumstances in the future; and the only consequence of the rule as presently administered is that unimpeachable and probative evidence is kept from the trier of fact, and the truthfinding function of proceedings is substantially impaired, or a trial totally aborted. Admitting the evidence in such circumstances does not render judges participants in Fourth Amendment violations. The violation, if there was one, has already occurred, and the evidence is at hand. Furthermore, there has been only mistaken, but unintentional and faultless, conduct by enforcement officers. Exclusion of the evidence does not cure the invasion of the defendant's rights, which he has already suffered. Where an arrest has been made on probable cause, but the defendant is acquitted, under federal law, the defendant has no right to damages simply because his innocence has been Page 428 U. S. 541 proved. "A policeman's lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause, and being mulcted in damages if he does." Pierson v. Ray, 386 U. S. 547 , 386 U. S. 555 (1967). The officer is also excused from liability for "acting under a statute that he reasonably believed to be valid, but that was later held unconstitutional, on its face or as applied." Ibid. There is little doubt that, as far as civil liability is concerned, the rule is the same under federal law where the officer mistakenly but reasonably believes he has probable cause for an arrest. In Scheuer v. Rhodes, 416 U. S. 232 (1974), the Court announced generally that officers of the executive branch of the government should be immune from liability where their action is reasonable "in light of all the circumstances, coupled with good faith belief." Id. at 416 U. S. 247 -248. The Court went on to say: "Public officials, whether governors, mayors or police, legislators or judges, who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity -- absolute or qualified -- for their acts is a recognition that they may err. The concept of immunity assumes this, and goes on to assume that it is better to risk some error and possible injury from such error than not to decide or act at all." Id. at 416 U. S. 241 -242 (footnote omitted). The Court has proceeded on this same basis in other contexts. O'Connor v. Donaldson, 422 U. S. 563 (1975); Wood v. Strickland, 420 U. S. 308 (1975). If the defendant in criminal cases may not recover for a mistaken but good faith invasion of his privacy, it Page 428 U. S. 542 makes even less sense to exclude the evidence solely on his behalf. He is not at all recompensed for the invasion by merely getting his property back. It is often contraband and stolen property to which he is not entitled in any event. He has been charged with crime, and is seeking to have probative evidence against him excluded, although often it is the instrumentality of the crime. There is very little equity in the defendant's side in these circumstances. The exclusionary rule, a judicial construct, seriously shortchanges the public interest as presently applied. I would modify it accordingly.

Here is a summary of the verdict in the case of Stone v. Powell (1976): In these two cases, the Supreme Court ruled that a state prisoner cannot be granted federal habeas corpus relief on the grounds that evidence obtained through an unconstitutional search and seizure was used at their trial, as long as the state provided a full and fair opportunity to litigate their Fourth Amendment claim. The Court weighed the minimal contribution of the exclusionary rule in this context against the substantial societal costs of applying it, ultimately favoring the latter. This decision highlights the Court's view of the exclusionary rule as a "judicial construct" that, in some cases, can "shortchange the public interest."

Miranda Rights

Missouri v. Seibert

https://supreme.justia.com/cases/federal/us/542/600/

OPINION OF SOUTER, J. MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE SEIBERT on writ of certiorari to the supreme court of missouri [June 28, 2004]    Justice Souter announced the judgment of the Court and delivered an opinion, in which Justice Stevens, Justice Ginsburg, and Justice Breyer join.    This case tests a police protocol for custodial interrogation that calls for giving no warnings of the rights to silence and counsel until interrogation has produced a confession. Although such a statement is generally inadmissible, since taken in violation of Miranda v. Arizona , 384 U.S. 436 (1966), the interrogating officer follows it with Miranda warnings and then leads the suspect to cover the same ground a second time. The question here is the admissibility of the repeated statement. Because this midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda ’s constitutional requirement, we hold that a statement repeated after a warning in such circumstances is inadmissible. I    Respondent Patrice Seibert’s 12-year-old son Jonathan had cerebral palsy, and when he died in his sleep she feared charges of neglect because of bedsores on his body. In her presence, two of her teenage sons and two of their friends devised a plan to conceal the facts surrounding Jonathan’s death by incinerating his body in the course of burning the family’s mobile home, in which they planned to leave Donald Rector, a mentally ill teenager living with the family, to avoid any appearance that Jonathan had been unattended. Seibert’s son Darian and a friend set the fire, and Donald died.    Five days later, the police awakened Seibert at 3 a.m. at a hospital where Darian was being treated for burns. In arresting her, Officer Kevin Clinton followed instructions from Rolla, Missouri, officer Richard Hanrahan that he refrain from giving Miranda warnings. After Seibert had been taken to the police station and left alone in an interview room for 15 to 20 minutes, Hanrahan questioned her without Miranda warnings for 30 to 40 minutes, squeezing her arm and repeating “Donald was also to die in his sleep.” App. 59 (internal quotation marks omitted). After Seibert finally admitted she knew Donald was meant to die in the fire, she was given a 20-minute coffee and cigarette break. Officer Hanrahan then turned on a tape recorder, gave Seibert the Miranda warnings, and obtained a signed waiver of rights from her. He resumed the questioning with “Ok, ’trice, we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?,” App. 66, and confronted her with her prewarning statements:    Hanrahan: “Now, in discussion you told us, you told us    that there was a[n] understanding about Donald.”    Seibert: “Yes.”    Hanrahan: “Did that take place earlier that morning?”    Seibert: “Yes.”    Hanrahan: “And what was the understanding about    Donald?”    Seibert: “If they could get him out of the trailer, to take    him out of the trailer.”    Hanrahan: “And if they couldn’t?”    Seibert: “I, I never even thought about it. I just figured    they would.”    Hanrahan: “ ’Trice, didn’t you tell me that he was    supposed to die in his sleep?”    Seibert: “If that would happen, ’cause he was on that    new medicine, you know … .”    Hanrahan: “The Prozac? And it makes him sleepy. So    he was supposed to die in his sleep?”    Seibert: “Yes.” Id. , at 70.    After being charged with first-degree murder for her role in Donald’s death, Seibert sought to exclude both her prewarning and postwarning statements. At the suppression hearing, Officer Hanrahan testified that he made a “conscious decision” to withhold Miranda warnings, thus resorting to an interrogation technique he had been taught: question first, then give the warnings, and then repeat the question “until I get the answer that she’s already provided once.” App. 31–34. He acknowledged that Seibert’s ultimate statement was “largely a repeat of information … obtained” prior to the warning. Id. , at 30.    The trial court suppressed the prewarning statement but admitted the responses given after the Miranda recitation. A jury convicted Seibert of second-degree murder. On appeal, the Missouri Court of Appeals affirmed, treating this case as indistinguishable from Oregon v. Elstad , 470 U. S. 298 (1985). No. 23729, 2002 WL 114804 (Jan. 30, 2002) (not released for publication).    The Supreme Court of Missouri reversed, holding that “[i]n the circumstances here, where the interrogation was nearly continuous, … the second statement, clearly the product of the invalid first statement, should have been suppressed.” 93 S. W. 3d 700, 701 (2002). The court distinguished Elstad on the ground that warnings had not intentionally been withheld there, 93 S. W. 3d, at 704, and reasoned that “Officer Hanrahan’s intentional omission of a Miranda warning was intended to deprive Seibert of the opportunity knowingly and intelligently to waive her Miranda rights,” id. , at 706. Since there were “no circumstances that would seem to dispel the effect of the Miranda violation,” the court held that the postwarning confession was involuntary and therefore inadmissible. Ibid . To allow the police to achieve an “end run” around Miranda , the court explained, would encourage Miranda violations and diminish Miranda ’s role in protecting the privilege against self-incrimination. 93 S. W. 3d, at 706–707. One judge dissented, taking the view that Elstad applied even though the police intentionally withheld Miranda warnings before the initial statement, and believing that “Seibert’s unwarned responses to Officer Hanrahan’s questioning did not prevent her from waiving her rights and confessing.” 93 S. W. 3d, at 708 (opinion of Benton, J.).    We granted certiorari, 538 U. S. 1031 (2003), to resolve a split in the Courts of Appeals. Compare United States v. Gale , 952 F. 2d 1412, 1418 (CADC 1992) (while “deliberate ‘end run’ around Miranda ” would provide cause for suppression, case involved no conduct of that order); United States v. Carter , 884 F. 2d 368, 373 (CA8 1989) (“ Elstad did not go so far as to fashion a rule permitting this sort of end run around Miranda ”), with United States v. Orso , 266 F. 3d 1030, 1034–1039 (CA9 2001) (en banc) (rejecting argument that “tainted fruit” analysis applies because deliberate withholding of Miranda warnings constitutes an “improper tactic”); United States v. Esquilin , 208 F. 3d 315, 319–321 (CA1 2000) (similar). We now affirm. II    “In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment … commanding that no person ‘shall be compelled in any criminal case to be a witness against himself.’ ” Bram v. United States , 168 U. S. 532 , 542 (1897). A parallel rule governing the admissibility of confessions in state courts emerged from the Due Process Clause of the Fourteenth Amendment, see, e.g. , Brown v. Mississippi , 297 U. S. 278 (1936), which governed state cases until we concluded in Malloy v. Hogan, 378 U. S. 1 , 8 (1964), that “[t]he Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty … for such silence.” In unifying the Fifth and Fourteenth Amendment voluntariness tests, Malloy “made clear what had already become apparent—that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege” against self-incrimination. Miranda , 384 U. S., at 464.    In Miranda , we explained that the “voluntariness doctrine in the state cases … encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice,” id. , at 464–465. We appreciated the difficulty of judicial enquiry post hoc into the circumstances of a police interrogation, Dickerson v. United States , 530 U. S. 428 , 444 (2000), and recognized that “the coercion inherent in custodial interrogation blurs the line between voluntary and involuntary statements, and thus heightens the risk” that the privilege against self-incrimination will not be observed, id ., at 435. Hence our concern that the “traditional totality-of-the-circumstances” test posed an “unacceptably great” risk that involuntary custodial confessions would escape detection. Id. , at 442. Accordingly, “to reduce the risk of a coerced confession and to implement the Self-Incrimination Clause,” Chavez v. Martinez , 538 U. S. 760 , 790 (2003) (Kennedy, J., concurring in part and dissenting in part), this Court in Miranda concluded that “the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored,” 384 U. S., at 467. Miranda conditioned the admissibility at trial of any custodial confession on warning a suspect of his rights: failure to give the prescribed warnings and obtain a waiver of rights before custodial questioning generally requires exclusion of any statements obtained.[ Footnote 1 ] Conversely, giving the warnings and getting a waiver has generally produced a virtual ticket of admissibility; maintaining that a statement is involuntary even though given after warnings and voluntary waiver of rights requires unusual stamina, and litigation over voluntariness tends to end with the finding of a valid waiver. See Berkemer v . McCarty , 468 U. S. 420 , 433, n. 20 (1984) (“[C]ases in which a defendant can make a colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement authorities adhered to the dictates of Miranda are rare”). To point out the obvious, this common consequence would not be common at all were it not that Miranda warnings are customarily given under circumstances allowing for a real choice between talking and remaining silent. III    There are those, of course, who preferred the old way of doing things, giving no warnings and litigating the voluntariness of any statement in nearly every instance. In the aftermath of Miranda , Congress even passed a statute seeking to restore that old regime, 18 U. S. C. §3501, although the Act lay dormant for years until finally invoked and challenged in Dickerson v. United States , supra . Dickerson reaffirmed Miranda and held that its constitutional character prevailed against the statute.    The technique of interrogating in successive, unwarned and warned phases raises a new challenge to Miranda . Although we have no statistics on the frequency of this practice, it is not confined to Rolla, Missouri. An officer of that police department testified that the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked. App. 31–32. Consistently with the officer’s testimony, the Police Law Institute, for example, instructs that “officers may conduct a two-stage interrogation… . At any point during the pre- Miranda interrogation, usually after arrestees have confessed, officers may then read the Miranda warnings and ask for a waiver. If the arrestees waive their Miranda rights, officers will be able to repeat any subse-quent incriminating statements later in court.” Police Law Institute, Illinois Police Law Manual 83 (Jan. 2001–Dec. 2003), http://www.illinoispolicelaw.org/training/lessons/ ILPLMIR.pdf (as visited Dec. 31, 2003, and available in the Clerk of Court’s case file) (hereinafter Police Law Manual) (emphasis in original).[ Footnote 2 ] The upshot of all this advice is a question-first practice of some popularity, as one can see from the reported cases describing its use, sometimes in obedience to departmental policy.[ Footnote 3 ] IV    When a confession so obtained is offered and challenged, attention must be paid to the conflicting objects of Miranda and question-first. Miranda addressed “interrogation practices … likely … to disable [an individual] from making a free and rational choice” about speaking, 384 U. S., at 464–465, and held that a suspect must be “adequately and effectively” advised of the choice the Constitution guarantees, id. , at 467. The object of question-first is to render Miranda warnings ineffective by waiting for a particularly opportune time to give them, after the suspect has already confessed.    Just as “no talismanic incantation [is] required to satisfy [ Miranda ’s] strictures,” California v. Prysock , 453 U. S. 355 , 359 (1981) (per curiam), it would be absurd to think that mere recitation of the litany suffices to satisfy Miranda in every conceivable circumstance. “The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda .’ ” Duckworth v. Eagan , 492 U. S. 195 , 203 (1989) (quoting Prysock , supra , at 361). The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function “effectively” as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda , or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.[ Footnote 4 ]    There is no doubt about the answer that proponents of question-first give to this question about the effectiveness of warnings given only after successful interrogation, and we think their answer is correct. By any objective measure, applied to circumstances exemplified here, it is likely that if the interrogators employ the technique of withholding warnings until after interrogation succeeds in eliciting a confession, the warnings will be ineffective in preparing the suspect for successive interrogation, close in time and similar in content. After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.[ Footnote 5 ] A more likely reaction on a suspect’s part would be perplexity about the reason for discussing rights at that point, bewilderment being an unpromising frame of mind for knowledgeable decision. What is worse, telling a suspect that “anything you say can and will be used against you,” without expressly excepting the statement just given, could lead to an entirely reasonable inference that what he has just said will be used, with subsequent silence being of no avail. Thus, when Miranda warnings are inserted in the midst of coordinated and continuing interrogation, they are likely to mislead and “depriv[e] a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine , 475 U. S. 412 , 424 (1986). By the same token, it would ordinarily be unrealistic to treat two spates of integrated and proximately conducted questioning as independent interrogations subject to independent evaluation simply because Miranda warnings formally punctuate them in the middle. V    Missouri argues that a confession repeated at the end of an interrogation sequence envisioned in a question-first strategy is admissible on the authority of Oregon v. Elstad , 470 U. S. 298 (1985), but the argument disfigures that case. In Elstad , the police went to the young suspect’s house to take him into custody on a charge of burglary. Before the arrest, one officer spoke with the suspect’s mother, while the other one joined the suspect in a “brief stop in the living room,” id., at 315, where the officer said he “felt” the young man was involved in a burglary, id. , at 301 (internal quotation marks omitted). The suspect acknowledged he had been at the scene. Ibid. This Court noted that the pause in the living room “was not to interrogate the suspect but to notify his mother of the reason for his arrest,” id. , at 315, and described the incident as having “none of the earmarks of coercion,” id. , at 316. The Court, indeed, took care to mention that the officer’s initial failure to warn was an “oversight” that “may have been the result of confusion as to whether the brief exchange qualified as ‘custodial interrogation’ or … may simply have reflected … reluctance to initiate an alarming police procedure before [an officer] had spoken with respondent’s mother.” Id. , at 315–316. At the outset of a later and systematic station house interrogation going well beyond the scope of the laconic prior admission, the suspect was given Miranda warnings and made a full confession. Elstad, supra, at 301, 314–315. In holding the second statement admissible and voluntary, Elstad rejected the “cat out of the bag” theory that any short, earlier admission, obtained in arguably innocent neglect of Miranda , determined the character of the later, warned confession, Elstad , 470 U. S., at 311–314; on the facts of that case, the Court thought any causal connection between the first and second responses to the police was “speculative and attenuated,” id. , at 313. Although the Elstad Court expressed no explicit conclusion about either officer’s state of mind, it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic questioning in that particular case, but posing no threat to warn-first practice generally. See Elstad , supra , at 309 (characterizing the officers’ omission of Miranda warnings as “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will”); 470 U. S., at 318, n. 5 (Justice Brennan’s concern in dissent that Elstad would invite question-first practice “distorts the reasoning and holding of our decision, but, worse, invites trial courts and prosecutors to do the same”).    The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first. In Elstad , it was not unreasonable to see the occasion for questioning at the station house as presenting a markedly different experience from the short conversation at home; since a reasonable person in the suspect’s shoes could have seen the station house questioning as a new and distinct experience, the Miranda warnings could have made sense as presenting a genuine choice whether to follow up on the earlier admission.    At the opposite extreme are the facts here, which by any objective measure reveal a police strategy adapted to undermine the Miranda warnings.[ Footnote 6 ] The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were finished there was little, if anything, of incriminating potential left unsaid. The warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in the same place as the unwarned segment. When the same officer who had conducted the first phase recited the Miranda warnings, he said nothing to counter the probable misimpression that the advice that anything Seibert said could be used against her also applied to the details of the inculpatory statement previously elicited. In particular, the police did not advise that her prior statement could not be used.[ Footnote 7 ] Nothing was said or done to dispel the oddity of warning about legal rights to silence and counsel right after the police had led her through a systematic interrogation, and any uncertainty on her part about a right to stop talking about matters previously discussed would only have been aggravated by the way Officer Hanrahan set the scene by saying “we’ve been talking for a little while about what happened on Wednesday the twelfth, haven’t we?” App. 66. The impression that the further questioning was a mere continuation of the earlier questions and responses was fostered by references back to the confession already given. It would have been reasonable to regard the two sessions as parts of a continuum, in which it would have been unnatural to refuse to repeat at the second stage what had been said before. These circumstances must be seen as challenging the comprehensibility and efficacy of the Miranda warnings to the point that a reasonable person in the suspect’s shoes would not have understood them to convey a message that she retained a choice about continuing to talk.[ Footnote 8 ] VI    Strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute. Because the question-first tactic effectively threatens to thwart Miranda ’s purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert’s postwarning statements are inadmissible. The judgment of the Supreme Court of Missouri is affirmed. It is so ordered . Footnote 1 “[T]he burden of showing admissibility rests, of course, on the prosecution.” Brown v. Illinois , 422 U. S. 590 , 604 (1975). The prosecution bears the burden of proving, at least by a preponderance of the evidence, the Miranda waiver, Colorado v. Connelly , 479 U. S. 157 , 169 (1986), and the voluntariness of the confession, Lego v. Twomey , 404 U. S. 477 , 489 (1972). Footnote 2 Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York , 401 U. S. 222 (1971), some training programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights. See, e.g. , Police Law Manual 83 (“There is no need to give a Miranda warning before asking questions if … the answers given … will not be required by the prosecutor during the prosecution’s case-in-chief”); California Commission on Peace Officer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post-Invocation Questioning (broadcast July 11, 1996) (“We … have been encouraging you to continue to question a suspect after they’ve invoked their Miranda rights”); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interrogation 50–51 (2d ed. 2002) (describing the practice of “[b]eachheading” as useful for impeachment purpose (emphasis deleted)); see also Weisselberg, Saving Miranda, 84 Cornell L. Rev. 109, 110, 132–139 (1998) (collecting California training materials encouraging questioning “outside Miranda ”). This training is reflected in the reported cases involving deliberate questioning after invocation of Miranda rights. See, e.g. , California Attorneys for Criminal Justice v. Butts , 195 F.3d 1039, 1042–1044 (CA9 2000); Henry v. Kernan , 197 F. 3d 1021, 1026 (CA9 1999); People v. Neal , 31 Cal. 4th 63, 68, 72 P. 3d 280, 282 (2003); People v. Peevy , 17 Cal. 4th 1184 , 1189, 953 P. 2d 1212, 1215 (1998). Scholars have noted the growing trend of such practices. See, e.g. , Leo, Questioning the Relevance of Miranda in the Twenty-First Century, 99 Mich. L. Rev. 1000, 1010 (2001); Weisselberg, In the Stationhouse After Dickerson , 99 Mich. L. Rev. 1121, 1123–1154 (2001).    It is not the case, of course, that law enforcement educators en masse are urging that Miranda be honored only in the breach. See, e.g. , C. O’Hara & G. O’Hara, Fundamentals of Criminal Investigation 133 (7th ed. 2003) (instructing police to give Miranda warnings before conducting custodial interrogation); F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 221 (3d ed. 1986) (hereinafter Inbau, Reid, & Buckley) (same); John Reid & Associates, Interviewing & Interrogation: The Reid Technique 61 (1991) (same). Most police manuals do not advocate the question-first tactic, because they understand that Oregon v. Elstad, 470 U. S. 298 (1985), involved an officer’s good-faith failure to warn. See, e.g. , Inbau, Reid, & Buckley 241 ( Elstad ’s “facts as well as [its] specific holding” instruct that “where an interrogator has failed to administer the Miranda warnings in the mistaken belief that, under the circumstances of the particular case, the warnings were not required, … corrective measures … salvage an interrogation opportunity”). Footnote 3 See, e.g. , United States v. Orso , 266 F. 3d 1030, 1032–1033 (CA9 2001) (en banc); Pope v. Zenon , 69 F.3d 1018, 1023–1024 (CA9 1995), overruled by Orso , supra; Cooper v. Dupnik , 963 F.2d 1220, 1224–1227, 1249 (CA9 1992) (en banc); United States v. Carter , 884 F. 2d 368, 373 (CA9 1989); United States v. Esquilin , 208 F. 3d 315, 317 (CA1 2000); Davis v. United States , 724 A. 2d 1163, 1165–1166 (D. C. App. 1998). Footnote 4 Respondent Seibert argues that her second confession should be excluded from evidence under the doctrine known by the metaphor of the “fruit of the poisonous tree,” developed in the Fourth Amendment context in Wong Sun v. United States , 371 U. S. 471 (1963): evidence otherwise admissible but discovered as a result of an earlier violation is excluded as tainted, lest the law encourage future violations. But the Court in Elstad rejected the Wong Sun fruits doctrine for analyzing the admissibility of a subsequent warned confession following “an initial failure . . . to administer the warnings required by Miranda .” Elstad , 470 U. S., at 300. In Elstad , “a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will” did not “so tain[t] the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. , at 309. Elstad held that “a suspect who has once responded to unwarned yet uncoercive questioning is not thereby disabled from waiving his rights and confessing after he has been given the requisite Miranda warnings.” Id. , at 318. In a sequential confession case, clarity is served if the later confession is approached by asking whether in the circumstances the Miranda warnings given could reasonably be found effective. If yes, a court can take up the standard issues of voluntary waiver and voluntary statement; if no, the subsequent statement is inadmissible for want of adequate Miranda warnings, because the earlier and later statements are realistically seen as parts of a single, unwarned sequence of questioning. Footnote 5 It bears emphasizing that the effectiveness Miranda assumes the warnings can have must potentially extend through the repeated interrogation, since a suspect has a right to stop at any time. It seems highly unlikely that a suspect could retain any such understanding when the interrogator leads him a second time through a line of questioning the suspect has already answered fully. The point is not that a later unknowing or involuntary confession cancels out an earlier, adequate warning; the point is that the warning is unlikely to be effective in the question-first sequence we have described. Footnote 6 Because the intent of the officer will rarely be as candidly admitted as it was here (even as it is likely to determine the conduct of the interrogation), the focus is on facts apart from intent that show the question-first tactic at work. Footnote 7 We do not hold that a formal addendum warning that a previous statement could not be used would be sufficient to change the character of the question-first procedure to the point of rendering an ensuing statement admissible, but its absence is clearly a factor that blunts the efficacy of the warnings and points to a continuing, not a new, interrogation. Footnote 8 Because we find that the warnings were inadequate, there is no need to assess the actual voluntariness of the statement. BREYER, J., CONCURRING MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE SEIBERT on writ of certiorari to the supreme court of missouri [June 28, 2004]    Justice Breyer, concurring.    In my view, the following simple rule should apply to the two-stage interrogation technique: Courts should exclude the “fruits” of the initial unwarned questioning unless the failure to warn was in good faith. Cf. Oregon v. Elstad , 470 U. S. 298 , 309, 318, n. 5 (1985); United States v. Leon , 468 U. S. 897 (1984). I believe this is a sound and workable approach to the problem this case presents. Prosecutors and judges have long understood how to apply the “fruits” approach, which they use in other areas of law. See Wong Sun v. United States , 371 U. S. 471 (1963). And in the workaday world of criminal law enforcement the administrative simplicity of the familiar has significant advantages over a more complex exclusionary rule. Cf. post , at 6–7 (O’Connor, J., dissenting).    I believe the plurality’s approach in practice will function as a “fruits” test. The truly “effective” Miranda warnings on which the plurality insists, ante , at 13–14, will occur only when certain circumstances—a lapse in time, a change in location or interrogating officer, or a shift in the focus of the questioning—intervene between the unwarned questioning and any postwarning statement. Cf. Taylor v. Alabama , 457 U. S. 687 , 690 (1982) (evidence obtained subsequent to a constitutional violation must be suppressed as “fruit of the poisonous tree” unless “intervening events break the causal connection”).    I consequently join the plurality’s opinion in full. I also agree with Justice Kennedy’ s opinion insofar as it is consistent with this approach and makes clear that a good-faith exception applies. See post , at 5 (opinion concurring in judgment). KENNEDY, J., CONCURRING IN JUDGMENT MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE SEIBERT on writ of certiorari to the supreme court of missouri [June 28, 2004]    Justice Kennedy, concurring in the judgment.    The interrogation technique used in this case is designed to circumvent Miranda v. Arizona , 384 U. S. 436 (1966). It undermines the Miranda warning and obscures its meaning. The plurality opinion is correct to conclude that statements obtained through the use of this technique are inadmissible. Although I agree with much in the careful and convincing opinion for the plurality, my approach does differ in some respects, requiring this separate statement.    The Miranda rule has become an important and accepted element of the criminal justice system. See Dickerson v. United States, 530 U. S. 428 (2000). At the same time, not every violation of the rule requires suppression of the evidence obtained. Evidence is admissible when the central concerns of Miranda are not likely to be implicated and when other objectives of the criminal justice system are best served by its introduction. Thus, we have held that statements obtained in violation of the rule can be used for impeachment, so that the truth finding function of the trial is not distorted by the defense, see Harris v. New York, 401 U. S. 222 (1971); that there is an exception to protect countervailing concerns of public safety, see New York v. Quarles, 467 U. S. 649 (1984); and that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane , post, p. ____. These cases, in my view, are correct. They recognize that admission of evidence is proper when it would further important objectives without compromising Miranda ’s central concerns. Under these precedents, the scope of the Miranda suppression remedy depends on a consideration of those legitimate interests and on whether admission of the evidence under the circumstances would frustrate Miranda ’s central concerns and objectives. Oregon v. Elstad , 470 U. S. 298 (1985), reflects this approach. In Elstad , a suspect made an initial incriminating statement at his home. The suspect had not received a Miranda warning before making the statement, apparently because it was not clear whether the suspect was in custody at the time. The suspect was taken to the station house, where he received a proper warning, waived his Miranda rights, and made a second statement. He later argued that the postwarning statement should be suppressed because it was related to the unwarned first statement, and likely induced or caused by it. The Court held that, although a Miranda violation made the first statement inadmissible, the postwarning statements could be introduced against the accused because “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression” given the facts of that case. Elstad , supra , at 308 (citing Michigan v. Tucker, 417 U. S. 433 , 445 (1974)).    In my view, Elstad was correct in its reasoning and its result. Elstad reflects a balanced and pragmatic approach to enforcement of the Miranda warning. An officer may not realize that a suspect is in custody and warnings are required. The officer may not plan to question the suspect or may be waiting for a more appropriate time. Skilled investigators often interview suspects multiple times, and good police work may involve referring to prior statements to test their veracity or to refresh recollection. In light of these realities it would be extravagant to treat the presence of one statement that cannot be admitted under Miranda as sufficient reason to prohibit subsequent statements preceded by a proper warning. See Elstad , 470 U. S., at 309 (“It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings … so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period”). That approach would serve “neither the general goal of deterring improper police conduct nor the Fifth Amendment goal of assuring trustworthy evidence would be served by suppression of the … testimony.” Id., at 308.    This case presents different considerations. The police used a two-step questioning technique based on a deliberate violation of Miranda . The Miranda warning was withheld to obscure both the practical and legal significance of the admonition when finally given. As Justice Souter points out, the two-step technique permits the accused to conclude that the right not to respond did not exist when the earlier incriminating statements were made. The strategy is based on the assumption that Miranda warnings will tend to mean less when recited midinterrogation, after inculpatory statements have already been obtained. This tactic relies on an intentional misrepresentation of the protection that Miranda offers and does not serve any legitimate objectives that might otherwise justify its use.    Further, the interrogating officer here relied on the defendant’s prewarning statement to obtain the postwarning statement used against her at trial. The postwarning interview resembled a cross-examination. The officer confronted the defendant with her inadmissible prewarning statements and pushed her to acknowledge them. See App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”). This shows the temptations for abuse inherent in the two-step technique. Reference to the prewarning statement was an implicit suggestion that the mere repetition of the earlier statement was not independently incriminating. The implicit suggestion was false.    The technique used in this case distorts the meaning of Miranda and furthers no legitimate countervailing interest. The Miranda rule would be frustrated were we to allow police to undermine its meaning and effect. The technique simply creates too high a risk that postwarning statements will be obtained when a suspect was deprived of “knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran v. Burbine , 475 U. S. 412 , 423–424 (1986). When an interrogator uses this deliberate, two-step strategy, predicated upon violating Miranda during an extended interview, postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.    The plurality concludes that whenever a two-stage interview occurs, admissibility of the postwarning statement should depend on “whether the Miranda warnings delivered midstream could have been effective enough to accomplish their object” given the specific facts of the case. Ante , at 13. This test envisions an objective inquiry from the perspective of the suspect, and applies in the case of both intentional and unintentional two-stage interrogations. Ante , at 13–15. In my view, this test cuts too broadly. Miranda’ s clarity is one of its strengths, and a multifactor test that applies to every two-stage interrogation may serve to undermine that clarity. Cf. Berkemer v. McCarty , 468 U. S. 420 , 430 (1984). I would apply a narrower test applicable only in the infrequent case, such as we have here, in which the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.    The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn. Cf. Westover v. United States , decided with Miranda v. Arizona , 384 U. S. 436 (1966). Alternatively, an additional warning that explains the likely inadmissibility of the prewarning custodial statement may be sufficient. No curative steps were taken in this case, however, so the postwarning statements are inadmissible and the conviction cannot stand.    For these reasons, I concur in the judgment of the Court. O'CONNOR, J., DISSENTING MISSOURI V. SEIBERT 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1371 MISSOURI, PETITIONER v. PATRICE SEIBERT on writ of certiorari to the supreme court of missouri [June 28, 2004]    Justice O’Connor, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.    The plurality devours Oregon v. Elstad, 470 U. S. 298 (1985), even as it accuses petitioner’s argument of “disfigur[ing]” that decision. Ante , at 12. I believe that we are bound by Elstad to reach a different result, and I would vacate the judgment of the Supreme Court of Missouri. I    On two preliminary questions I am in full agreement with the plurality. First, the plurality appropriately follows Elstad in concluding that Seibert’s statement cannot be held inadmissible under a “fruit of the poisonous tree” theory. Ante , at 10, n. 4. Second, the plurality correctly declines to focus its analysis on the subjective intent of the interrogating officer. A    This Court has made clear that there simply is no place for a robust deterrence doctrine with regard to violations of Miranda v. Arizona, 384 U. S. 436 (1966). See Dickerson v. United States, 530 U. S. 428 , 441 (2000) (“Our decision in [Elstad] —refusing to apply the traditional ‘fruits’ doctrine developed in Fourth Amendment cases—… simply recognizes the fact that unreasonable searches under the Fourth Amendment are different from unwarned interrogation under the Fifth Amendment”); Elstad , supra, at 306 (unlike the Fourth Amendment exclusionary rule, the “ Miranda exclusionary rule … serves the Fifth Amendment and sweeps more broadly than the Fifth Amendment itself”); see also United States v. Patane , post, at ___ (slip op., at 1) (Kennedy, J., concurring in judgment) (refusal to suppress evidence obtained following an unwarned confession in Elstad , New York v. Quarles, 467 U. S. 649 (1984), and Harris v. New York, 401 U. S. 222 (1971), was based on “our recognition that the concerns underlying the Miranda … rule and other objectives of the criminal justice system must be accommodated”). Consistent with that view, the Court today refuses to apply the traditional “fruits” analysis to the physical fruit of a claimed Miranda violation. Patane , post, p. ___. The plurality correctly refuses to apply a similar analysis to testimonial fruits.    Although the analysis the plurality ultimately espouses examines the same facts and circumstances that a “fruits” analysis would consider (such as the lapse of time between the two interrogations and change of questioner or location), it does so for entirely different reasons. The fruits analysis would examine those factors because they are relevant to the balance of deterrence value versus the “drastic and socially costly course” of excluding reliable evidence. Nix v. Williams, 467 U. S. 431 , 442–443 (1984). The plurality, by contrast, looks to those factors to inform the psychological judgment regarding whether the suspect has been informed effectively of her right to remain silent. The analytical underpinnings of the two approaches are thus entirely distinct, and they should not be conflated just because they function similarly in practice. Cf. ante, at 1–2 (concurring opinion). B    The plurality’s rejection of an intent-based test is also, in my view, correct. Freedom from compulsion lies at the heart of the Fifth Amendment, and requires us to assess whether a suspect’s decision to speak truly was voluntary. Because voluntariness is a matter of the suspect’s state of mind, we focus our analysis on the way in which suspects experience interrogation. See generally Miranda , 384 U. S., at 455 (summarizing psychological tactics used by police that “undermin[e]” the suspect’s “will to resist,” and noting that “the very fact of custodial interrogation … trades on the weakness of individuals”); id., at 467 (“[I]n-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely”).    Thoughts kept inside a police officer’s head cannot affect that experience. See Moran v. Burbine, 475 U. S. 412 , 422 (1986) (“Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right”). In Moran , an attorney hired by the suspect’s sister had been trying to contact the suspect and was told by the police, falsely, that they would not begin an interrogation that night. Id., at 416–418. The suspect was not aware that an attorney had been hired for him. Id., at 417. We rejected an analysis under which a different result would obtain for “the same defendant, armed with the same information and confronted with precisely the same police conduct” if something not known to the defendant—such as the fact that an attorney was attempting to contact him—had been different. Id., at 422. The same principle applies here. A suspect who experienced the exact same interrogation as Seibert, save for a difference in the undivulged, subjective intent of the interrogating officer when he failed to give Miranda warnings, would not experience the interrogation any differently. “[W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident.” 475 U. S., at 423. Cf. Stansbury v. California, 511 U. S. 318 , 324–325 (1994) (per curiam) (police officer’s subjective intent is irrelevant to whether suspect is in custody for Miranda purposes; “one cannot expect the person under interrogation to probe the officer’s innermost thoughts”).    Because the isolated fact of Officer Hanrahan’s intent could not have had any bearing on Seibert’s “capacity to comprehend and knowingly relinquish” her right to remain silent, Moran , supra , at 422, it could not by itself affect the voluntariness of her confession. Moreover, recognizing an exception to Elstad for intentional violations would require focusing constitutional analysis on a police officer’s subjective intent, an unattractive proposition that we all but uniformly avoid. In general, “we believe that ‘sending state and federal courts on an expedition into the minds of police officers would produce a grave and fruitless misallocation of judicial resources.’ ” United States v. Leon, 468 U. S. 897 , 922, n. 23 (1984) (quoting Massachusetts v. Painten, 389 U. S. 560 , 565 (1968) (per curiam) (White, J., dissenting)). This case presents the uncommonly straightforward circumstance of an officer openly admitting that the violation was intentional. But the inquiry will be complicated in other situations probably more likely to occur. For example, different officers involved in an interrogation might claim different states of mind regarding the failure to give Miranda warnings. Even in the simple case of a single officer who claims that a failure to give Miranda warnings was inadvertent, the likelihood of error will be high. See W. LaFave, Search and Seizure §1.4(e), p. 124 (3d ed. 1996) (“[T]here is no reason to believe that courts can with any degree of success determine in which instances the police had an ulterior motive”).    These evidentiary difficulties have led us to reject an intent-based test in several criminal procedure contexts. For example, in New York v. Quarles, 467 U. S. 649 (1984), one of the factors that led us to reject an inquiry into the subjective intent of the police officer in crafting a test for the “public safety” exception to Miranda was that officers’ motives will be “largely unverifiable.” 467 U. S., at 656. Similarly, our opinion in Whren v. United States, 517 U. S. 806 , 813–814 (1996), made clear that “the evidentiary difficulty of establishing subjective intent” was one of the reasons (albeit not the principal one) for refusing to consider intent in Fourth Amendment challenges generally.    For these reasons, I believe that the approach espoused by Justice Kennedy is ill advised. Justice Kennedy would extend Miranda ’s exclusionary rule to any case in which the use of the “two-step interrogation technique” was “deliberate” or “calculated.” Ante , at 4–5 (opinion concurring in judgment). This approach untethers the analysis from facts knowable to, and therefore having any potential directly to affect, the suspect. Far from promoting “clarity,” ibid. , the approach will add a third step to the suppression inquiry. In virtually every two-stage interrogation case, in addition to addressing the standard Miranda and voluntariness questions, courts will be forced to conduct the kind of difficult, state-of-mind inquiry that we normally take pains to avoid. II    The plurality’s adherence to Elstad , and mine to the plurality, end there. Our decision in Elstad rejected two lines of argument advanced in favor of suppression. The first was based on the “fruit of the poisonous tree” doctrine, discussed above. The second was the argument that the “lingering compulsion” inherent in a defendant’s having let the “cat out of the bag” required suppression. 470 U. S., at 311. The Court of Appeals of Oregon, in accepting the latter argument, had endorsed a theory indistinguishable from the one today’s plurality adopts: “[T]he coercive impact of the unconstitutionally obtained statement remains, because in a defendant’s mind it has sealed his fate. It is this impact that must be dissipated in order to make a subsequent confession admissible.” 61 Ore. App. 673, 677, 658 P. 2d 552, 554 (1983).    We rejected this theory outright. We did so not because we refused to recognize the “psychological impact of the suspect’s conviction that he has let the cat out of the bag,” but because we refused to “endo[w]” those “psychological effects” with “constitutional implications.” 470 U. S., at 311. To do so, we said, would “effectively immuniz[e] a suspect who responds to pre- Miranda warning questions from the consequences of his subsequent informed waiver,” an immunity that “comes at a high cost to legitimate law enforcement activity, while adding little desirable protection to the individual’s interest in not being compelled to testify against himself.” Id., at 312. The plurality might very well think that we struck the balance between Fifth Amendment rights and law enforcement interests incorrectly in Elstad; but that is not normally a sufficient reason for ignoring the dictates of stare decisis .    I would analyze the two-step interrogation procedure under the voluntariness standards central to the Fifth Amendment and reiterated in Elstad . Elstad commands that if Seibert’s first statement is shown to have been involuntary, the court must examine whether the taint dissipated through the passing of time or a change in circumstances: “When a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether that coercion has carried over into the second confession.” 470 U. S., at 310 (citing Westover v. United States , decided with Miranda , 384 U. S., at 494). In addition, Seibert’s second statement should be suppressed if she showed that it was involuntary despite the Miranda warnings. Elstad , supra, at 318 (“The relevant inquiry is whether, in fact, the second statement was also voluntarily made. As in any such inquiry, the finder of fact must examine the surrounding circumstances and the entire course of police conduct with respect to the suspect in evaluating the voluntariness of his statements”). Although I would leave this analysis for the Missouri courts to conduct on remand, I note that, unlike the officers in Elstad , Officer Hanrahan referred to Seibert’s unwarned statement during the second part of the interrogation when she made a statement at odds with her unwarned confession. App. 70 (“ ’Trice, didn’t you tell me that he was supposed to die in his sleep?”); cf . Elstad , supra, at 316 (officers did not “exploit the unwarned admission to pressure respondent into waiving his right to remain silent”). Such a tactic may bear on the voluntariness inquiry. Cf. Frazier v. Cupp , 394 U. S. 731 , 739 (1969) (fact that police had falsely told a suspect that his accomplice had already confessed was “relevant” to the voluntariness inquiry); Moran , 475 U. S., at 423–424 (in discussing police deception, stating that simply withholding information is “relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them”); Miranda , supra, at 476. * * *    Because I believe that the plurality gives insufficient deference to Elstad and that Justice Kennedy places improper weight on subjective intent, I respectfully dissent.

In Missouri v. Seibert, the Supreme Court held that a statement repeated after a Miranda warning during a two-step interrogation is inadmissible if the warning was given mid-interrogation and could not effectively comply with the constitutional requirement. The case involved a police protocol for custodial interrogation where no Miranda warnings were given until after a confession was obtained. Justice Souter's opinion focused on the inadmissibility of the repeated statement, while Justice Kennedy's concurring opinion emphasized the intent of the officer and the totality of the circumstances. Justice O'Connor's dissenting opinion prioritized the voluntariness standards central to the Fifth Amendment.

Miranda Rights

Withrow v. Williams

https://supreme.justia.com/cases/federal/us/507/680/

OCTOBER TERM, 1992 Syllabus WITHROW v. WILLIAMS CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 91-1030. Argued November 3, 1992-Decided April 21, 1993 After a police sergeant threatened to "lock [him] up" during a station house interrogation about a double murder, respondent Williams made inculpatory statements. He was then advised of his rights under Mi randa v. Arizona, 384 U. S. 436 , waived those rights, and made more inculpatory statements. The Michigan trial court declined to suppress his statements on the ground that he had been given timely Miranda warnings, and he was convicted of first-degree murder and related crimes. Williams subsequently commenced this habeas action pro se, alleging a Miranda violation as his principal ground for relief. The District Court granted relief, finding that all statements made between the sergeant's incarceration threat and Williams' receipt of Miranda warnings should have been suppressed. Without conducting an evidentiary hearing or entertaining argument, the court also ruled that the statements Williams made after receiving the Miranda warnings should have been suppressed as involuntary under the Due Process Clause of the Fourteenth Amendment. The Court of Appeals agreed on both points and affirmed, summarily rejecting the argument that the rule in Stone v. Powell, 428 U. S. 465 -that when a State has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence obtained through an unconstitutional search or seizure-should apply to bar habeas review of Williams' Miranda claim. Held: 1. Stone's restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the Miranda safeguards. The Stone rule was not jurisdictional in nature, but was based on prudential concerns counseling against applying the Fourth Amendment exclusionary rule of Mapp v. Ohio, 367 U. S. 643 , on collateral review. Miranda differs from Mapp with respect to such concerns, and Stone consequently does not apply. In contrast to Mapp, Miranda safeguards a fundamental trial right by protecting a defendant's Fifth Amendment privilege against self-incrimination. Moreover, Miranda facilitates the correct ascertainment of guilt by guarding against the use of unreliable statements at trial. Finally, and most importantly, eliminating review of 681 Miranda claims would not significantly benefit the federal courts in their exercise of habeas jurisdiction, or advance the cause of federalism in any substantial way. The burdens placed on busy federal courts would not be lightened, since it is reasonable to suppose that virtually every barred Miranda claim would simply be recast as a due process claim that the particular conviction rested on an involuntary confession. Furthermore, it is not reasonable to expect that, after 27 years of Mi randa, the overturning of state convictions on the basis of that case will occur frequently enough to be a substantial cost of review or to raise federal-state tensions to an appreciable degree. Pp. 686-695. 2. The District Court erred in considering the involuntariness of the statements Williams made after receiving the Miranda warnings. The habeas petition raised no independent due process claim, and the record is devoid of any indication that petitioner consented under Federal Rule of Civil Procedure 15(b) to the determination of such a claim. Moreover, petitioner was manifestly prejudiced by the court's failure to afford her an opportunity to present evidence bearing on that claim's resolution. pp. 695-696. 944 F.2d 284 , affirmed in part, reversed in part, and remanded. SOUTER, J., delivered the opinion for a unanimous Court with respect to Part III, and the opinion of the Court with respect to Parts I, II, and IV, in which WHITE, BLACKMUN, STEVENS, and KENNEDY, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which REHNQUIST, C. J., joined, post, p. 697. SCALIA, J., filed an opinion concurring in part and dissenting in part, in which THOMAS, J., joined, post, p.715. Jeffrey Caminsky argued the cause for petitioner. With him on the briefs were John D. O'Hair and Timothy A. Baughman. Deputy Solicitor General Roberts argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Mueller, and Ronald J. Mann. Seth P. Waxman, by appointment of the Court, 504 U. S. 983, argued the cause for respondent. With him on the brief were Scott L. Nelson and Daniel P. O'Neil. * *Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Donald E. De Nicola, 682 JUSTICE SOUTER delivered the opinion of the Court. In Stone v. Powell, 428 U. S. 465 (1976), we held that when a State has given a full and fair chance to litigate a Fourth Amendment claim, federal habeas review is not available to a state prisoner alleging that his conviction rests on evidence Deputy Attorney General, and Mark L. Krotoski, Special Assistant Attorney General, James H. Evans, Attorney General of Alabama, Charles E. Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Gale A. Norton, Attorney General of Colorado, Richard N. Palmer, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Linley E. Pearson, Attorney General of Indiana, Robert T. Stephan, Attorney General of Kansas, Chris Gorman, Attorney General of Kentucky, Richard P. Ieyoub, Attorney General of Louisiana, Scott Harshbarger, Attorney General of Massachusetts, Michael C. Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Lee Fisher, Attorney General of Ohio, T. Travis Medlock, Attorney General of South Carolina, Mark W Barnett, Attorney General of South Dakota, Charles W Burson, Attorney General of Tennessee, R. Paul Van Dam, Attorney General of Utah, Jeffrey L. Amestoy, Attorney General of Vermont, Mary Sue Terry, Attorney General of Virginia, Kenneth O. Eikenberry, Attorney General of Washington, Mario J. Palumbo, Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for Americans for Effective Law Enforcement, Inc., et al. by Thomas J. Charron, Bernard J. Farber, Fred E. Inbau, Wayne W Schmidt, and James P. Manak; and for the Criminal Justice Legal Foundation by Kent S. Scheidegger. Larry W Yackle, Steven R. Shapiro, Leslie A. Harris, and John A. Powell filed a brief for the American Civil Liberties Union et al. as amicus curiae urging affirmance. Briefs of amici curiae were filed for the American Bar Association by Talbot D'Alemberte and William J. Mertens; and for the Police Foundation et al. by Joseph D. Tydings and Michael Millemann. 683 obtained through an unconstitutional search or seizure. Today we hold that Stone's restriction on the exercise of federal habeas jurisdiction does not extend to a state prisoner's claim that his conviction rests on statements obtained in violation of the safeguards mandated by Miranda v. Arizona, 384 U. S. 436 (1966). I Police officers in Romulus, Michigan, learned that respondent, Robert Allen Williams, Jr., might have information about a double murder committed on April 6, 1985. On April 10, two officers called at Williams's house and asked him to the police station for questioning. Williams agreed to go. The officers searched Williams, but did not handcuff him, and they all drove to the station in an unmarked car. One officer, Sergeant David Early, later testified that Williams was not under arrest at this time, although a contemporaneous police report indicates that the officers arrested Williams at his residence. App. 12a-13a, 24a-26a. At the station, the officers questioned Williams about his knowledge of the crime. Although he first denied any involvement, he soon began to implicate himself, and the officers continued their questioning, assuring Williams that their only concern was the identity of the "shooter." After consulting each other, the officers decided not to advise Williams of his rights under Miranda v. Arizona, supra. See App. to Pet. for Cert. 48a. When Williams persisted in denying involvement, Sergeant Early reproved him: "You know everything that went down. You just don't want to talk about it. What it's gonna amount to is you can talk about it now and give us the truth and we're gonna check it out and see if it fits or else we're simply gonna charge you and lock you up and you can just tell it to a defense attorney and let him try and prove differently." Ibid. 684 The reproof apparently worked, for Williams then admitted he had furnished the murder weapon to the killer, who had called Williams after the crime and told him where he had discarded the weapon and other incriminating items. Williams maintained that he had not been present at the crime scene. Only at this point, some 40 minutes after they began questioning him, did the officers advise Williams of his Miranda rights. Williams waived those rights and during subsequent questioning made several more inculpatory statements. Despite his prior denial, Williams admitted that he had driven the murderer to and from the scene of the crime, had witnessed the murders, and had helped the murderer dispose of incriminating evidence. The officers interrogated Williams again on April 11 and April 12, and, on April 12, the State formally charged him with murder. Before trial, Williams moved to suppress his responses to the interrogations, and the trial court suppressed the statements of April 11 and April 12 as the products of improper delay in arraignment under Michigan law. See App. to Pet. for Cert. 90a-91a. The court declined to suppress the statements of April 10, however, ruling that the police had given Williams a timely warning of his Miranda rights. Id., at 90a. A bench trial led to Williams's conviction on two counts each of first-degree murder and possession of a firearm during the commission of a felony and resulted in two concurrent life sentences. The Court of Appeals of Michigan affirmed the trial court's ruling on the April 10 statements, People v. Williams, 171 Mich. App. 234, 429 N. W. 2d 649 (1988), and the Supreme Court of Michigan denied leave to appeal, 432 Mich. 913, 440 N. W. 2d 416 (1989). We denied the ensuing petition for writ of certiorari. Williams v. Michigan, 493 U. S. 956 (1989). Williams then began this action pro se by petitioning for a writ of habeas corpus in the District Court, alleging a violation of his Miranda rights as the principal ground for relief. 685 Petition for Writ of Habeas Corpus in No. 90CV-70256, p. 5 (ED Mich.). The District Court granted relief, finding that the police had placed Williams in custody for Miranda purposes when Sergeant Early had threatened to "lock [him] up," and that the trial court should accordingly have excluded all statements Williams had made between that point and his receipt of the Miranda warnings. App. to Pet. for Cert. 49a-52a. The court also concluded, though neither Williams nor petitioner had addressed the issue, that Williams's statements after receiving the Miranda warnings were involuntary under the Due Process Clause of the Fourteenth Amendment and thus likewise subject to suppression. App. to Pet. for Cert. 52a-71a. The court found that the totality of circumstances, including repeated promises of lenient treatment if he told the truth, had overborne Williams's will. 1 The Court of Appeals affirmed, 944 F.2d 284 (CA6 1991), holding the District Court correct in determining the police had subjected Williams to custodial interrogation before giving him the requisite Miranda advice, and in finding the statements made after receiving the Miranda warnings involuntary. Id., at 289-290. The Court of Appeals summarily rejected the argument that the rule in Stone v. Pow ell, 428 U. S. 465 (1976), should apply to bar habeas review of Williams's Miranda claim. 944 F. 2d, at 291. We granted certiorari to resolve the significant issue thus presented. 503 U. S. 983 (1992).2 1 The District Court mistakenly believed that the trial court had allowed the introduction of the statements Williams had made on April 12, and its ruling consequently extended to those statements as well. App. to Pet. for Cert. 72a-75a. 2JU8TICE SCALIA argues in effect that the rule in Stone v. Powell, 428 U. S. 465 (1976), should extend to all claims on federal habeas review. See post, at 719-720. With respect, that reasoning goes beyond the question on which we granted certiorari, Pet. for Cert. 1 ("where the premise of [a] Fifth Amendment ruling is a finding of a Miranda violation, where the petitioner has had one full and fair opportunity to raise the Miranda claim 686 II We have made it clear that Stone's limitation on federal habeas relief was not jurisdictional in nature,3 but rested on prudential concerns counseling against the application of the Fourth Amendment exclusionary rule on collateral review. See Stone, supra, at 494-495, n. 37; see also Kuhlmann v. Wilson, 477 U. S. 436 , 447 (1986) (opinion of Powell, J.) (discussing equitable principles underlying Stone); Kimmelman v. Morrison, 477 U. S. 365 , 379, n. 4 (1986); Allen v. McCurry, 449 U. S. 90 , 103 (1980) (Stone concerns "the prudent exercise of federal-court jurisdiction under 28 U. S. C. § 2254"); cf. 28 U. S. C. § 2243 (court entertaining habeas petition shall "dispose of the matter as law and justice require"). We simply concluded in Stone that the costs of applying the exclusionary rule on collateral review outweighed any potential advantage to be gained by applying it there. Stone, supra, at 489-495. We recognized that the exclusionary rule, held applicable to the States in Mapp v. Ohio, 367 U. S. 643 (1961), "is not a personal constitutional right"; it fails to redress "the injury to the privacy of the victim of the search or seizure" at issue, "for any '[r]eparation comes too late.'" Stone, supra, at 486 (quoting Linkletter v. Walker, 381 U. S. 618 , 637 (1965)). The rule serves instead to deter future Fourth Amendment violations, and we reasoned that its application on collateral review would only marginally advance this interest in deterrence. Stone, 428 U. S., at 493. On the other side of the ledger, the costs of applying the exclusionary rule on habeas in state court, should collateral review of the same claim on a habeas corpus petition be precluded?"), and we see no good reason to address it in this case. 3 Title 28 U. S. C. § 2254(a) provides: "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 687 were comparatively great. We reasoned that doing so would not only exclude reliable evidence and divert attention from the central question of guilt, but would also intrude upon the public interest in "'(i) the most effective utilization of limited judicial resources, (ii) the necessity of finality in criminal trials, (iii) the minimization of friction between our federal and state systems of justice, and (iv) the maintenance of the constitutional balance upon which the doctrine of federalism is founded.'" Id., at 491, n. 31 (quoting Schneckloth v. Bustamonte, 412 U. S. 218 , 259 (1973) (Powell, J., concurring)). Over the years, we have repeatedly declined to extend the rule in Stone beyond its original bounds. In Jackson v. Virginia, 443 U. S. 307 (1979), for example, we denied a request to apply Stone to bar habeas consideration of a Fourteenth Amendment due process claim of insufficient evidence to support a state conviction. We stressed that the issue was "central to the basic question of guilt or innocence," Jackson, 443 U. S., at 323, unlike a claim that a state court had received evidence in violation of the Fourth Amendment exclusionary rule, and we found that to review such a claim on habeas imposed no great burdens on the federal courts. Id., at 321-322. After a like analysis, in Rose v. Mitchell, 443 U. S. 545 (1979), we decided against extending Stone to foreclose habeas review of an equal protection claim of racial discrimination in selecting a state grand-jury foreman. A charge that state adjudication had violated the direct command of the Fourteenth Amendment implicated the integrity of the judicial process, we reasoned, Rose, 443 U. S., at 563, and failed to raise the "federalism concerns" that had driven the Court in Stone. 443 U. S., at 562. Since federal courts had granted relief to state prisoners upon proof of forbidden discrimination for nearly a century, we concluded, "confirmation that habeas corpus remains an appropriate vehicle by which federal courts are to exercise their Fourteenth Amendment 688 responsibilities" would not likely raise tensions between the state and federal judicial systems. Ibid. In a third instance, in Kimmelman v. Morrison, supra, we again declined to extend Stone, in that case to bar habeas review of certain claims of ineffective assistance of counsel under the Sixth Amendment. We explained that unlike the Fourth Amendment, which confers no "trial right," the Sixth confers a "fundamental right" on criminal defendants, one that "assures the fairness, and thus the legitimacy, of our adversary process." 477 U. S., at 374. We observed that because a violation of the right would often go unremedied except on collateral review, "restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation." Id., at 378. In this case, the argument for extending Stone again falls short.4 To understand why, a brief review of the derivation of the Miranda safeguards, and the purposes they were designed to serve, is in order. The Self-Incrimination Clause of the Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself." U. S. Const., Arndt. 5. In Bram v. United States, 168 U. S. 532 (1897), the Court held that the Clause barred the introduction in federal cases of involuntary confessions made in response to custodial interrogation. We did not recognize the Clause's applicability to state cases until 1964, however, see Malloy v. Hogan, 378 U. S. 1 ; and, over the course of 30 years, beginning with the decision in Brown v. Mississippi, 297 U. S. 278 (1936), we analyzed the admissibility of confessions in such cases as a question of due process under the Fourteenth Amendment. See Stone, The Miranda Doctrine in the Burger Court, 1977 S. Ct. Rev. 99, 101-102. Under this ap- 4 We have in the past declined to address the application of Stone in this context. See, e. g., Duckworth v. Eagan, 492 U. S. 195 , 201, n. 3 (1989); Wainwright v. Sykes, 433 U. S. 72 , 87, n. 11 (1977). 689 proach, we examined the totality of circumstances to determine whether a confession had been "'made freely, voluntarily and without compulsion or inducement of any sort.'" Haynes v. Washington, 373 U. S. 503 , 513 (1963) (quoting Wilson v. United States, 162 U. S. 613 , 623 (1896)); see also Schneckloth v. Bustamonte, supra, at 223-227 (discussing totality-of-circumstances approach). See generally 1 W. LaFave & J. Israel, Criminal Procedure § 6.2 (1984). Indeed, we continue to employ the totality-of-circumstances approach when addressing a claim that the introduction of an involuntary confession has violated due process. E. g., Arizona v. Fulminante, 499 U. S. 279 (1991); Miller v. Fenton, 474 U. S. 104 , 109-110 (1985). In Malloy, we recognized that the Fourteenth Amendment incorporates the Fifth Amendment privilege against selfincrimination, and thereby opened Bram's doctrinal avenue for the analysis of state cases. So it was that two years later we held in Miranda that the privilege extended to state custodial interrogations. In Miranda, we spoke of the privilege as guaranteeing a person under interrogation "the right 'to remain silent unless he chooses to speak in the unfettered exercise of his own will,'" 384 U. S., at 460 (quoting Malloy, supra, at 8), and held that "without proper safeguards the process of in-custody interrogation ... contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U. S., at 467. To counter these pressures we prescribed, absent "other fully effective means," the now-familiar measures in aid of a defendant's Fifth Amendment privilege: "He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity 690 to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement." Id., at 479. Unless the prosecution can demonstrate the warnings and waiver as threshold matters, we held, it may not overcome an objection to the use at trial of statements obtained from the person in any ensuing custodial interrogation. See ibid.; cf. Oregon v. Hass, 420 U. S. 714 , 721-723 (1975) (permitting use for impeachment purposes of statements taken in violation of Miranda). Petitioner, supported by the United States as amicus curiae, argues that Miranda's safeguards are not constitutional in character, but merely "prophylactic," and that in consequence habeas review should not extend to a claim that a state conviction rests on statements obtained in the absence of those safeguards. Brief for Petitioner 91-93; Brief for United States as Amicus Curiae 14-15. We accept petitioner's premise for purposes of this case, but not her conclusion. The Miranda Court did of course caution that the Constitution requires no "particular solution for the inherent compulsions of the interrogation process," and left it open to a State to meet its burden by adopting "other procedures ... at least as effective in apprising accused persons" of their rights. 384 U. S., at 467. The Court indeed acknowledged that, in barring introduction of a statement obtained without the required warnings, Miranda might exclude a confession that we would not condemn as "involuntary in traditional terms," id., at 457, and for this reason we have sometimes called the Miranda safeguards "prophylactic" in nature. E. g., Duckworth v. Eagan, 492 U. S. 195 , 203 (1989); Connecticut v. Barrett, 479 U. S. 523 , 528 (1987); Oregon v. Elstad, 470 U. S. 298 , 305 (1985); New York v. Quarles, 467 U. S. 649 , 654 (1984); see Michigan v. Tucker, 417 U. S. 433 , 444 (1974) 691 (Miranda Court "recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected"). But cf. Quarles, supra, at 660 (opinion of O'CONNOR, J.) (Miranda Court "held unconstitutional, because inherently compelled, the admission of statements derived from in-custody questioning not preceded by an explanation of the privilege against self-incrimination and the consequences of forgoing it"). Calling the Miranda safeguards "prophylactic," however, is a far cry from putting Miranda on all fours with Mapp, or from rendering Miranda subject to Stone. As we explained in Stone, the Mapp rule "is not a personal constitutional right," but serves to deter future constitutional violations; although it mitigates the juridical consequences of invading the defendant's privacy, the exclusion of evidence at trial can do nothing to remedy the completed and wholly extrajudicial Fourth Amendment violation. Stone, 428 U. S., at 486. Nor can the Mapp rule be thought to enhance the soundness of the criminal process by improving the reliability of evidence introduced at trial. Quite the contrary, as we explained in Stone, the evidence excluded under Mapp "is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." 428 U. S., at 490. Miranda differs from Mapp in both respects. "Prophylactic" though it may be, in protecting a defendant's Fifth Amendment privilege against self-incrimination, Miranda safeguards "a fundamental trial right." United States v. Verdugo-Urquidez, 494 U. S. 259 , 264 (1990) (emphasis added); cf. Kimmelman, 477 U. S., at 377 (Stone does not bar habeas review of claim that the personal trial right to effective assistance of counsel has been violated). The privilege embodies "principles of humanity and civil liberty, which had been secured in the mother country only after years of struggle," Bram, 168 U. S., at 544, and reflects 692 "many of our fundamental values and most noble aspirations: ... our preference for an accusatorial rather than an inquisitorial system of criminal justice; our fear that self-incriminating statements will be elicited by inhumane treatment and abuses; our sense of fair play which dictates 'a fair state-individual balance by requiring the government to leave the individual alone until good cause is shown for disturbing him and by requiring the government in its contest with the individual to shoulder the entire load;' our respect for the inviolability of the human personality and of the right of each individual 'to a private enclave where he may lead a private life;' our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes 'a shelter to the guilty,' is often 'a protection to the innocent.'" Murphy v. Waterfront Comm'n of New York Harbor, 378 U. S. 52 , 55 (1964) (citations omitted). Nor does the Fifth Amendment "trial right" protected by Miranda serve some value necessarily divorced from the correct ascertainment of guilt. "'[A] system of criminal law enforcement which comes to depend on the "confession" will, in the long run, be less reliable and more subject to abuses' than a system relying on independent investigation." Michigan v. Tucker, supra, at 448, n. 23 (quoting Escobedo v. Illinois, 378 U. S. 478 , 488-489 (1964)). By bracing against "the possibility of unreliable statements in every instance of incustody interrogation," Miranda serves to guard against "the use of unreliable statements at trial." Johnson v. New Jersey, 384 U. S. 719 , 730 (1966); see also Schneckloth, 412 U. S., at 240 (Miranda "Court made it clear that the basis for decision was the need to protect the fairness of the trial itself"); Halpern, Federal Habeas Corpus and the Mapp Exclusionary Rule after Stone v. Powell, 82 Colum. L. Rev. 1, 40 (1982); cf. Rose v. Mitchell, 443 U. S. 545 (1979) (Stone does not bar habeas review of claim of racial discrimination 693 in selection of grand-jury foreman, as this claim goes to the integrity of the judicial process). Finally, and most importantly, eliminating review of Miranda claims would not significantly benefit the federal courts in their exercise of habeas jurisdiction, or advance the cause of federalism in any substantial way. As one amicus concedes, eliminating habeas review of Miranda issues would not prevent a state prisoner from simply converting his barred Miranda claim into a due process claim that his conviction rested on an involuntary confession. See Brief for United States as Amicus Curiae 17. Indeed, although counsel could provide us with no empirical basis for projecting the consequence of adopting petitioner's position, see Tr. of Oral Arg. 9-11, 19-21, it seems reasonable to suppose that virtually all Miranda claims would simply be recast in this way.5 If that is so, the federal courts would certainly not have heard the last of Miranda on collateral review. Under the due process approach, as we have already seen, courts look to the totality of circumstances to determine whether a confession was voluntary. Those potential circumstances include not only the crucial element of police coercion, Colorado v. Connelly, 479 U. S. 157 , 167 (1986); the length of the interrogation, Ashcraft v. Tennessee, 322 U. S. 143 , 153-154 (1944); its location, see Reck v. Pate, 367 U. S. 433 , 441 (1961); its continuity, Leyra v. Denno, 347 U. S. 556 , 561 (1954); the defendant's maturity, Haley v. Ohio, 332 U. S. 596 , 599-601 (1948) (opinion of Douglas, J.); education, Clewis v. Texas, 386 U. S. 707 , 712 (1967); physical condition, Greenwald v. Wisconsin, 390 U. S. 519 , 520-521 (1968) (per curiam); and mental health, Fikes v. Alabama, 352 U. S. 191 , 196 (1957). They also include the failure of police to advise the defendant of his rights to remain silent and to have counsel present 5JU8TICE O'CONNOR is confident that many such claims would be unjustified, see post, at 708-709, but that is beside the point. Justifiability is not much of a gatekeeper on habeas. 694 during custodial interrogation. Haynes v. Washington, 373 U. S. 503, 516-517 (1963); Brief for United States as Amicus Curiae 19, n. 17; see also Schneckloth, supra, at 226 (discussing factors). We could lock the front door against Miranda, but not the back. We thus fail to see how abdicating Miranda's bright-line (or, at least, brighter-line) rules in favor of an exhaustive totality-of-circumstances approach on habeas would do much of anything to lighten the burdens placed on busy federal courts. See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 188 (3d ed. 1988, Supp. 1992); Halpern, supra, at 40; Schulhofer, Confessions and the Court, 79 Mich. L. Rev. 865, 891 (1981); see also Quarles, 467 U. S., at 664 (O'CONNOR, J., concurring in judgment in part and dissenting in part) (quoting Fare v. Michael c., 439 U. S. 1310 , 1314 (1978) (REHNQUIST, J., in chambers)) (Miranda's" 'core virtue'" was" 'afford[ing] police and courts clear guidance on the manner in which to conduct a custodial investigation' "). We likewise fail to see how purporting to eliminate Miranda issues from federal habeas would go very far to relieve such tensions as Miranda may now raise between the two judicial systems. Relegation of habeas petitioners to straight involuntariness claims would not likely reduce the amount of litigation, and each such claim would in any event present a legal question requiring an "independent federal determination" on habeas. Miller v. Fenton, 474 U. S., at 112. One might argue that tension results between the two judicial systems whenever a federal habeas court overturns a state conviction on finding that the state court let in a voluntary confession obtained by the police without the Miranda safeguards. And one would have to concede that this has occurred in the past, and doubtless will occur again. I t is not reasonable, however, to expect such occurrences to be frequent enough to amount to a substantial cost of reviewing 695 Miranda claims on habeas or to raise federal-state tensions to an appreciable degree. See Tr. of Oral Arg. 11, 21. We must remember in this regard that Miranda came down some 27 years ago. In that time, law enforcement has grown in constitutional as well as technological sophistication, and there is little reason to believe that the police today are unable, or even generally unwilling, to satisfy Miranda's requirements. See Quarles, supra, at 663 (O'CONNOR, J., concurring in judgment in part and dissenting in part) (quoting Rhode Island v. Innis, 446 U. S. 291 , 304 (1980) (Burger, C. J., concurring in judgment)) (" 'meaning of Miranda has become reasonably clear and law enforcement practices have adjusted to its strictures' "); Schulhofer, Reconsidering Mi randa, 54 U. Chi. L. Rev. 435, 455-457 (1987).6 And if, finally, one should question the need for federal collateral review of requirements that merit such respect, the answer simply is that the respect is sustained in no small part by the existence of such review. "It is the occasional abuse that the federal writ of habeas corpus stands ready to correct." Jackson, 443 U. S., at 322. III One final point should keep us only briefly. As he had done in his state appellate briefs, on habeas Williams raised only one claim going to the admissibility of his statements to the police: that the police had elicited those statements without satisfying the Miranda requirements. See supra, at 684. In her answer, petitioner addressed only that claim. See Brief in Support of Answer in No. 90CV-70256 DT, p. 3 (ED Mich.). The District Court, nonetheless, without an evidentiary hearing or even argument, went beyond the habeas petition and found the statements Williams made after re- 6 It should indeed come as no surprise that one of the submissions arguing against the extension of Stone in this case comes to us from law enforcement organizations. See Brief for Police Foundation et al. as Amici Curiae. 696 ceiving the Miranda warnings to be involuntary under due process criteria. Before the Court of Appeals, petitioner objected to the District Court's due process enquiry on the ground that the habeas petition's reference to Miranda rights had given her insufficient notice to address a due process claim. Brief for Respondent-Appellant in No. 90-2289, p. 6 (CA6). Petitioner pursues the objection here. See Pet. for Cert. 1; Brief for Petitioner 14-15, n. 2. Williams effectively concedes that his habeas petition raised no involuntariness claim, but he argues that the matter was tried by the implied consent of the parties under Federal Rule of Civil Procedure 15(b),7 and that petitioner can demonstrate no prejudice from the District Court's action. See Brief for Respondent 41-42, n. 22. The record, however, reveals neither thought, word, nor deed of petitioner that could be taken as any sort of consent to the determination of an independent due process claim, and petitioner was manifestly prejudiced by the District Court's failure to afford her an opportunity to present evidence bearing on that claim's resolution. The District Court should not have addressed the involuntariness question in these circumstances.8 7The relevant part of Rule 15(b) provides: ''When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues." See 28 U. S. C. § 2254 Rule 11 (application of Federal Rules of Civil Procedure to habeas petitions); 1 J. Liebman, Federal Habeas Corpus Practice and Procedure § 17.2 (1988) (Rule 15 applies in habeas actions). 8We need not address petitioner's arguments that Williams failed to exhaust the involuntariness claim in the state courts and that the District Court applied a new rule under Teague v. Lane, 489 U. S. 288 (1989). Of course, we also express no opinion on the merits of the involuntariness claim. 697 IV The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in part and dissenting in part. Today the Court permits the federal courts to overturn on habeas the conviction of a double murderer, not on the basis of an inexorable constitutional or statutory command, but because it believes the result desirable from the standpoint of equity and judicial administration. Because the principles that inform our habeas jurisprudence-finality, federalism, and fairness-counsel decisively against the result the Court reaches, I respectfully dissent from this holding. I The Court does not sit today in direct review of a statecourt judgment of conviction. Rather, respondent seeks relief by collaterally attacking his conviction through the writ of habeas corpus. While petitions for the writ of habeas corpus are now commonplace-over 12,000 were filed in 1990, compared to 127 in 1941-their current ubiquity ought not detract from the writ's historic importance. See L. Mecham, Annual Report of the Director of the Administrative Office of the United States Courts 191 (1991) (1990 figures); Fay v. Noia, 372 U. S. 391 , 446, n. 2 (1963) (Clark, J., dissenting) (1941 figures). "The Great Writ" can be traced through the common law to well before the founding of this Nation; its role as a "prompt and efficacious remedy for whatever society deems to be intolerable restraints" is beyond question. Fay, 372 U. S., at 401-402. As Justice Harlan explained: "Habeas corpus ad subjiciendum is today, as it has always been, a fundamental safeguard against unlawful 698 Opinion of O'CONNOR, J. custody .... Although the wording of earlier statutory provisions has been changed, the basic question before the court to which the writ is addressed has always been the same: in the language of the present statute, on the books since 1867, is the detention complained of 'in violation of the Constitution or laws or treaties of the United States'?" Id., at 449 (dissenting opinion). Nonetheless, we repeatedly have recognized that collateral attacks raise numerous concerns not present on direct review. Most profound is the effect on finality. It goes without saying that, at some point, judicial proceedings must draw to a close and the matter deemed conclusively resolved; no society can afford forever to question the correctness of its every judgment. "[T]he writ," however, "strikes at finality," McCleskey v. Zant, 499 U. S. 467 , 491 (1991), depriving the criminal law "of much of its deterrent effect," Teague v. Lane, 489 U. S. 288 , 309 (1989) (plurality opinion), and sometimes preventing the law's just application altogether, see McCleskey, supra, at 491. "No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing a man shall tentatively go to jail today, but tomorrow and every day thereafter his continued incarceration shall be subject to fresh litigation." Mackey v. United States, 401 U. S. 667 , 691 (1971) (Harlan, J., concurring in part and dissenting in part); see also Mc Cleskey, supra, at 492. In our federal system, state courts have primary responsibility for enforcing constitutional rules in their own criminal trials. When a case comes before the federal courts on habeas rather than on direct review, the judicial role is "significantly different." Mackey, supra, at 682 (Harlan, J., concurring in part and dissenting in part). Accord, Teague, supra, at 306-308. Most important here, federal courts on direct review adjudicate every issue of federal law properly presented; in contrast, "federal courts have never had a similar obligation on habeas corpus." Mackey, supra, at 682 699 (Harlan, J., concurring in part and dissenting in part). As the Court explains today, federal courts exercising their habeas powers may refuse to grant relief on certain claims because of "prudential concerns" such as equity and federalism. Ante, at 686. This follows not only from the express language of the habeas statute, which directs the federal courts to "dispose of [habeas petitions] as law and justice require," 28 U. s. C. § 2243, but from our precedents as well. In Francis v. Henderson, 425 U. S. 536 (1976), we stated that "[t]his Court has long recognized that in some circumstances considerations of comity and concerns for the orderly administration of criminal justice require a federal court to forgo the exercise of its habeas corpus power." Id., at 539. Accord, Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653 , 653-654 (1992) ("Whether [a] claim is framed as a habeas petition or as a [42 U. S. C.] § 1983 action, [what is sought is] an equitable remedy"; as a result, equity must be "take[n] into consideration"); Fay v. Noia, supra, at 438 ("[H]abeas corpus has traditionally been regarded as governed by equitable principles"); Duckworth v. Eagan, 492 U. S. 195 , 213 (1989) (O'CONNOR, J., concurring) ("[T]he Court has long recognized that habeas corpus [is] governed by equitable principles" (internal quotation marks omitted)). Concerns for equity and federalism resonate throughout our habeas jurisprudence. In 1886, only eight years after Congress gave the federal courts power to issue writs ordering the release of state prisoners, this Court explained that courts could accommodate federalism and comity concerns by withholding relief until after state proceedings had terminated. Ex parte Royall, 117 U. S. 241 , 251-253. Accord, Fay, supra, at 418-419. More recently, we relied on those same concerns in holding that new constitutional rules of criminal procedure do not apply retroactively on habeas. Teague, supra, at 306. Our treatment of successive petitions and procedurally defaulted claims similarly is governed by equitable principles. McCleskey, 499 U. S., at 489-491 700 Opinion of O'CONNOR, J. (successive petitions); id., at 490 (procedurally defaulted claims); Fay, supra, at 438 (procedurally defaulted claims). Most telling of all, this Court continuously has recognized that the ultimate equity on the prisoner's side-a sufficient showing of actual innocence-is normally sufficient, standing alone, to outweigh other concerns and justify adjudication of the prisoner's constitutional claim. See Sawyer v. Whitley, 505 U. S. 333 , 340-347 (1992) (actual innocence of penalty); Murray v. Carrier, 477 U. S. 478 , 496 (1986) (federal courts may reach procedurally defaulted claims on a showing that a constitutional violation probably resulted in the conviction of an actually innocent person); Kuhlmann v. Wilson, 477 U. S. 436 , 454 (1986) (colorable showing of actual innocence suffices to excuse successive claim); see also Teague v. Lane, supra, at 313 (where absence of procedure seriously diminishes the likelihood of an accurate conviction, a new rule requiring the procedure may be applied retroactively on habeas). Nonetheless, decisions concerning the availability of habeas relief warrant restraint. Nowhere is the Court's restraint more evident than when it is asked to exclude a substantive category of issues from relitigation on habeas. Although we recognized the possibility of excluding certain types of claims long ago, see Mackey, supra, at 683 (Harlan, J., concurring in part and dissenting in part), only once has this Court found that the concerns of finality, federalism, and fairness supported such a result; that was in Stone v. Powell, 428 U. S. 465 (1976). Ante, at 686. Since then, the Court has refused to bar additional categories of claims on three different occasions. Ante, at 687-688. Today we face the question whether Stone v. Powell should extend to bar claims on habeas that the prophylactic rule of Miranda v. Arizona, 384 U. S. 436 (1966), had been violated. Continuing the tradition of caution in this area, the Court answers that question in the negative. This time I must disagree. In my view, the "prudential concerns," 701 ante, at 686, that inform our habeas jurisprudence counsel the exclusion of Miranda claims just as strongly as they did the exclusionary rule claims at issue in Stone itself. II In Stone, the Court explained that the exclusionary rule of Mapp v. Ohio, 367 U. S. 643 (1961), was not an inevitable product of the Constitution but instead "'a judicially created remedy.''' Stone, supra, at 486 (quoting United States v. Calandra, 414 U. S. 338 , 349 (1974)). By threatening to exclude highly probative and sometimes critical evidence, the exclusionary rule "is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system." Stone, 428 U. S., at 492. The deterrent effect is strong: Any transgression of the Fourth Amendment carries the risk that evidence will be excluded at trial. Nonetheless, this increased sensitivity to Fourth Amendment values carries a high cost. Exclusion not only deprives the jury of probative and sometimes dispositive evidence, but also "deflects the truthfinding process and often frees the guilty." Id., at 490. When that happens, it is not just the executive or the judiciary but all of society that suffers: The executive suffers because the police lose their suspect and the prosecutor the case; the judiciary suffers because its processes are diverted from the central mission of ascertaining the truth; and society suffers because the populace again finds a guilty and potentially dangerous person in its midst, solely because a police officer bungled. While that cost is considered acceptable when a case is on direct review, the balance shifts decisively once the case is on habeas. There is little marginal benefit to enforcing the exclusionary rule on habeas; the penalty of exclusion comes too late to produce a noticeable deterrent effect. Id., at 493. Moreover, the rule "divert[s attention] from the ultimate question of guilt," squanders scarce federal judicial re- 702 Opinion of O'CONNOR, J. sources, intrudes on the interest in finality, creates friction between the state and federal systems of justice, and upsets the "'constitutional balance upon which the doctrine of federalism is founded.'" Id., at 490, 491, n. 31 (quoting Schneckloth v. Bustamonte, 412 U. S. 218 , 259 (1973) (Powell, J., concurring)). Because application of the exclusionary rule on habeas "offend[s] important principles of federalism and finality in the criminal law which have long informed the federal courts' exercise of habeas jurisdiction," Duckworth, 492 U. S., at 208 (O'CONNOR, J., concurring), we held in Stone that such claims would no longer be cognizable on habeas so long as the State already had provided the defendant with a full and fair opportunity to litigate. I continue to believe that these same considerations apply to Miranda claims with equal, if not greater, force. See Duckworth, supra, at 209 (O'CONNOR, J., concurring). Like the suppression of the fruits of an illegal search or seizure, the exclusion of statements obtained in violation of Miranda is not constitutionally required. This Court repeatedly has held that Miranda's warning requirement is not a dictate of the Fifth Amendment itself, but a prophylactic rule. See, e. g., McNeil v. Wisconsin, 501 U. S. 171 , 176 (1991); Michigan v. Harvey, 494 U. S. 344 , 350 (1990); Duckworth, supra, at 203; New York v. Quarles, 467 U. S. 649 , 654 (1984); Michigan v. Tucker, 417 U. S. 433 , 442-446 (1974). Because Miranda "sweeps more broadly than the Fifth Amendment itself," it excludes some confessions even though the Constitution would not. Oregon v. Elstad, 470 U. S. 298 , 306 (1985). Indeed, "in the individual case, Miranda's preventive medicine [often] provides a remedy even to the defendant who has suffered no identifiable constitutional harm." Id., at 307. Miranda's overbreadth, of course, is not without justification. The exclusion of unwarned statements provides a strong incentive for the police to adopt "procedural safeguards," Miranda, 384 U. S., at 444, against the exaction of 703 compelled or involuntary statements. It also promotes institutional respect for constitutional values. But, like the exclusionary rule for illegally seized evidence, Miranda's prophylactic rule does so at a substantial cost. Unlike involuntary or compelled statements-which are of dubious reliability and are therefore inadmissible for any purpose-confessions obtained in violation of Miranda are not necessarily untrustworthy. In fact, because voluntary statements are "trustworthy" even when obtained without proper warnings, Johnson v. New Jersey, 384 U. S. 719 , 731 (1966), their suppression actually impairs the pursuit of truth by concealing probative information from the trier of fact. See Harvey, supra, at 350 (Miranda "result[s] in the exclusion of some voluntary and reliable statements"); Elstad, supra, at 312 (loss of "highly probative evidence of a voluntary confession" is a "high cost [for] law enforcement"); McNeil, supra, at 181 (because "the ready ability to obtain uncoerced confessions is not an evil but an unmitigated good," the exclusion of such confessions renders society "the loser"); Tucker, supra, at 461 (WHITE, J., concurring in judgment) ("[H]aving relevant and probative testimony, not obtained by actual coercion ... aides] in the pursuit of truth"); Miranda, supra, at 538 (WHITE, J., dissenting) ("Particularly when corroborated, ... such [voluntary] confessions have the highest reliability and significantly contribute to the certitude with which we may believe the accused is guilty"). When the case is on direct review, that damage to the truth-seeking function is deemed an acceptable sacrifice for the deterrence and respect for constitutional values that the Miranda rule brings. But once a case is on collateral review, the balance between the costs and benefits shifts; the interests of federalism, finality, and fairness compel Mi randa's exclusion from habeas. The benefit of enforcing Miranda through habeas is marginal at best. To the extent Miranda ensures the exclusion of involuntary statements, that task can be performed more accurately by adjudicating 704 Opinion of O'CONNOR, J. the voluntariness question directly. See Johnson, supra, at 730-731. And, to the extent exclusion of voluntary but unwarned confessions serves a deterrent function, "[t]he awarding of habeas relief years after conviction will often strike like lightning, and it is absurd to think that this added possibility ... will have any appreciable effect on police training or behavior." Duckworth, supra, at 211 (O'CONNOR, J., concurring). Judge Friendly made precisely the same point 18 years earlier: "[T]he deterrent value of permitting collateral attack," he explained, "goes beyond the point of diminishing returns." Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 163 (1970). Despite its meager benefits, the relitigation of Miranda claims on habeas imposes substantial costs. Just like the application of the exclusionary rule, application of Miranda's prophylactic rule on habeas consumes scarce judicial resources on an issue unrelated to guilt or innocence. No less than the exclusionary rule, it undercuts finality. It creates tension between the state and federal courts. And it upsets the division of responsibilities that underlies our federal system. But most troubling of all, Miranda's application on habeas sometimes precludes the just application of law altogether. The order excluding the statement will often be issued "years after trial, when a new trial may be a practical impossibility." Duckworth, 492 U. S., at 211 (O'CONNOR, J., concurring). Whether the Court admits it or not, the grim result of applying Miranda on habeas will be, time and time again, "the release of an admittedly guilty individual who may pose a continuing threat to society." Ibid. Any rule that so demonstrably renders truth and society "the loser," McNeil v. Wisconsin, 501 U. S., at 181, "'bear[s] a heavy burden of justification, and must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness,'" United States v. Leon, 468 U. S. 897 , 908, n. 6 (1984) (quoting Illinois v. Gates, 462 U. S. 213 , 257- 705 258 (1983) (WHITE, J., concurring in judgment)). That burden is heavier still on collateral review. In light of the meager deterrent benefit it brings and the tremendous costs it imposes, in my view application of Miranda's prophylactic rule on habeas "falls short" of justification. Ante, at 688. III The Court identifies a number of differences that, in its view, distinguish this case from Stone v. Powell. Ante, at 691-695. I am sympathetic to the Court's concerns but find them misplaced nonetheless. The first difference the Court identifies concerns the nature of the right protected. Miranda, the Court correctly points out, fosters Fifth Amendment, rather than Fourth Amendment, values. Ante, at 691. The Court then offers a defense of the Fifth Amendment, reminding us that it is "'a fundamental trial right' " that reflects" 'principles of humanity and civil liberty'''; that it was secured" 'after years of struggle'''; and that it does not serve "some value necessarily divorced from the correct ascertainment of guilt." Ante, at 691-692 (quoting United States v. Verdugo-Urquidez, 494 U. S. 259 , 364 (1990), and Bram v. United States, 168 U. S. 532 , 544 (1897)). The Court's spirited defense of the Fifth Amendment is, of course, entirely beside the point. The question is not whether true Fifth Amendment claims-the extraction and use of compelled testimony-should be cognizable on habeas. It is whether violations of Miranda's prophylactic rule, which excludes from trial voluntary confessions obtained without the benefit of Miranda's now-familiar warnings, should be. The questions are not the same; nor are their answers. To say that the Fifth Amendment is a "'fundamental trial right,'" ante, at 691 (quoting United States v. VerdugoUrquidez, supra, at 264), is thus both correct and irrelevant. Miranda's warning requirement may bear many labels, but "fundamental trial right" is not among them. Long before 706 Opinion of O'CONNOR, J. Miranda was decided, it was well established that the Fifth Amendment prohibited the introduction of compelled or involuntary confessions at trial. And long before Miranda, the courts enforced that prohibition by asking a simple and direct question: Was "the confession the product of an essentially free and unconstrained choice," or was the defendant's will "overborne"? Schneckloth v. Bustamonte, 412 U. S., at 225 (quoting Culombe v. Connecticut, 367 U. S. 568 , 602 (1961)); see ante, at 688-689; see, e. g., Bram v. United States, supra. Miranda's innovation was its introduction of the warning requirement: It commanded the police to issue warnings (or establish other procedural safeguards) before obtaining a statement through custodial interrogation. And it backed that prophylactic rule with a similarly prophylactic remedy-the requirement that unwarned custodial statements, even if wholly voluntary, be excluded at trial. Mi randa, 384 U. S., at 444. Excluding violations of Miranda's prophylactic suppression requirement from habeas would not leave true Fifth Amendment violations unredressed. Prisoners still would be able to seek relief by "invok[ing] a substantive test of voluntariness" or demonstrating prohibited coercion directly. Johnson, 384 U. S., at 730; Elstad, 470 U. S., at 307-308 (statements falling outside Miranda's sweep analyzed under voluntariness standard). The Court concedes as much. Ante, at 693 ("[E]liminating habeas review of Miranda issues would not prevent a state prisoner from simply converting his barred Miranda claim into a due process claim that his conviction rested on an involuntary confession"). Excluding Miranda claims from habeas, then, denies collateral relief only in those cases in which the prisoner's statement was neither compelled nor involuntary but merely obtained without the benefit of Miranda's prophylactic warnings. The availability of a suppression remedy in such cases cannot be labeled a "fundamental trial right," for there is no constitutional right to the suppression of voluntary state- 707 ments. Quite the opposite: The Fifth Amendment, by its terms, prohibits only compelled self-incrimination; it makes no mention of "unwarned" statements. U. S. Const., Arndt. 5 ("No person ... shall be compelled in any criminal case to be a witness against himself" (emphasis added)). On that much, our cases could not be clearer. See, e. g., Michigan v. Tucker, 417 U. S., at 448 ("Cases which involve the SelfIncrimination Clause must, by definition, involve an element of coercion, since the Clause provides only that a person shall not be compelled to give evidence against himself"); see Elstad, supra, at 306-307; New York v. Quarles, 467 U. S., at 654-655, and n. 5. As a result, the failure to issue warnings does "not abridge [the] constitutional privilege against compulsory self-incrimination, but depart[s] only from the prophylactic standards later laid down by this Court in Mi randa." Tucker, supra, at 446. If the principles of federalism, finality, and fairness ever counsel in favor of withholding relief on habeas, surely they do so where there is no constitutional harm to remedy. Similarly unpersuasive is the Court's related argument, ante, at 692, that the Fifth Amendment trial right is not "necessarily divorced" from the interest of reliability. Whatever the Fifth Amendment's relationship to reliability, Mi randa's prophylactic rule is not merely "divorced" from the quest for truth but at war with it as well. The absence of Miranda warnings does not by some mysterious alchemy convert a voluntary and trustworthy statement into an involuntary and unreliable one. To suggest otherwise is both unrealistic and contrary to precedent. As I explained above, we have held over and over again that the exclusion of unwarned but voluntary statements not only fails to advance the cause of accuracy but impedes it by depriving the jury of trustworthy evidence. Supra, at 703. In fact, we have determined that the damage Miranda does to the truthseeking mission of the criminal trial can become intolerable. We therefore have limited the extent of the suppression rem- 708 Opinion of O'CONNOR, J. edy, see Harris v. New York, 401 U. S. 222 , 224-226 (1971) (unwarned but voluntary statement may be used for impeachment), and dispensed with it entirely elsewhere, see Quarles, supra (unwarned statement may be used for any purpose where statement was obtained under exigent circumstances bearing on public safety). And at least one Member of this Court dissented from Miranda itself because it "establish[ed] a new ... barrier to the ascertainment of truth by the judicial process." Miranda, supra, at 542 (opinion of WHITE, J.). Consequently, I agree with the Court that Miranda's relationship to accurate verdicts is an important consideration when deciding whether to permit Miranda claims on habeas. But it is a consideration that weighs decisively against the Court's decision today. The consideration the Court identifies as being "most importan[t]" of all, ante, at 693, is an entirely pragmatic one. Specifically, the Court "project[s]" that excluding Miranda questions from habeas will not significantly promote efficiency or federalism because some Miranda issues are relevant to a statement's voluntariness. Ante, at 693-695. It is true that barring Miranda claims from habeas poses no barrier to the adjudication of voluntariness questions. But that does not make it "reasonable to suppose that virtually all Miranda claims [will] simply be recast" and litigated as voluntariness claims. Ante, at 693. Involuntariness requires coercive state action, such as trickery, psychological pressure, or mistreatment. Colorado v. Connelly, 479 U. S. 157 , 167 (1986) ("[C]oercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' "); ante, at 693 (referring to "the crucial element of police coercion"). A Miranda claim, by contrast, requires no evidence of police overreaching whatsoever; it is enough that law enforcement officers commit a technical error. Even the forgetful failure to issue warnings to the most wary, knowledgeable, and sea- 709 soned of criminals will do. Miranda, 384 U. S., at 468 ("[WJe will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given"). Given the Court's unqualified trust in the willingness of police officers to satisfy Miranda's requirements, ante, at 695, its suggestion that their every failure to do so involves coercion seems to me ironic. If the police have truly grown in "constitutional ... sophistication," ibid., then certainly it is reasonable to suppose that most technical errors in the administration of Miranda's warnings are just that. In any event, I see no need to resort to supposition. The published decisions of the lower federal courts show that what the Court assumes to be true demonstrably is not. In case after case, the courts are asked on habeas to decide purely technical Miranda questions that contain not even a hint of police overreaching. And in case after case, no voluntariness issue is raised, primarily because none exists. Whether the suspect was in "custody," 1 whether or not there 1 See, e. g., Schiro v. Clark, 963 F.2d 962 , 974-975 (CA7 1992) (defendant approached officer in halfway house and asked to speak to him; not in custody); Tart v. Massachusetts, 949 F.2d 490 ,504 (CA11991) (fisherman asked to produce document on board his own, docked boat; no custody); Williams v. Chrans, 945 F.2d 926 , 950-952 (CA7 1991) (voluntary appearance for presentence report interview; not in custody), cert. denied, 505 U. S. 1208 (1992); Carlson v. State, 945 F.2d 1026 , 1028-1029 (CA8 1991) (suspect questioned at his home; no custody); Davis v. Kemp, 829 F.2d 1522 , 1535 (CAll 1987) (defendant voluntarily went to police station in absence of evidence that there was probable cause for arrest; not in custody), cert. denied, 485 U. S. 929 (1988); Cobb v. Perini, 832 F.2d 342 , 345-347 (CA6 1987) (investigatory Terry-stop; not in custody), cert. denied, 486 U. S. 1024 (1988); Leviston v. Black, 843 F.2d 302 , 304 (CA8) (injail interview initiated by incarcerated defendant; no custody), cert. denied, 488 U. S. 865 (1988); Cordoba v. Hanrahan, 910 F.2d 691 , 693-694 (CAW) (drunk driver questioned at accident scene before arrest; not in custody), cert. denied, 498 U. S. 1014 (1990). 710 Opinion of O'CONNOR, J. was "interrogation," 2 whether warnings were given or were adequate,3 whether the defendant's equivocal statement constituted an invocation of rights,4 whether waiver was knowing and intelligent 5-this is the stuff that Miranda claims are made of. While these questions create litigable issues under Miranda, they generally do not indicate the existence of coercion-pressure tactics, deprivations, or exploitations of the defendant's weaknesses-sufficient to establish involuntariness. 2 See, e. g., Endress v. Dugger, 880 F.2d 1244 , 1246-1250 (CAll 1989) (defendant volunteered information without questioning), cert. denied, 495 U. S. 904 (1990); United States ex rel. Church v. De Robertis, 771 F.2d 1015 , 1018-1020 (CA7 1985) (placing defendant's brother in cell with him not interrogation); Harryman v. Estelle, 616 F.2d 870 , 873-875 (CA5) (en banc) (officer's surprised exclamation, "What is this?" upon finding condom filled with white powder, constituted interrogation), cert. denied, 449 U. S. 860 (1980); Phillips v. Attorney General of California, 594 F.2d 1288 , 1290-1291 (CA9 1979) (defendant volunteered information after officer stated that he wished to see interior of defendant's plane). 3 See, e. g., Chambers v. Lockhart, 872 F.2d 274 , 275-276 (CA8) (omission of right to free appointed counsel), cert. denied, 493 U. S. 938 (1989); Gates v. Zant, 863 F.2d 1492 , 1500-1501 (CAll) (no warning that videotape of confession could be used), cert. denied, 493 U. S. 945 (1989); Crespo v. Armontrout, 818 F.2d 684 , 685-686 (CA8) (when and whether warnings were given), cert. denied, 484 U. S. 978 (1987); De La Rosa v. Texas, 743 F.2d 299 , 301-302 (CA5 1984) (officer's explanation of the warnings alleged to be misleading), cert. denied, 470 U. S. 1065 (1985); Stanley v. Zant, 697 F. 2d 955, 972 (CA111983) (allegedly misleading waiver form), cert. denied, 467 U. S. 1219 (1984). 4 See, e. g., Bobo v. Kolb, 969 F.2d 391 , 395-398 (CA7 1992) (standing mute); Christopher v. Florida, 824 F.2d 836 , 841-843 (CA111987) (equivocal invocation of right to silence), cert. denied, 484 U. S. 1077-1078 (1988); Lightbourne v. Dugger, 829 F.2d 1012 , 1017-1019 (CA111987) (spontaneous resumption of discussion after cutting off questioning), cert. denied, 488 U. S. 934 (1988). 5 See, e. g., Terrovona v. Kincheloe, 912 F.2d 1176 , 1179-1180 (CA9 1990) (validity of implied waiver in light of defendant's "background, experience, and conduct"), cert. denied, 499 U. S. 979 (1991); Fike v. James, 833 F.2d 1503 , 1506-1507 (CA111987) (defendant's initiation of contact waived previous invocation of rights). 711 Even assuming that many Miranda claims could "simply be recast" as voluntariness claims, it does not follow that barring Miranda's prophylactic rule from habeas would unduly complicate their resolution. The Court labels Miranda a "bright-line (or, at least, brighter-line) rul[eJ" and involuntariness an "exhaustive totality-of-circumstances approach," ante, at 694, but surely those labels overstate the differences. Miranda, for all its alleged brightness, is not without its difficulties; and voluntariness is not without its strengths. JusTICE WHITE so observed in his Miranda dissent, noting that the Court could not claim that "judicial time and effort ... will be conserved because of the ease of application of the [Miranda] rule. [Miranda] leaves open such questions as whether the accused was in custody, whether his statements were spontaneous or the product of interrogation, whether the accused has effectively waived his rights, ... all of which are certain to prove productive of uncertainty during investigation and litigation during prosecution." Miranda, supra, at 544-545. Experience has proved JUSTICE WHITE'S prediction correct. Miranda creates as many close questions as it resolves. The task of determining whether a defendant is in "custody" has proved to be "a slippery one." Elstad, 470 U. S., at 309; see, e. g., n. 1, supra (custody cases). And the supposedly "bright" lines that separate interrogation from spontaneous declaration, the exercise of a right from waiver, and the adequate warning from the inadequate, likewise have turned out to be rather dim and ill defined. See Rhode Island v. Innis, 446 U. S. 291 (1980) (interrogation); n. 2, supra (interrogation); nn. 4 and 5, supra (waiver and invocation); n. 3, supra (adequacy of warnings). Yet Miranda requires those lines to be drawn with precision in each case. The totality-of-the-circumstances approach, on the other hand, permits each fact to be taken into account without re- 712 Opinion of O'CONNOR, J. sort to formal and dispositive labels. By dispensing with the difficulty of producing a yes-or-no answer to questions that are often better answered in shades and degrees, the voluntariness inquiry often can make judicial decisionmaking easier rather than more onerous. Thus, it is true that the existence of warnings is still a consideration under the totality-of-the-circumstances approach, ante, at 693-694, but it is unnecessary to determine conclusively whether "custody" existed and triggered the warning requirement, or whether the warnings given were sufficient. It is enough that the habeas court look to the warnings or their absence, along with all other factors, and consider them in deciding what is, after all, the ultimate question: whether the confession was compelled and involuntary or the product of a free and unimpaired will. See Schneckloth v. Bustamonte, 412 U. S., at 225-226. Nor does continued application of Miranda's prophylactic rule on habeas dispense with the necessity of testing confessions for voluntariness. While Miranda's conclusive presumption of coercion may sound like an impenetrable barrier to the introduction of compelled testimony, in practice it leaks like a sieve. Miranda, for example, does not preclude the use of an unwarned confession outside the prosecution's case in chief, Harris v. New York, 401 U. S. 222 (1971); Oregon v. Hass, 420 U. S. 714 (1975); involuntary statements, by contrast, must be excluded from trial for all purposes, Mincey v. Arizona, 437 U. S. 385 , 398 (1978). Miranda does not preclude admission of the fruits of an unwarned statement, see Oregon v. Elstad, supra; but under the Fifth and Fourteenth Amendments, we require the suppression of not only compelled confessions but tainted subsequent confessions as well, Clewis v. Texas, 386 U. S. 707 , 710 (1967). Finally, Miranda can fail to exclude some truly involuntary statements: It is entirely possible to extract a compelled statement despite the most precise and accurate of warnings. 713 See Johnson, 384 U. S., at 730 (warnings are only one factor in determining voluntariness). The Court's final rationale is that, because the federal courts rarely issue writs for Miranda violations, eliminating Miranda claims from habeas will not decrease state-federal tensions to an appreciable degree. Ante, at 694-695. The relative infrequency of relief, however, does not diminish the intrusion on state sovereignty; it diminishes only our justification for intruding in the first place. After all, even if relief is denied at the end of the day, the State still must divert its scarce prosecutorial resources to defend an otherwise final conviction. If relief is truly rare, efficiency counsels in favor of dispensing with the search for the prophylactic rule violation in a haystack; instead, the federal courts should concentrate on the search for true Fifth Amendment violations by adjudicating the questions of voluntariness and compulsion directly. I therefore find it of little moment that the Police Foundation et al. support respondent. Ante, at 695, n. 6. Those who bear the primary burden of defending state convictions in federal courts-including 36 States and the National District Attorneys Association- resoundingly support the opposite side. See Brief for California et al. as Amici Curiae; Brief for Americans for Effective Law Enforcement, Inc., and the National District Attorneys Association, Inc., as Amici Curiae; see also Brief for United States as Amicus Curiae (United States must defend against claims raised by federal prisoners under 28 U. S. C. § 2255). The Court's response, that perhaps the police respect the Miranda rule as a result of "the existence of [habeas] review," ante, at 695, is contrary to both case law and common sense. As explained above, there is simply no reason to think that habeas relief, which often "'strike[s] like lightning'" years after conviction, contributes much additional deterrence beyond the threat of exclusion during state proceedings. See supra, at 704 (quoting Duckworth, 492 U. S., at 211 (O'CONNOR, J., concurring)). Accord, Friendly, 38 714 Opinion of O'CONNOR, J. U. Chi. L. Rev., at 163. And our decision in Stone expressly so held: "The view that the deterrence ... would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws ... that went undetected at trial and on appeal." 428 U. S., at 493 (footnote omitted). The majority offers no justification for disregarding our decision in Stone; nor does it provide any reason to question the truth of Stone's observation. IV As the Court emphasizes today, Miranda's prophylactic rule is now 27 years old; the police and the state courts have indeed grown accustomed to it. Ante, at 695. But it is precisely because the rule is well accepted that there is little further benefit to enforcing it on habeas. We can depend on law enforcement officials to administer warnings in the first instance and the state courts to provide a remedy when law enforcement officers err. None of the Court's asserted justifications for enforcing Miranda's prophylactic rule through habeas-neither reverence for the Fifth Amendment nor the concerns of reliability, efficiency, and federalism-counsel in favor of the Court's chosen course. Indeed, in my view they cut in precisely the opposite direction. The Court may reconsider its decision when presented with empirical data. See ante, at 693 (noting absence of empirical data); ante, at 688 (holding only that today's argument in favor of extending Stone "falls short"). But I see little reason for such a costly delay. Logic and experience are at our disposal now. And they amply demonstrate that applying Miranda's prophylactic rule on habeas does not increase the amount of justice dispensed; it only increases the frequency with which the admittedly guilty go free. In my view, Miranda imposes such grave costs and produces so little benefit on habeas that its continued application is neither tolerable nor justified. Accordingly, I join Part III of the Court's opinion but respectfully dissent from the remainder. 715 JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in part and dissenting in part. The issue in this case-whether the extraordinary remedy of federal habeas corpus should routinely be available for claimed violations of Miranda rights-involves not jurisdiction to issue the writ, but the equity of doing so. In my view, both the Court and JUSTICE O'CONNOR disregard the most powerful equitable consideration: that Williams has already had full and fair opportunity to litigate this claim. He had the opportunity to raise it in the Michigan trial court; he did so and lost. He had the opportunity to seek review of the trial court's judgment in the Michigan Court of Appeals; he did so and lost. Finally, he had the opportunity to seek discretionary review of that Court of Appeals judgment in both the Michigan Supreme Court and this Court; he did so and review was denied. The question at this stage is whether, given all that, a federal habeas court should now reopen the issue and adjudicate the Miranda claim anew. The answer seems to me obvious: it should not. That would be the course followed by a federal habeas court reviewing a federal conviction; it mocks our federal system to accord state convictions less respect. I By statute, a federal habeas court has jurisdiction over any claim that a prisoner is "in custody in violation of the Constitution or laws" of the United States. See 28 U. S. C. §§ 2241(c)(3), 2254(a), 2255. While that jurisdiction does require a claim of legal error in the original proceedings, cf. Herrera v. Collins, 506 U. S. 390 (1993), it is otherwise sweeping in its breadth. As early as 1868, this Court described it in these terms: "This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitu- 716 Opinion of SCALIA, J. tion, treaties, or laws. It is impossible to widen this jurisdiction." Ex parte McCardle, 6 Wall. 318, 325326 (1868). Our later case law has confirmed that assessment. Habeas jurisdiction extends, we have held, to federal claims for which an opportunity for full and fair litigation has already been provided in state or federal court, see Brown v. Allen, 344 U. S. 443 , 458-459 (1953); Kaufman v. United States, 394 U. S. 217, 223-224 (1969), to procedurally defaulted federal claims, including those over which this Court would have no jurisdiction on direct review, see Fay v. Noia, 372 U. S. 391 , 426, 428-429 (1963); Kaufman, supra, at 223; Wainwright v. Sykes, 433 U. S. 72 , 90-91 (1977); Coleman v. Thompson, 501 U. S. 722, 750 (1991), and to federal claims of a state criminal defendant awaiting trial, see Ex parte Royall, 117 U. S. 241 , 251 (1886). But with great power comes great responsibility. Habeas jurisdiction is tempered by the restraints that accompany the exercise of equitable discretion. This is evident from the text of the federal habeas statute, which provides that writs of habeas corpus "may be granted"-not that they shall be granted-and enjoins the court to "dispose of the matter as law and justice require." 28 U. S. C. §§ 2241(a), 2243 (emphases added). That acknowledgment of discretion is merely the continuation of a long historic tradition. In English law, habeas corpus was one of the so-called "prerogative" writs, which included the writs of mandamus, certiorari, and prohibition. Duker, The English Origins of the Writ of Habeas Corpus: A Peculiar Path to Fame, 53 N. Y. U. L. Rev. 983, 984, n. 2 (1978); 3 W. Blackstone, Commentaries 132 (1768). "[A]s in the case of all other prerogative writs," habeas would not issue "as of mere course," but rather required a showing "why the extraordinary power of the crown is called in to the party's assistance." Ibid. And even where the writ was issued to compel production of the 717 prisoner in court, the standard applied to determine whether relief would be accorded was equitable: The court was to "determine whether the case of [the prisoner's] commitment be just, and thereupon do as to justice shall appertain." 1 id., at 131. This Court has frequently rested its habeas decisions on equitable principles. In one of the earliest federal habeas cases, Ex parte Watkins, 3 Pet. 193, 201 (1830), Chief Justice Marshall wrote: "No doubt exists respecting the power [of the Court to issue the writ]; the question is, whether this be a case in which it ought to be exercised." And in Ex parte Royall, the Court, while affirming that a federal habeas court had "the power" to discharge a state prisoner awaiting trial, held that it was "not bound in every case to exercise such a power." 117 U. S., at 251. The federal habeas statute did "not deprive the court of discretion," which "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States." Ibid. This doctrine continues to be reflected in our modern cases. In declining to extend habeas relief to all cases of state procedural default, the Court in Fay v. Noia said: "Discretion is implicit in the statutory command that the judge ... 'dispose of the matter as law and justice require,' 28 U. S. C. § 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule." 372 U. S., at 438. See also Wainwright v. Sykes, supra, at 88. In fashioning this Court's retroactivity doctrine, the plurality in Teague v. Lane, 489 U. S. 288 , 308-310 (1989), also relied on equitable considerations. And in a case announced today, holding that the harmless-error standard for habeas corpus is less onerous than the one for direct review, the Court carries on this tradition by expressly considering equitable principles such as "finality," "comity," and "federalism." Brecht v. Abrahamson, ante, at 635-636. 718 Opinion of SCALIA, J. Indeed, as JUSTICE O'CONNOR notes, this Court's jurisprudence has defined the scope of habeas corpus largely by means of such equitable principles. See ante, at 698-700 (opinion concurring in part and dissenting in part). The use of these principles, which serve as "gateway[s]" through which a habeas petitioner must pass before proceeding to the merits of a constitutional claim, "is grounded in the 'equitable discretion' of habeas courts." Herrera v. Collins, supra, at 404. II As the Court today acknowledges, see ante, at 686-687, the rule of Stone v. Powell, 428 U. S. 465 (1976), is simply one application of equitable discretion. It does not deny a federal habeas court jurisdiction over Fourth Amendment claims, but merely holds that the court ought not to entertain them when the petitioner has already had an opportunity to litigate them fully and fairly. See id., at 495, n. 37. It is therefore not correct to say that applying Stone to the present case involves "eliminating review of Miranda claims" from federal habeas, ante, at 693, or that the Court is being "asked to exclude a substantive category of issues from relitigation on habeas," ante, at 700 (O'CONNOR, J., concurring in part and dissenting in part). And it is therefore unnecessary to discuss at length the value of Miranda rights, as though it has been proposed that since they are particularly worthless they deserve specially disfavored treatment. The proposed rule would treat Miranda claims no differently from all other claims, taking account of all equitable factors, including the opportunity for full and fair litigation, in determining whether to provide habeas review. Wherein Mi randa and Fourth Amendment claims differ from some other claims, is that the most significant countervailing equitable factor (possibility that the assigned error produced the conviction of an innocent person) will ordinarily not exist. At common law, the opportunity for full and fair litigation of an issue at trial and (if available) direct appeal was not 719 only a factor weighing against reaching the merits of an issue on habeas; it was a conclusive factor, unless the issue was a legal issue going to the jurisdiction of the trial court. See Ex parte Watkins, supra, at 202-203; W. Church, Habeas Corpus § 363 (1884). Beginning in the late 19th century, however, that rule was gradually relaxed, by the device of holding that various illegalities deprived the trial court of jurisdiction. See, e. g., Ex parte Lange, 18 Wall. 163, 176 (1874) (no jurisdiction to impose second sentence in violation of Double Jeopardy Clause); Ex parte Siebold, 100 U. S. 371 , 376-377 (1880) (no jurisdiction to try defendant for violation of unconstitutional statute); Frank v. Mangum, 237 U. S. 309 (1915) (no jurisdiction to conduct trial in atmosphere of mob domination); Moore v. Dempsey, 261 U. S. 86 (1923) (same); Johnson v. Zerbst, 304 U. S. 458 , 468 (1938) (no jurisdiction to conduct trial that violated defendant's Sixth Amendment right to counsel). See generally Wright v. West, 505 U. S. 277 , 285-286 (1992) (opinion of THOMAS, J.); Fay, supra, at 450-451 (Harlan, J., dissenting). Finally, the jurisdictional line was openly abandoned in Waley v. Johnston, 316 U. S. 101 , 104-105 (1942). See P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1502 (3d ed. 1988) (hereinafter Hart and Wechsler). But to say that prior opportunity for full and fair litigation no longer automatically precludes from consideration even nonjurisdictional issues is not to say that such prior opportunity is no longer a relevant equitable factor. Reason would suggest that it must be, and Stone v. Powell, supra, establishes that it is. Thus, the question before us is not whether a holding unique to Fourth Amendment claims (and resting upon nothing more principled than our estimation that Fourth Amendment exclusion claims are not very important) should be expanded to some other arbitrary category beyond that; but rather, whether the general principle that is the only valid justification for Stone v. Powell should for some 720 Opinion of SCALIA, J. reason not be applied to Miranda claims. I think the answer to that question is clear: Prior opportunity to litigate an issue should be an important equitable consideration in any habeas case, and should ordinarily preclude the court from reaching the merits of a claim, unless it goes to the fairness of the trial process or to the accuracy of the ultimate result. Our case law since Stone is entirely consistent with this view. As the Court notes, ante, at 687-688, we have held that the rule in Stone does not apply in three cases. Kimmelman v. Morrison, 477 U. S. 365 (1986), involved alleged denial of the Sixth Amendment right to counsel, which unquestionably goes to the fairness of the trial process. Rose v. Mitchell, 443 U. S. 545 (1979), involved alleged discrimination by the trial court in violation of the Fourteenth Amendment. We concluded that since the "same trial court will be the court that initially must decide the merits of such a claim," and since the claim involved an assertion that "the state judiciary itself has purposely violated the Equal Protection Clause," no opportunity for a full and fair state hearing existed. Id., at 561; see also id., at 563. And Jackson v. Virginia, 443 U. S. 307 (1979), involved a claim that "no rational trier of fact could have found proof of guilt beyond a reasonable doubt," id., at 324, which is obviously a direct challenge to the accuracy of the ultimate result. III The rule described above-or indeed a rule even somewhat more limiting of habeas review than that-is followed in federal postconviction review of federal convictions under 28 U. S. C. § 2255. In Kaufman v. United States, 394 U. S. 217 (1969), which held that res judicata does not bar § 2255 habeas review of constitutional issues, we stated that a district court had "discretion" to refuse to reach the merits of a constitutional claim that had already been raised and resolved against the prisoner at trial and on direct review. 721 Id., at 227, n. 8. Since Kaufman, federal courts have uniformly held that, absent countervailing considerations, district courts may refuse to reach the merits of a constitutional claim previously raised and rejected on direct appeal. See, e. g., Giacalone v. United States, 739 F.2d 40 , 42-43 (CA2 1984); United States v. Orejuela, 639 F.2d 1055 , 1057 (CA3 1981); Stephan v. United States, 496 F.2d 527 , 528-529 (CA6 1974), cert. denied sub nom. Marchesani v. United States, 423 U. S. 861 (1975); see also 3 C. Wright, Federal Practice and Procedure § 593, p. 439, n. 26 (1982); Note, Developments in the Law-Federal Habeas Corpus, 83 Harv. L. Rev. 1038, 1064-1066 (1970). Thus, a prior opportunity for full and fair litigation is normally dispositive of a federal prisoner's habeas claim. If the claim was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations; if the claim was not raised, it is procedurally defaulted and the habeas court will not adjudicate it absent countervailing equitable considerations (e. g., actual innocence or cause and prejudice, see United States v. Frady, 456 U. S. 152 (1982)). Because lower federal courts have not generally recognized their discretion to deny habeas relief in state cases where opportunity for full and fair litigation was accorded, the peculiar state of current federal habeas practice is this: State courts routinely see their criminal convictions vacated by federal district judges, but federal courts see their criminal convictions afforded a substantial measure of finality and respect. See Hart and Wechsler 1585. Only one theory can possibly justify this disparity-the theory advanced in Fay v. Noia, that a federal forum must be afforded for every federal claim of a state criminal defendant. * See 372 U. S., at *Of course a federal forum is theoretically available in this Court, by writ of certiorari. Quite obviously, however, this mode of review cannot be generally applied due to practical limitations. See Stone v. Powell, 428 U. S. 465 , 526 (1976) (Brennan, J., dissenting). 722 Opinion of SCALIA, J. 418. In my view, that theory is profoundly wrong for several reasons. First, it has its origin in a misreading of our early precedents. Fay interpreted the holding of Ex parte Royall that federal courts had discretion not to entertain the habeas claims of state prisoners prior to the conclusion of state-court proceedings-as containing the implication that after conclusion of those proceedings there would be plenary federal review of all constitutional claims. 372 U. S., at 420. In fact, however, Royall had noted and affirmed the common-law rule that claims of error not going to the jurisdiction of the convicting court could ordinarily be entertained only on writ of error, not on habeas corpus. 117 U. S., at 253. See Fay, supra, at 453-454 (Harlan, J., dissenting). See also Schneckloth v. Bustamonte, 412 U. S. 218 , 255 (1973) (Powell, J., concurring). Royall contained no hint of a suggestion that a federal habeas court should afford state-court judgments less respect than federal-court judgments. To the contrary, it maintained the traditional view that federal and state courts have equal responsibility for the protection of federal constitutional rights. The discretion of the federal habeas court "should be exercised," it said, "in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, ... courts equally bound to guard and protect rights secured by the Constitution." 117 U. S., at 251. And in describing the proper disposition of a federal habeas petition filed after state conviction, Royall cited Ex parte Lange, 18 Wall. 163 (1874), which involved a federal habeas attack on a federal conviction. See 117 U. S., at 253. Thus, Royall is properly understood as saying that the federal habeas statute guaranteed state prisoners, not a federal forum for all their federal claims, but rather the same rights to federal habeas relief that federal prisoners possessed. Worse than misreading case precedent, however, the federal right/federal forum theory misperceives the basic struc- 723 ture of our national system. That structure establishes this Court as the supreme judicial interpreter of the Federal Constitution and laws, but gives other federal courts no higher or more respected a role than state courts in applying that "Law of the Land" -which it says all state courts are bound by, and all state judges must be sworn to uphold. U. S. Const., Art. VI. See Robb v. Connolly, 111 U. S. 624 , 637 (1884); Ex parte Royall, supra, at 251; Brown, 344 U. S., at 499 (opinion of Frankfurter, J.). It would be a strange constitution that regards state courts as second-rate instruments for the vindication of federal rights and yet makes no mandatory provision for lower federal courts (as our Constitution does not). And it would be an unworkable constitution that requires redetermination in federal courts of all issues of pervasive federal constitutional law that arise in state-court litigation. Absent indication to the contrary, state courts should be presumed to have applied federal law as faithfully as federal courts. See Ex parte Royall, supra, at 252; Brecht v. Abrahamson, ante, at 636. A federal court entertaining collateral attack against a state criminal conviction should accord the same measure of respect and finality as it would to a federal criminal conviction. As it exercises equitable discretion to determine whether the merits of constitutional claims will be reached in the one, it should exercise a similar discretion for the other. The distinction that has arisen in lower court practice is unsupported in law, utterly impractical and demeaning to the States in its consequences, and must be eliminated. *** While I concur in Part III of the Court's opinion, I cannot agree with the rest of its analysis. I would reverse the judgment of the Court of Appeals and remand the case for a determination whether, given that respondent has already been afforded an opportunity for full and fair litigation in the 724 Opinion of SCALIA, J. courts of Michigan, any unusual equitable factors counsel in favor of readjudicating the merits of his Miranda claim on habeas corpus.

The Supreme Court ruled that a state prisoner's claim that their conviction rests on statements obtained in violation of Miranda rights is not subject to the restriction on federal habeas jurisdiction outlined in Stone v. Powell. The Court found that Stone's rule was based on prudential concerns related to the Fourth Amendment exclusionary rule, which differs from Miranda in terms of safeguarding fundamental trial rights and facilitating correct ascertainment of guilt. The Court also noted that eliminating review of Miranda claims would not significantly benefit federal courts or advance federalism. The Court emphasized the importance of presuming that state courts have applied federal law faithfully and accorded the same respect and finality to state criminal convictions as federal ones.

Miranda Rights

Davis v. U.S.

https://supreme.justia.com/cases/federal/us/512/452/

OCTOBER TERM, 1993 Syllabus DAVIS v. UNITED STATES CERTIORARI TO THE UNITED STATES COURT OF MILITARY APPEALS No. 92-1949. Argued March 29, 1994-Decided June 24, 1994 Petitioner, a member of the United States Navy, initially waived his rights to remain silent and to counsel when he was interviewed by Naval Investigative Service agents in connection with the murder of a sailor. About an hour and a half into the interview, he said, "Maybe I should talk to a lawyer." However, when the agents inquired if he was asking for a lawyer, he replied that he was not. They took a short break, he was reminded of his rights, and the interview continued for another hour, until he asked to have a lawyer present before saying anything more. A military judge denied his motion to suppress statements made at the interview, holding that his mention of a lawyer during the interrogation was not a request for counsel. He was convicted of murder, and, ultimately, the Court of Military Appeals affirmed. Held: 1. After a knowing and voluntary waiver of rights under Miranda v. Arizona, 384 U. S. 436 , law enforcement officers may continue questioning until and unless a suspect clearly requests an attorney. A suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. Id., at 469-473. If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present. Edwards v. Arizona, 451 U. S. 477 , 484-485. The Edwards rule serves the prophylactic purpose of preventing officers from badgering a suspect into waiving his previously asserted Miranda rights, and its applicability requires courts to determine whether the accused actually invoked his right to counsel. This is an objective inquiry, requiring some statement that can reasonably be construed to be an expression of a desire for an attorney's assistance. However, if a reference is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Edwards does not require that officers stop questioning the suspect. Extending Edwards to create such a requirement would transform the Miranda safeguards into wholly irrational obstacles to legitimate investigative activity by needlessly preventing the police from questioning a suspect in the absence of an attorney, even if the 453 suspect does not wish to have one present. The Edwards rule provides a bright line that can be applied by officers in the real world ofinvestigation and interrogation without unduly hampering the gathering of information. This clarity and ease of application would be lost if officers were required to cease questioning based on an ambiguous or equivocal reference to an attorney, since they would be forced to make difficult judgment calls about what the suspect wants, with the threat of suppression if they guess wrong. While it will often be good police practice for officers to clarify whether a suspect making an ambiguous statement really wants an attorney, they are not required to ask clarifying questions. Pp. 456-462. 2. There is no reason to disturb the conclusion of the courts below that petitioner's remark-"Maybe I should talk to a lawyer"-was not a request for counsel. P. 462. 36 M. J. 337, affirmed. O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 462. SOUTER, J., filed an opinion concurring in the judgment, in which BLACKMUN, STEVENS, and GINSBURG, JJ., joined, post, p. 466. David S. Jonas argued the cause for petitioner. With him on the briefs were Philip L. Sundel, Daniel S. Jonas, and David Rudovsky. Richard H. Seamon argued the cause for the United States. With him on the briefs were Solicitor General Days, Assistant Attorney General Harris, Deputy Solicitor General Bryson, Joel M. Gershowitz, Theodore G. Hess, and Brett D. Barkey. * * Fred E. Inbau, Wayne W Schmidt, James P. Manak, Richard M. Weintraub, William C. O'Malley, and Bernard J. Farber filed a brief for Americans for Effective Law Enforcement, Inc., et al. as amici curiae urging affirmance. Briefs of amici curiae were filed for the National Association of Criminal Defense Lawyers by Janet E. Ainsworth; and for the Washington Legal Foundation et al. by Paul G. Cassell, Daniel J. Popeo, and Paul D. Kamenar. 454 JUSTICE O'CONNOR delivered the opinion of the Court. In Edwards v. Arizona, 451 U. S. 477 (1981), we held that law enforcement officers must immediately cease questioning a suspect who has clearly asserted his right to have counsel present during custodial interrogation. In this case we decide how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning. I Pool brought trouble-not to River City, but to the Charleston Naval Base. Petitioner, a member of the United States Navy, spent the evening of October 2, 1988, shooting pool at a club on the base. Another sailor, Keith Shackleton, lost a game and a $30 wager to petitioner, but Shackleton refused to pay. After the club closed, Shackleton was beaten to death with a pool cue on a loading dock behind the commissary. The body was found early the next morning. The investigation by the Naval Investigative Service (NIS) gradually focused on petitioner. Investigative agents determined that petitioner was at the club that evening, and that he was absent without authorization from his duty station the next morning. The agents also learned that only privately owned pool cues could be removed from the club premises, and that petitioner owned two cues-one of which had a bloodstain on it. The agents were told by various people that petitioner either had admitted committing the crime or had recounted details that clearly indicated his involvement in the killing. On November 4, 1988, petitioner was interviewed at the NIS office. As required by military law, the agents advised petitioner that he was a suspect in the killing, that he was not required to make a statement, that any statement could be used against him at a trial by court-martial, and that he was entitled to speak with an attorney and have an attorney present during questioning. See Art. 31, Uniform Code of 455 Military Justice (UCMJ), 10 U. s. C. § 831; Mil. Rule Evid. 305; Manual for Courts-Martial A22-13 (1984). Petitioner waived his rights to remain silent and to counsel, both orally and in writing. About an hour and a half into the interview, petitioner said, "Maybe I should talk to a lawyer." App. 135. According to the uncontradicted testimony of one of the interviewing agents, the interview then proceeded as follows: "[We m]ade it very clear that we're not here to violate his rights, that if he wants a lawyer, then we will stop any kind of questioning with him, that we weren't going to pursue the matter unless we have it clarified is he asking for a lawyer or is he just making a comment about a lawyer, and he said, [']No, I'm not asking for a lawyer,' and then he continued on, and said, 'No, I don't want a lawyer.'" Id., at 136. After a short break, the agents reminded petitioner of his rights to remain silent and to counsel. The interview then continued for another hour, until petitioner said, "I think I want a lawyer before I say anything else." Id., at 137. At that point, questioning ceased. At his general court-martial, petitioner moved to suppress statements made during the November 4 interview. The Military Judge denied the motion, holding that "the mention of a lawyer by [petitioner] during the course of the interrogation [was] not in the form of a request for counsel and ... the agents properly determined that [petitioner] was not indicating a desire for or invoking his right to counseL" Id., at 164. Petitioner was convicted on one specification of unpremeditated murder, in violation of Art. 118, UCMJ, 10 U. s. C. § 918. He was sentenced to confinement for life, a dishonorable discharge, forfeiture of all pay and allowances, and a reduction to the lowest pay grade. The convening authority approved the findings and sentence. The Navy- 456 Marine Corps Court of Military Review affirmed. App. to Pet. for Cert. 12a-15a. The United States Court of Military Appeals granted discretionary review and affirmed. 36 M. J. 337 (1993). The court recognized that the state and federal courts have developed three different approaches to a suspect's ambiguous or equivocal request for counsel: "Some jurisdictions have held that any mention of counsel, however ambiguous, is sufficient to require that all questioning cease. Others have attempted to define a threshold standard of clarity for invoking the right to counsel and have held that comments falling short of the threshold do not invoke the right to counsel. Some jurisdictions ... have held that all interrogation about the offense must immediately cease whenever a suspect mentions counsel, but they allow interrogators to ask narrow questions designed to clarify the earlier statement and the [suspect's] desires respecting counsel." Id., at 341 (internal quotation marks omitted). Applying the third approach, the court held that petitioner's comment was ambiguous, and that the NIS agents properly clarified petitioner's wishes with respect to counsel before continuing questioning him about the offense. Id., at 341-342. Although we have twice previously noted the varying approaches the lower courts have adopted with respect to ambiguous or equivocal references to counsel during custodial interrogation, see Connecticut v. Barrett, 479 U. S. 523 , 529530, n. 3 (1987); Smith v. Illinois, 469 U. S. 91 , 96, n. 3 (1984) (per curiam), we have not addressed the issue on the merits. We granted certiorari, 510 U. S. 942 (1993), to do so. II The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, see United 457 States v. Gouveia, 467 U. S. 180 , 188 (1984), and before proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel. Nevertheless, we held in Miranda v. Arizona, 384 U. S. 436 , 469-473 (1966), that a suspect subject to custodial interrogation has the right to consult with an attorney and to have counsel present during questioning, and that the police must explain this right to him before questioning begins. The right to counsel established in Miranda was one of a "series of recommended 'procedural safeguards' ... [that] were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected." Michigan v. Tucker, 417 U. S. 433 , 443-444 (1974); see U. S. Const., Arndt. 5 ("No person ... shall be compelled in any criminal case to be a witness against himself"). * *We have never had occasion to consider whether the Fifth Amendment privilege against self-incrimination, or the attendant right to counsel during custodial interrogation, applies of its own force to the military, and we need not do so here. The President, exercising his authority to prescribe procedures for military criminal proceedings, see Art. 36(a), UCMJ, 10 U. S. C. § 836(a), has decreed that statements obtained in violation of the Self-Incrimination Clause are generally not admissible at trials by courtmartial. Mil. Rules Evid. 304(a) and (c)(3). Because the Court of Military Appeals has held that our cases construing the Fifth Amendment right to counsel apply to military interrogations and control the admissibility of evidence at trials by court-martial, see, e. g., United States v. McLaren, 38 M. J. 112, 115 (1993); United States v. Applewhite, 23 M. J. 196, 198 (1987), and the parties do not contest this point, we proceed on the assumption that our precedents apply to courts-martial just as they apply to state and federal criminal prosecutions. We also note that the Government has not sought to rely in this case on 18 U. S. C. § 3501, "the statute governing the admissibility of confessions in federal prosecutions," United States v. Alvarez-Sanchez, 511 U. S. 350 , 351 (1994), and we therefore decline the invitation of some amici to consider it. See Brief for Washington Legal Foundation et al. as Amici Curiae 7-14. Although we will consider arguments raised only in an amicus brief, see Teague v. Lane, 489 U. S. 288 , 300 (1989) (plurality opinion), we are reluctant to do so when the issue is one of first impression involving 458 The right to counsel recognized in Miranda is sufficiently important to suspects in criminal investigations, we have held, that it "requir[es] the special protection of the knowing and intelligent waiver standard." Edwards v. Arizona, 451 U. S., at 483. See Oregon v. Bradshaw, 462 U. S. 1039 , 10461047 (1983) (plurality opinion); id., at 1051 (Powell, J., concurring in judgment). If the suspect effectively waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U. S. 369 , 372-376 (1979). But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation. Edwards v. Arizona, supra, at 484-485. This "second layer of prophylaxis for the Miranda right to counsel," McNeil v. Wisconsin, 501 U. S. 171 , 176 (1991), is "designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Michigan v. Harvey, 494 U. S. 344 , 350 (1990). To that end, we have held that a suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present. Minnick v. Mississippi, 498 U. S. 146 (1990); Arizona v. Roberson, 486 U. S. 675 (1988). "It remains clear, however, that this prohibition on further questioning-like other aspects of Miranda-is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose." Connecticut v. Barrett, supra, at 528. The applicability of the "'rigid' prophylactic rule" of Ed wards requires courts to "determine whether the accused actually invoked his right to counsel." Smith v. Illinois, supra, at 95 (emphasis added), quoting Fare v. Michael c., 442 U. S. 707 , 719 (1979). To avoid difficulties of proof and to the interpretation of a federal statute on which the Department of Justice expressly declines to take a position. See Tr. of Oral Arg. 44-47. 459 provide guidance to officers conducting interrogations, this is an objective inquiry. See Connecticut v. Barrett, supra, at 529. Invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." McNeil v. Wisconsin, 501 U. S., at 178. But if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning. See ibid. ("[T]he likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards"); Edwards v. Arizona, supra, at 485 (impermissible for authorities "to reinterrogate an accused in custody if he has clearly asserted his right to counsel") (emphasis added). Rather, the suspect must unambiguously request counsel. As we have observed, "a statement either is such an assertion of the right to counselor it is not." Smith v. Illinois, 469 U. S., at 97-98 (brackets and internal quotation marks omitted). Although a suspect need not "speak with the discrimination of an Oxford don," post, at 476 (SOUTER, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney. If the statement fails to meet the requisite level of clarity, Edwards does not require that the officers stop questioning the suspect. See Moran v. Burbine, 475 U. S. 412 , 433, n. 4 (1986) ("[T]he interrogation must cease until an attorney is present only [i]f the individual states that he wants an attorney") (citations and internal quotation marks omitted). We decline petitioner's invitation to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. See Arizona v. Roberson, supra, at 688 460 (KENNEDY, J., dissenting) ("[T]he rule of Edwards is our rule, not a constitutional command; and it is our obligation to justify its expansion"). The rationale underlying Ed wards is that the police must respect a suspect's wishes regarding his right to have an attorney present during custodial interrogation. But when the officers conducting the questioning reasonably do not know whether or not the suspect wants a lawyer, a rule requiring the immediate cessation of questioning "would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity," Michigan v. Mosley, 423 U. S. 96 , 102 (1975), because it would needlessly prevent the police from questioning a suspect in the absence of counsel even if the suspect did not wish to have a lawyer present. Nothing in Edwards requires the provision of counsel to a suspect who consents to answer questions without the assistance of a lawyer. In Miranda itself, we expressly rejected the suggestion "that each police station must have a 'station house lawyer' present at all times to advise prisoners," 384 U. S., at 474, and held instead that a suspect must be told of his right to have an attorney present and that he may not be questioned after invoking his right to counsel. We also noted that if a suspect is "indecisive in his request for counsel," the officers need not always cease questioning. See id., at 485. We recognize that requiring a clear assertion of the right to counsel might disadvantage some suspects who-because of fear, intimidation, lack of linguistic skills, or a variety of other reasons-will not clearly articulate their right to counsel although they actually want to have a lawyer present. But the primary protection afforded suspects subject to custodial interrogation is the Miranda warnings themselves. "[F]ull comprehension of the rights to remain silent and request an attorney [is] sufficient to dispel whatever coercion is inherent in the interrogation process." Moran v. Burbine, supra, at 427. A suspect who knowingly and voluntarily waives his right to counsel after having that right explained 461 to him has indicated his willingness to deal with the police unassisted. Although Edwards provides an additional protection-if a suspect subsequently requests an attorney, questioning must cease-it is one that must be affirmatively invoked by the suspect. In considering how a suspect must invoke the right to counsel, we must consider the other side of the Miranda equation: the need for effective law enforcement. Although the courts ensure compliance with the Miranda requirements through the exclusionary rule, it is police officers who must actually decide whether or not they can question a suspect. The Edwards rule-questioning must cease if the suspect asks for a lawyer-provides a bright line that can be applied by officers in the real world of investigation and interrogation without unduly hampering the gathering of information. But if we were to require questioning to cease if a suspect makes a statement that might be a request for an attorney, this clarity and ease of application would be lost. Police officers would be forced to make difficult judgment calls about whether the suspect in fact wants a lawyer even though he has not said so, with the threat of suppression if they guess wrong. We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney. Of course, when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney. That was the procedure followed by the NIB agents in this case. Clarifying questions help protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and will minimize the chance of a confession being suppressed due to subsequent judicial secondguessing as to the meaning of the suspect's statement regarding counsel. But we decline to adopt a rule requiring officers to ask clarifying questions. If the suspect's state- 462 ment is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him. To recapitulate: We held in Miranda that a suspect is entitled to the assistance of counsel during custodial interrogation even though the Constitution does not provide for such assistance. We held in Edwards that if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present. But we are unwilling to create a third layer of prophylaxis to prevent police questioning when the suspect might want a lawyer. Unless the suspect actually requests an attorney, questioning may continue. The courts below found that petitioner's remark to the NIS agents-"Maybe I should talk to a lawyer"-was not a request for counsel, and we see no reason to disturb that conclusion. The NIS agents therefore were not required to stop questioning petitioner, though it was entirely proper for them to clarify whether petitioner in fact wanted a lawyer. Because there is no ground for suppression of petitioner's statements, the judgment of the Court of Military Appeals is Affirmed. JUSTICE SCALIA, concurring. Section 3501 of Title 18 of the United States Code is "the statute governing the admissibility of confessions in federal prosecutions." United States v. Alvarez-Sanchez, 511 U. S. 350 , 351 (1994). That provision declares that "a confession ... shall be admissible in evidence if it is voluntarily given," and that the issue of voluntariness shall be determined on the basis of "all the circumstances surrounding the giving of the confession, including whether or not [the] defendant was advised or knew that he was not required to make any statement ... [;] ... whether or not [the] defendant had been advised prior to questioning of his right to the assistance of counsel; and ... whether or not [the] defendant was without the assistance of counsel when questioned .... " 463 §§ 3501(a), (b) (emphases added). It continues (lest the import be doubtful): "The presence or absence of any of the above-mentioned factors ... need not be conclusive on the issue of voluntariness of the confession." § 3501(b). Legal analysis of the admissibility of a confession without reference to these provisions is equivalent to legal analysis of the admissibility of hearsay without consulting the Rules of Evidence; it is an unreal exercise. Yet as the Court observes, see ante, at 457-458, n., that is precisely what the United States has undertaken in this case. It did not raise § 3501(a) below and asserted that it is "not at issue" here, Brief for United States 18, n. 13.* This is not the first case in which the United States has declined to invoke § 3501 before us-nor even the first case in which that failure has been called to its attention. See Tr. of Oral Arg. in United States v. Green, O. T. 1992, No. 91-1521, pp. 18-21. In fact, with limited exceptions the *The United States makes the unusually self-denying assertion that the provision "in any event would appear not to be applicable in court-martial cases" since (1) court-martial cases are not "'criminal prosecutions'" within the meaning of the Sixth Amendment and "therefore would not appear to be 'criminal prosecution[s]' for purposes of Section 3501(a)," and (2) courts-martial are governed by Article 31 of the Uniform Code of Military Justice, 10 U. S. C. § 831, and Rules 304 and 305 of the Military Rules of Evidence. The first point seems to me questionable: The meaning of terms in statutes does not necessarily parallel their meaning in the Constitution. Moreover, even accepting the premise that § 3501 does not apply to courts-martial directly, it does apply indirectly, through Rule 101(b)(1) of the Military Rules of Evidence, which requires courts-martial to apply "the rules of evidence generally recognized in the trial of criminal cases in the United States district courts." As for the second point: The cited provisions of the Uniform Code and the Military Rules may (though I doubt it) be independent reasons why the confession here should be excluded, but they cannot possibly be reasons why § 3501 does not prevent Miranda v. Arizona, 384 U. S. 436 (1966), from being a basis for excluding them, which is the issue before us. In any event, the Court today bases its refusal to consider § 3501 not upon the fact that the provision is inapplicable, but upon the fact that the Government failed to argue it-and it is that refusal which my present statement addresses. 464 provision has been studiously avoided by every Administration, not only in this Court but in the lower courts, since its enactment more than 25 years ago. See Office of Legal Policy, U. S. Dept. of Justice, Report to Attorney General on Law of Pre-Trial Interrogation 72-73 (1986) (discussing "[t]he abortive implementation of § 3501" after its passage in 1968). I agree with the Court that it is proper, given the Government's failure to raise the point, to render judgment without taking account of § 3501. But the refusal to consider arguments not raised is a sound prudential practice, rather than a statutory or constitutional mandate, and there are times when prudence dictates the contrary. See United States Nat. Bank of Ore. v. Independent Ins. Agents of America, Inc., 508 U. S. 439 , 445-448 (1993) (proper for Court of Appeals to consider whether an allegedly controlling statute had been repealed, despite parties' failure, upon invitation, to assert the point). As far as I am concerned, such a time will have arrived when a case that comes within the terms of this statute is next presented to us. For most of this century, voluntariness vel non was the touchstone of admissibility of confessions. See Miranda v. Arizona, 384 U. S. 436 , 506-507 (1966) (Harlan, J., dissenting). Section 3501 of Title 18 seems to provide for that standard in federal criminal prosecutions today. I say "seems" because I do not wish to prejudge any issue of law. I am entirely open to the argument that § 3501 does not mean what it appears to say; that it is inapplicable for some other reason; or even that it is unconstitutional. But I will no longer be open to the argument that this Court should continue to ignore the commands of § 3501 simply because the Executive declines to insist that we observe them. The Executive has the power (whether or not it has the right) effectively to nullify some provisions of law by the mere failure to prosecute-the exercise of so-called prosecutorial discretion. And it has the power (whether or not it 465 has the right) to avoid application of § 3501 by simply declining to introduce into evidence confessions admissible under its terms. But once a prosecution has been commenced and a confession introduced, the Executive assuredly has neither the power nor the right to determine what objections to admissibility of the confession are valid in law. Section § 3501 of Title 18 is a provision of law directed to the courts, reflecting the people's assessment of the proper balance to be struck between concern for persons interrogated in custody and the needs of effective law enforcement. We shirk our duty if we systematically disregard that statutory command simply because the Justice Department systematically declines to remind us of it. The United States' repeated refusal to invoke § 3501, combined with the courts' traditional (albeit merely prudential) refusal to consider arguments not raised, has caused the federal judiciary to confront a host of "Miranda" issues that might be entirely irrelevant under federal law. See, e. g., in addition to the present case, United States v. Green, 507 U. S. 545 (1993) (dism'g cert. as moot); United States v. Griffin, 922 F.2d 1343 (CA8 1990); United States v. Vazquez, 857 F.2d 857 (CA1 1988); United States v. Scalf, 725 F.2d 1272 (CAlO 1984). Worse still, it may have produced-during an era of intense national concern about the problem of runaway crime-the acquittal and the nonprosecution of many dangerous felons, enabling them to continue their depredations upon our citizens. There is no excuse for this. Perhaps (though I do not immediately see why) the Justice Department has good basis for believing that allowing prosecutions to be defeated on grounds that could be avoided by invocation of § 3501 is consistent with the Executive's obligation to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, § 3. That is not the point. The point is whether our continuing refusal to consider § 3501 is consistent with the Third Branch's obligation to decide according to the law. I think it is not. 466 SOUTER, J., concurring in judgment JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JusTICE STEVENS, and JUSTICE GINSBURG join, concurring in the judgment. In the midst of his questioning by naval investigators, petitioner said "Maybe I should talk to a lawyer." The investigators promptly stopped questioning Davis about the killing of Keith Shackleton and instead undertook to determine whether he meant to invoke his right to counsel, see Mi randa v. Arizona, 384 U. S. 436 (1966). According to testimony accepted by the courts below, Davis answered the investigators' questions on that point by saying, "I'm not asking for a lawyer," and "No, I don't want to talk to a lawyer." Only then did the interrogation resume (stopping for good when petitioner said, "I think I want a lawyer before I say anything else"). I agree with the majority that the Constitution does not forbid law enforcement officers to pose questions (like those directed at Davis) aimed solely at clarifying whether a suspect's ambiguous reference to counsel was meant to assert his Fifth Amendment right. Accordingly I concur in the judgment affirming Davis's conviction, resting partly on evidence of statements given after agents ascertained that he did not wish to deal with them through counsel. I cannot, however, join in my colleagues' further conclusion that if the investigators here had been so inclined, they were at liberty to disregard Davis's reference to a lawyer entirely, in accordance with a general rule that interrogators have no legal obligation to discover what a custodial subject meant by an ambiguous statement that could reasonably be understood to express a desire to consult a lawyer. Our own precedent, the reasonable judgments of the majority of the many courts already to have addressed the issue before US,l and the advocacy of a considerable body of law 1 See, e. g., United States v. Porter, 776 F.2d 370 (CA1 1985) (en bane); United States v. Gotay, 844 F.2d 971 , 975 (CA2 1988); Thompson v. Wainwright, 601 F.2d 768 , 771-772 (CA5 1979) (en bane); United States v. Fouche, 833 F.2d 1284 , 1287 (CA9 1987); United States v. March, 999 F. 2d 467 enforcement officials 2 are to the contrary. All argue against the Court's approach today, which draws a sharp line between interrogated suspects who "clearly" assert their right to counsel, ante, at 461, and those who say something that may, but may not, express a desire for counsel's presence, the former suspects being assured that questioning will not resume without counsel present, see Miranda, supra, at 474, Edwards v. Arizona, 451 U. S. 477 , 484-485 (1981); Minnick v. Mississippi, 498 U. S. 146 (1990), the latter being left to fend for themselves. The concerns of fairness and practicality that have long anchored our Miranda case law point to a different response: when law enforcement officials "reasonably do not know whether or not the suspect wants a lawyer," ante, at 460, they should stop their interrogation and ask him to make his choice clear. I A While the question we address today is an open one,3 its answer requires coherence with nearly three decades of case 456, 461-462 (CAlO 1993); United States v. Mendoza-Cecelia, 963 F.2d 1467 , 1472 (CAll 1992); see also Howard v. Pung, 862 F.2d 1348 (CA8 1988). The weight of state-court authority is similarly lopsided, see, e. g., People v. Benjamin, 732 P. 2d 1167, 1171 (Colo. 1987); Crawford v. State, 580 A. 2d 571, 576-577 (Del. 1990); Martinez v. State, 564 So. 2d 1071, 1074 (Fla. 1990); State v. Robinson, 427 N. W. 2d 217, 223 (Minn. 1988). 2 See Brief for Americans for Effective Law Enforcement, Inc., International Association of Chiefs of Police, Inc., National District Attorneys Association, and National Sheriffs' Association as Amici Curiae 5 (The approach advocated here "is a common sense resolution of the problem. It fully accommodates the rights of the subject, while at the same time preserv[ing] the interests of law enforcement and of the public welfare"); see also Brief for United States 20 (approach taken by the Court does not "fulfill the fundamental purpose of Miranda") (internal quotation marks omitted). 3 The majority acknowledges, ante, at 456, that we have declined (despite the persistence of divergent approaches in the lower courts) to decide the operative rule for such ambiguous statements, see, e. g., Connecticut v. Barrett, 479 U. S. 523 ,529, n. 3 (1987); Mueller v. Virginia, 507 U. S. 1043 468 SOUTER, J., concurring in judgment law addressing the relationship between police and criminal suspects in custodial interrogation. Throughout that period, two precepts have commanded broad assent: that the (1993) (White, J., dissenting from denial of certiorari), but then suggests that the conclusion it reaches was foreshadowed by McNeil v. Wisconsin, 501 U. S. 171 (1991), where we noted that the "likelihood that a suspect would wish counsel to be present" was not dispositive, id., at 178. But we were not addressing the degree of clarity required to activate the counsel right (let alone endorsing the standard embraced today), as is evident from the very page of McNeil cited, where we were careful to say only that the Miranda counsel right "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." 501 U. S., at 178. McNeil instead made the different and familiar point that courts may not presume that a silent defendant "would" want a lawyer whenever circumstances suggest that representation "would" be in his interest. Nor may this case be disposed of by italicizing the words of Edwards v. Arizona, 451 U. S. 477 , 485 (1981), to the effect that when a suspect "clearly assert[s]" his right, questioning must cease. See ante, at 459. Even putting aside that the particular statement in that case was not entirely clear (the highest court to address the question described it as "equivocal," see State v. Edwards, 122 Ariz. 206, 211, 594 P. 2d 72, 77 (1979); see also 451 U. S., at 480, n. 6), Edwards no more decided the legal consequences of a less than "clear" statement than Miranda, by saying that explicit waivers are sufficient, 384 U. S., at 475, settled whether they are necessary. See North Carolina v. Butler, 441 U. S. 369 , 373 (1979) (holding they are not). Were it otherwise, there would have been no reason after Edwards to identify the issue as unresolved, but see Barrett, supra; Smith v. Illinois, 469 U. S. 91 , 95-96 (1984) (per curiam). Nor, finally, is it plausible to read Miranda itself as a presage of the Court's rule, on account of language suggesting that questioning need not stop when a request for counsel is "'indecisive.''' Ante, at 460 (quoting Miranda, 384 U. S., at 485). The statement quoted, however, is not taken from the Court's holding, but rather from a lengthy direct quotation of a letter to the Court from the Solicitor General, purporting to summarize then-current FBI practice (which the Court observed was "consistent," id., at 484, with the rule announced). In any event, the letter further explains that, under the FBI policy, the "indecisive" suspect may be "question[ed] on whether he did or did not waive counsel," id., at 485, an approach closer to the one advocated here than to the one the Court adopts. 469 Miranda safeguards exist" 'to assure that the individual's right to choose between speech and silence remains unfettered throughout the interrogation process,'" see Connecticut v. Barrett, 479 U. S. 523 , 528 (1987) (quoting Miranda, 384 U. S., at 469, and supplying emphasis), and that the justification for Miranda rules, intended to operate in the real world, "must be consistent with ... practical realities," Ari zona v. Roberson, 486 U. S. 675 , 688 (1988) (KENNEDY, J., dissenting). A rule barring government agents from further interrogation until they determine whether a suspect's ambiguous statement was meant as a request for counsel fulfills both ambitions. It assures that a suspect's choice whether or not to deal with police through counsel will be "scrupulously honored," Miranda, supra, at 479; cf. Michigan v. Mosley, 423 U. S. 96 ,110, n. 2 (1975) (White, J., concurring in result), and it faces both the real-world reasons why misunderstandings arise between suspect and interrogator and the real-world limitations on the capacity of police and trial courts to apply fine distinctions and intricate rules. B Tested against the same two principles, the approach the Court adopts does not fare so well. First, as the majority expressly acknowledges, see ante, at 460, criminal suspects who may (in Miranda's words) be "thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures," 384 U. S., at 457, would seem an odd group to single out for the Court's demand of heightened linguistic care. A substantial percentage of them lack anything like a confident command of the English language, see, e. g., United States v. De la Jara, 973 F.2d 746 , 750 (CA9 1992); many are "woefully ignorant," Miranda, supra, at 468; cf. Davis v. North Carolina, 384 U. S. 737 , 742 (1966); and many more will be sufficiently intimidated by the interrogation process or overwhelmed by the uncertainty of their predicament that 470 SOUTER, J., concurring in judgment the ability to speak assertively will abandon them.4 Indeed, the awareness of just these realities has, in the past, dissuaded the Court from placing any burden of clarity upon individuals in custody, but has led it instead to require that requests for counsel be "give[n] a broad, rather than a narrow, interpretation," see Michigan v. Jackson, 475 U. S. 625 , 633 (1986); Barrett, supra, at 529, and that courts "indulge every reasonable presumption," Johnson v. Zerbst, 304 U. S. 458 , 464 (1938) (internal quotation marks omitted), that a suspect has not waived his right to counsel under Miranda, see, e. g., Oregon v. Bradshaw, 462 U. S. 1039 , 1051 (1983) (Powell, J., concurring) ("We are unanimous in agreeing ... that the [Miranda] right to counsel is a prime example of those rights requiring the special protection of the knowing and intelligent waiver standard") (internal quotation marks and brackets omitted); cf. Minnick, 498 U. S., at 160 (SCALIA, J., dissenting) ("[WJe have adhered to the principle that nothing less than the Zerbst standard" is appropriate for Miranda waivers). Nor may the standard governing waivers as expressed in these statements be deflected away by drawing a distinction between initial waivers of Miranda rights and subsequent 4 Social science confirms what common sense would suggest, that individuals who feel intimidated or powerless are more likely to speak in equivocal or nonstandard terms when no ambiguity or equivocation is meant. See W. O'Barr, Linguistic Evidence: Language, Power, and Strategy in the Courtroom 61-71 (1982). Suspects in police interrogation are strong candidates for these effects. Even while resort by the police to the "third degree" has abated since Miranda, the basic forms of psychological pressure applied by police appear to have changed less. Compare, e. g., Miranda, supra, at 449 (" '[T]he principal psychological factor contributing to a successful interrogation is privacy''') (quoting F. Inbau & J. Reid, Criminal Interrogation and Confessions 1 (1962)), with F. Inbau, J. Reid, & J. Buckley, Criminal Interrogation and Confessions 24 (3d ed. 1986) ("The principal psychological factor contributing to a successful interrogation is privacy"). 471 decisions to reinvoke them, on the theory that so long as the burden to demonstrate waiver rests on the government, it is only fair to make the suspect shoulder a burden of showing a clear subsequent assertion. Miranda itself discredited the legitimacy of any such distinction. The opinion described the object of the warning as being to assure "a continuous opportunity to exercise [the right of silence]," 384 U. S., at 444; see also Moran v. Burbine, 475 U. S. 412 , 458 (1986) (STEVENS, J., dissenting); accord, id., at 423, n. 1. "[C]ontinuous opportunity" suggests an unvarying one, governed by a common standard of effectiveness. The suggestion is confirmed by the very first statement that follows, that "there can be no questioning" if the suspect "indicates in any manner and at any stage of the process that he wishes to consult with an attorney," Miranda, 384 U. S., at 444-445. "[A]t any stage" obviously includes the stage after initial waiver and the commencement of questioning, and "indicates in any manner" is a rule plainly in tension with the indication "with a vengeance," see id., at 505 (Harlan, J., dissenting), that the Court would require for exercise of the "continuous" right at some point after initial waiver. The Court defends as tolerable the certainty that some poorly expressed requests for counsel will be disregarded on the ground that Miranda warnings suffice to alleviate the inherent coercion of the custodial interrogation. Ante, at 460. But, "[a] once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice" to "assure that the ... right to choose between silence and speech remains unfettered throughout the interrogation process," 384 U. S., at 469. Nor does the Court's defense reflect a sound reading of the case it relies on, Moran v. Burbine, supra: "Beyond [the] duty to inform, Miranda requires that the police respect the [suspect's] decision to exercise the rights outlined in the warnings. 'If the individual indicates in any manner, at any time prior to or during ques- 472 SOUTER, J., concurring in judgment tioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.'" 475 U. S., at 420 (quoting Miranda, supra, at 473-474). While Moran held that a subject's knowing and voluntary waiver of the right to counsel is not undermined by the fact that police prevented an unsummoned lawyer from making contact with him, it contains no suggestion that Miranda affords as ready a tolerance for police conduct frustrating the suspect's subjectively held (if ambiguously expressed) desire for counsel. See 475 U. S., at 423 (contrasting Escobedo v. Illinois, 378 U. S. 478 , 481 (1964), where "police incorrectly told the suspect that his lawyer 'didn't want to see him' "); see also Miranda, supra, at 468 (purpose of warnings is to "show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it"). Indeed, it is easy, amidst the discussion of layers of protection, to lose sight of a real risk in the majority's approach, going close to the core of what the Court has held that the Fifth Amendment provides. The experience of the timid or verbally inept suspect (whose existence the Court acknowledges) may not always closely follow that of the defendant in Edwards v. Arizona (whose purported waiver of his right to counsel, made after having invoked the right, was held ineffective, lest police be tempted to "badge[r]" others like him, see Michigan v. Harvey, 494 U. S. 344 , 350 (1990)). Indeed, it may be more like that of the defendant in Escobedo v. Illinois, supra, whose sense of dilemma was heightened by his interrogators' denial of his requests to talk to a lawyer. When a suspect understands his (expressed) wishes to have been ignored (and by hypothesis, he has said something that an objective listener could "reasonably," although not necessarily, take to be a request), in contravention of the "rights" just read to him by his interrogator, he may well 473 see further objection as futile and confession (true or not) as the only way to end his interrogation.5 Nor is it enough to say that a "'statement either is ... an assertion of the right to counselor it is not.'" Ante, at 459 (quoting Smith v. Illinois, 469 U. S., at 97-98) (omitting brackets and internal quotation marks). In Smith, we neither denied the possibility that a reference to counsel could be ambiguous, see id., at 98; accord, id., at 101 (REHNQUIST, J., dissenting), nor suggested that particular statements should be considered in isolation, id., at 98.6 While it might be fair to say that every statement is meant either to express a desire to deal with police through counselor not, this fact does not dictate the rule that interrogators who hear a statement consistent with either possibility may presume the latter and forge ahead; on the contrary, clarification is the intuitively sensible course. The other justifications offered for the "requisite level of clarity" rule, ante, at 459, are that, whatever its costs, it will further society's strong interest in "effective law enforcement," ante, at 461, and maintain the "ease of application," 5 See People v. Harper, 94 Ill. App. 3d 298, 300, 418 N. E. 2d 894, 896 (1981) (defendant who asked interrogator to retrieve an attorney's business card from his wallet but was told that it "'wouldn't be necessary'" held not to have "availed himself" of right to counsel); see also Cooper v. Dupnik, 963 F.2d 1220 , 1225 (CA9 1992) (en banc) (describing elaborate police Task Force plan to ignore systematically a suspect's requests for counsel, on the theory that such would induce hopelessness and thereby elicit an admission, which would then be used to keep the suspect off the witness stand, see Oregon v. Hass, 420 U. S. 714 (1975) (statements obtained in violation of Miranda rules admissible for impeachment purposes)). 6 Indeed, our Smith decision was quoting from the dissent below, which adverts in the same sentence to the possibility of "bona fide doubt the officer may still have as to whether the defendant desires counsel," in which case "strictly" limited questioning is prescribed. See People v. Smith, 102 Ill. 2d 365, 375, 466 N. E. 2d 236, 241 (1984) (opinion of Simon, J.). 474 SOUTER, J., concurring in judgment ibid., that has long been a concern of our Miranda jurisprudence. With respect to the first point, the margin of difference between the clarification approach advocated here and the one the Court adopts is defined by the class of cases in which a suspect, if asked, would make it plain that he meant to request counsel (at which point questioning would cease). While these lost confessions do extract a real price from society, it is one that Miranda itself determined should be borne. Cf. Brief for Americans for Effective Law Enforcement, Inc., et al. as Amici Curiae 5 (the clarification approach "preserves the interests of law enforcement and of the public welfare"); Escobedo, supra, at 490 ("No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his constitutional] rights"). As for practical application, while every approach, including the majority's, will involve some "difficult judgment calls," 7 the rule argued for here would relieve the officer of 7 In the abstract, nothing may seem more clear than a "clear statement" rule, but in police stations and trial courts the question, "how clear is clear?" is not so readily answered. When a suspect says, "uh, yeah, I'd like to do that" after being told he has a right to a lawyer, has he "clearly asserted" his right? Compare Smith v. Illinois, 469 U. S., at 97 (statement was "'neither indecisive nor ambiguous''') (citation omitted), with id., at 101 (REHNQUIST, J., dissenting) (questioning clarity); see also Ore gon v. Bradshaw, 462 U. S. 1039 , 1041-1042 (1983) (plurality opinion) ("I do want an attorney before it goes very much further"); Edwards, 451 U. S., at 479 ('''I want an attorney before making a deal"'); cf. n. 3, supra. Indeed, in this case, when Davis finally said, "I think I want a lawyer before I say anything else," the agents ceased questioning; but see People v. Kendricks, 121 Ill. App. 3d 442, 446, 459 N. E. 2d 1137, 1139 (1984) (agents need not stop interrogation when suspect says, "'I think I might need a lawyer' "); cf. People v. Santiago, 133 App. Div. 429, 430-431, 519 N. Y. S. 2d 413, 414-415 (1987) (" 'Will you supply [a lawyer] now so that I may ask him should I continue with this interview at this moment?''' held "not ... an unequivocal invocation"). See generally Smith, supra, at 101 (REHNQUIST, J., dissenting) (noting that statements are rarely "crystal-clear"; "differences between certainty and hesitancy may well 475 any responsibility for guessing "whether the suspect in fact wants a lawyer even though he hasn't said so," ante, at 461. To the contrary, it would assure that the "judgment call" will be made by the party most competent to resolve the ambiguity, who our case law has always assumed should make it: the individual suspect. II Although I am convinced that the Court has taken the wrong path, I am not persuaded by petitioner's contention that even ambiguous statements require an end to all police questioning. I recognize that the approach petitioner urges on us can claim some support from our case law, most notably in the "indicates in any manner" language of Miranda, and I do not deny that the rule I endorse could be abused by "clarifying" questions that shade subtly into illicitly badgering a suspect who wants counsel, but see Thompson v. Wainwright, 601 F.2d 768 , 771-772 (CA5 1979); cf. State v. Walkowiak, 183 Wis. 2d 478,515 N. W. 2d 863 (1994) (Abrahamson, J., concurring) (suggesting means properly to focus clarification enquiry). But petitioner's proposal is not entirely in harmony with all the major themes of Miranda case law, its virtues and demerits being the reverse images of those that mark the Court's rule. While it is plainly wrong, for example, to continue interrogation when the suspect wants it to stop (and so indicates), the strong bias in favor of individual choice may also be disserved by stopping questioning when a suspect wants it to continue (but where his statement might be understood otherwise), see Michigan v. turn on the inflection with which words are spoken, especially where [a] statement is isolated from the statements surrounding it"). As a practical matter, of course, the primary arbiters of "clarity" will be the interrogators themselves, who tend as well to be courts' preferred source in determining the precise words a suspect used. And when an inculpatory statement has been obtained as a result of an unrecorded, incommunicado interrogation, these officers rarely lose "swearing matches" against criminal defendants at suppression hearings. 476 SOUTER, J., concurring in judgment Mosley, 423 U. S. 96 , 109 (1975) (White, J., concurring in result) ("[W]e have ... rejected [the] paternalistic rule protecting a defendant from his intelligent and voluntary decisions about his own criminal case"). The costs to society of losing confessions would, moreover, be especially hard to bear where the suspect, if asked for his choice, would have chosen to continue. One need not sign the majority's opinion here to agree that resort to the rule petitioner argues for should be had only if experience shows that less drastic means of safeguarding suspects' constitutional rights are not up to the job, see generally United States v. Leon, 468 U. S. 897 , 927928 (1984) (BLACKMUN, J., concurring) (exclusionary rule exception must be "tested in the real world of state and federal law enforcement, and this Court will attend to the results"). *** Our cases are best respected by a rule that when a suspect under custodial interrogation makes an ambiguous statement that might reasonably be understood as expressing a wish that a lawyer be summoned (and questioning cease), interrogators' questions should be confined to verifying whether the individual meant to ask for a lawyer. While there is reason to expect that trial courts will apply today's ruling sensibly (without requiring criminal suspects to speak with the discrimination of an Oxford don) and that interrogators will continue to follow what the Court rightly calls "good police practice" (compelled up to now by a substantial body of state and Circuit law), I believe that the case law under Miranda does not allow them to do otherwise.

Here is a summary of the case verdict: The Supreme Court ruled that law enforcement officers can continue questioning a suspect until they clearly and unambiguously request an attorney after the suspect has waived their Miranda rights. The Court held that the Edwards rule, which requires officers to cease questioning if a suspect invokes their right to counsel, applies only when the suspect's request for an attorney is clear and unequivocal. If a suspect makes an ambiguous statement that could be interpreted as a desire for an attorney, officers are only required to clarify the suspect's wishes before continuing the interrogation. The Court's decision focused on the practical implications of requiring officers to cease questioning based on ambiguous or equivocal references to an attorney. It also considered the potential costs to society of losing confessions due to ambiguous statements by suspects. The verdict emphasized the importance of balancing the protection of suspects' constitutional rights with legitimate investigative activities by law enforcement.

Miranda Rights

U.S. v. Patane

https://supreme.justia.com/cases/federal/us/542/630/

OPINION OF THOMAS, J. UNITED STATES V. PATANE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL FRANCIS PATANE on writ of certiorari to the united states court of appeals for the tenth circuit [June 28, 2004]    Justice Thomas announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Scalia join.    In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 (1966), requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion. See Massachusetts v. White, 439 U. S. 280 (1978) (per curiam) (dividing evenly on the question); see also Patterson v. United States , 485 U. S. 922 (1988) (White, J., dissenting from denial of certiorari). Although we believe that the Court’s decisions in Oregon v. Elstad, 470 U. S. 298 (1985), and Michigan v. Tucker, 417 U. S. 433 (1974), are instructive, the Courts of Appeals have split on the question after our decision in Dickerson v. United States, 530 U. S. 428 (2000). See, e.g., United States v. Villalba-Alvarado , 345 F. 3d 1007 (CA8 2003) (holding admissible the physical fruits of a Miranda violation); United States v. Sterling , 283 F. 3d 216 (CA4 2002) (same); United States v. DeSumma , 272 F. 3d 176 (CA3 2001) (same); United States v. Faulkingham , 295 F. 3d 85 (CA1 2002) (holding admissible the physical fruits of a negligent Miranda violation). Because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements, we answer the question presented in the negative. I    In June 2001, respondent, Samuel Francis Patane, was arrested for harassing his ex-girlfriend, Linda O’Donnell. He was released on bond, subject to a temporary restraining order that prohibited him from contacting O’Donnell. Respondent apparently violated the restraining order by attempting to telephone O’Donnell. On June 6, 2001, Officer Tracy Fox of the Colorado Springs Police Department began to investigate the matter. On the same day, a county probation officer informed an agent of the Bureau of Alcohol, Tobacco, and Firearms (ATF), that respondent, a convicted felon, illegally possessed a .40 Glock pistol. The ATF relayed this information to Detective Josh Benner, who worked closely with the ATF. Together, Detective Benner and Officer Fox proceeded to respondent’s residence.    After reaching the residence and inquiring into respondent’s attempts to contact O’Donnell, Officer Fox arrested respondent for violating the restraining order. Detective Benner attempted to advise respondent of his Miranda rights but got no further than the right to remain silent. At that point, respondent interrupted, asserting that he knew his rights, and neither officer attempted to complete the warning.[ Footnote 1 ] App. 40. Detective Benner then asked respondent about the Glock. Respondent was initially reluctant to discuss the matter, stating: “I am not sure I should tell you anything about the Glock because I don’t want you to take it away from me.” Id., at 41. Detective Benner persisted, and respondent told him that the pistol was in his bedroom. Respondent then gave Detective Benner permission to retrieve the pistol. Detective Benner found the pistol and seized it. A grand jury indicted respondent for possession of a firearm by a convicted felon, in violation of 18 U. S. C. §922(g)(1). The District Court granted respondent’s motion to suppress the firearm, reasoning that the officers lacked probable cause to arrest respondent for violating the restraining order. It therefore declined to rule on respondent’s alternative argument that the gun should be suppressed as the fruit of an unwarned statement. The Court of Appeals reversed the District Court’s ruling with respect to probable cause but affirmed the suppression order on respondent’s alternative theory. The court rejected the Government’s argument that this Court’s decisions in Elstad, supra , and Tucker, supra , foreclosed application of the fruit of the poisonous tree doctrine of Wong Sun v. United States, 371 U. S. 471 (1963), to the present context. 304 F. 3d 1013, 1019 (CA10 2002). These holdings were, the Court of Appeals reasoned, based on the view that Miranda announced a prophylactic rule, a position that it found to be incompatible with this Court’s decision in Dickerson, supra, at 444 (“ Miranda announced a constitutional rule that Congress may not supersede legislatively”).[ Footnote 2 ] The Court of Appeals thus equated Dickerson ’s announcement that Miranda is a constitutional rule with the proposition that a failure to warn pursuant to Miranda is itself a violation of the Constitution (and, more particularly, of the suspect’s Fifth Amendment rights). Based on its understanding of Dickerson , the Court of Appeals rejected the post- Dickerson views of the Third and Fourth Circuits that the fruits doctrine does not apply to Miranda violations. 304 F. 3d, at 1023–1027 (discussing United States v. Sterling , 283 F. 3d 216 (CA4 2002), and United States v. DeSumma , 272 F. 3d 176 (CA3 2001)). It also disagreed with the First Circuit’s conclusion that suppression is not generally required in the case of negligent failures to warn, 304 F. 3d, at 1027–1029 (discussing United States v. Faulkingham , 295 F. 3d 85 (CA1 2002)), explaining that “[d]eterrence is necessary not merely to deter intentional wrongdoing, but also to ensure that officers diligently (non-negligently) protect—and properly are trained to protect—the constitutional rights of citizens,” 304 F. 3d, at 1028–1029. We granted certiorari. 538 U. S. 976 (2003). As we explain below, the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause. The Self-Incrimination Clause, however, is not implicated by the admission into evidence of the physical fruit of a voluntary statement. Accordingly, there is no justification for extending the Miranda rule to this context. And just as the Self-Incrimination Clause primarily focuses on the criminal trial, so too does the Miranda rule. The Miranda rule is not a code of police conduct, and police do not violate the Constitution (or even the Miranda rule, for that matter) by mere failures to warn. For this reason, the exclusionary rule articu- lated in cases such as Wong Sun does not apply. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. II The Self-Incrimination Clause provides: “No person … shall be compelled in any criminal case to be a witness against himself.” U. S. Const., Amdt. 5. We need not decide here the precise boundaries of the Clause’s protection. For present purposes, it suffices to note that the core protection afforded by the Self-Incrimination Clause is a prohibition on compelling a criminal defendant to testify against himself at trial. See, e.g., Chavez v. Martinez, 538 U. S. 760 , 764–768 (2003) (plurality opinion); id., at 777–779 (Souter, J., concurring in judgment); 8 J. Wigmore, Evidence §2263, p. 378 (J. McNaughton rev. ed. 1961) (explaining that the Clause “was directed at the employment of legal process to extract from the person’s own lips an admission of guilt, which would thus take the place of other evidence”); see also United States v. Hubbell, 530 U. S. 27 , 49–56 (2000) (Thomas, J., concurring) (explaining that the privilege might extend to bar the compelled production of any incriminating evidence, testimonial or otherwise). The Clause cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements. See, e.g., id., at 34 (noting that the word “witness” in the Self-Incrimination Clause “limits the relevant category of compelled incriminating communications to those that are ‘testimonial’ in character”); id ., at 35 (discussing why compelled blood samples do not violate the Clause; cataloging other examples and citing cases); Elstad, 470 U. S., at 304 (“The Fifth Amendment, of course, is not concerned with nontestimonial evidence”); id ., at 306–307 (“The Fifth Amendment prohibits use by the prosecution in its case in chief only of compelled testimony”); Withrow v. Williams, 507 U. S. 680 , 705 (1993) (O’Connor, J., concurring in part and dissenting in part) (describing “ true Fifth Amendment claims [as] the extraction and use of compelled testimony”); New York v. Quarles, 467 U. S. 649 , 665–672, and n. 4 (1984) (O’Connor, J., concurring in judgment in part and dissenting in part) (explaining that the physical fruit of a Miranda violation need not be suppressed for these reasons). To be sure, the Court has recognized and applied several prophylactic rules designed to protect the core privilege against self-incrimination. See, e.g., Chavez , supra , at 770–772 (plurality opinion). For example, although the text of the Self-Incrimination Clause at least suggests that “its coverage [is limited to] compelled testimony that is used against the defendant in the trial itself,” Hubbell , supra , at 37, potential suspects may, at times, assert the privilege in proceedings in which answers might be used to incriminate them in a subsequent criminal case. See, e.g., United States v. Balsys, 524 U. S. 666 , 671–672 (1998); Minnesota v. Murphy, 465 U. S. 420 , 426 (1984); cf. Kastigar v. United States, 406 U. S. 441 (1972) (holding that the Government may compel grand jury testimony from witnesses over Fifth Amendment objections if the witnesses receive “use and derivative use immunity”); Uniformed Sanitation Men Assn., Inc. v. Commissioner of Sanitation of City of New York, 392 U. S. 280 , 284 (1968) (allowing the Government to use economic compulsion to secure statements but only if the Government grants appropriate immunity). We have explained that “[t]he natural concern which underlies [these] decisions is that an inability to protect the right at one stage of a proceeding may make its invocation useless at a later stage.” Tucker , 417 U. S., at 440–441. Similarly, in Miranda , the Court concluded that the possibility of coercion inherent in custodial interrogations unacceptably raises the risk that a suspect’s privilege against self-incrimination might be violated. See Dickerson , 530 U. S., at 434–435; Miranda , 384 U. S., at 467. To protect against this danger, the Miranda rule creates a presumption of coercion, in the absence of specific warnings, that is generally irrebuttable for purposes of the prosecution’s case in chief. But because these prophylactic rules (including the Miranda rule) necessarily sweep beyond the actual protections of the Self-Incrimination Clause, see, e.g., Withrow, supra , at 690–691; Elstad , supra , at 306, any further extension of these rules must be justified by its necessity for the protection of the actual right against compelled self-incrimination, Chavez , supra , at 778 (opinion of Souter, J.) (requiring a “ ‘powerful showing’ ” before “expand[ing] … the privilege against compelled self-incrimination”). Indeed, at times the Court has declined to extend Miranda even where it has perceived a need to protect the privilege against self-incrimination. See, e.g., Quarles , supra , at 657 (concluding “that the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination”). It is for these reasons that statements taken without Miranda warnings (though not actually compelled) can be used to impeach a defendant’s testimony at trial, see Elstad , supra , at 307–308; Harris v. New York, 401 U. S. 222 (1971), though the fruits of actually compelled testimony cannot, see New Jersey v. Portash, 440 U. S. 450 , 458–459 (1979). More generally, the Miranda rule “does not require that the statements [taken without complying with the rule] and their fruits be discarded as inherently tainted,” Elstad , 470 U. S., at 307. Such a blanket suppression rule could not be justified by reference to the “Fifth Amendment goal of assuring trustworthy evidence” or by any deterrence rationale, id., at 308; see Tucker , supra , at 446–449; Harris , supra , at 225–226, and n. 2, and would therefore fail our close-fit requirement. Furthermore, the Self-Incrimination Clause contains its own exclusionary rule. It provides that “[n]o person … shall be compelled in any criminal case to be a witness against himself.” Amdt. 5. Unlike the Fourth Amendment’s bar on unreasonable searches, the Self-Incrimination Clause is self-executing. We have repeatedly explained “that those subjected to coercive police interrogations have an automatic protection from the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” Chavez , 538 U. S., at 769 (plurality opinion) (citing, for example, Elstad, supra , at 307–308). This explicit textual protection supports a strong presumption against expanding the Miranda rule any further. Cf. Graham v. Connor, 490 U. S. 386 (1989). Finally, nothing in Dickerson , including its characterization of Miranda as announcing a constitutional rule, 530 U. S., at 444, changes any of these observations. Indeed, in Dickerson , the Court specifically noted that the Court’s “subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming [ Miranda ]’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.” Id ., at 443–444. This description of Miranda , especially the emphasis on the use of “unwarned statements … in the prosecution’s case in chief,” makes clear our continued focus on the protections of the Self-Incrimination Clause. The Court’s reliance on our Miranda precedents, including both Tucker and Elstad , see, e.g., Dickerson , supra , at 438, 441, further demonstrates the continuing validity of those decisions. In short, nothing in Dickerson calls into question our continued insistence that the closest possible fit be maintained between the Self-Incrimination Clause and any rule designed to protect it. III Our cases also make clear the related point that a mere failure to give Miranda warnings does not, by itself, violate a suspect’s constitutional rights or even the Miranda rule. So much was evident in many of our pre- Dickerson cases, and we have adhered to this view since Dickerson . See Chavez, supra , at 772–773 (plurality opinion) (holding that a failure to read Miranda warnings did not violate the respondent’s constitutional rights); 538 U. S., at 789. (Kennedy, J., concurring in part and dissenting in part) (agreeing “that failure to give a Miranda warning does not, without more, establish a completed violation when the unwarned interrogation ensues”); Elstad , supra , at 308; Quarles , 467 U. S., at 654; cf. Chavez , supra , at 777–779 (opinion of Souter, J.). This, of course, follows from the nature of the right protected by the Self-Incrimination Clause, which the Miranda rule, in turn, protects. It is “ ‘a fundamental trial right.’ ” Withrow , 507 U. S., at 691 (quoting United States v. Verdugo-Urquidez, 494 U. S. 259 , 264 (1990)). See also Chavez, supra , at 766–768 (plurality opinion); id ., at 790 (Kennedy, J., concurring in part and dissenting in part) (“The identification of a Miranda violation and its consequences, then, ought to be determined at trial”). It follows that police do not violate a suspect’s constitutional rights (or the Miranda rule) by negligent or even deliberate failures to provide the suspect with the full panoply of warnings prescribed by Miranda . Potential violations occur, if at all, only upon the admission of unwarned statements into evidence at trial. And, at that point, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation. Chavez, supra, at 790.[ Footnote 3 ] Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self-Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the “fruit of the poisonous tree” doctrine of Wong Sun, 371 U. S., at 488.[ Footnote 4 ] See also Nix v. Williams, 467 U. S. 431 , 441 (1984) (discussing the exclusionary rule in the Sixth Amendment context and noting that it applies to “ illegally obtained evidence [and] other incriminating evidence derived from [it]” (emphasis added)). It is not for this Court to impose its preferred police practices on either federal law enforcement officials or their state counterparts. IV In the present case, the Court of Appeals, relying on Dickerson , wholly adopted the position that the taking of unwarned statements violates a suspect’s constitutional rights. 304 F. 3d, at 1028–1029.[ Footnote 5 ] And, of course, if this were so, a strong deterrence-based argument could be made for suppression of the fruits. See, e.g., Nix , supra , at 441–444; Wong Sun, supra , at 484–486; cf. Nardone v. United States, 308 U. S. 338 , 341 (1939). But Dickerson ’s characterization of Miranda as a constitutional rule does not lessen the need to maintain the closest possible fit between the Self-Incrimination Clause and any judge-made rule designed to protect it. And there is no such fit here. Introduction of the nontestimonial fruit of a voluntary statement, such as respondent’s Glock, does not implicate the Self-Incrimination Clause. The admission of such fruit presents no risk that a defendant’s coerced statements (however defined) will be used against him at a criminal trial. In any case, “[t]he exclusion of unwarned statements … is a complete and sufficient remedy” for any perceived Miranda violation. Chavez , 538 U. S., at 790 (Kennedy, J., concurring in part and dissenting in part). See also H. Friendly, Benchmarks 280–281 (1967). There is simply no need to extend (and therefore no justification for extending) the prophylactic rule of Miranda to this context. Similarly, because police cannot violate the Self-Incrimination Clause by taking unwarned though voluntary statements, an exclusionary rule cannot be justified by reference to a deterrence effect on law enforcement, as the Court of Appeals believed, 304 F. 3d, at 1028–1029. Our decision not to apply Wong Sun to mere failures to give Miranda warnings was sound at the time Tucker and Elstad were decided, and we decline to apply Wong Sun to such failures now. The Court of Appeals ascribed significance to the fact that, in this case, there might be “little [practical] difference between [respondent’s] confessional statement” and the actual physical evidence. 304 F. 3d, at 1027. The distinction, the court said, “appears to make little sense as a matter of policy.” Ibid . But, putting policy aside, we have held that “[t]he word ‘witness’ in the constitutional text limits the” scope of the Self-Incrimination Clause to testimonial evidence. Hubbell, 530 U. S., at 34–35. The Constitution itself makes the distinction.[ Footnote 6 ] And although it is true that the Court requires the exclusion of the physical fruit of actually coerced statements, it must be remembered that statements taken without sufficient Miranda warnings are presumed to have been coerced only for certain purposes and then only when necessary to protect the privilege against self-incrimination. See Part II, supra . For the reasons discussed above, we decline to extend that presumption further.[ Footnote 7 ] Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Footnote 1 The Government concedes that respondent’s answers to subsequent on-the-scene questioning are inadmissible at trial under Miranda v. Arizona, 384 U. S. 436 (1966), despite the partial warning and respondent’s assertions that he knew his rights. Footnote 2 The Court of Appeals also distinguished Oregon v. Elstad, 470 U. S. 298 (1985), on the ground that the second (and warned) confession at issue there was the product of the defendant’s volition. 304 F. 3d, at 1019, 1021. For the reasons discussed below, we do not find this distinction relevant. Footnote 3 We acknowledge that there is language in some of the Court’s post- Miranda decisions that might suggest that the Miranda rule operates as a direct constraint on police. See, e.g., Stansbury v. California, 511 U. S. 318 , 322 (1994) (per curiam); Moran v. Burbine, 475 U. S. 412 , 420 (1986) (stating that “ Miranda imposed on the police an obligation to follow certain procedures”); cf. Edwards v. Arizona, 451 U. S. 477 , 485 (1981). But Miranda itself made clear that its focus was the admissibility of statements, see, e.g., 384 U. S., at 439, 467, a view the Court reaffirmed in Dickerson v. United States, 530 U. S. 428 , 443–444 (2000) (equating the Miranda rule with the proposition that “unwarned statements may not be used as evidence in the prosecution’s case in chief ” (emphasis added)). Footnote 4 We reject respondent’s invitation to apply the balancing test of Nardone v. United States, 308 U. S. 338 (1939). Brief for Respondent 15–33. At issue in Nardone was the violation of a federal wiretap statute, and the Court employed an exclusionary rule to deter those violations. But, once again, there are no violations (statutory or constitutional) to deter here. Footnote 5 It is worth mentioning that the Court of Appeals did not have the benefit of our decision in Chavez v. Martinez , 538 U. S. 760 (2003). Footnote 6 While Fourth Amendment protections extend to “persons, houses, papers, and effects,” the Self-Incrimination Clause prohibits only compelling a defendant to be “a witness against himself,” Amdt. 5. Footnote 7 It is not clear whether the Government could have used legal processes actually to compel respondent to produce the Glock, though there is a reasonable argument that it could have. See, e.g., United States v. Hubbell, 530 U. S. 27 , 42–45 (2000); Baltimore City Dept. of Social Servs. v. Bouknight, 493 U. S. 549 , 554–556 (1990); Fisher v. United States, 425 U. S. 391 (1976); Warden, Md. Penitentiary v. Hayden, 387 U. S. 294 , 302–303 (1967); Schmerber v. California, 384 U. S. 757 , 761 (1966). But see Commonwealth v. Hughes , 380 Mass. 583, 404 N. E. 2d 1239 (1980); Goldsmith v. Superior Court , 152 Cal. App. 3d 76 , 199 Cal. Rptr. 366 (1984). In light of this, it would be especially odd to exclude the Glock here. 542 U. S. ____ (2004) UNITED STATES V. PATANE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL FRANCIS PATANE on writ of certiorari to the united states court of appeals for the tenth circuit [June 28, 2004]    Justice Kennedy, with whom Justice O’Connor joins, concurring in the judgment.    In Oregon v. Elstad , 470 U. S. 298 (1985), New York v. Quarles , 467 U. S. 649 (1984), and Harris v. New York , 401 U. S. 222 (1971), evidence obtained following an unwarned interrogation was held admissible. This result was based in large part on our recognition that the concerns underlying the Miranda v. Arizona, 384 U. S. 436 (1966), rule must be accommodated to other objectives of the criminal justice system. I agree with the plurality that Dickerson v. United States , 530 U. S. 428 (2000), did not undermine these precedents and, in fact, cited them in support. Here, it is sufficient to note that the Government presents an even stronger case for admitting the evidence obtained as the result of Patane’s unwarned statement. Admission of nontestimonial physical fruits (the Glock in this case), even more so than the postwarning statements to the police in Elstad and Michigan v. Tucker , 417 U. S. 433 (1974), does not run the risk of admitting into trial an accused’s coerced incriminating statements against himself. In light of the important probative value of reliable physical evidence, it is doubtful that exclusion can be justified by a deterrence rationale sensitive to both law enforcement interests and a suspect’s rights during an in-custody interrogation. Unlike the plurality, however, I find it unnecessary to decide whether the detective’s failure to give Patane the full Miranda warnings should be characterized as a violation of the Miranda rule itself, or whether there is “[any]thing to deter” so long as the unwarned statements are not later introduced at trial. Ante , at 8–10.    With these observations, I concur in the judgment of the Court. SOUTER, J., DISSENTING UNITED STATES V. PATANE 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL FRANCIS PATANE on writ of certiorari to the united states court of appeals for the tenth circuit [June 28, 2004]    Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.    The majority repeatedly says that the Fifth Amendment does not address the admissibility of nontestimonial evidence, an overstatement that is beside the point. The issue actually presented today is whether courts should apply the fruit of the poisonous tree doctrine lest we create an incentive for the police to omit Miranda warnings, see Miranda v. Arizona , 384 U. S. 436 (1966), before custodial interrogation.[ Footnote 1 ] In closing their eyes to the consequences of giving an evidentiary advantage to those who ignore Miranda , the majority adds an important inducement for interrogators to ignore the rule in that case. Miranda rested on insight into the inherently coercive character of custodial interrogation and the inherently difficult exercise of assessing the voluntariness of any confession resulting from it. Unless the police give the prescribed warnings meant to counter the coercive atmosphere, a custodial confession is inadmissible, there being no need for the previous time-consuming and difficult enquiry into voluntariness. That inducement to forestall involuntary statements and troublesome issues of fact can only atrophy if we turn around and recognize an evidentiary benefit when an unwarned statement leads investigators to tangible evidence. There is, of course, a price for excluding evidence, but the Fifth Amendment is worth a price, and in the absence of a very good reason, the logic of Miranda should be followed: a Miranda violation raises a presumption of coercion, Oregon v. Elstad , 470 U. S. 298 , 306–307, and n. 1 (1985), and the Fifth Amendment privilege against compelled self-incrimination extends to the exclusion of derivative evidence, see United States v. Hubbell , 530 U. S. 27 , 37–38 (2000) (recognizing “the Fifth Amendment’s protection against the prosecutor’s use of incriminating information derived directly or indirectly from … [actually] compelled testimony”); Kastigar v. United States , 406 U. S. 441 , 453 (1972). That should be the end of this case.    The fact that the books contain some exceptions to the Miranda exclusionary rule carries no weight here. In Harris v. New York , 401 U. S. 222 (1971), it was respect for the integrity of the judicial process that justified the admission of unwarned statements as impeachment evidence. But Patane’s suppression motion can hardly be described as seeking to “pervert” Miranda “into a license to use perjury” or otherwise handicap the “traditional truth-testing devices of the adversary process.” 401 U. S., at 225–226. Nor is there any suggestion that the officers’ failure to warn Patane was justified or mitigated by a public emergency or other exigent circumstance, as in New York v. Quarles , 467 U. S. 649 (1984). And of course the premise of Oregon v. Elstad , supra , is not on point; although a failure to give Miranda warnings before one individual statement does not necessarily bar the admission of a subsequent statement given after adequate warnings, 470 U. S. 298 ; cf. Missouri v. Seibert , ante, at ___ (slip op., at 12–13) (plurality opinion), that rule obviously does not apply to physical evidence seized once and for all.[ Footnote 2 ]    There is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained. The incentive is an odd one, coming from the Court on the same day it decides Missouri v. Seibert , ante . I respectfully dissent. Footnote 1 In so saying, we are taking the legal issue as it comes to us, even though the facts give off the scent of a made-up case. If there was a Miranda failure, the most immediate reason was that Patane told the police to stop giving the warnings because he already knew his rights. There could easily be an analogy in this case to the bumbling mistake the police committed in Oregon v. Elstad , 470 U. S. 298 (1985). See Missouri v. Seibert , ante, at ___ (plurality opinion) (slip op., at 12–13). Footnote 2 To the extent that Michigan v. Tucker , 417 U. S. 433 (1974) (admitting the testimony of a witness who was discovered because of an unwarned custodial interrogation), created another exception to Miranda , it is off the point here. In Tucker , we explicitly declined to lay down a broad rule about the fruits of unwarned statements. Instead, we “place[d] our holding on a narrower ground,” relying principally on the fact that the interrogation occurred before Miranda was decided and was conducted in good faith according to constitutional standards governing at that time. 417 U. S., at 447–448 (citing Escobedo v. Illinois , 378 U. S. 478 (1964)). 542 U. S. ____ (2004) 542 U. S. ____ (2004) 542 U. S. ____ (2004) SUPREME COURT OF THE UNITED STATES NO. 02-1183 UNITED STATES, PETITIONER v. SAMUEL FRANCIS PATANE on writ of certiorari to the united states court of appeals for the tenth circuit [June 28, 2004]    Justice Breyer, dissenting.    For reasons similar to those set forth in Justice Souter’s dissent and in my concurring opinion in Missouri v. Seibert , ante , at __, I would extend to this context the “fruit of the poisonous tree” approach, which I believe the Court has come close to adopting in Seibert . Under that approach, courts would exclude physical evidence derived from unwarned questioning unless the failure to provide Miranda warnings was in good faith. See Seibert , ante , at __ (slip op., at 1) (Breyer, J., concurring); cf. ante , at 1, n. 1 (Souter, J., dissenting). Because the courts below made no explicit finding as to good or bad faith, I would remand for such a determination.

The Supreme Court ruled that the physical fruits of a suspect's voluntary statements, given without Miranda warnings, are admissible in court. The Court's decision was based on the interpretation that the Miranda rule protects against violations of the Self-Incrimination Clause, which is not violated by the introduction of physical evidence resulting from voluntary statements.

Miranda Rights

J.D.B. v. North Carolina

https://supreme.justia.com/cases/federal/us/564/261/

OPINION OF THE COURT J. D. B. V. NORTH CAROLINA 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-11121 J. D. B., PETITIONER v. NORTH CAROLINA on writ of certiorari to the supreme court of north carolina [June 16, 2011]    Justice Sotomayor delivered the opinion of the Court.    This case presents the question whether the age of a child subjected to police questioning is relevant to the custody analysis of Miranda v. Arizona , 384 U. S. 436 (1966). It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing no reason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age properly informs the Miranda custody analysis. I A    Petitioner J. D. B. was a 13-year-old, seventh-grade student attending class at Smith Middle School in Chapel Hill, North Carolina when he was removed from his classroom by a uniformed police officer, escorted to a closed-door conference room, and questioned by police for at least half an hour.    This was the second time that police questioned J. D. B. in the span of a week. Five days earlier, two home break-ins occurred, and various items were stolen. Police stopped and questioned J. D. B. after he was seen behind a residence in the neighborhood where the crimes occurred. That same day, police also spoke to J. D. B.’s grandmother—his legal guardian—as well as his aunt.    Police later learned that a digital camera matching the description of one of the stolen items had been found at J. D. B.’s middle school and seen in J. D. B.’s possession. Investigator DiCostanzo, the juvenile investigator with the local police force who had been assigned to the case, went to the school to question J. D. B. Upon arrival, DiCostanzo informed the uniformed police officer on detail to the school (a so-called school resource officer), the assistant principal, and an administrative intern that he was there to question J. D. B. about the break-ins. Although DiCostanzo asked the school administrators to verify J. D. B.’s date of birth, address, and parent contact in-formation from school records, neither the police offi- cers nor the school administrators contacted J. D. B.’s grandmother.    The uniformed officer interrupted J. D. B.’s afternoon social studies class, removed J. D. B. from the classroom, and escorted him to a school conference room.[ Footnote 1 ] There, J. D. B. was met by DiCostanzo, the assistant principal, and the administrative intern. The door to the conference room was closed. With the two police officers and the two administrators present, J. D. B. was questioned for the next 30 to 45 minutes. Prior to the commencement of questioning, J. D. B. was given neither Miranda warnings nor the opportunity to speak to his grandmother. Nor was he informed that he was free to leave the room.    Questioning began with small talk—discussion of sports and J. D. B.’s family life. DiCostanzo asked, and J. D. B. agreed, to discuss the events of the prior weekend. Denying any wrongdoing, J. D. B. explained that he had been in the neighborhood where the crimes occurred because he was seeking work mowing lawns. DiCostanzo pressed J. D. B. for additional detail about his efforts to obtain work; asked J. D. B. to explain a prior incident, when one of the victims returned home to find J. D. B. behind her house; and confronted J. D. B. with the stolen camera. The assistant principal urged J. D. B. to “do the right thing,” warning J. D. B. that “the truth always comes out in the end.” App. 99a, 112a.    Eventually, J. D. B. asked whether he would “still be in trouble” if he returned the “stuff.” Ibid . In response, DiCostanzo explained that return of the stolen items would be helpful, but “this thing is going to court” regardless. Id. , at 112a; ibid. (“[W]hat’s done is done[;] now you need to help yourself by making it right”); see also id. , at 99a. DiCostanzo then warned that he may need to seek a secure custody order if he believed that J. D. B. would continue to break into other homes. When J. D. B. asked what a secure custody order was, DiCostanzo explained that “it’s where you get sent to juvenile detention before court.” Id. , at 112a.    After learning of the prospect of juvenile detention, J. D. B. confessed that he and a friend were responsible for the break-ins. DiCostanzo only then informed J. D. B. that he could refuse to answer the investigator’s questions and that he was free to leave.[ Footnote 2 ] Asked whether he understood, J. D. B. nodded and provided further detail, including information about the location of the stolen items. Eventually J. D. B. wrote a statement, at DiCostanzo’s request. When the bell rang indicating the end of the schoolday, J. D. B. was allowed to leave to catch the bus home. B    Two juvenile petitions were filed against J. D. B., each alleging one count of breaking and entering and one count of larceny. J. D. B.’s public defender moved to suppress his statements and the evidence derived therefrom, arguing that suppression was necessary because J. D. B. had been “interrogated by police in a custodial setting without being afforded Miranda warning[s],” App. 89a, and because his statements were involuntary under the totality of the circumstances test, id. , at 142a; see Schneckloth v. Bustamonte , 412 U. S. 218 , 226 (1973) (due process precludes admission of a confession where “a defendant’s will was overborne” by the circumstances of the interrogation). After a suppression hearing at which DiCostanzo and J. D. B. testified, the trial court denied the motion, deciding that J. D. B. was not in custody at the time of the schoolhouse interrogation and that his statements were voluntary. As a result, J. D. B. entered a transcript of admission to all four counts, renewing his objection to the denial of his motion to suppress, and the court adjudicated J. D. B. delinquent.    A divided panel of the North Carolina Court of Appeals affirmed. In re J. D. B. , 196 N. C. App. 234, 674 S. E. 2d 795 (2009). The North Carolina Supreme Court held, over two dissents, that J. D. B. was not in custody when he confessed, “declin[ing] to extend the test for custody to include consideration of the age … of an individual subjected to questioning by police.” In re J. D. B. , 363 N. C. 664, 672, 686 S. E. 2d 135, 140 (2009).[ Footnote 3 ]    We granted certiorari to determine whether the Miranda custody analysis includes consideration of a juvenile suspect’s age. 562 U. S. ___ (2010). II A    Any police interview of an individual suspected of a crime has “coercive aspects to it.” Oregon v. Mathiason , 429 U. S. 492 , 495 (1977) (per curiam) . Only those interrogations that occur while a suspect is in police custody, however, “heighte[n] the risk” that statements obtained are not the product of the suspect’s free choice. Dickerson v. United States , 530 U. S. 428 , 435 (2000).    By its very nature, custodial police interrogation entails “inherently compelling pressures.” Miranda , 384 U. S., at 467. Even for an adult, the physical and psychological isolation of custodial interrogation can “undermine the individual’s will to resist and … compel him to speak where he would not otherwise do so freely.” Ibid . Indeed, the pressure of custodial interrogation is so immense that it “can induce a frighteningly high percentage of people to confess to crimes they never committed.” Corley v. United States , 556 U. S. __, __ (2009) (slip op., at 16) (citing Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906–907 (2004)); see also Miranda , 384 U. S., at 455, n. 23. That risk is all the more troubling—and recent studies suggest, all the more acute—when the subject of custodial interrogation is a juvenile. See Brief for Center on Wrongful Convictions of Youth et al. as Amici Curiae 21–22 (collecting empirical studies that “illustrate the heightened risk of false confessions from youth”).    Recognizing that the inherently coercive nature of custodial interrogation “blurs the line between voluntary and involuntary statements,” Dickerson , 530 U. S., at 435, this Court in Miranda adopted a set of prophylactic mea-sures designed to safeguard the constitutional guarantee against self-incrimination. Prior to questioning, a suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” 384 U. S., at 444; see also Florida v. Powell , 559 U. S. ___, ___ (2010) (slip op., at 8) (“The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed”). And, if a suspect makes a statement during custodial interrogation, the burden is on the Government to show, as a “prerequisit[e]” to the statement’s admissibility as evidence in the Government’s case in chief, that the defendant “voluntarily, knowingly and intelligently” waived his rights.[ Footnote 4 ] Miranda , 384 U. S., at 444, 475–476; Dickerson , 530 U. S., at 443–444.    Because these measures protect the individual against the coercive nature of custodial interrogation, they are required “ ‘only where there has been such a restriction on a person’s freedom as to render him “in custody.” ’ ” Stansbury v. California , 511 U. S. 318 , 322 (1994) (per curiam) (quoting Oregon v. Mathiason , 429 U. S. 492 , 495 (1977) (per curiam) ). As we have repeatedly emphasized, whether a suspect is “in custody” is an objective inquiry. “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was at liberty to terminate the interrogation and leave. Once the scene is set and the players’ lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.” Thompson v. Keohane , 516 U. S. 99 , 112 (1995) (internal quotation marks, alteration, and footnote omitted). See also Yarborough v. Alvarado , 541 U. S. 652 , 662–663 (2004); Stansbury , 511 U. S., at 323; Berkemer v. McCarty , 468 U. S. 420 , 442, and n. 35 (1984). Rather than demarcate a limited set of relevant circumstances, we have required police officers and courts to “examine all of the circumstances surrounding the interrogation,” Stansbury , 511 U. S., at 322, including any circumstance that “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave,” id. , at 325. On the other hand, the “subjective views harbored by either the interrogating officers or the person being questioned” are irrelevant. Id. , at 323. The test, in other words, involves no consideration of the “actual mindset” of the particular suspect subjected to police questioning. Alvarado , 541 U. S., at 667; see also California v. Beheler , 463 U. S. 1121 , 1125, n. 3 (1983) (per curiam) .    The benefit of the objective custody analysis is that it is “designed to give clear guidance to the police.” Alvarado , 541 U. S., at 668. But see Berkemer , 468 U. S., at 441 (recognizing the “occasiona[l] … difficulty” that police and courts nonetheless have in “deciding exactly when a suspect has been taken into custody”). Police must make in-the-moment judgments as to when to administer Miranda warnings. By limiting analysis to the objective circumstances of the interrogation, and asking how a reasonable person in the suspect’s position would understand his freedom to terminate questioning and leave, the objective test avoids burdening police with the task of anticipating the idiosyncrasies of every individual suspect and divining how those particular traits affect each person’s subjective state of mind. See id., at 430–431 (officers are not required to “make guesses” as to circumstances “unknowable” to them at the time); Alvarado , 541 U. S., at 668 (officers are under no duty “to consider … contingent psychological factors when deciding when suspects should be advised of their Miranda rights”). B    The State and its amici contend that a child’s age has no place in the custody analysis, no matter how young the child subjected to police questioning. We cannot agree. In some circumstances, a child’s age “would have affected how a reasonable person” in the suspect’s position “would perceive his or her freedom to leave.” Stansbury , 511 U. S., at 325. That is, a reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go. We think it clear that courts can account for that reality without doing any damage to the objective nature of the custody analysis.    A child’s age is far “more than a chronological fact.” Eddings v. Oklahoma , 455 U. S. 104 , 115 (1982); accord, Gall v. United States , 552 U. S. 38 , 58 (2007); Roper v. Simmons , 543 U. S. 551 , 569 (2005); Johnson v. Texas , 509 U. S. 350 , 367 (1993). It is a fact that “generates commonsense conclusions about behavior and perception.” Alvarado , 541 U. S., at 674 (Breyer, J., dissenting). Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.    Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children “generally are less mature and responsible than adults,” Eddings , 455 U. S., at 115–116; that they “often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them,” Bellotti v. Baird , 443 U. S. 622 , 635 (1979) (plurality opinion); that they “are more vulnerable or susceptible to … outside pressures” than adults, Roper , 543 U. S., at 569; and so on. See Graham v. Florida , 560 U. S. ___, ___ (2010) (slip op., at 17) (finding no reason to “reconsider” these observations about the common “nature of juveniles”). Addressing the specific context of police interrogation, we have observed that events that “would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens.” Haley v. Ohio , 332 U. S. 596 , 599 (1948) (plurality opinion); see also Gallegos v. Colorado , 370 U. S. 49 , 54 (1962) (“[N]o matter how sophisticated,” a juvenile subject of police interrogation “cannot be compared” to an adult subject). Describing no one child in particular, these observations restate what “any parent knows”—indeed, what any person knows—about children generally. Roper , 543 U. S., at 569.[ Footnote 5 ]    Our various statements to this effect are far from unique. The law has historically reflected the same assumption that children characteristically lack the capacity to exercise mature judgment and possess only an incomplete ability to understand the world around them. See, e.g. , 1 W. Blackstone, Commentaries on the Laws of England *464–*465 (hereinafter Blackstone) (explaining that limits on children’s legal capacity under the common law “secure them from hurting themselves by their own improvident acts”). Like this Court’s own generalizations, the legal disqualifications placed on children as a class— e.g. , limitations on their ability to alienate property, enter a binding contract enforceable against them, and marry without parental consent—exhibit the settled understanding that the differentiating characteristics of youth are universal.[ Footnote 6 ]    Indeed, even where a “reasonable person” standard otherwise applies, the common law has reflected the reality that children are not adults. In negligence suits, for instance, where liability turns on what an objectively reasonable person would do in the circumstances, “[a]ll American jurisdictions accept the idea that a person’s childhood is a relevant circumstance” to be considered. Restatement (Third) of Torts §10, Comment b , p. 117 (2005); see also id. , Reporters’ Note, pp. 121–122 (collecting cases); Restatement (Second) of Torts §283A, Comment b , p. 15 (1963–1964) (“[T]here is a wide basis of community experience upon which it is possible, as a practical matter, to determine what is to be expected of [children]”).    As this discussion establishes, “[o]ur history is replete with laws and judicial recognition” that children cannot be viewed simply as miniature adults. Eddings , 455 U. S., at 115–116. We see no justification for taking a different course here. So long as the child’s age was known to the officer at the time of the interview, or would have been objectively apparent to any reasonable officer, including age as part of the custody analysis requires officers neither to consider circumstances “unknowable” to them, Berkemer , 468 U. S., at 430, nor to “anticipat[e] the frailties or idiosyncrasies” of the particular suspect whom they question, Alvarado , 541 U. S., at 662 (internal quotation marks omitted). The same “wide basis of community experience” that makes it possible, as an objective matter, “to determine what is to be expected” of children in other contexts, Restatement (Second) of Torts §283A, at 15; see supra , at 10, and n. 6, likewise makes it possible to know what to expect of children subjected to police questioning.    In other words, a child’s age differs from other personal characteristics that, even when known to police, have no objectively discernible relationship to a reasonable person’s understanding of his freedom of action. Alvarado , holds, for instance, that a suspect’s prior interrogation history with law enforcement has no role to play in the custody analysis because such experience could just as easily lead a reasonable person to feel free to walk away as to feel compelled to stay in place. 541 U. S., at 668. Because the effect in any given case would be “contingent [on the] psycholog[y]” of the individual suspect, the Court explained, such experience cannot be considered without compromising the objective nature of the custody analysis. Ibid. A child’s age, however, is different. Precisely because childhood yields objective conclusions like those we have drawn ourselves—among others, that children are “most susceptible to influence,” Eddings , 455 U. S., at 115, and “outside pressures,” Roper , 543 U. S., at 569—considering age in the custody analysis in no way involves a determination of how youth “subjectively affect[s] the mindset” of any particular child, Brief for Respondent 14.[ Footnote 7 ]    In fact, in many cases involving juvenile suspects, the custody analysis would be nonsensical absent some consideration of the suspect’s age. This case is a prime example. Were the court precluded from taking J. D. B.’s youth into account, it would be forced to evaluate the circumstances present here through the eyes of a reasonable person of average years. In other words, how would a reasonable adult understand his situation, after being removed from a seventh-grade social studies class by a uniformed school resource officer; being encouraged by his assistant principal to “do the right thing”; and being warned by a police investigator of the prospect of juvenile detention and separation from his guardian and primary caretaker? To describe such an inquiry is to demonstrate its absurdity. Neither officers nor courts can reasonably evaluate the effect of objective circumstances that, by their nature, are specific to children without accounting for the age of the child subjected to those circumstances.    Indeed, although the dissent suggests that concerns “regarding the application of the Miranda custody rule to minors can be accommodated by considering the unique circumstances present when minors are questioned in school,” post , at 17 (opinion of Alito, J.), the effect of the schoolhouse setting cannot be disentangled from the identity of the person questioned. A student—whose presence at school is compulsory and whose disobedience at school is cause for disciplinary action—is in a far different position than, say, a parent volunteer on school grounds to chaperone an event, or an adult from the community on school grounds to attend a basketball game. Without asking whether the person “questioned in school” is a “minor,” ibid., the coercive effect of the schoolhouse setting is unknowable.    Our prior decision in Alvarado in no way undermines these conclusions. In that case, we held that a state-court decision that failed to mention a 17-year-old’s age as part of the Miranda custody analysis was not objectively unreasonable under the deferential standard of review set forth by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214. Like the North Carolina Supreme Court here, see 363 N. C., at 672, 686 S. E. 2d, at 140, we observed that accounting for a juvenile’s age in the Miranda custody analysis “could be viewed as creating a subjective inquiry,” 541 U. S., at 668. We said nothing, however, of whether such a view would be correct under the law. Cf. Renico v. Lett , 559 U. S. ___, ____, n. 3 (2010) (slip op., at 11, n. 3) (“[W]hether the [state court] was right or wrong is not the pertinent question under AEDPA”). To the contrary, Justice O’Connor’s concurring opinion explained that a suspect’s age may indeed “be relevant to the ‘custody’ inquiry.” Alvarado , 541 U. S., at 669.    Reviewing the question de novo today, we hold that so long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.[ Footnote 8 ] This is not to say that a child’s age will be a determinative, or even a significant, factor in every case. Cf. ibid. (O’Connor, J., concurring) (explaining that a state-court decision omitting any mention of the defendant’s age was not unreasonable under AEDPA’s deferential standard of review where the defendant “was almost 18 years old at the time of his interview”); post , at 17 (suggesting that “teenagers nearing the age of majority” are likely to react to an interrogation as would a “typical 18-year-old in similar circumstances”). It is, however, a reality that courts cannot simply ignore. III    The State and its amici offer numerous reasons that courts must blind themselves to a juvenile defendant’s age. None is persuasive.    To start, the State contends that a child’s age must be excluded from the custody inquiry because age is a personal characteristic specific to the suspect himself rather than an “external” circumstance of the interrogation. Brief for Respondent 21; see also id. , at 18–19 (distinguishing “personal characteristics” from “objective facts related to the interrogation itself” such as the location and duration of the interrogation). Despite the supposed significance of this distinction, however, at oral argument counsel for the State suggested without hesitation that at least some undeniably personal characteristics—for instance, whether the individual being questioned is blind—are circumstances relevant to the custody analysis. See Tr. of Oral Arg. 41. Thus, the State’s quarrel cannot be that age is a personal characteristic, without more.[ Footnote 9 ]    The State further argues that age is irrelevant to the custody analysis because it “go[es] to how a suspect may internalize and perceive the circumstances of an interrogation.” Brief for Respondent 12; see also Brief for United States as Amicus Curiae 21 (hereinafter U. S. Brief) (arguing that a child’s age has no place in the custody analysis because it goes to whether a suspect is “particularly susceptible” to the external circumstances of the interrogation (some internal quotation marks omitted)). But the same can be said of every objective circumstance that the State agrees is relevant to the custody analysis: Each circumstance goes to how a reasonable person would “internalize and perceive” every other. See, e.g. , Stansbury , 511 U. S., at 325. Indeed, this is the very reason that we ask whether the objective circumstances “add up to custody,” Keohane , 516 U. S., at 113, instead of evaluating the circumstances one by one.    In the same vein, the State and its amici protest that the “effect of … age on [the] perception of custody is internal,” Brief for Respondent 20, or “psychological,” U. S. Brief 21. But the whole point of the custody analysis is to determine whether, given the circumstances, “a reasonable person [would] have felt he or she was … at liberty to terminate the interrogation and leave.” Keohane , 516 U. S., at 112. Because the Miranda custody inquiry turns on the mindset of a reasonable person in the suspect’s position, it cannot be the case that a circumstance is subjective simply because it has an “internal” or “psychological” impact on perception. Were that so, there would be no objective circumstances to consider at all.    Relying on our statements that the objective custody test is “designed to give clear guidance to the police,” Alvarado , 541 U. S., at 668, the State next argues that a child’s age must be excluded from the analysis in order to preserve clarity. Similarly, the dissent insists that the clarity of the custody analysis will be destroyed unless a “one-size-fits-all reasonable-person test” applies. Post , at 13. In reality, however, ignoring a juvenile defendant’s age will often make the inquiry more artificial, see supra , at 12–13, and thus only add confusion. And in any event, a child’s age, when known or apparent, is hardly an obscure factor to assess. Though the State and the dissent worry about gradations among children of different ages, that concern cannot justify ignoring a child’s age altogether. Just as police officers are competent to account for other objective circumstances that are a matter of degree such as the length of questioning or the number of officers present, so too are they competent to evaluate the effect of relative age. Indeed, they are competent to do so even though an interrogation room lacks the “reflective atmosphere of a [jury] deliberation room,” post , at 15. The same is true of judges, including those whose childhoods have long since passed, see post , at 14. In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult.    There is, however, an even more fundamental flaw with the State’s plea for clarity and the dissent’s singular focus on simplifying the analysis: Not once have we excluded from the custody analysis a circumstance that we determined was relevant and objective, simply to make the fault line between custodial and noncustodial “brighter.” Indeed, were the guiding concern clarity and nothing else, the custody test would presumably ask only whether the suspect had been placed under formal arrest. Berkemer , 468 U. S., at 441; see ibid. (acknowledging the “occasiona[l] … difficulty” police officers confront in determining when a suspect has been taken into custody). But we have rejected that “more easily administered line,” recognizing that it would simply “enable the police to circumvent the constraints on custodial interrogations established by Miranda .” Ibid.; see also ibid., n. 33.[ Footnote 10 ]    Finally, the State and the dissent suggest that excluding age from the custody analysis comes at no cost to juveniles’ constitutional rights because the due process voluntariness test independently accounts for a child’s youth. To be sure, that test permits consideration of a child’s age, and it erects its own barrier to admission of a defendant’s inculpatory statements at trial. See Gallegos , 370 U. S., at 53–55; Haley , 332 U. S., at 599–601; see also post , at 17–18 (“[C]ourts should be instructed to take particular care to ensure that [young children’s] incriminating statements were not obtained involuntarily”). But Miranda ’s procedural safeguards exist precisely because the voluntariness test is an inadequate barrier when custodial interrogation is at stake. See 384 U. S., at 458 (“Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice”); Dickerson , 530 U. S., at 442 (“[R]eliance on the traditional totality-of-the-circumstances test raise[s] a risk of overlooking an involuntary custodial confession”); see also supra , at 5–6. To hold, as the State requests, that a child’s age is never relevant to whether a suspect has been taken into custody—and thus to ignore the very real differences between children and adults—would be to deny children the full scope of the procedural safeguards that Miranda guarantees to adults. *  *  *    The question remains whether J. D. B. was in custody when police interrogated him. We remand for the state courts to address that question, this time taking account of all of the relevant circumstances of the interrogation, including J. D. B.’s age at the time. The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Although the State suggests that the “record is unclear as to who brought J. D. B. to the conference room, and the trial court made no factual findings on this specific point,” Brief for Respondent 3, n. 1, the State agreed at the certiorari stage that “the SRO [school resource officer] escorted petitioner” to the room, Brief in Opposition 3. Footnote 2 The North Carolina Supreme Court noted that the trial court’s factual findings were “uncontested and therefore . . . binding” on it. In re J. D. B. , 363 N. C. 664, 668, 686 S. E. 2d 135, 137 (2009). The court described the sequence of events set forth in the text. See id., at 670–671, 686 S. E. 2d, at 139. (“Immediately following J. D. B.’s initial confession, Investigator DiCostanzo informed J. D. B. that he did not have to speak with him and that he was free to leave” (internal quotation marks and alterations omitted)). Though less than perfectly explicit, the trial court’s order indicates a finding that J. D. B. initially confessed prior to DiCostanzo’s warnings. See App. 99a. Nonetheless, both parties’ submissions to this Court suggest that the warnings came after DiCostanzo raised the possibility of a secure custody order but before J. D. B. confessed for the first time. See Brief for Petitioner 5; Brief for Respondent 5. Because we remand for a determination whether J. D. B. was in custody under the proper analysis, the state courts remain free to revisit whether the trial court made a conclusive finding of fact in this respect. Footnote 3 J. D. B.’s challenge in the North Carolina Supreme Court focused on the lower courts’ conclusion that he was not in custody for purposes of Miranda v. Arizona , 384 U. S. 436 (1966). The North Carolina Supreme Court did not address the trial court’s holding that the statements were voluntary, and that question is not before us. Footnote 4 Amici on behalf of J. D. B. question whether children of all ages can comprehend Miranda warnings and suggest that additional procedural safeguards may be necessary to protect their Miranda rights. Brief for Juvenile Law Center et al. as Amici Curiae 13–14, n. 7. Whatever the merit of that contention, it has no relevance here, where no Miranda warnings were administered at all. Footnote 5 Although citation to social science and cognitive science authorities is unnecessary to establish these commonsense propositions, the literature confirms what experience bears out. See, e.g. , Graham v. Florida , 560 U. S. ___, ___ (2010) (slip op., at 17) (“[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds”). Footnote 6 See, e.g. , 1 E. Farnsworth, Contracts §4.4, p. 379, and n. 1 (1990) (“Common law courts early announced the prevailing view that a minor’s contract is ‘voidable’ at the instance of the minor” (citing 8 W. Holdsworth, History of English Law 51 (1926))); 1 D. Kramer, Legal Rights of Children §8.1, p. 663 (rev. 2d ed. 2005) (“[W]hile minor children have the right to acquire and own property, they are considered incapable of property management” (footnote omitted)); 2 J. Kent, Commentaries on American Law *78–*79, *90 (G. Comstock ed., 11th ed. 1867); see generally id., at *233 (explaining that, under the common law, “[t]he necessity of guardians results from the inability of infants to take care of themselves . . . and this inability continues, in contemplation of law, until the infant has attained the age of [21]”); 1 Blackstone *465 (“It is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him”); Roper v. Simmons , 543 U. S. 551 , 569 (2005) (“In recognition of the comparative immaturity and irresponsibility of juveniles, almost every State prohibits those under 18 years of age from voting, serving on juries, or marrying without parental consent”). Footnote 7 Thus, contrary to the dissent’s protestations, today’s holding neither invites consideration of whether a particular suspect is “unusually meek or compliant,” post , at 9 (opinion of Alito, J.), nor “expan[ds]” the Miranda custody analysis, post , at 8, into a test that requires officers to anticipate and account for a suspect’s every personal characteristic, see post , at 11–12. Footnote 8 This approach does not undermine the basic principle that an interrogating officer’s unarticulated, internal thoughts are never—in and of themselves—objective circumstances of an interrogation. See supra , at 7; Stansbury v. California , 511 U. S. 318 , 323 (1994) (per curiam) . Unlike a child’s youth, an officer’s purely internal thoughts have no conceivable effect on how a reasonable person in the suspect’s position would understand his freedom of action. See id. , at 323–325; Berkemer v. McCarty , 468 U. S. 420 , 442 (1984). Rather than “overtur[n]” that settled principle, post , at 13, the limitation that a child’s age may inform the custody analysis only when known or knowable simply reflects our unwillingness to require officers to “make guesses” as to circumstances “unknowable” to them in deciding when to give Miranda warnings, Berkemer , 468 U. S., at 430–431. Footnote 9 The State’s purported distinction between blindness and age—that taking account of a suspect’s youth requires a court “to get into the mind” of the child, whereas taking account of a suspect’s blindness does not, Tr. of Oral Arg. 41–42—is mistaken. In either case, the question becomes how a reasonable person would understand the circumstances, either from the perspective of a blind person or, as here, a 13-year-old child. Footnote 10 Contrary to the dissent’s intimation, see post , at 8, Miranda does not answer the question whether a child’s age is an objective circumstance relevant to the custody analysis. Miranda simply holds that warnings must be given once a suspect is in custody, without “paus[ing] to inquire in individual cases whether the defendant was aware of his rights without a warning being given.” 384 U. S., at 468; see also id. , at 468–469 (“Assessments of the knowledge the defendant possessed, based on information as to age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact” (footnote omitted)). That conclusion says nothing about whether age properly informs whether a child is in custody in the first place. ALITO, J., DISSENTING J. D. B. V. NORTH CAROLINA 564 U. S. ____ (2011) SUPREME COURT OF THE UNITED STATES NO. 09-11121 J. D. B., PETITIONER v. NORTH CAROLINA on writ of certiorari to the supreme court of north carolina [June 16, 2011]    Justice Alito, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting.    The Court’s decision in this case may seem on first consideration to be modest and sensible, but in truth it is neither. It is fundamentally inconsistent with one of the main justifications for the Miranda[ Footnote 1 ] rule: the perceived need for a clear rule that can be easily applied in all cases. And today’s holding is not needed to protect the constitutional rights of minors who are questioned by the police. Miranda ’s prophylactic regime places a high value on clarity and certainty. Dissatisfied with the highly fact-specific constitutional rule against the admission of in- voluntary confessions, the Miranda Court set down rigid standards that often require courts to ignore personal characteristics that may be highly relevant to a particular suspect’s actual susceptibility to police pressure. This rigidity, however, has brought with it one of Miranda ’s principal strengths—“the ease and clarity of its application” by law enforcement officials and courts. See Moran v. Burbine , 475 U. S. 412 , 425–426 (1986). A key contributor to this clarity, at least up until now, has been Miranda ’s objective reasonable-person test for determining custody. Miranda ’s custody requirement is based on the proposition that the risk of unconstitutional coercion is heightened when a suspect is placed under formal arrest or is subjected to some functionally equivalent limitation on freedom of movement. When this custodial threshold is reached, Miranda warnings must precede police questioning. But in the interest of simplicity, the custody analysis considers only whether, under the circumstances, a hypothetical reasonable person would consider himself to be confined.    Many suspects, of course, will differ from this hypothetical reasonable person. Some, including those who have been hardened by past interrogations, may have no need for Miranda warnings at all. And for other suspects—those who are unusually sensitive to the pressures of police questioning— Miranda warnings may come too late to be of any use. That is a necessary consequence of Miranda ’s rigid standards, but it does not mean that the constitutional rights of these especially sensitive suspects are left unprotected. A vulnerable defendant can still turn to the constitutional rule against actual coercion and contend that that his confession was extracted against his will.    Today’s decision shifts the Miranda custody determination from a one-size-fits-all reasonable-person test into an inquiry that must account for at least one individualized characteristic—age—that is thought to correlate with sus-ceptibility to coercive pressures. Age, however, is in no way the only personal characteristic that may correlate with pliability, and in future cases the Court will be forced to choose between two unpalatable alternatives. It may choose to limit today’s decision by arbitrarily distinguishing a suspect’s age from other personal characteristics—such as intelligence, education, occupation, or prior experience with law enforcement—that may also correlate with susceptibility to coercive pressures. Or, if the Court is unwilling to draw these arbitrary lines, it will be forced to effect a fundamental transformation of the Miranda custody test—from a clear, easily applied prophylactic rule into a highly fact-intensive standard resembling the voluntariness test that the Miranda Court found to be unsatisfactory.    For at least three reasons, there is no need to go down this road. First, many minors subjected to police interrogation are near the age of majority, and for these suspects the one-size-fits-all Miranda custody rule may not be a bad fit. Second, many of the difficulties in applying the Miranda custody rule to minors arise because of the unique circumstances present when the police conduct interrogations at school. The Miranda custody rule has always taken into account the setting in which questioning occurs, and accounting for the school setting in such cases will address many of these problems. Third, in cases like the one now before us, where the suspect is especially young, courts applying the constitutional voluntariness standard can take special care to ensure that incriminating statements were not obtained through coercion.    Safeguarding the constitutional rights of minors does not require the extreme makeover of Miranda that today’s decision may portend. I    In the days before Miranda , this Court’s sole metric for evaluating the admissibility of confessions was a voluntariness standard rooted in both the Fifth Amendment’s Self-Incrimination Clause and the Due Process Clause of the Fourteenth Amendment. See Bram v. United States , 168 U. S. 532 , 542 (1897) (Self-Incrimination Clause); Brown v. Mississippi , 297 U. S. 278 (1936) (due process). The question in these voluntariness cases was whether the particular “defendant’s will” had been “overborne.” Lynumn v. Illinois , 372 U. S. 528 , 534 (1963). Courts took into account both “the details of the interrogation” and “the characteristics of the accused,” Schneckloth v. Bustamonte , 412 U. S. 218 , 226 (1973), and then “weigh[ed] … the circumstances of pressure against the power of resistance of the person confessing.” Stein v. New York , 346 U. S. 156 , 185 (1953).    All manner of individualized, personal characteristics were relevant in this voluntariness inquiry. Among the most frequently mentioned factors were the defendant’s education, physical condition, intelligence, and mental health. Withrow v. Williams , 507 U. S. 680 , 693 (1993); see Clewis v. Texas , 386 U. S. 707 , 712 (1967) (“only a fifth-grade education”); Greenwald v. Wisconsin , 390 U. S. 519 , 520–521 (1968) (per curiam) (had not taken blood-pressure medication); Payne v. Arkansas , 356 U. S. 560 , 562, n. 4, 567 (1958) (“mentally dull” and “ ‘slow to learn’ ”); Fikes v. Alabama , 352 U. S. 191 , 193, 196, 198 (1957) (“low mentality, if not mentally ill”). The suspect’s age also received prominent attention in several cases, e.g. , Gallegos v. Colorado , 370 U. S. 49 , 54 (1962), especially when the suspect was a “mere child.” Haley v. Ohio , 332 U. S. 596 , 599 (1948) (plurality opinion). The weight assigned to any one consideration varied from case to case. But all of these factors, along with anything else that might have affected the “individual’s . . . capacity for effective choice,” were relevant in determining whether the confession was coerced or compelled. See Miranda v. Arizona, 384 U. S. 436 , 506–507 (1966) (Harlan, J., dissenting).    The all-encompassing nature of the voluntariness inquiry had its benefits. It allowed courts to accommodate a “complex of values,” Schneckloth , supra , at 223, 224, and to make a careful, highly individualized determination as to whether the police had wrung “a confession out of [the] accused against his will.” Blackburn v. Alabama , 361 U. S. 199 , 206–207 (1960). But with this flexibility came a decrease in both certainty and predictability, and the voluntariness standard proved difficult “for law enforcement officers to conform to, and for courts to apply in a consistent manner.” Dickerson v. United States , 530 U. S. 428 , 444 (2000).    In Miranda , the Court supplemented the voluntariness inquiry with a “set of prophylactic measures” designed to ward off the “ ‘inherently compelling pressures’ of custodial interrogation.” See Maryland v. Shatzer , 559 U. S. __, __ (2010) (slip op., at 4) (quoting Miranda , 384 U. S., at 467). Miranda greatly simplified matters by requiring police to give suspects standard warnings before commencing any custodial interrogation. See id., at 479. Its requirements are no doubt “rigid,” see Fare v. Michael C. , 439 U. S. 1310 , 1314 (1978) (Rehnquist, J., in chambers), and they often require courts to suppress “trustworthy and highly probative” statements that may be perfectly “voluntary under [a] traditional Fifth Amendment analysis.” Fare v. Michael C. , 442 U. S. 707 , 718 (1979). But with this rigidity comes increased clarity. Miranda provides “a workable rule to guide police officers,” New York v. Quarles , 467 U. S. 649 , 658 (1984) (internal quotation marks omitted), and an administrable standard for the courts. As has often been recognized, this gain in clarity and administrability is one of Miranda ’s “principal advantages.” Berkemer v. McCarty , 468 U. S. 420 , 430 (1984); see also Missouri v. Seibert , 542 U. S. 600 , 622 (2004) (Kennedy, J., con-curring in judgment).    No less than other facets of Miranda , the threshold requirement that the suspect be in “custody” is “designed to give clear guidance to the police.” Yarborough v. Alvarado , 541 U. S. 652 , 668, 669 (2004). Custody under Miranda attaches where there is a “formal arrest” or a “restraint on freedom of movement” akin to formal arrest. California v. Beheler , 463 U. S. 1121 , 1125 (1983) (per curiam) (internal quotation marks omitted) . This standard is “objective” and turns on how a hypothetical “reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.” Stansbury v. California , 511 U. S. 318 , 322–323, 325 (1994) (per curiam) (internal quotation marks omitted).    Until today, the Court’s cases applying this test have focused solely on the “objective circumstances of the interrogation,” id. , at 323, not the personal characteristics of the interrogated. E.g. , Berkemer , supra , at 442, and n. 35; but cf. Schneckloth , 412 U. S., at 226 (voluntariness inquiry requires consideration of “the details of the interrogation” and “the characteristics of the accused”). Relevant factors have included such things as where the questioning occurred,[ Footnote 2 ] how long it lasted,[ Footnote 3 ] what was said,[ Footnote 4 ] any physical restraints placed on the suspect’s movement,[ Footnote 5 ] and whether the suspect was allowed to leave when the questioning was through.[ Footnote 6 ] The totality of these circumstances—the external circumstances, that is, of the interrogation itself—is what has mattered in this Court’s cases. Personal characteristics of suspects have consistently been rejected or ignored as irrelevant under a one-size-fits-all reasonable-person standard. Stansbury, supra, at 323 (“[C]ustody depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned”).    For example, in Berkemer v. McCarty, supra , police officers conducting a traffic stop questioned a man who had been drinking and smoking marijuana before he was pulled over. Id., at 423. Although the suspect’s inebriation was readily apparent to the officers at the scene, ibid. , the Court’s analysis did not advert to this or any other individualized consideration. Instead, the Court focused only on the external circumstances of the interrogation itself. The opinion concluded that a typical “traffic stop” is akin to a “ Terry stop”[ Footnote 7 ] and does not qualify as the equivalent of “formal arrest.” Id. , at 439. California v. Beheler , supra , is another useful example. There, the circumstances of the interrogation were “remarkably similar” to the facts of the Court’s earlier decision in Oregon v. Mathiason , 429 U. S. 492 (1977) (per curiam) —the suspect was “not placed under arrest,” he “voluntarily [came] to the police station,” and he was “allowed to leave unhindered by police after a brief interview.” 463 U. S., at 1123, 1121. A California court in Beheler had nonetheless distinguished Mathiason because the police knew that Beheler “had been drinking earlier in the day” and was “emotionally distraught.” 463 U. S., at 1124–1125. In a summary reversal, this Court explained that the fact “[t]hat the police knew more” personal information about Beheler than they did about Mathiason was “irrelevant.” Id. , at 1125. Neither one of them was in custody under the objective reasonable-person standard. Ibid . ; see also Alvarado , supra, at 668, 669 (experience with law enforcement irrelevant to Miranda custody analysis “as a de novo matter”).[ Footnote 8 ]    The glaring absence of reliance on personal characteristics in these and other custody cases should come as no surprise. To account for such individualized considerations would be to contradict Miranda ’s central premise. The Miranda Court’s decision to adopt its inflexible prophylactic requirements was expressly based on the notion that “[a]ssessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation.” 384 U. S., at 468–469. II    In light of this established practice, there is no denying that, by incorporating age into its analysis, the Court is embarking on a new expansion of the established custody standard. And since Miranda is this Court’s rule, “not a constitutional command,” it is up to the Court “to justify its expansion.” Cf. Arizona v. Roberson , 486 U. S. 675 , 688 (1988) (Kennedy, J., dissenting). This the Court fails to do.    In its present form, Miranda ’s prophylactic regime already imposes “high cost[s]” by requiring suppression of confessions that are often “highly probative” and “voluntary” by any traditional standard. Oregon v. Elstad , 470 U. S. 298 , 312 (1985); see Dickerson, 530 U. S., at 444 (under Miranda “statements which may be by no means involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded and a guilty defendant go free as a result”). Nonetheless, a “core virtue” of Miranda has been the clarity and precision of its guidance to “police and courts.” Withrow v. Williams , 507 U. S. 680 , 694 (1993) (internal quotation marks omitted); see Moran, 475 U. S., at 425 (“[O]ne of the principal advantages of Miranda is the ease and clarity of its application” (internal quotation marks omitted)). This increased clarity “has been thought to outweigh the burdens” that Miranda imposes. Fare , 442 U. S., at 718. The Court has, however, repeatedly cautioned against upsetting the careful “balance” that Miranda struck, Moran, supra, at 424, and it has “refused to sanction attempts to expand [the] Miranda holding” in ways that would reduce its “clarity.” See Quarles , 467 U. S., at 658 (citing cases). Given this practice, there should be a “strong presumption” against the Court’s new departure from the established custody test. See United States v. Patane , 542 U. S. 630 , 640 (2004) (plurality opinion). In my judgment, that presumption cannot be overcome here. A    The Court’s rationale for importing age into the custody standard is that minors tend to lack adults’ “capacity to exercise mature judgment” and that failing to account for that “reality” will leave some minors unprotected under Miranda in situations where they perceive themselves to be confined. See ante , at 10, 8. I do not dispute that many suspects who are under 18 will be more susceptible to police pressure than the average adult. As the Court notes, our pre- Miranda cases were particularly attuned to this “reality” in applying the constitutional requirement of voluntariness in fact. Ante, at 9 (relying on Haley, 332 U. S., at 599 (plurality opinion), and Gallegos , 370 U. S., at 54). It is no less a “reality,” however, that many persons over the age of 18 are also more susceptible to police pressure than the hypothetical reasonable person. See Payne, 356 U. S., at 567 (fact that defendant was a “mentally dull 19-year-old youth” relevant in voluntariness inquiry). Yet the Miranda custody standard has never accounted for the personal characteristics of these or any other individual defendants.    Indeed, it has always been the case under Miranda that the unusually meek or compliant are subject to the same fixed rules, including the same custody requirement, as those who are unusually resistant to police pressure. Berkemer , 468 U. S., at 442, and n. 35 (“[O]nly relevant inquiry is how a reasonable man in the suspect’s position would have understood his situation”). Miranda ’s rigid standards are both overinclusive and underinclusive. They are overinclusive to the extent that they provide a windfall to the most hardened and savvy of suspects, who often have no need for Miranda ’s protections. Compare Miranda , supra , at 471–472 (“[N]o amount of circumstantial evidence that the person may have been aware of ” his rights can overcome Miranda ’s requirements), with Orozco v. Texas , 394 U. S. 324 , 329 (1969) (White, J., dissenting) (“Where the defendant himself [w]as a lawyer, policeman, professional criminal, or otherwise has become aware of what his right to silence is, it is sheer fancy to assert that his answer to every question asked him is compelled unless he is advised of those rights with which he is already intimately familiar”). And Miranda ’s requirements are underinclusive to the extent that they fail to account for “frailties,” “idiosyncrasies,” and other individualized considerations that might cause a person to bend more easily during a confrontation with the police. See Alvarado , 541 U. S., at 662 (internal quotation marks omitted). Members of this Court have seen this rigidity as a major weakness in Miranda ’s “code of rules for confessions.” See 384 U. S., at 504 (Harlan, J., dissenting); Fare, 439 U. S., at 1314 (Rehnquist, J., in chambers) (“[T]he rigidity of [ Miranda ’s] prophylactic rules was a principal weakness in the view of dissenters and critics outside the Court”). But if it is, then the weakness is an inescapable consequence of the Miranda Court’s decision to supplement the more holistic voluntariness requirement with a one-size-fits-all prophylactic rule.    That is undoubtedly why this Court’s Miranda cases have never before mentioned “the suspect’s age” or any other individualized consideration in applying the custody standard. See Alvarado , supra, at 666. And unless the Miranda custody rule is now to be radically transformed into one that takes into account the wide range of individual characteristics that are relevant in determining whether a confession is voluntary, the Court must shoulder the burden of explaining why age is different from these other personal characteristics.    Why, for example, is age different from intelligence? Suppose that an officer, upon going to a school to question a student, is told by the principal that the student has an I. Q. of 75 and is in a special-education class. Cf. In re J. D. B. , 363 N. C. 664, 666, 686 S. E. 2d 135, 136–137 (2009). Are those facts more or less important than the student’s age in determining whether he or she “felt … at liberty to terminate the interrogation and leave”? See Thompson v. Keohane , 516 U. S. 99 , 112 (1995). An I. Q. score, like age, is more than just a number. Ante , at 8 (“[A]ge is far ‘more than a chronological fact’ ”). And an individual’s intelligence can also yield “conclusions” similar to those “we have drawn ourselves” in cases far afield of Miranda . Ante, at 12. Compare ibid. (relying on Eddings v. Oklahoma , 455 U. S. 104 (1982), and Roper v. Simmons , 543 U. S. 551 (2005)), with Smith v. Texas , 543 U. S. 37 , 44–45 (2004) (per curiam) .    How about the suspect’s cultural background? Suppose the police learn (or should have learned, see ante , at 11) that a suspect they wish to question is a recent immigrant from a country in which dire consequences often befall any person who dares to attempt to cut short any meeting with the police.[ Footnote 9 ] Is this really less relevant than the fact that a suspect is a month or so away from his 18th birthday?    The defendant’s education is another personal characteristic that may generate “conclusions about behavior and perception.” Ante , at 9 (internal quotation marks omitted). Under today’s decision, why should police officers and courts “blind themselves,” ante , at 1, to the fact that a suspect has “only a fifth-grade education”? See Clewis , 386 U. S., at 712 (voluntariness case). Alternatively, what if the police know or should know that the suspect is “a college-educated man with law school training”? See Crooker v. California , 357 U. S. 433 , 440 (1958), overruled by Miranda , supra, at 479, and n. 48. How are these individual considerations meaningfully different from age in their “relationship to a reasonable person’s understanding of his freedom of action”? Ante , at 11. The Court proclaims that “[a] child’s age . . . is different,” ante , at 12, but the basis for this ipse dixit is dubious.    I have little doubt that today’s decision will soon be cited by defendants—and perhaps by prosecutors as well—for the proposition that all manner of other individual characteristics should be treated like age and taken into account in the Miranda custody calculus. Indeed, there are already lower court decisions that take this approach. See United States v. Beraun-Panez , 812 F. 2d 578, 581, modified 830 F. 2d 127 (CA9 1987) (“reasonable person who was an alien”); In re Jorge D. , 202 Ariz. 277, 280, 43 P. 3d 605, 608 (App. 2002) (age, maturity, and experience); State v. Doe, 130 Idaho 811, 818, 948 P. 2d 166, 173 (1997) (same); In re Joshua David C., 116 Md. App. 580, 594, 698 A. 2d 1155, 1162 (1997) (“education, age, and intelligence”).    In time, the Court will have to confront these issues, and it will be faced with a difficult choice. It may choose to distinguish today’s decision and adhere to the arbitrary proclamation that “age . . . is different.” Ante , at 12. Or it may choose to extend today’s holding and, in doing so, further undermine the very rationale for the Miranda regime. B    If the Court chooses the latter course, then a core virtue of Miranda —the “ease and clarity of its application”—will be lost. Moran , 475 U. S., at 425; see Fare , 442 U. S., at 718 (noting that the clarity of Miranda ’s requirements “has been thought to outweigh the burdens that the decision . . . imposes”). However, even today’s more limited departure from Miranda ’s one-size-fits-all reasonable-person test will produce the very consequences that prompted the Miranda Court to abandon exclusive reliance on the voluntariness test in the first place: The Court’s test will be hard for the police to follow, and it will be hard for judges to apply. See Dickerson v. United States , 530 U. S. 428 , 444 (2000).    The Court holds that age must be taken into account when it “was known to the officer at the time of the interview,” or when it “would have been objectively apparent” to a reasonable officer. Ante , at 11. The first half of this test overturns the rule that the “initial determination of custody” does not depend on the “subjective views harbored by . . . interrogating officers.” Stansbury, 511 U. S., at 323. The second half will generate time-consuming satellite litigation over a reasonable officer’s perceptions. When, as here, the interrogation takes place in school, the inquiry may be relatively simple. But not all police questioning of minors takes place in schools. In many cases, courts will presumably have to make findings as to whether a particular suspect had a sufficiently youthful look to alert a reasonable officer to the possibility that the suspect was under 18, or whether a reasonable officer would have recognized that a suspect’s I. D. was a fake. The inquiry will be both “time-consuming and disruptive” for the police and the courts. See Berkemer , 468 U. S., at 432 (refusing to modify the custody test based on similar considerations). It will also be made all the more complicated by the fact that a suspect’s dress and manner will often be different when the issue is litigated in court than it was at the time of the interrogation.    Even after courts clear this initial hurdle, further problems will likely emerge as judges attempt to put themselves in the shoes of the average 16-year-old, or 15-year-old, or 13-year-old, as the case may be. Consider, for example, a 60-year-old judge attempting to make a custody determination through the eyes of a hypothetical, average 15-year-old. Forty-five years of personal experience and societal change separate this judge from the days when he or she was 15 years old. And this judge may or may not have been an average 15-year-old. The Court’s answer to these difficulties is to state that “no imaginative powers, knowledge of developmental psychology, [or] training in cognitive science” will be necessary. Ante , at 17. Judges “simply need the common sense,” the Court assures, “to know that a 7-year-old is not a 13-year-old and neither is an adult.” Ante, at 17. It is obvious, however, that application of the Court’s new rule demands much more than this.    Take a fairly typical case in which today’s holding may make a difference. A 16-year-old moves to suppress incriminating statements made prior to the administration of Miranda warnings. The circumstances are such that, if the defendant were at least 18, the court would not find that he or she was in custody, but the defendant argues that a reasonable 16-year-old would view the situation differently. The judge will not have the luxury of merely saying: “It is common sense that a 16-year-old is not an 18-year-old. Motion granted.” Rather, the judge will be required to determine whether the differences between a typical 16-year-old and a typical 18-year-old with respect to susceptibility to the pressures of interrogation are sufficient to change the outcome of the custody determination. Today’s opinion contains not a word of actual guidance as to how judges are supposed to go about making that determination. C    Petitioner and the Court attempt to show that this task is not unmanageable by pointing out that age is taken into account in other legal contexts. In particular, the Court relies on the fact that the age of a defendant is a relevant factor under the reasonable-person standard applicable in negligence suits. Ante , at 11 (citing Restatement (Third) of Torts §10, Comment b , p. 117 (2005)). But negligence is generally a question for the jury, the members of which can draw on their varied experiences with persons of different ages. It also involves a post hoc determination, in the reflective atmosphere of a deliberation room, about whether the defendant conformed to a standard of care. The Miranda custody determination, by contrast, must be made in the first instance by police officers in the course of an investigation that may require quick decisionmaking. See Quarles , 467 U. S., at 658 (noting “the importance” under Miranda of providing “a workable rule ‘to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront’ ”); Alvarado , 541 U. S., at 668, 669 (“[T]he custody inquiry states an objective rule designed to give clear guidance to the police”).    Equally inapposite are the Eighth Amendment cases the Court cites in support of its new rule. Ante , at 9, 11, 12 (citing Eddings, 455 U. S. 104 , Roper, 543 U. S. 551 , and Graham v. Florida , 560 U. S. ___ (2010)). Those decisions involve the “judicial exercise of independent judgment” about the constitutionality of certain punishments. E.g. , id. , at ___ (slip op., at 16). Like the negligence standard, they do not require on-the-spot judgments by the police.    Nor do state laws affording extra protection for juveniles during custodial interrogation provide any support for petitioner’s arguments. See Brief for Petitioner 16–17. States are free to enact additional restrictions on the police over and above those demanded by the Constitution or Miranda . In addition, these state statutes generally create clear, workable rules to guide police conduct. See Brief for Petitioner 16–17 (citing statutes that require or permit parents to be present during custodial interrogation of a minor, that require minors to be advised of a statutory right to communicate with a parent or guardian, and that require parental consent to custodial interrogation). Today’s decision, by contrast, injects a new, complicating factor into what had been a clear, easily applied prophylactic rule. See Alvarado , supra, at 668–669.[ Footnote 10 ] III    The Court’s decision greatly diminishes the clarity and administrability that have long been recognized as “principal advantages” of Miranda ’s prophylactic requirements. See, e.g. , Moran, 475 U. S., at 425. But what is worse, the Court takes this step unnecessarily, as there are other, less disruptive tools available to ensure that minors are not coerced into confessing.    As an initial matter, the difficulties that the Court’s standard introduces will likely yield little added protection for most juvenile defendants. Most juveniles who are subjected to police interrogation are teenagers nearing the age of majority.[ Footnote 11 ] These defendants’ reactions to police pressure are unlikely to be much different from the reaction of a typical 18-year-old in similar circumstances. A one-size-fits-all Miranda custody rule thus provides a roughly reasonable fit for these defendants.    In addition, many of the concerns that petitioner raises regarding the application of the Miranda custody rule to minors can be accommodated by considering the unique circumstances present when minors are questioned in school. See Brief for Petitioner 10–11 (reciting at length the factors petitioner believes to be relevant to the custody determination here, including the fact that petitioner was removed from class by a police officer, that the interview took place in a school conference room, and that a uniformed officer and a vice principal were present). The Miranda custody rule has always taken into account the setting in which questioning occurs, restrictions on a suspect’s freedom of movement, and the presence of police officers or other authority figures. See Alvarado , supra, at 665; Maryland v. Shatzer , 559 U. S. ___, ___ (2010) (slip op., at 14). It can do so here as well.[ Footnote 12 ]    Finally, in cases like the one now before us, where the suspect is much younger than the typical juvenile defendant, courts should be instructed to take particular care to ensure that incriminating statements were not obtained involuntarily. The voluntariness inquiry is flexible and accommodating by nature, see Schneckloth, 412 U. S., at 224, and the Court’s precedents already make clear that “special care” must be exercised in applying the voluntariness test where the confession of a “mere child” is at issue. Haley, 332 U. S., at 599 (plurality opinion). If Miranda ’s rigid, one-size-fits-all standards fail to account for the unique needs of juveniles, the response should be to rigorously apply the constitutional rule against coercion to ensure that the rights of minors are protected. There is no need to run Miranda off the rails. *  *  * The Court rests its decision to inject personal characteristics into the Miranda custody inquiry on the principle that judges applying Miranda cannot “blind themselves to … commonsense reality.” Ante , at 1, 8, 10–11, 14. But the Court’s shift is fundamentally at odds with the clear prophylactic rules that Miranda has long enforced. Miranda frequently requires judges to blind themselves to the reality that many un-Mirandized custodial confessions are “by no means involuntary” or coerced. Dickerson, 530 U. S., at 444. It also requires police to provide a rote recitation of Miranda warnings that many suspects already know and could likely recite from memory.[ Footnote 13 ] Under today’s new, “reality”-based approach to the doctrine, perhaps these and other principles of our Miranda jurisprudence will, like the custody standard, now be ripe for modification. Then, bit by bit, Miranda will lose the clarity and ease of application that has long been viewed as one of its chief justifications.    I respectfully dissent. Footnote 1 See Miranda v. Arizona , 384 U. S. 436 (1966). Footnote 2 Maryland v. Shatzer, 559 U. S. ___, ___ (2010) (slip op., at 13–16). Footnote 3 Berkemer v. McCarty, 468 U. S. 420 , 437–438 (1984). Footnote 4 Oregon v. Mathiason , 429 U. S. 492 , 495 (1977) (per curiam) . Footnote 5 New York v. Quarles , 467 U. S. 649 , 655 (1984). Footnote 6 California v. Beheler , 463 U. S. 1121 , 1122–1123 (1983) (per curiam) . Footnote 7 See Terry v. Ohio , 392 U. S. 1 (1968). Footnote 8 The Court claims that “[n]ot once” have any of our cases “excluded from the custody analysis a circumstance that we determined was relevant and objective, simply to make the fault line between custodial and noncustodial ‘brighter.’ ” Ante , at 17. Surely this is incorrect. The very act of adopting a reasonable-person test necessarily excludes all sorts of “relevant and objective” circumstances—for example, all the objective circumstances of a suspect’s life history—that might otherwise bear on a custody determination. Footnote 9 Cf. United States v. Chalan , 812 F. 2d 1302, 1307 (CA10 1987) (rejecting claim that Native American suspect was “in custody” for Miranda purposes because, by custom, obedience to tribal authorities was “expected of all tribal members”). Footnote 10 The Court also relies on North Carolina’s concession at oral argument that a court could take into account a suspect’s blindness as a factor relevant to the Miranda custody determination. Ante , at 15, and n. 9. This is a far-fetched hypothetical, and neither the parties nor their amici cite any case in which such a problem has actually arisen. Presumably such a case would involve a situation in which a blind defendant was given “a typed document advising him that he [was] free to leave.” See Brief for Juvenile Law Center as Amicus Curiae 23. In such a case, furnishing this advice in a form calculated to be unintelligible to the suspect would be tantamount to failing to provide the advice at all. And advice by the police that a suspect is or is not free to leave at will has always been regarded as a circumstance regarding the conditions of the interrogation that must be taken into account in making the Miranda custody determination. Footnote 11 See Dept of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Sept. 2009), online at http://www2.fbi.gov/ ucr/cius2008/data/table_38.html (all Internet materials as visited June 8, 2011, and available in Clerk of Court’s case file) (indicating that less than 30% of juvenile arrests in the United States are of suspects who are under 15). Footnote 12 The Court thinks it would be “absur[d]” to consider the school setting without accounting for age, ante , at 12, but the real absurdity is for the Court to require police officers to get inside the head of a reasonable minor while making the quick, on-the-spot determinations that Miranda demands. Footnote 13 Surveys have shown that “[l]arge majorities” of the public are aware that “individuals arrested for a crime” have a right to “remai[n] silent (81%),” a right to “a lawyer (95%),” and a right to have a lawyer “appointed” if the arrestee “cannot afford one (88%).” See Belden, Russonello & Stewart, Developing a National Message for Indigent Defense: Analysis of National Survey 4 (Oct. 2001), online at http://www.nlada.org/ DMS/Documents/1211996548.53/Polling%20results%20report.pdf.

The Supreme Court ruled that the age of a child subjected to police questioning is relevant to the Miranda custody analysis, meaning that a child's age must be considered when determining if they are in police custody and thus entitled to Miranda warnings. In this case, a 13-year-old student was questioned by police at school without Miranda warnings and his confession was used against him. The Court held that the child's age should have been taken into account when determining if he was in custody and entitled to Miranda warnings.

Miranda Rights

Vega v. Tekoh

https://supreme.justia.com/cases/federal/us/597/21-499/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 21–499 _________________ CARLOS VEGA, PETITIONER v. TERENCE B. TEKOH on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2022] Justice Alito delivered the opinion of the Court. This case presents the question whether a plaintiff may sue a police officer under Rev. Stat. §1979, 42 U. S. C. §1983, based on the allegedly improper admission of an “un- Mirandized ”[ 1 ] statement in a criminal prosecution. The case arose out of the interrogation of respondent, Terence Tekoh, by petitioner, Los Angeles County Sheriff ’s Deputy Carlos Vega. Deputy Vega questioned Tekoh at his place of employment and did not give him a Miranda warning. Tekoh was prosecuted, and his confession was admitted into evidence, but the jury returned a verdict of not guilty. Tekoh then sued Vega under §1983, and the United States Court of Appeals for the Ninth Circuit held that the use of Tekoh’s un- Mirandized statement provided a valid basis for a §1983 claim against Vega. We now reject this extension of our Miranda case law. I In March 2014, Tekoh was working as a certified nursing assistant at a Los Angeles medical center. When a female patient accused him of sexually assaulting her, the hospital staff reported the accusation to the Los Angeles County Sheriff ’s Department, and Deputy Vega responded. Vega questioned Tekoh at length in the hospital, and Tekoh eventually provided a written statement apologizing for inappropriately touching the patient’s genitals. The parties dispute whether Vega used coercive investigatory techniques to extract the statement, but it is undisputed that he never informed Tekoh of his rights under Miranda v. Arizona , 384 U.S. 436 (1966), which held that during a custodial interrogation police officers must inform a suspect that “he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning.” Id. , at 479. Tekoh was arrested and charged in California state court with unlawful sexual penetration. At Tekoh’s first trial, the judge held that Miranda had not been violated because Tekoh was not in custody when he provided the statement, but the trial resulted in a mistrial. When Tekoh was retried, a second judge again denied his request to exclude the confession. This trial resulted in acquittal, and Tekoh then brought this action under 42 U. S. C. §1983 against Vega and several other defendants seeking damages for alleged violations of his constitutional rights, including his Fifth Amendment right against compelled self-incrimination. When this §1983 case was first tried, the jury returned a verdict in favor of Vega, but the judge concluded that he had given an improper jury instruction and thus granted a new trial. Before the second trial, Tekoh asked the court to instruct the jury that it was required to find that Vega violated the Fifth Amendment right against compelled self- incrimination if it determined that he took a statement from Tekoh in violation of Miranda and that the statement was then improperly used against Tekoh at his criminal trial. The District Court declined, reasoning that Miranda established a prophylactic rule and that such a rule could not alone provide a ground for §1983 liability. Instead, the jury was asked to decide whether Tekoh’s Fifth Amendment right had been violated. The court instructed the jury to determine, based on “the totality of all the surrounding circumstances,” whether Tekoh’s statement had been “improperly coerced or compelled,” and the court explained that “[a] confession is improperly coerced or compelled . . . if a police officer uses physical or psychological force or threats not permitted by law to undermine a person’s ability to exercise his or her free will.” App. to Pet. for Cert. 119a. The jury found in Vega’s favor, and Tekoh appealed. A Ninth Circuit panel reversed, holding that the “use of an un- Mirandized statement against a defendant in a criminal proceeding violates the Fifth Amendment and may support a §1983 claim” against the officer who obtained the statement. Tekoh v. County of Los Angeles , 985 F.3d 713, 722 (2021). The panel acknowledged that this Court has repeatedly said that Miranda adopted prophylactic rules designed to protect against constitutional violations and that the decision did not hold that the contravention of those rules necessarily constitutes a constitutional violation. See 985 F. 3d, at 719–720. But the panel thought that our decision in Dickerson v. United States , 530 U.S. 428 (2000), “made clear that the right of a criminal defendant against having an un- Mirandized statement introduced in the prosecution’s case in chief is indeed a right secured by the Constitution.” 985 F. 3d, at 720. Therefore the panel concluded that Tekoh could establish a violation of his Fifth Amendment right against compelled self-incrimination simply by showing that Miranda had been violated. See 985 F. 3d, at 720. The panel thus remanded the case for a new trial. Vega’s petition for rehearing en banc was denied, but Judge Bumatay, joined by six other judges, filed a dissent from the denial of rehearing. Tekoh v. County of Los Angeles , 997 F.3d 1260, 1261, 1264–1272 (CA9 2021). We then granted certiorari. 595 U. S. ___ (2022). II Section 1983 provides a cause of action against any person acting under color of state law who “subjects” a person or “causes [a person] to be subjected . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” The question we must decide is whether a violation of the Miranda rules provides a basis for a claim under §1983. We hold that it does not. A If a Miranda violation were tantamount to a violation of the Fifth Amendment, our answer would of course be different. The Fifth Amendment, made applicable to the States by the Fourteenth Amendment, Malloy v. Hogan , 378 U.S. 1 , 6 (1964), provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” This Clause “permits a person to refuse to testify against himself at a criminal trial in which he is a defendant” and “also ‘privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Minnesota v. Murphy , 465 U.S. 420 , 426 (1984) (quoting Lefkowitz v. Turley , 414 U.S. 70 , 77 (1973)). In addition, the right bars the introduction against a criminal defendant of out-of-court statements obtained by compulsion. See, e.g., Bram v. United States, 168 U.S. 532 , 565 (1897); Miranda , 384 U. S., at 466; Michigan v. Tucker , 417 U.S. 433 , 440–442 (1974). In Miranda , the Court concluded that additional procedural protections were necessary to prevent the violation of this important right when suspects who are in custody are interrogated by the police. To afford this protection, the Court required that custodial interrogation be preceded by the now-familiar warnings mentioned above, and it directed that statements obtained in violation of these new rules may not be used by the prosecution in its case-in-chief. 384 U. S., at 444, 479. In this case, the Ninth Circuit held—and Tekoh now argues, Brief for Respondent 20—that a violation of Miranda constitutes a violation of the Fifth Amendment right against compelled self-incrimination, but that is wrong. Miranda itself and our subsequent cases make clear that Miranda imposed a set of prophylactic rules. Those rules, to be sure, are “constitutionally based,” Dickerson , 530 U. S., at 440, but they are prophylactic rules nonetheless. B Miranda itself was clear on this point. Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un- Mirandized suspect in custody may make self- incriminating statements without any hint of compulsion. In addition, the warnings that the Court required included components, such as notification of the right to have retained or appointed counsel present during questioning, that do not concern self-incrimination per se but are instead plainly designed to safeguard that right. And the same is true of Miranda ’s detailed rules about the waiver of the right to remain silent and the right to an attorney. 384 U. S., at 474–479. At no point in the opinion did the Court state that a violation of its new rules constituted a violation of the Fifth Amendment right against compelled self-incrimination. Instead, it claimed only that those rules were needed to safeguard that right during custodial interrogation. See id ., at 439 (describing its rules as “procedures which assure that the individual is accorded his privilege under the Fifth Amendment”); id. , at 444 (describing rules as “procedural safeguards”); id ., at 457 (“appropriate safeguards”); id ., at 458 (“adequate protective devices”); id ., at 467 (“safeguards”). In accordance with this understanding of the nature of the rules it imposed, the Miranda Court stated quite clearly that the Constitution did not itself require “adherence to any particular solution for the inherent compulsions of the interrogation process” and that its decision “in no way create[d] a constitutional straitjacket.” Ibid . The opinion added that its new rules might not be needed if Congress or the States adopted “other procedures which are at least as effective,” ibid ., and the opinion suggested that there might not have been any actual Fifth Amendment violations in the four cases that were before the Court. See id ., at 457 (“In these cases, we might not find the defendants’ statements to have been involuntary in traditional terms”). The Court could not have said any of these things if a violation of the Miranda rules necessarily constituted a violation of the Fifth Amendment. Since Miranda , the Court has repeatedly described the rules it adopted as “prophylactic.” See Howes v. Fields , 565 U.S. 499 , 507 (2012); J. D. B. v. North Carolina , 564 U.S. 261 , 269 (2011); Maryland v. Shatzer , 559 U.S. 98 , 103 (2010); Montejo v. Louisiana , 556 U.S. 778 , 794 (2009); Davis v. United States , 512 U.S. 452 , 458 (1994); Brecht v. Abrahamson , 507 U.S. 619 , 629 (1993); Withrow v. Williams , 507 U.S. 680 , 691 (1993); McNeil v. Wisconsin , 501 U.S. 171 , 176 (1991); Michigan v. Harvey , 494 U.S. 344 , 350 (1990); Duckworth v. Eagan , 492 U.S. 195 , 203 (1989); Arizona v. Roberson , 486 U.S. 675 , 681 (1988); Connecticut v. Barrett , 479 U.S. 523 , 528 (1987); Oregon v. Elstad , 470 U.S. 298 , 309 (1985); New York v. Quarles , 467 U.S. 649 , 654 (1984); South Dakota v. Neville , 459 U.S. 553 , 564, n. 15 (1983); United States v. Henry , 447 U.S. 264 , 274 (1980); North Carolina v. Butler , 441 U.S. 369 , 374 (1979); Brown v. Illinois , 422 U.S. 590 , 600 (1975); Michigan v. Tucker , 417 U. S., at 439; and Michigan v. Payne , 412 U.S. 47 , 53 (1973).[ 2 ] C After Miranda was handed down, the Court engaged in the process of charting the dimensions of these new prophylactic rules. As we would later spell out, this process entailed a weighing of the benefits and costs of any clarification of the rules’ scope. See Shatzer , 559 U. S., at 106 (“A judicially crafted rule is ‘justified only by reference to its prophylactic purpose,’ . . . and applies only where its benefits outweigh its costs”). Some post- Miranda decisions found that the balance of interests justified restrictions that would not have been possible if Miranda represented an explanation of the meaning of the Fifth Amendment right as opposed to a set of rules designed to protect that right. For example, in Harris v. New York , 401 U.S. 222 , 224–226 (1971), the Court held that a statement obtained in violation of Miranda could be used to impeach the testimony of a defendant, even though an involuntary statement obtained in violation of the Fifth Amendment could not have been employed in this way. See Mincey v. Arizona , 437 U.S. 385 , 398 (1978) (“[A]ny criminal trial use against a defendant of his involuntary statement is a denial of due process of law” (emphasis deleted)). Engaging in the process we described in Shatzer , the Harris Court considered the benefits of forbidding impeachment but dismissed “the speculative possibility” that this would discourage “impermissible police conduct,” and on the other side of the scale, it feared that barring impeachment would turn Miranda into “a license to use perjury by way of a defense.” 401 U. S., at 225–226. A similar analysis was used in Michigan v. Tucker , 417 U.S. 443, 450–452, n. 26 (1974), where the Court held that the “fruits” of an un- Mirandized statement can be admitted. The Court noted that “the ‘fruits’ of police conduct which actually infringe[s]” a defendant’s constitutional rights must be suppressed. Id ., at 445; see also Wong Sun v. United States , 371 U.S. 471 (1963) (applying the rule in the context of a Fourth Amendment violation). But the Court distinguished police conduct that “abridge[s] [a person’s] constitutional privilege against compulsory self- incrimination” from conduct that “depart[s] only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.” 417 U. S., at 445–446. Because there had been only a Miranda violation in that case, the Wong Sun rule of automatic exclusion was found to be inapplicable. See 417 U. S., at 445–446. Instead, the Court asked whether the Miranda rules’ prophylactic purposes justified the exclusion of the fruits of the violation, and after “balancing the interests involved,” it held that exclusion was not required. 417 U. S., at 447–452. In New York v. Quarles , 467 U.S. 649 , 654–657 (1984), the Court held that statements obtained in violation of Miranda need not be suppressed when the questioning is conducted to address an ongoing “public safety” concern. The Court reasoned that Miranda warnings are “ ‘not themselves rights protected by the Constitution’ ” and that “the need for answers to questions in a situation posing a threat to the public safety outweigh[ed] the need for the prophylactic rule.” 467 U. S., at 654, 657. Finally, in Elstad , 470 U.S. 298 , the Court again distinguished between a constitutional violation and a violation of Miranda . In that case, a suspect in custody was initially questioned without receiving a Miranda warning, and the statements made at that time were suppressed. 470 U. S., at 301–302. But the suspect was later given Miranda warnings, chose to waive his Miranda rights, and signed a written confession. 470 U. S., at 301. Asked to decide whether this confession was admissible, the Court followed the reasoning in Tucker and again held that the fruit-of-the- poisonous-tree rule that applies to constitutional violations does not apply to violations of Miranda . 470 U. S., at 306–309, 318. The Court refused to exclude the signed confession and emphasized that an officer’s error “in administering the prophylactic Miranda procedures . . . should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself.” [ 3 ] Id., at 309. It is hard to see how these decisions could stand if a violation of Miranda constituted a violation of the Fifth Amendment. D While these decisions imposed limits on Miranda ’s prophylactic rules, other decisions found that the balance of interests called for expansion. In Doyle v. Ohio , 426 U.S. 610 , 617–619 (1976), the Court held that silence following a Miranda warning cannot be used to impeach. The Court acknowledged that Miranda warnings are “prophylactic,” 426 U. S., at 617, and it recognized the prosecution’s need to test a defendant’s exculpatory story through cross- examination, id., at 616–618. But it found that allowing the use of post-warning silence would undermine the warnings’ implicit promise that silence would not be used to convict. Id., at 618. Similarly, in Roberson , 486 U. S., at 682, the Court held that a suspect’s post-warning request for counsel with respect to one offense barred later interrogation without counsel regarding a different offense. Describing the Miranda rules as “prophylactic protections,” 486 U. S., at 681, the Court concluded that both law enforcement and criminal defendants would benefit from a bright-line, id., at 681–682. Finally, in Withrow v. Williams , 507 U.S. 680 , the Court rejected an attempt to restrict Miranda ’s application in collateral proceedings based on the reasoning in Stone v. Powell , 428 U.S. 465 (1976). In Stone , the Court had held that a defendant who has had a full and fair opportunity to seek suppression of evidence allegedly seized in violation of the Fourth Amendment may not obtain federal habeas relief on that ground, id ., at 494–495, and in Withrow , a state prison warden argued that a similar rule should apply to a habeas petitioner who had been given an opportunity to litigate a Miranda claim at trial, see 507 U. S., at 688–690. Once again acknowledging that Miranda adopted prophylactic rules, the Court balanced the competing interests and found that the costs of adopting the warden’s argument outweighed any benefits. On the cost side, the Court noted that enforcing Miranda “safeguards ‘a fundamental trial right” and furthers “the correct ascertainment of guilt” at trial. 507 U. S. , at 691–692. And on the other side, the Court found that the adoption of a Stone -like rule “would not significantly benefit the federal courts in their exercise of habeas jurisdiction, or advance the cause of federalism in any substantial way.” 507 U. S., at 693. Thus, all the post- Miranda cases we have discussed acknowledged the prophylactic nature of the Miranda rules and engaged in cost-benefit analysis to define the scope of these prophylactic rules. E Contrary to the decision below and Tekoh’s argument here, see Brief for Respondent 24, our decision in Dickerson , 530 U.S. 428 , did not upset the firmly established prior understanding of Miranda as a prophylactic decision. Dickerson involved a federal statute, 18 U. S. C. §3501, that effectively overruled Miranda by making the admissibility of a statement given during custodial interrogation turn solely on whether it was made voluntarily. 530 U. S., at 431–432. The Court held that Congress could not abrogate Miranda by statute because Miranda was a “constitutional decision” that adopted a “constitutional rule,” 530 U. S., at 438–439, and the Court noted that these rules could not have been made applicable to the States if it did not have that status, see ibid . At the same time, however, the Court made it clear that it was not equating a violation of the Miranda rules with an outright Fifth Amendment violation. For one thing, it reiterated Miranda ’s observation that “the Constitution would not preclude legislative solutions that differed from the prescribed Miranda warnings but which were ‘at least as effective in apprising accused persons’ ” of their rights. 530 U. S., at 440 (quoting Miranda , 384 U. S., at 467). Even more to the point, the Court rejected the dissent’s argument that §3501 could not be held unconstitutional unless “ Miranda warnings are required by the Constitution, in the sense that nothing else will suffice to satisfy constitutional requirements.” 530 U. S., at 442. The Court’s answer, in substance, was that the Miranda rules, though not an explication of the meaning of the Fifth Amendment right, are rules that are necessary to protect that right (at least until a better alternative is found and adopted). See 530 U. S., at 441–443. Thus, in the words of the Dickerson Court, the Miranda rules are “constitutionally based” and have “constitutional underpinnings.” 530 U. S., at 440, and n. 5. But the obvious point of these formulations was to avoid saying that a Miranda violation is the same as a violation of the Fifth Amendment right. What all this boils down to is basically as follows. The Miranda rules are prophylactic rules that the Court found to be necessary to protect the Fifth Amendment right against compelled self-incrimination. In that sense, Miranda was a “constitutional decision” and it adopted a “constitutional rule” because the decision was based on the Court’s judgment about what is required to safeguard that constitutional right. And when the Court adopts a constitutional prophylactic rule of this nature, Dickerson concluded, the rule has the status of a “La[w] of the United States” that is binding on the States under the Supremacy Clause [ 4 ] (as Miranda implicitly held, since three of the four decisions it reversed came from state court, 384 U. S., at 491–494, 497–499), and the rule cannot be altered by ordinary legislation. This was a bold and controversial claim of authority,[ 5 ] but we do not think that Dickerson can be understood any other way without (1) taking the insupportable position that a Miranda violation is tantamount to a violation of the Fifth Amendment, (2) calling into question the prior decisions that were predicated on the proposition that a Miranda violation is not the same as a constitutional violation, and (3) excising from the United States Reports a mountain of statements describing the Miranda rules as prophylactic. Subsequent cases confirm that Dickerson did not upend the Court’s understanding of the Miranda rules as prophylactic. See, e.g., supra, at 6–7 (collecting post- Dickerson cases). In sum, a violation of Miranda does not necessarily constitute a violation of the Constitution, and therefore such a violation does not constitute “the deprivation of [a] right . . . secured by the Constitution.” 42 U. S. C. §1983. III This conclusion does not necessarily dictate reversal because a §1983 claim may also be based on “the deprivation of any rights, privileges, or immunities secured by the . . . laws .” (Emphasis added.) It may thus be argued that the Miranda rules constitute federal “law” and that an abridgment of those rules can therefore provide the ground for a §1983 claim. But whatever else may be said about this argument,[ 6 ] it cannot succeed unless Tekoh can persuade us that this “law” should be expanded to include the right to sue for damages under §1983. As we have noted, “[a] judicially crafted” prophylactic rule should apply “only where its benefits outweigh its costs,” Shatzer , 559 U. S., at 106, and here, while the benefits of permitting the assertion of Miranda claims under §1983 would be slight, the costs would be substantial. Miranda rests on a pragmatic judgment about what is needed to stop the violation at trial of the Fifth Amendment right against compelled self-incrimination. That prophylactic purpose is served by the suppression at trial of statements obtained in violation of Miranda and by the application of that decision in other recognized contexts. Allowing the victim of a Miranda violation to sue a police officer for damages under §1983 would have little additional deterrent value, and permitting such claims would cause many problems. Allowing a claim like Tekoh’s would disserve “judicial economy,” Parklane Hosiery Co. v. Shore , 439 U.S. 322 , 326 (1979), by requiring a federal judge or jury to adjudicate a factual question (whether Tekoh was in custody when questioned) that had already been decided by a state court. This re-adjudication would not only be wasteful; it would undercut the “ ‘strong judicial policy against the creation of two conflicting resolutions’ ” based on the same set of facts. Heck v. Humphrey , 512 U.S. 477 , 484 (1994). And it could produce “unnecessary friction” between the federal and state court systems by requiring the federal court entertaining the §1983 claim to pass judgment on legal and factual issues already settled in state court. See Preiser v. Rodriguez , 411 U.S. 475 , 490–491 (1973). Allowing §1983 suits based on Miranda claims could also present many procedural issues, such as whether a federal court considering a §1983 claim would owe any deference to a trial court’s factual findings; whether forfeiture and plain error rules carry over from the criminal trial; whether harmless-error rules apply; and whether civil damages are available in instances where the unwarned statement had no impact on the outcome of the criminal case. We therefore refuse to extend Miranda in the way Tekoh requests. Miranda , Dickerson , and the other cases in that line provide sufficient protection for the Fifth Amendment right against compelled self-incrimination. “The identification of a Miranda violation and its consequences . . . ought to be determined at trial.” Chavez v. Martinez , 538 U.S. 760 , 790 (2003) (Kennedy, J., concurring in part and dissenting in part). And except in unusual circumstances, the “exclusion of unwarned statements” should be “a complete and sufficient remedy.” Ibid. *  *  * Because a violation of Miranda is not itself a violation of the Fifth Amendment, and because we see no justification for expanding Miranda to confer a right to sue under §1983, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Notes 1 See Miranda v. Arizona , 384 U.S. 436 (1966). 2 Tekoh cites Orozco v. Texas , 394 U.S. 324 (1969), which characterized the admission of an unwarned statement in the prosecutor’s case-in-chief as a “flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed in Miranda .” Id., at 326 (emphasis added); Brief for Respondent 21, 29. But the Court made this assertion in a three-paragraph opinion without any additional analysis, and did not purport to go beyond Miranda , which, as we have explained, does not support the proposition that a Miranda violation equates to a Fifth Amendment violation. See Orozco, 394 U. S., at 327 (“We do not . . . expand or extend to the slightest extent our Miranda decision”). Likewise, the decision predates the subsequent case law defining the scope of the Miranda rules. See infra , this page and 8–11. 3 Two other decisions fall into this same category, but in both there was no opinion of the Court. In Chavez v. Martinez , 538 U.S. 760 (2003), the suspect gave an un- Mirandized statement while in custody but was never charged with a crime. The Court held that the suspect could not bring a 42 U. S. C. §1983 claim against the officer who questioned him, and Justice Souter, who cast the necessary fifth vote on the issue, reached that conclusion based on “a realistic assessment of costs and risks” of “expand[ing] protection of the privilege against compelled self-incrimination to the point of the civil liability” at issue. 538 U. S., at 778–779 (opinion concurring in judgment). In United States v. Patane , 542 U.S. 630 (2004), the Court once again held that Miranda does not require the suppression of the fruits of a un- Mirandized statement made during custodial questioning, and two of the five Justices in the majority engaged in the same type of balancing that was used in Michigan v. Tucker , 417 U.S. 433 (1974), and Elstad . See Patane , 542 U. S., at 644–645 (Kennedy, J., concurring in judgment); see also id., at 641–644 (plurality opinion). 4 U. S. Const., Art. VI, §2. 5 Whether this Court has the authority to create constitutionally based prophylactic rules that bind both federal and state courts has been the subject of debate among jurists and commentators. See, e.g ., Dickerson , 530 U. S., at 445–446, 457–461 (Scalia, J., joined by Thomas, J., dissenting); D. Strauss, The Ubiquity of Prophylactic Rules, 55 U. Chi. L. Rev. 190 (1988); J. Grano, Prophylactic Rules in Criminal Procedure: A Question of Article III Legitimacy, 80 Nw. U. L. Rev. 100 (1985); H. Monaghan, Foreword: Constitutional Common Law, 89 Harv. L. Rev. 1 (1975). But that is what the Court did in Miranda , and we do not disturb that decision in any way. Rather, we accept it on its own terms, and for the purpose of deciding this case, we follow its rationale. 6 “[Section] 1983 does not provide an avenue for relief every time a state actor violates a federal law.” Rancho Palos Verdes v. Abrams , 544 U.S. 113 , 119 (2005). If a §1983 plaintiff demonstrates that the federal statute “creates an individually enforceable right in the class of beneficiaries to which he belongs,” this gives rise to “ ‘a rebuttable presumption that the right is enforceable under §1983,’ ” and “[t]he defendant may defeat this presumption by demonstrating that Congress did not intend that remedy for a newly created right.” Id., at 120 (quoting Blessing v. Freestone , 520 U.S. 329 , 341 (1997)). In this case, the “law” that could confer the right in question is not a statute but judicially created prophylactic rules. It could be argued that a judicially created prophylactic rule cannot be the basis for a §1983 suit, but we need not decide that question because, assuming that such rules can provide the basis for a §1983 claim, we would be led back to a question that is very much like the one discussed supra , at 7–11, namely, whether the benefits of allowing such a claim outweigh the costs. The dissent, by contrast, would apparently hold that a prophylactic rule crafted by the Judiciary to protect a constitutional right, unlike a statute that confers a personal right, is always cognizable under §1983. There is no sound reason to give this preferred status to such prophylactic rules. The dissent contends that the Miranda rules merit this special treatment because they are “secured by” the Constitution, see post , at 5–6, but in fact, as we have shown, those rules differ from the right secured by the Fifth Amendment and are instead secured for prophylactic reasons by decisions of this Court. SUPREME COURT OF THE UNITED STATES _________________ No. 21–499 _________________ CARLOS VEGA, PETITIONER v. TERENCE B. TEKOH on writ of certiorari to the united states court of appeals for the ninth circuit [June 23, 2022] Justice Kagan, with whom Justice Breyer and Justice Sotomayor join, dissenting. The Court’s decision in Miranda v. Arizona , 384 U.S. 436 (1966), affords well-known protections to suspects who are interrogated by police while in custody. Those protections derive from the Constitution: Dickerson v. United States tells us in no uncertain terms that Miranda is a “constitutional rule.” 530 U.S. 428 , 444 (2000). And that rule grants a corresponding right: If police fail to provide the Miranda warnings to a suspect before interrogating him, then he is generally entitled to have any resulting confession excluded from his trial. See 384 U. S., at 478–479. From those facts, only one conclusion can follow—that Miranda ’s protections are a “right[ ]” “secured by the Constitution” under the federal civil rights statute. Rev. Stat. §1979, 42 U. S. C. §1983. Yet the Court today says otherwise. It holds that Miranda is not a constitutional right enforceable through a §1983 suit. And so it prevents individuals from obtaining any redress when police violate their rights under Miranda . I respectfully dissent. Miranda responded to problems stemming from the interrogation of suspects “incommunicado” and “in a police-dominated atmosphere.” Miranda , 384 U. S., at 445. In such an environment, Miranda said, there are “pressures” which may “compel [a suspect] to speak where he would not otherwise do so freely.” Id. , at 467. And so Miranda found a “necessity for procedures which assure that the individual is accorded his” Fifth Amendment privilege “not to be compelled to incriminate himself.” Id. , at 439 . Miranda set out protocols (including the now-familiar warnings) that would safeguard the constitutional privilege against self-incrimination. See id. , at 478–479. And Miranda held that if police failed to follow those requirements (without substituting equally effective ones), the prosecution could not use at trial a statement obtained from the interrogation. See id. , at 479. The question in this case is whether Miranda ’s protections are a “right[ ]” that is “secured by the Constitution” within the meaning of §1983. If the answer is yes, then a person may sue a state actor who deprives him of the right. In past cases, the Court has given a broad construction to §1983’s broad language. See, e.g. , Dennis v. Higgins , 498 U.S. 439 , 443 (1991). Under §1983 (as elsewhere), a “right[ ]” is anything that creates specific “obligations binding on [a] governmental unit” that an individual may ask the judiciary to enforce. Id. , at 449; see id. , at 447, and n. 7. And the phrase “secured by the Constitution” also has a capacious meaning. It refers to any right that is “protect[ed] or ma[de] certain” by the country’s foundational charter. Hague v. Committee for Industrial Organization , 307 U.S. 496 , 527 (1939) (opinion of Stone, J.) (internal quotation marks omitted). Begin with whether Miranda is “secured by the Constitution.” We know that it is, because the Court’s decision in Dickerson says so. Dickerson tells us again and again that Miranda is a “constitutional rule.” 530 U. S., at 444. It is a “constitutional decision” that sets forth “ ‘concrete constitutional guidelines.’ ” Id. , at 432, 435 (quoting Miranda , 384 U. S., at 442). Miranda “is constitutionally based”; or again, it has a “constitutional basis.” 530 U. S., at 439, n. 3, 440. It is “of constitutional origin”; it has “constitutional underpinnings.” Id. , at 439, n. 3, 440, n. 5. And—one more— Miranda sets a “constitutional minimum.” 530 U. S., at 442. Over and over, Dickerson labels Miranda a rule stemming from the Constitution. Dickerson also makes plain that Miranda has all the substance of a constitutional rule—including that it cannot be “abrogate[d]” by any “legislation.” Miranda , 384 U. S., at 491; see Dickerson , 530 U. S., at 437. In Dickerson , the Court considered a federal statute whose obvious purpose was to override Miranda . Dickerson held that Miranda is a “constitutional decision” that cannot be “overruled by” any “Act of Congress.” 530 U. S., at 432. To be sure, Congress may devise “legislative solutions that differ[ ] from the prescribed Miranda warnings,” but only if those solutions are “ ‘at least as effective.’ ” Id. , at 440 (quoting Miranda , 384 U. S., at 467). Dickerson therefore instructs (as noted above) that Miranda sets a “constitutional minimum.” 530 U. S., at 442. No statute may provide lesser protection than that baseline.[ 1 ]* And Dickerson makes clear that the constitutional substance of Miranda does not end there. Rules arising from “the United States Constitution” are applicable in state-court proceedings, but non-constitutional rules are not. See 530 U. S., at 438 (explaining that the Court “do[es] not hold a supervisory power over the courts of the several States”). Too, constitutional rules are enforceable in federal-court habeas proceedings, where a prisoner is entitled to claim he “is in custody in violation of the Constitution.” 28 U. S. C. §2254(a). Miranda checks both boxes. The Court has “consistently applied Miranda ’s rule to prosecutions arising in state courts.” Dickerson , 530 U. S., at 438. And prisoners may claim Miranda violations in federal-court habeas proceedings. See 530 U. S., at 439, n. 3; Thompson v. Keohane , 516 U.S. 99 , 107, n. 5 (1995). So Dickerson is unequivocal: Miranda is set in constitutional stone. Miranda ’s constitutional rule gives suspects a correlative “right[ ].” §1983. Under Miranda , a suspect typically has a right to be tried without the prosecutor using his un- Mirandized statement. And we know how that right operates in the real world. Suppose a defendant standing trial was able to show the court that he gave an un- Mirandized confession during a custodial interrogation. The court would have no choice but to exclude it from the prosecutor’s case. As one judge below put it: “ Miranda indisputably creates individual legal rights that are judicially enforceable. (Any prosecutor who doubts this can try to introduce an un- Mirandized confession and then watch what happens.)” Tekoh v. County of Los Angeles , 997 F.3d 1260, 1263 (CA9 2021) (Miller, J., concurring in denial of rehearing en banc). The majority basically agrees with everything I’ve just explained. It concurs that, per Dickerson , Miranda “adopted a ‘constitutional rule.’ ” Ante , at 11 (quoting Dickerson , 530 U. S., at 439); see ante , at 12. How could it not? That Miranda is a constitutional rule is what Dickerson said (and said and said). The majority also agrees that Miranda “directed that statements obtained in violation of [its] rules may not be used by the prosecution in its case-in-chief ”—which is simply another way of saying that Miranda grants suspects a right to the exclusion of those statements from the prosecutor’s case. Ante , at 5. So how does the majority hold that a violation of Miranda is not a “deprivation of [a] right[ ]” “secured by the Constitution”? §1983. How does it agree with my premises, but not my conclusion? The majority’s argument is that “a violation of Miranda does not necessarily constitute a violation of the Constitution,” because Miranda ’s rules are “prophylactic.” Ante , at 13. The idea is that the Fifth Amendment prohibits the use only of statements obtained by compulsion, whereas Miranda excludes non-compelled statements too. See ante , at 4–5. That is why, the majority says, the Court has been able to recognize exceptions permitting certain uses of un- Mirandized statements at trial (when it could not do so for compelled statements). See ante , at 7–9. But none of that helps the majority’s case. Let’s assume, as the majority says, that Miranda extends beyond—in order to safeguard—the Fifth Amendment’s core guarantee. Still, Miranda is enforceable through §1983. It remains a constitutional rule, as Dickerson held (and the majority agrees). And it grants the defendant a legally enforceable entitlement—in a word, a right—to have his confession excluded. So, to refer back to the language of §1983, Miranda grants a “right[ ]” “secured by the Constitution.” Whether that right to have evidence excluded safeguards a yet deeper constitutional commitment makes no difference to §1983. The majority has no response to that point—except to repeat what our argument assumes already. See ante , at 14, n. 6 (describing Miranda as prophylactic). Compare the majority’s holding today to a prior decision, in which the Court “rejected [an] attempt[ ] to limit the types of constitutional rights that are encompassed within ” §1983. Dennis , 498 U. S., at 445. There, the Court held that a plaintiff could sue under §1983 for a violation of the so-called dormant Commerce Clause, which safeguards interstate commerce. To the Court, it did not matter that the Commerce Clause might be viewed as “merely allocat[ing] power between the Federal and State Governments” over interstate commerce, rather than as “confer[ring] ‘rights.’ ” Id. , at 447. Nor did it matter that the dormant Commerce Clause’s protection is only “implied” by the constitutional text. Ibid. , n. 7. The dormant Commerce Clause, the Court said, still provides a “right”—in the “ordinary” sense of being “ ‘[a] legally enforceable claim of one person against another.’ ” Ibid. (quoting Black’s Law Dictionary 1324 (6th ed. 1990)). That describes Miranda to a tee. And if a right implied from Congress’s constitutional authority over interstate commerce is enforceable under §1983, how could it be that Miranda —which the Court has found necessary to safeguard the personal protections of the Fifth Amendment—is not also enforceable? The majority again has no answer. *  *  * Today, the Court strips individuals of the ability to seek a remedy for violations of the right recognized in Miranda . The majority observes that defendants may still seek “the suppression at trial of statements obtained” in violation of Miranda ’s procedures. Ante , at 14–15. But sometimes, such a statement will not be suppressed. And sometimes, as a result, a defendant will be wrongly convicted and spend years in prison. He may succeed, on appeal or in habeas, in getting the conviction reversed. But then, what remedy does he have for all the harm he has suffered? The point of §1983 is to provide such redress—because a remedy “is a vital component of any scheme for vindicating cherished constitutional guarantees.” Gomez v. Toledo , 446 U.S. 635 , 639 (1980). The majority here, as elsewhere, injures the right by denying the remedy. See, e.g. , Egbert v. Boule , 596 U. S. ___ (2022). I respectfully dissent. Notes 1 *Other constitutional rules, like Miranda , leave room for States to experiment with procedures, so long as the procedures satisfy the constitutionally mandated baseline. See County of Riverside v. McLaughlin , 500 U.S. 44 , 58 (1991) (States may adopt different procedures for providing probable-cause determinations for persons arrested without a warrant, so long as those determinations are made promptly); Smith v. Robbins , 528 U.S. 259 , 276–277 (2000) (States may adopt different procedures to ensure effective appellate review for indigent defendants’ claims, “so long as [the State] reasonably ensures that an indigent’s appeal will be resolved in a way that is related to the merit of that appeal”).

The Supreme Court ruled that a plaintiff cannot sue a police officer under Rev. Stat. §1979, 42 U. S. C. §1983, based on the admission of a statement obtained without a Miranda warning in a criminal prosecution. The Court's decision centered on the case of Terence Tekoh, who was interrogated by Deputy Carlos Vega without being informed of his Miranda rights and subsequently sued Vega under §1983. The Court's ruling rejected the extension of Miranda case law, stating that Miranda violations do not provide a valid basis for §1983 claims against police officers.

Miranda Rights

Maryland v. Shatzer

https://supreme.justia.com/cases/federal/us/559/98/

OPINION OF THE COURT MARYLAND V. SHATZER 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-680 MARYLAND, PETITIONER v. MICHAEL BLAINE SHATZER, Sr. on writ of certiorari to the court of appeals of maryland [February 24, 2010]    Justice Scalia delivered the opinion of the Court.    We consider whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona , 451 U. S. 477 (1981). I    In August 2003, a social worker assigned to the Child Advocacy Center in the Criminal Investigation Division of the Hagerstown Police Department referred to the department allegations that respondent Michael Shatzer, Sr., had sexually abused his 3-year-old son. At that time, Shatzer was incarcerated at the Maryland Correctional Institution-Hagerstown, serving a sentence for an unrelated child-sexual-abuse offense. Detective Shane Blankenship was assigned to the investigation and interviewed Shatzer at the correctional institution on August 7, 2003. Before asking any questions, Blankenship reviewed Shatzer’s Miranda rights with him, and obtained a written waiver of those rights. When Blankenship explained that he was there to question Shatzer about sexually abusing his son, Shatzer expressed confusion—he had thought Blankenship was an attorney there to discuss the prior crime for which he was incarcerated. Blankenship clarified the purpose of his visit, and Shatzer declined to speak without an attorney. Accordingly, Blankenship ended the interview, and Shatzer was released back into the general prison population. Shortly thereafter, Blankenship closed the investigation.    Two years and six months later, the same social worker referred more specific allegations to the department about the same incident involving Shatzer. Detective Paul Hoover, from the same division, was assigned to the investigation. He and the social worker interviewed the victim, then eight years old, who described the incident in more detail. With this new information in hand, on March 2, 2006, they went to the Roxbury Correctional Institute, to which Shatzer had since been transferred, and interviewed Shatzer in a maintenance room outfitted with a desk and three chairs. Hoover explained that he wanted to ask Shatzer about the alleged incident involving Shatzer’s son. Shatzer was surprised because he thought that the investigation had been closed, but Hoover explained they had opened a new file. Hoover then read Shatzer his Miranda rights and obtained a written waiver on a standard department form.    Hoover interrogated Shatzer about the incident for approximately 30 minutes. Shatzer denied ordering his son to perform fellatio on him, but admitted to masturbating in front of his son from a distance of less than three feet. Before the interview ended, Shatzer agreed to Hoover’s request that he submit to a polygraph examination. At no point during the interrogation did Shatzer request to speak with an attorney or refer to his prior refusal to answer questions without one.    Five days later, on March 7, 2006, Hoover and another detective met with Shatzer at the correctional facility to administer the polygraph examination. After reading Shatzer his Miranda rights and obtaining a written waiver, the other detective administered the test and concluded that Shatzer had failed. When the detectives then questioned Shatzer, he became upset, started to cry, and incriminated himself by saying, “ ‘I didn’t force him. I didn’t force him.’ ” 405 Md. 585, 590, 954 A. 2d 1118, 1121 (2008). After making this inculpatory statement, Shatzer requested an attorney, and Hoover promptly ended the interrogation.    The State’s Attorney for Washington County charged Shatzer with second-degree sexual offense, sexual child abuse, second-degree assault, and contributing to conditions rendering a child in need of assistance. Shatzer moved to suppress his March 2006 statements pursuant to Edwards . The trial court held a suppression hearing and later denied Shatzer’s motion. The Edwards protections did not apply, it reasoned, because Shatzer had experienced a break in custody for Miranda purposes between the 2003 and 2006 interrogations. No. 21–K–06–37799 (Cir. Ct. Washington Cty., Md., Sept. 14, 2006), App. 55. Shatzer pleaded not guilty, waived his right to a jury trial, and proceeded to a bench trial based on an agreed statement of facts. In accordance with the agreement, the State described the interview with the victim and Shatzer’s 2006 statements to the detectives. Based on the proffered testimony of the victim and the “admission of the defendant as to the act of masturbation,” the trial court found Shatzer guilty of sexual child abuse of his son.[ Footnote 1 ] No. 21–K–06–37799 (Cir. Ct. Washington Cty., Md., Sept. 21, 2006), id. , at 70, 79.    Over the dissent of two judges, the Court of Appeals of Maryland reversed and remanded. The court held that “the passage of time alone is insufficient to [end] the protections afforded by Edwards ,” and that, assuming, arguendo, a break-in-custody exception to Edwards existed, Shatzer’s release back into the general prison population between interrogations did not constitute a break in custody. 405 Md., at 606–607, 954 A. 2d, at 1131. We granted certiorari, 555 U. S. ___ (2009). II    The Fifth Amendment, which applies to the States by virtue of the Fourteenth Amendment, Malloy v. Hogan , 378 U. S. 1 , 6 (1964), provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U. S. Const., Amdt. 5. In Miranda v. Arizona , 384 U. S. 436 (1966), the Court adopted a set of prophylactic measures to protect a suspect’s Fifth Amendment right from the “inherently compelling pressures” of custodial interrogation. Id. , at 467. The Court observed that “incommunicado interrogation” in an “unfamiliar,” “police-dominated atmosphere,” id. , at 456–457, involves psychological pressures “which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” id. , at 467. Consequently, it reasoned, “[u]nless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.” Id. , at 458.    To counteract the coercive pressure, Miranda announced that police officers must warn a suspect prior to questioning that he has a right to remain silent, and a right to the presence of an attorney. Id. , at 444. After the warnings are given, if the suspect indicates that he wishes to remain silent, the interrogation must cease. Id. , at 473–474. Similarly, if the suspect states that he wants an attorney, the interrogation must cease until an attorney is present. Id. , at 474. Critically, however, a suspect can waive these rights. Id. , at 475. To establish a valid waiver, the State must show that the waiver was knowing, intelligent, and voluntary under the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst , 304 U. S. 458 (1938).” Id., at 475.    In Edwards , the Court determined that Zerbst ’s traditional standard for waiver was not sufficient to protect a suspect’s right to have counsel present at a subsequent interrogation if he had previously requested counsel; “additional safeguards” were necessary. 451 U. S., at 484. The Court therefore superimposed a “second layer of prophylaxis,” McNeil v. Wisconsin , 501 U. S. 171 , 176 (1991). Edwards held: “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [He] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” 451 U. S., at 484–485. The rationale of Edwards is that once a suspect indicates that “he is not capable of undergoing [custodial] questioning without advice of counsel,” “any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Arizona v. Roberson , 486 U. S. 675 , 681 (1988). Under this rule, a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s right to have counsel present, but it is not sufficient at the time of subsequent attempts if the suspect initially requested the presence of counsel. The implicit assumption, of course, is that the subsequent requests for interrogation pose a significantly greater risk of coercion. That increased risk results not only from the police’s persistence in trying to get the suspect to talk, but also from the continued pressure that begins when the individual is taken into custody as a suspect and sought to be interrogated—pressure likely to “increase as custody is prolonged,” Minnick v. Mississippi , 498 U. S. 146 , 153 (1990). The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of “prolonged police custody,” Roberson , 486 U. S., at 686, by repeatedly attempting to question a suspect who previously requested counsel until the suspect is “badgered into submission,” id. , at 690 (Kennedy, J., dissenting).    We have frequently emphasized that the Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis. See, e.g. , Montejo v. Louisiana , 556 U. S. ___, ___ (2009) (slip op., at 7–8); Michigan v. Harvey , 494 U. S. 344 , 349 (1990); Solem v. Stumes , 465 U. S. 638 , 644, n. 4 (1984). Because Edwards is “our rule, not a constitutional command,” “it is our obligation to justify its expansion.” Roberson , supra , at 688 (Kennedy, J., dissenting). Lower courts have uniformly held that a break in custody ends the Edwards presumption, see, e.g. , People v. Storm , 28 Cal. 4th 1007, 1023–1024, and n. 6, 52 P. 3d 52, 61–62, and n. 6 (2002) (collecting state and federal cases), but we have previously addressed the issue only in dicta, see McNeil , supra , at 177 ( Edwards applies “assuming there has been no break in custody”).    A judicially crafted rule is “justified only by reference to its prophylactic purpose,” Davis v. United States , 512 U. S. 452 , 458 (1994) (internal quotation marks omitted), and applies only where its benefits outweigh its costs, Montejo , supra , at ___ (slip op., at 14). We begin with the benefits. Edwards ’ presumption of involuntariness has the incidental effect of “conserv[ing] judicial resources which would otherwise be expended in making difficult determinations of voluntariness.” Minnick , supra , at 151. Its fundamental purpose, however, is to “[p]reserv[e] the integrity of an accused’s choice to communicate with police only through counsel,” Patterson v. Illinois , 487 U. S. 285 , 291 (1988), by “prevent[ing] police from badgering a defendant into waiving his previously asserted Miranda rights,” Harvey , supra , at 350. Thus, the benefits of the rule are measured by the number of coerced confessions it suppresses that otherwise would have been admitted. See Montejo , supra , at ___ (slip op., at 14).    It is easy to believe that a suspect may be coerced or badgered into abandoning his earlier refusal to be questioned without counsel in the paradigm Edwards case. That is a case in which the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated. After the initial interrogation, and up to and including the second one, he remains cut off from his normal life and companions, “thrust into” and isolated in an “unfamiliar,” “police-dominated atmosphere,” Miranda , 384 U. S., at 456–457, where his captors “appear to control [his] fate,” Illinois v. Perkins , 496 U. S. 292 , 297 (1990). That was the situation confronted by the suspects in Edwards , Roberson , and Minnick , the three cases in which we have held the Edwards rule applicable. Edwards was arrested pursuant to a warrant and taken to a police station, where he was interrogated until he requested counsel. Edwards , 451 U. S.em>., at 478–479. The officer ended the interrogation and took him to the county jail,[ Footnote 2 ] but at 9:15 the next morning, two of the officer’s colleagues reinterrogated Edwards at the jail. Id., at 479. Roberson was arrested “at the scene of a just-completed burglary” and interrogated there until he requested a lawyer. Roberson , 486 U. S., at 678. A different officer interrogated him three days later while he “was still in custody pursuant to the arrest.” Ibid. Minnick was arrested by local police and taken to the San Diego jail, where two FBI agents interrogated him the next morning until he requested counsel. Minnick , 498 U. S. , at 148–149. Two days later a Mississippi Deputy Sheriff reinterrogated him at the jail. Id. , at 149. None of these suspects regained a sense of control or normalcy after they were initially taken into custody for the crime under investigation.    When, unlike what happened in these three cases, a suspect has been released from his pretrial custody and has returned to his normal life for some time before the later attempted interrogation, there is little reason to think that his change of heart regarding interrogation without counsel has been coerced. He has no longer been isolated. He has likely been able to seek advice from an attorney, family members, and friends.[ Footnote 3 ] And he knows from his earlier experience that he need only demand counsel to bring the interrogation to a halt; and that investigative custody does not last indefinitely. In these circumstances, it is far fetched to think that a police officer’s asking the suspect whether he would like to waive his Miranda rights will any more “wear down the accused,” Smith v. Illinois , 469 U. S. 91 , 98 (1984) (per curiam) , than did the first such request at the original attempted interrogation—which is of course not deemed coercive. His change of heart is less likely attributable to “badgering” than it is to the fact that further deliberation in familiar surroundings has caused him to believe (rightly or wrongly) that cooperating with the investigation is in his interest. Uncritical extension of Edwards to this situation would not significantly increase the number of genuinely coerced confessions excluded. The “justification for a conclusive presumption disappears when application of the presumption will not reach the correct result most of the time.” Coleman v. Thompson , 501 U. S. 722 , 737 (1991).    At the same time that extending the Edwards rule yields diminished benefits, extending the rule also increases its costs: the in-fact voluntary confessions it excludes from trial, and the voluntary confessions it deters law enforcement officers from even trying to obtain. Voluntary confessions are not merely “a proper element in law enforcement,” Miranda , supra , at 478, they are an “unmitigated good,” McNeil , 501 U. S., at 181, “ ‘essential to society’s compelling interest in finding, convicting, and punishing those who violate the law,’ ” ibid. (quoting Moran v. Burbine , 475 U. S. 412 , 426 (1986)).    The only logical endpoint of Edwards disability is termination of Miranda custody and any of its lingering effects. Without that limitation—and barring some purely arbitrary time-limit[ Footnote 4 ]—every Edwards prohibition of custodial interrogation of a particular suspect would be eternal. The prohibition applies, of course, when the subsequent interrogation pertains to a different crime, Roberson , supra , when it is conducted by a different law enforcement authority, Minnick , 498 U. S. 146 , and even when the suspect has met with an attorney after the first interrogation, ibid. And it not only prevents questioning ex ante; it would render invalid ex post , confessions invited and obtained from suspects who (unbeknownst to the interrogators) have acquired Edwards immunity previously in connection with any offense in any jurisdiction.[ Footnote 5 ] In a country that harbors a large number of repeat offenders,[ Footnote 6 ] this consequence is disastrous.    We conclude that such an extension of Edwards is not justified; we have opened its “protective umbrella,” Solem , 465 U. S., at 644, n. 4, far enough. The protections offered by Miranda , which we have deemed sufficient to ensure that the police respect the suspect’s desire to have an attorney present the first time police interrogate him, adequately ensure that result when a suspect who initially requested counsel is reinterrogated after a break in custody that is of sufficient duration to dissipate its coercive effects.    If Shatzer’s return to the general prison population qualified as a break in custody (a question we address in Part III, infra ), there is no doubt that it lasted long enough (2 years) to meet that durational requirement. But what about a break that has lasted only one year? Or only one week? It is impractical to leave the answer to that question for clarification in future case-by-case adjudication; law enforcement officers need to know, with certainty and beforehand, when renewed interrogation is lawful. And while it is certainly unusual for this Court to set forth precise time limits governing police action, it is not unheard-of. In County of Riverside v. McLaughlin , 500 U. S. 44 (1991), we specified 48 hours as the time within which the police must comply with the requirement of Gerstein v. Pugh , 420 U. S. 103 (1975), that a person arrested without a warrant be brought before a magistrate to establish probable cause for continued detention.    Like McLaughlin , this is a case in which the requisite police action (there, presentation to a magistrate; here, abstention from further interrogation) has not been prescribed by statute but has been established by opinion of this Court. We think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption “will not reach the correct result most of the time.” Coleman , supra , at 737. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.    The 14-day limitation meets Shatzer’s concern that a break-in-custody rule lends itself to police abuse. He envisions that once a suspect invokes his Miranda right to counsel, the police will release the suspect briefly (to end the Edwards presumption) and then promptly bring him back into custody for reinterrogation. But once the suspect has been out of custody long enough (14 days) to eliminate its coercive effect, there will be nothing to gain by such gamesmanship—nothing, that is, except the entirely appropriate gain of being able to interrogate a suspect who has made a valid waiver of his Miranda rights.[ Footnote 7 ]    Shatzer argues that ending the Edwards protections at a break in custody will undermine Edwards ’ purpose to conserve judicial resources. To be sure, we have said that “[t]he merit of the Edwards decision lies in the clarity of its command and the certainty of its application.” Minnick , 498 U. S., at 151. But clarity and certainty are not goals in themselves. They are valuable only when they reasonably further the achievement of some substantive end—here, the exclusion of compelled confessions. Confessions obtained after a 2-week break in custody and a waiver of Miranda rights are most unlikely to be compelled, and hence are unreasonably excluded. In any case, a break-in-custody exception will dim only marginally, if at all, the bright-line nature of Edwards . In every case involving Edwards , the courts must determine whether the suspect was in custody when he requested counsel and when he later made the statements he seeks to suppress. Now, in cases where there is an alleged break in custody, they simply have to repeat the inquiry for the time between the initial invocation and reinterrogation. In most cases that determination will be easy. And when it is determined that the defendant pleading Edwards has been out of custody for two weeks before the contested interrogation, the court is spared the fact-intensive inquiry into whether he ever, anywhere, asserted his Miranda right to counsel. III    The facts of this case present an additional issue. No one questions that Shatzer was in custody for Miranda purposes during the interviews with Detective Blankenship in 2003 and Detective Hoover in 2006. Likewise, no one questions that Shatzer triggered the Edwards protections when, according to Detective Blankenship’s notes of the 2003 interview, he stated that “ ‘he would not talk about this case without having an attorney present,’ ” 405 Md., at 589, 954 A. 2d, at 1120. After the 2003 interview, Shatzer was released back into the general prison population where he was serving an unrelated sentence. The issue is whether that constitutes a break in Miranda custody.    We have never decided whether incarceration constitutes custody for Miranda purposes, and have indeed explicitly declined to address the issue. See Perkins , 496 U. S., at 299. See also Bradley v. Ohio , 497 U. S. 1011 , 1013 (1990) (Marshall, J., dissenting from denial of certiorari). Whether it does depends upon whether it exerts the coercive pressure that Miranda was designed to guard against—the “danger of coercion [that] results from the interaction of custody and official interrogation.” Perkins , supra , at 297 (emphasis added). To determine whether a suspect was in Miranda custody we have asked whether “there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” New York v. Quarles , 467 U. S. 649 , 655 (1984); see also Stansbury v. California , 511 U. S. 318 , 322 (1994) (per curiam). This test, no doubt, is satisfied by all forms of incarceration. Our cases make clear, however, that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody. We have declined to accord it “talismanic power,” because Miranda is to be enforced “only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer v. McCarty , 468 U. S. 420 , 437 (1984). Thus, the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop, see Terry v. Ohio , 392 U. S. 1 (1968), does not constitute Miranda custody. McCarty , supra , at 439–440. See also Perkins , supra , at 296.    Here, we are addressing the interim period during which a suspect was not interrogated, but was subject to a baseline set of restraints imposed pursuant to a prior conviction. Without minimizing the harsh realities of incarceration, we think lawful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda .    Interrogated suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine—they regain the degree of control they had over their lives prior to the interrogation. Sentenced prisoners, in contrast to the Miranda paradigm, are not isolated with their accusers. They live among other inmates, guards, and workers, and often can receive visitors and communicate with people on the outside by mail or telephone.    Their detention, moreover, is relatively disconnected from their prior unwillingness to cooperate in an investigation. The former interrogator has no power to increase the duration of incarceration, which was determined at sentencing.[ Footnote 8 ] And even where the possibility of parole exists, the former interrogator has no apparent power to decrease the time served. This is in stark contrast to the circumstances faced by the defendants in Edwards , Roberson , and Minnick , whose continued detention as suspects rested with those controlling their interrogation, and who confronted the uncertainties of what final charges they would face, whether they would be convicted, and what sentence they would receive.    Shatzer’s experience illustrates the vast differences between Miranda custody and incarceration pursuant to conviction. At the time of the 2003 attempted interrogation, Shatzer was already serving a sentence for a prior conviction. After that, he returned to the general prison population in the Maryland Correctional Institution-Hagerstown and was later transferred, for unrelated reasons, down the street to the Roxbury Correctional Institute. Both are medium-security state correctional facilities. See Maryland Div. of Correction Inmate Handbook 7 (2007), online at http://dpscs.md.gov/rehabservs/ doc/pdfs/2007_Inmate_Handbook.pdf (all Internet materials as visited Feb. 22, 2010, and available in Clerk of Court’s case file). Inmates in these facilities generally can visit the library each week, id. , at 28; have regular exercise and recreation periods, id. , at 17; can participate in basic adult education and occupational training, id. , at 26, 7; are able to send and receive mail, id. , at 21–22, 16; and are allowed to receive visitors twice a week, see http://dpscs.md.gov/locations/mcih.shtml; http://www. dpscs.state.md.us/locations/rci.shtml. His continued detention after the 2003 interrogation did not depend on what he said (or did not say) to Detective Blankenship, and he has not alleged that he was placed in a higher level of security or faced any continuing restraints as a result of the 2003 interrogation. The “inherently compelling pressures” of custodial interrogation ended when he returned to his normal life. IV    A few words in response to Justice Stevens’ concurrence: It claims we ignore that “[w]hen police tell an indigent suspect that he has the right to an attorney” and then “reinterrogate” him without providing a lawyer, “the suspect is likely to feel that the police lied to him and that he really does not have any right to a lawyer.” Post , at 2 (opinion concurring in judgment) (hereinafter concurrence). See also post, at 4, 7, n. 11, 11, n. 16. The fallacy here is that we are not talking about “reinterrogating” the suspect; we are talking about asking his permission to be interrogated. An officer has in no sense lied to a suspect when, after advising, as Miranda requires, “You have the right to remain silent, and if you choose to speak you have the right to the presence of an attorney,” he promptly ends the attempted interrogation because the suspect declines to speak without counsel present, and then, two weeks later, reapproaches the suspect and asks, “Are you now willing to speak without a lawyer present?”    The “concer[n] that motivated the Edwards line of cases,” post , at 2–3, n. 2, is that the suspect will be coerced into saying yes. That concern guides our decision today. Contrary to the concurrence’s conclusion, post , at 3, 5–6, there is no reason to believe a suspect will view confession as “ ‘the only way to end his interrogation’ ” when, before the interrogation begins, he is told that he can avoid it by simply requesting that he not be interrogated without counsel present—an option that worked before. If, as the concurrence argues will often be the case, post , at 5, a break in custody does not change the suspect’s mind, he need only say so.    The concurrence also accuses the Court of “ignor[ing] that when a suspect asks for counsel, until his request is answered, there are still the same ‘inherently compelling’ pressures of custodial interrogation on which the Miranda line of cases is based.” Post , at 4. We do not ignore these pressures; nor do we suggest that they disappear when custody is recommenced after a break, see post , at 5. But if those pressures are merely “the same” as before, then Miranda provides sufficient protection—as it did before. The Edwards presumption of involuntariness is justified only in circumstances where the coercive pressures have increased so much that suspects’ waivers of Miranda rights are likely to be involuntary most of the time. Contrary to the concurrence’s suggestion, post , at 3, it is only in those narrow circumstances—when custody is unbroken—that the Court has concluded a “fresh se[t] of Miranda warnings” is not sufficient. See Roberson , 486 U. S., at 686.    In the last analysis, it turns out that the concurrence accepts our principal points. It agrees that Edwards prophylaxis is not perpetual; it agrees that a break in custody reduces the inherently compelling pressure upon which Edwards was based; it agrees that Shatzer’s release back into the general prison population constituted a break in custody; and it agrees that in this case the break was long enough to render Edwards inapplicable. Post , at 10–12. We differ in two respects: Instead of terminating Edwards protection when the custodial pressures that were the basis for that protection dissipate, the concurrence would terminate it when the suspect would no longer “feel that he has ‘been denied the counsel he has clearly requested,’ ” post , at 11. This is entirely unrelated to the rationale of Edwards . If confidence in the police’s promise to provide counsel were the touchstone, Edwards would not have applied in Minnick , where the suspect in continuing custody actually met with appointed counsel. The concurrence’s rule is also entirely unrelated to the existence of a break in custody. While that may relieve the accumulated coercive pressures of custody that are the foundation for Edwards , it is hard to see how it bolsters the suspect’s confidence that if he asks for counsel he will get one.    And secondly, the concurrence differs from us in declining to say how long after a break in custody the termination of Edwards protection occurs. Two and one-half years, it says, is clearly enough—but it gives law enforcement authorities no further guidance. The concurrence criticizes our use of 14 days as arbitrary and unexplained, post , at 5, and n. 7. But in fact that rests upon the same basis as the concurrence’s own approval of a 2 1 2-year break in custody: how much time will justify “treating the second interrogation as no more coercive than the first,” post, at 10. Failure to say where the line falls short of 2 1 2 years, and leaving that for future case-by-case determination, is certainly less helpful, but not at all less arbitrary. *  *  * Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his March 2006 statements. Accordingly, we reverse the judgment of the Court of Appeals of Maryland, and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 The State filed a nolle prosequi to the second-degree sexual offense charge, and consented to dismissal of the misdemeanor charges as barred by the statute of limitations. Footnote 2 Jail is a “local government’s detention center where persons awaiting trial or those convicted of misdemeanors are confined.” Black’s Law Dictionary 910 (9th ed. 2009). Prison, by contrast, is a “state or federal facility of confinement for convicted criminals, esp. felons.” Id. , at 1314. Footnote 3 Justice Stevens points out, post , at 7 (opinion concurring in judgment), that in Minnick , actual pre-reinterrogation consultation with an attorney during continued custody did not suffice to avoid application of Edwards . That does not mean that the ability to consult freely with attorneys and others does not reduce the level of coercion at all, or that it is “only questionably relevant,” post , at 7, to whether termination of custody reduces the coercive pressure that is the basis for Edwards’ super-prophylactic rule. Footnote 4 The State’s alternative argument in the present case is that the substantial lapse in time between the 2003 and 2006 attempts at interrogation independently ended the Edwards presumption. Our disposition makes it unnecessary to address that argument. Footnote 5 This assumes that Roberson ’s extension of Edwards to subsequent interrogation for a different crime, and Minnick ’s extension of Edwards to subsequent interrogation by a different law enforcement agency would apply even when the place of custody and the identity of the custodial agency are not the same (as they were in Roberson and Minnick ) as those of the original interrogation. That assumption would seem reasonable if the Edwards- suspending effect of a termination of custody is rejected. Reinterrogation in different custody or by a different interrogating agency would seem, if anything, less likely than termination of custody to reduce coercive pressures. At the original site, and with respect to the original interrogating agency, the suspect has already experienced cessation of interrogation when he demands counsel—which he may have no reason to expect elsewhere. Footnote 6 According to a recent study, 67.5% of prisoners released from 15 States in 1994 were rearrested within three years. See Dept. of Justice, Bureau of Justice Statistics, Special Report, Recidivism of Prisoners Released in 1994 (NCJ 193427, 2002). Footnote 7 A defendant who experiences a 14-day break in custody after invoking the Miranda right to counsel is not left without protection. Edwards establishes a presumption that a suspect’s waiver of Miranda rights is involuntary. See Arizona v. Roberson , 486 U. S. 675 , 681 (1988). Even without this “second layer of prophylaxis,” McNeil v. Wisconsin , 501 U. S. 171 , 176 (1991), a defendant is still free to claim the prophylactic protection of Miranda —arguing that his waiver of Miranda rights was in fact involuntary under Johnson v. Zerbst , 304 U. S. 458 (1938). See Miranda , 384 U. S., at 475. Footnote 8 We distinguish the duration of incarceration from the duration of what might be termed interrogative custody. When a prisoner is removed from the general prison population and taken to a separate location for questioning, the duration of that separation is assuredly dependent upon his interrogators. For which reason once he has asserted a refusal to speak without assistance of counsel Edwards prevents any efforts to get him to change his mind during that interrogative custody. OPINION OF THOMAS, J. MARYLAND V. SHATZER 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-680 MARYLAND, PETITIONER v. MICHAEL BLAINE SHATZER, Sr. on writ of certiorari to the court of appeals of maryland [February 24, 2010]    Justice Thomas, concurring in part and concurring in the judgment.    I join Part III of the Court’s opinion, which holds that release into the general prison population constitutes a break in custody. I do not join the Court’s decision to extend the presumption of involuntariness established in Edwards v. Arizona , 451 U. S. 477 (1981), for 14 days after custody ends.    It is not apparent to me that the presumption of involuntariness the Court recognized in Edwards is justifiable even in the custodial setting to which Edwards applies it. See, e.g., Minnick v. Mississippi , 498 U. S. 146 , 160 (1990) (Scalia, J., dissenting). Accordingly, I would not extend the Edwards rule “beyond the circumstances present in Edwards itself.” Id. , at 162. But even if one believes that the Court is obliged to apply Edwards to any case involving continuing custody, the Court’s opinion today goes well beyond that. It extends the presumption of involuntariness Edwards applies in custodial settings to interrogations that occur after custody ends.    The Court concedes that this extension, like the Edwards presumption itself, is not constitutionally required. The Court nevertheless defends the extension as a judicially created prophylaxis against compelled confessions. Even if one accepts that such prophylaxis is both permissible generally and advisable for some period following a break in custody,[ Footnote 1 ] the Court’s 14-day rule fails to satisfy the criteria our precedents establish for the judicial creation of such a safeguard.    Our precedents insist that judicially created prophylactic rules like those in Edwards and Miranda v. Arizona , 384 U. S. 436 (1966), maintain “the closest possible fit” between the rule and the Fifth Amendment interests they seek to protect. United States v. Patane , 542 U. S. 630 , 640–641 (2004) (plurality opinion); see generally Montejo v. Louisiana , 556 U. S. ___, ___ (2009) (slip op., at 18); Chavez v. Martinez , 538 U. S. 760 , 772 (2003) (plurality opinion). The Court’s 14-day rule does not satisfy this test. The Court relates its 14-day rule to the Fifth Amendment simply by asserting that 14 days between release and recapture should provide “plenty of time for the suspect … to shake off any residual coercive effects of his prior custody,” ante , at 11.    This ipse dixit does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the “closest possible fit” with the Self-Incrimination Clause, Patane , supra , at 640–641; see ante , at 11 (merely stating that “[i]t seems to us that” the appropriate “period is 14 days”). Nor does it explain how the benefits of a prophylactic 14-day rule (either on its own terms or compared with other possible rules) “outweigh its costs” (which would include the loss of law enforcement information as well as the exclusion of confessions that are in fact voluntary). Ante , at 6 (citing Montejo , supra , at __ (slip op., at 14)).    To be sure, the Court’s rule has the benefit of providing a bright line. Ante , at 12. But bright-line rules are not necessary to prevent Fifth Amendment violations, as the Court has made clear when refusing to adopt such rules in cases involving other Miranda rights. See, e.g ., Michigan v. Mosley , 423 U. S. 96 , 103–104 (1975). And an otherwise arbitrary rule is not justifiable merely because it gives clear instruction to law enforcement officers.[ Footnote 2 ]    As the Court concedes, “clarity and certainty are not goals in themselves. They are valuable only when they reasonably further the achievement of some substantive end—here, the exclusion of compelled confessions” that the Fifth Amendment prohibits. Ante , at 12. The Court’s arbitrary 14-day rule fails this test, even under the relatively permissive criteria set forth in our precedents. Accordingly, I do not join that portion of the Court’s opinion. Footnote 1 At a minimum the latter proposition is questionable. I concede that some police officers might badger a suspect during a subsequent interrogation after a break in custody, or might use catch-and-release tactics to suggest they will not take no for an answer. But if a suspect reenters custody after being questioned and released, he need only invoke his right to counsel to ensure Edwards ’ protection for the duration of the subsequent detention. And, if law enforcement officers repeatedly release and recapture a suspect to wear down his will—such that his participation in a subsequent interrogation is no longer truly voluntary—the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst , 304 U. S. 458 (1938),” will protect against the admission of the suspect’s statements in court. Miranda v. Arizona , 384 U. S. 436 , 475 (1966). The Zerbst inquiry takes into account the totality of the circumstances surrounding the waiver—including any improper pressures by police. See id. , at 464; cf. ante , at 11–12, n. 6 (stating that “[e]ven without [Edwards’] second layer of prophylaxis, a defendant is still free to claim the prophylactic protection of Miranda —arguing that his waiver of Miranda rights was in fact involuntary under Johnson v. Zerbst ” (internal quotation marks and citation omitted)). Footnote 2 Though the Court asserts that its 14-day rule will tell “law enforcement officers . . . with certainty and beforehand, when renewed interrogation is lawful,” ante , at 10, that is not so clear. Determining whether a suspect was previously in custody, and when the suspect was released, may be difficult without questioning the suspect, especially if state and federal authorities are conducting simultaneous investigations. STEVENS, J., CONCURRING IN JUDGMENT MARYLAND V. SHATZER 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-680 MARYLAND, PETITIONER v. MICHAEL BLAINE SHATZER, Sr. on writ of certiorari to the court of appeals of maryland [February 24, 2010]    Justice Stevens, concurring in the judgment.    While I agree that the presumption from Edwards v. Arizona , 451 U. S. 477 (1981), is not “eternal,” ante , at 9–10, and does not mandate suppression of Shatzer’s statement made after a 2-year break in custody, I do not agree with the Court’s newly announced rule: that Edwards always ceases to apply when there is a 14-day break in custody, ante , at 11.    In conducting its “cost-benefit” analysis, the Court demeans Edwards as a “ ‘second layer’ ” of “judicially prescribed prophylaxis,” ante , at 5, 6, 12, n. 7; see also ante , at 6 (describing Edwards as “ ‘our rule, not a constitutional command’ ” (quoting Arizona v. Roberson , 486 U. S. 675 , 688 (1988) (Kennedy, J., dissenting))). The source of the holdings in the long line of cases that includes both Edwards and Miranda , however, is the Fifth Amendment’s protection against compelled self-incrimination applied to the “compulsion inherent in custodial” interrogation, Miranda v. Arizona , 384 U. S. 436 , 458 (1966), and the “significan[ce]” of “the assertion of the right to counsel,” Edwards , 451 U. S., at 485.[ Footnote 1 ] The Court’s analysis today is insufficiently sensitive to the concerns that motivated the Edwards line of cases. I    The most troubling aspect of the Court’s time-based rule is that it disregards the compulsion caused by a second (or third, or fourth) interrogation of an indigent suspect who was told that if he requests a lawyer, one will be provided for him. When police tell an indigent suspect that he has the right to an attorney, that he is not required to speak without an attorney present, and that an attorney will be provided to him at no cost before questioning, the police have made a significant promise. If they cease questioning and then reinterrogate the suspect 14 days later without providing him with a lawyer, the suspect is likely to feel that the police lied to him and that he really does not have any right to a lawyer.[ Footnote 2 ]    When officers informed Shatzer of his rights during the first interrogation, they presumably informed him that if he requested an attorney, one would be appointed for him before he was asked any further questions. But if an indigent suspect requests a lawyer, “any further interrogation” (even 14 days later) “without counsel having been provided will surely exacerbate whatever compulsion to speak the suspect may be feeling.” Roberson , 486 U. S., at 686. When police have not honored an earlier commitment to provide a detainee with a lawyer, the detainee likely will “understan[d] his (expressed) wishes to have been ignored” and “may well see further objection as futile and confession (true or not) as the only way to end his interrogation.” Davis v. United States , 512 U. S. 452 , 472–473 (1994) (Souter, J., concurring in judgment). Cf. Cooper v. Dupnik , 963 F. 2d 1220, 1225 (CA9 1992) (en banc) (describing an elaborate police task force plan to ignore a suspect’s requests for counsel, on the theory that such would induce hopelessness and thereby elicit an admission). Simply giving a “fresh se[t] of Miranda warnings” will not “ ‘reassure’ a suspect who has been denied the counsel he has clearly requested that his rights have remained untrammeled.” Roberson , 486 U. S., at 686. II    The Court never explains why its rule cannot depend on, in addition to a break in custody and passage of time, a concrete event or state of affairs, such as the police having honored their commitment to provide counsel. Instead, the Court simply decides to create a time-based rule, and in so doing, disregards much of the analysis upon which Edwards and subsequent decisions were based. “[T]he assertion of the right to counsel” “[i]s a significant event.”[ Footnote 3 ] Edwards , 451 U. S., at 485. As the Court today acknowledges, the right to counsel, like the right to remain silent, is one that police may “coerc[e] or badge[r],” ante , at 7, a suspect into abandoning.[ Footnote 4 ] However, as discussed above, the Court ignores the effects not of badgering but of reinterrogating a suspect who took the police at their word that he need not answer questions without an attorney present. See Roberson , 486 U. S., at 686. The Court, moreover, ignores that when a suspect asks for counsel, until his request is answered, there are still the same “inherently compelling” pressures of custodial interrogation on which the Miranda line of cases is based, see 486 U. S., at 681,[ Footnote 5 ] and that the concern about compulsion is especially serious for a detainee who has requested a lawyer, an act that signals his “inability to cope with the pressures of custodial interrogation,” id. , at 686.[ Footnote 6 ]    Instead of deferring to these well-settled understandings of the Edwards rule, the Court engages in its own speculation that a 14-day break in custody eliminates the compulsion that animated Edwards. But its opinion gives no strong basis for believing that this is the case.[ Footnote 7 ] A 14-day break in custody does not eliminate the rationale for the initial Edwards rule: The detainee has been told that he may remain silent and speak only through a lawyer and that if he cannot afford an attorney, one will be provided for him. He has asked for a lawyer. He does not have one. He is in custody. And police are still questioning him. A 14-day break in custody does not change the fact that custodial interrogation is inherently compelling. It is unlikely to change the fact that a detainee “considers himself unable to deal with the pressures of custodial interrogation without legal assistance.” Roberson , 486 U. S., at 683.[ Footnote 8 ] And in some instances, a 14-day break in custody may make matters worse [ Footnote 9 ] “[w]hen a suspect understands his (expressed) wishes to have been ignored” and thus “may well see further objection as futile and confession (true or not) as the only way to end his interrogation.” Davis , 512 U. S., at 472–473 (Souter, J., concurring in judgment).[ Footnote 10 ]    The Court ignores these understandings from the Edwards line of cases and instead speculates that if a suspect is reinterrogated and eventually talks, it must be that “further deliberation in familiar surroundings has caused him to believe (rightly or wrongly) that cooperating with the investigation is in his interest.” Ante , at 9. But it is not apparent why that is the case. The answer, we are told, is that once a suspect has been out of Miranda custody for 14 days, “[h]e has likely been able to seek advice from an attorney, family members, and friends.” Ante , at 8. This speculation, however, is overconfident and only questionably relevant. As a factual matter, we do not know whether the defendant has been able to seek advice: First of all, suspects are told that if they cannot afford a lawyer, one will be provided for them. Yet under the majority’s rule, an indigent suspect who took the police at their word when he asked for a lawyer will nonetheless be assumed to have “been able to seek advice from an attorney.” Second, even suspects who are not indigent cannot necessarily access legal advice (or social advice as the Court presumes) within 14 days. Third, suspects may not realize that they need to seek advice from an attorney. Unless police warn suspects that the interrogation will resume in 14 days, why contact a lawyer? When a suspect is let go, he may assume that the police were satisfied. In any event, it is not apparent why interim advice matters.[ Footnote 11 ] In Minnick v. Mississippi , 498 U. S. 146 , 153 (1990), we held that it is not sufficient that a detainee happened to speak at some point with a lawyer. See ibid. (noting that “consultation with an attorney” does not prevent “persistent attempts by officials to persuade [a suspect] to waive his rights” or shield against the “coercive pressures that accompany custody”). If the actual interim advice of an attorney is not sufficient, the hypothetical, interim advice of “an attorney, family members, and friends,” ante , at 8, is not enough.    The many problems with the Court’s new rule are exacerbated in the very situation in this case: a suspect who is in prison. Even if, as the Court assumes, a trip to one’s home significantly changes the Edwards calculus, a trip to one’s prison cell is not the same. A prisoner’s freedom is severely limited, and his entire life remains subject to government control. Such an environment is not conducive to “shak[ing] off any residual coercive effects of his prior custody.” Ante , at 11.[ Footnote 12 ] Nor can a prisoner easily “seek advice from an attorney, family members, and friends,” ante , at 8, especially not within 14 days; prisoners are frequently subject to restrictions on communications. Nor, in most cases, can he live comfortably knowing that he cannot be badgered by police; prison is not like a normal situation in which a suspect “is in control, and need only shut his door or walk away to avoid police badgering.” Montejo v. Louisiana , 556 U. S. ___, ___ (2009) (slip op., at 16). Indeed, for a person whose every move is controlled by the State, it is likely that “his sense of dependence on, and trust in, counsel as the guardian of his interests in dealing with government officials intensified.” United States v. Green , 592 A. 2d 985, 989 (D. C. 1991); cf. Minnick , 498 U. S., at 153 (explaining that coercive pressures “may increase as custody is prolonged”).[ Footnote 13 ] The Court ignores these realities of prison, and instead rests its argument on the supposition that a prisoner’s “detention … is relatively disconnected from their prior unwillingness to cooperate in an investigation.” Ante , at 14. But that is not necessarily the case. Prisoners are uniquely vulnerable to the officials who control every aspect of their lives; prison guards may not look kindly upon a prisoner who refuses to cooperate with police. And cooperation frequently is relevant to whether the prisoner can obtain parole. See, e.g. , Code of Md. Regs., tit. 12, §08.01.18(A)(3) (2008). Moreover, even if it is true as a factual matter that a prisoner’s fate is not controlled by the police who come to interrogate him, how is the prisoner supposed to know that? As the Court itself admits, compulsion is likely when a suspect’s “captors appear to control [his] fate,” ante , at 7 (internal quotation marks omitted). But when a guard informs a suspect that he must go speak with police, it will “appear” to the prisoner that the guard and police are not independent. “Questioning by captors, who appear to control the suspect’s fate, may create mutually reinforcing pressures that the Court has assumed will weaken the suspect’s will.” Illinois v. Perkins , 496 U. S. 292 , 297 (1990) (emphasis added).[ Footnote 14 ] III    Because, at the very least, we do not know whether Shatzer could obtain a lawyer, and thus would have felt that police had lied about providing one, I cannot join the Court’s opinion. I concur in today’s judgment, however, on another ground: Even if Shatzer could not consult a lawyer and the police never provided him one, the 2-year break in custody is a basis for treating the second interrogation as no more coercive than the first. Neither a break in custody nor the passage of time has an inherent, curative power. But certain things change over time. An indigent suspect who took police at their word that they would provide an attorney probably will feel that he has “been denied the counsel he has clearly requested,” Roberson , 486 U. S., at 686, when police begin to question him, without a lawyer, only 14 days later.[ Footnote 15 ] But, when a suspect has been left alone for a significant period of time, he is not as likely to draw such conclusions when the police interrogate him again.[ Footnote 16 ] It is concededly “impossible to determine with precision” where to draw such a line. Barker v. Wingo , 407 U. S. 514 , 521 (1972). In the case before us, however, the suspect was returned to the general prison population for 2 years. I am convinced that this period of time is sufficient. I therefore concur in the judgment. Footnote 1 See Dickerson v. United States , 530 U. S. 428 , 438 (2000) (holding that “the protections announced in Miranda ” are “constitutionally required”); Shea v. Louisiana , 470 U. S. 51 , 52 (1985) (“In Edwards … , this Court ruled that a criminal defendant’s rights under the Fifth and Fourteenth Amendments were violated by the use of his confession obtained by police-instigated interrogation—without counsel present—after he requested an attorney”); Oregon v. Bradshaw , 462 U. S. 1039 , 1043 (1983) (plurality opinion) (“[The] subsequent incriminating statements made without [an] attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments to the United States Constitution”); Miranda , 384 U. S., at 458 (examining the “history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation”). Footnote 2 The Court states that this argument rests on a “fallacy” because “we are not talking about ‘reinterrogating’ the suspect; we are talking about asking his permission to be interrogated.” Ante , at 16 (emphasis deleted). Because, however, a suspect always has the right to remain silent, this is a distinction without a difference: Any time that the police interrogate or reinterrogate, and read a suspect his Miranda rights, the suspect may decline to speak. And if this is a “fallacy,” it is the same “fallacy” upon which this Court has relied in the Edwards line of cases that held that police may not continue to interrogate a suspect who has requested a lawyer: Police may not continue to ask such a suspect whether they may interrogate him until that suspect has a lawyer present. The Court’s apparent belief that this is a “fallacy” only underscores my concern that its analysis is insufficiently sensitive to the concerns that motivated the Edwards line of cases. Footnote 3 Indeed, a lawyer has a “unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation.” Fare v. Michael C. , 442 U. S. 707 , 719 (1979). Counsel can curb an officer’s overbearing conduct, advise a suspect of his rights, and ensure that there is an accurate record of any interrogation. “Because of this special ability of the lawyer to help the client preserve his Fifth Amendment rights once the client becomes enmeshed in the adversary process, the Court found that the right to have counsel present at the interrogation is indispensible to the protection of the Fifth Amendment privilege.” Arizona v. Roberson , 486 U. S. 675 , 682, n. 4 (1988) (internal quotation marks omitted). Thus, “once the accused has requested counsel,” courts must be especially wary of “coercive form[s] of custodial interrogation.” Bradshaw , 462 U. S., at 1051 (Powell, J., concurring in judgment). Footnote 4 See Michigan v. Harvey , 494 U. S. 344 , 350 (1990) (subsequent confession suggests the police “badger[ed] a defendant into waiving his previously asserted Miranda rights”). Footnote 5 See Minnick v. Mississippi , 498 U. S. 146 , 155 (1990) (“[N]either admissions nor waivers are effective unless there are both particular and systemic assurances that the coercive pressures of custody were not the inducing cause”); cf. Smith v. Illinois , 469 U. S. 91 , 98 (1984) (per curiam) (“[T]he authorities through ‘badger[ing]’ or ‘overreaching’—explicit or subtle, deliberate or unintentional—might otherwise wear down the accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s assistance”). Footnote 6 See Roberson , 486 U. S., at 681 (“[I]f a suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ ”); Michigan v. Mosley , 423 U. S. 96 , 110, n. 2 (1975) (White, J., concurring in result) (“[T]he accused having expressed his own view that he is not competent to deal with the authorities without legal advice, a later decision at the authorities’ insistence to make a statement without counsel’s presence may properly be viewed with skepticism”). Footnote 7 Today’s decision, moreover, offers no reason for its 14-day time period. To be sure, it may be difficult to marshal conclusive evidence when setting an arbitrary time period. But in light of the basis for Edwards , we should tread carefully. Instead, the only reason for choosing a 14-day time period, the Court tells us, is that “[i]t seems to us that period is 14 days.” Ante , at 11. That time period is “plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.” Ibid. But the Court gives no reason for that speculation, which may well prove inaccurate in many circumstances. Footnote 8 In Roberson , for example, we observed that once a suspect has asserted his right to an attorney, courts must presume he does “not feel sufficiently comfortable with the pressures of custodial interrogation to answer questions without an attorney. This discomfort is precisely the state of mind that Edwards presumes to persist … .” 486 U. S., at 684. We held in Roberson that just because different police come to speak about a different investigation, that presumption does not change: “[T]here is no reason to assume that a suspect’s state of mind is in any way investigation-specific.” Ibid . Nor is there any reason to believe that it is arrest specific. Footnote 9 The compulsion is heightened by the fact that “[t]he uncertainty of fate that being released from custody and then reapprehended entails is, in some circumstances, more coercive than continual custody.” Strauss, Reinterrogation, 22 Hastings Const. L. Q. 359, 390 (1995). Footnote 10 Not only is this a likely effect of reinterrogation, but police may use this effect to their advantage. Indeed, the Court’s rule creates a strange incentive to delay formal proceedings, in order to gain additional information by way of interrogation after the time limit lapses. The justification for Fifth Amendment rules “must be consistent with … practical realities,” Roberson , 486 U. S., at 688 (Kennedy, J., dissenting), and the reality is that police may operate within the confines of the Fifth Amendment in order to extract as many confessions as possible, see Leo & White, Adapting to Miranda: Modern Interrogators’ Strategies for Dealing with the Obstacles Posed by Miranda, 84 Minn. L. Rev. 397 (1999). With a time limit as short as 14 days, police who hope that they can eventually extract a confession may feel comfortable releasing a suspect for a short period of time. The resulting delay will only increase the compelling pressures on the suspect. Footnote 11 It is important to distinguish this from the point that I make above about indigent suspects. If the police promise to provide a lawyer and never do so, it sends a message to the suspect that the police have lied and that the rights read to him are hollow. But the mere fact that a suspect consulted a lawyer does not itself reduce the compulsion when police reinterrogate him. Footnote 12 Cf. Orozco v. Texas , 394 U. S. 324 , 326 (1969) (holding that a suspect was in custody while being held in own home, despite his comfort and familiarity with the surroundings); Mathis v. United States , 391 U. S. 1 , 5 (1968) (holding that a person serving a prison sentence for one crime was in custody when he was interrogated in prison about another, unrelated crime); Miranda v. Arizona , 384 U. S. 436 , 478 (1966) (“[W]hen an individual is … deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized”). Footnote 13 Prison also presents a troubling set of incentives for police. First, because investigators know that their suspect is also a prisoner, there is no need formally to place him under arrest. Thus, police generally can interview prisoners even without probable cause to hold them. This means that police can interrogate suspects with little or no evidence of guilt, and police can do so time after time, without fear of being sued for wrongful arrest. Second, because police know that their suspect is otherwise detained, there is no need necessarily to resolve the case quickly. Police can comfortably bide their time, interrogating and reinterrogating their suspect until he slips up. Third, because police need not hold their suspect, they do not need to arraign him or otherwise initiate formal legal proceedings that would trigger various protections. Footnote 14 The Court attempts to distinguish detention in prison from the “paradigm Edwards case,” ante , at 7, but it is not clear why that is so. The difference cannot be simply that convicted prisoners’ “detention … is relatively disconnected from their prior unwillingness to cooperate in an investigation,” ante , at 14, because in many instances of pretrial custody, the custody will continue regardless of whether a detainee answers questions. Take Roberson for example. Roberson was arrested and being held for one crime when, days later, a different officer interrogated him about a different crime. 486 U. S., at 678. Regardless of whether he cooperated with the second investigation, he was still being held for the first crime. Yet under the Court’s analysis, had Roberson been held long enough that he had become “accustomed” to the detention facility, ante , at 14, there would have been a break in custody between each interrogation. Thus, despite the fact that coercive pressures “may increase as custody is prolonged,” Minnick , 498 U. S., at 153, the real problem in Roberson may have been that the police did not leave him sitting in jail for long enough.    This problem of pretrial custody also highlights a tension with the Court’s decision last Term in Montejo v. Louisiana , 556 U. S. ___ (2009). In Montejo , the Court overturned Michigan v. Jackson , 475 U. S. 625 , 636 (1986), which had protected an accused’s Sixth Amendment right to counsel by “forbidding police to initiate interrogation of a criminal defendant once he has requested counsel at an arraignment or similar proceeding.” 556 U. S., at ___ (slip op., at 1). In so doing, the Court emphasized that because the Edwards “regime suffices to protect the integrity of ‘a suspect’s voluntary choice not to speak outside his lawyer’s presence,’ before his arraignment, it is hard to see why it would not also suffice to protect that same choice after arraignment.” 556 U. S., at ___ (slip op., at 15) (quoting Texas v. Cobb , 532 U. S. 162 , 175 (2001) (Kennedy, J., concurring); citation omitted). But typically, after arraignment, defendants are released on bail or placed in detention facilities, both of which, according to the majority’s logic, sometimes constitute breaks in custody. How then, under the Court’s decision today, will Edwards serve the role that the Court placed on it in Montejo? Footnote 15 The Court responds that “[i]f confidence in the police’s promise to provide counsel were the touchstone, Edwards would not have applied in Minnick , where the suspect in continuing custody actually met with appointed counsel.” Ante , at 17–18. But my view is not that “confidence in the police’s promise to provide counsel” is “the touchtone.” Ante , at 17. Rather, my view is that although an appropriate break in custody will mitigate many of the reasons that custodial reinterrogation of a suspect who requested counsel is inherently compelling, it will not mitigate the effect of an indigent detainee believing that he has “been denied the counsel he has clearly requested,” Roberson , 486 U. S., at 686. If police tell an indigent suspect that he is not required to speak without an attorney, and that they will provide him with an attorney, and that suspect asserts his right to an attorney, but police nonetheless do not provide an attorney and reinterrogate him (even if there was a break in custody between the interrogations), the indigent suspect is likely to feel that the police lied to him or are ignoring his rights. This view is not in tension with Minnick . Minnick holds only that consultation with an attorney between interrogations is not sufficient to end the Edwards presumption and therefore that when there has been no break in custody, “counsel’s presence at interrogation , ” 498 U. S., at 152, is necessary to address the compulsion with which the Edwards line of cases is concerned. Footnote 16 I do not doubt that some of the compulsion caused by reinterrogating an indigent suspect without providing a lawyer may survive even a break in custody and a very long passage of time. The relevant point here is more limited: A long break in time, far longer than 14 days, diminishes, rather than eliminates, that compulsion.

Here is a summary of the case: The Supreme Court ruled that a break in custody ends the presumption of involuntariness established in Edwards v. Arizona, where a suspect requests an attorney and then later waives that right. In the case of Maryland v. Shatzer, the suspect, who was already incarcerated, was interrogated by police and requested an attorney. The interrogation ended, and the suspect was released back into the general prison population. Over two years later, the police reopened the investigation and interrogated the suspect again, who waived his Miranda rights and provided incriminating information. The Court decided that the lengthy break in custody mitigated the compulsion that may have been present during the initial interrogation, and therefore, the suspect's Miranda waiver was valid. This decision upholds the ability of police to re-interrogate a suspect after a break in custody, even if the suspect had previously requested an attorney.

Miranda Rights

Florida v. Powell

https://supreme.justia.com/cases/federal/us/559/50/

OPINION OF THE COURT FLORIDA V. POWELL 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1175 FLORIDA, PETITIONER v. KEVIN DEWAYNE POWELL on writ of certiorari to the supreme court of florida [February 23, 2010]    Justice Ginsburg delivered the opinion of the Court.    In a pathmarking decision, Miranda v. Arizona , 384 U. S. 436 , 471 (1966), the Court held that an individual must be “clearly informed,” prior to custodial questioning, that he has, among other rights, “the right to consult with a lawyer and to have the lawyer with him during interrogation.” The question presented in this case is whether advice that a suspect has “the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,” and that he can invoke this right “at any time … during th[e] interview,” satisfies Miranda . We hold that it does. I    On August 10, 2004, law enforcement officers in Tampa, Florida, seeking to apprehend respondent Kevin Dewayne Powell in connection with a robbery investigation, entered an apartment rented by Powell’s girlfriend. 969 So. 2d 1060, 1063 (Fla. App. 2007). After spotting Powell coming from a bedroom, the officers searched the room and discovered a loaded nine-millimeter handgun under the bed. Ibid. The officers arrested Powell and transported him to the Tampa Police headquarters. Ibid. Once there, and before asking Powell any questions, the officers read Powell the standard Tampa Police Department Consent and Release Form 310. Id. , at 1063–1064. The form states: “You have the right to remain silent. If you give up the right to remain silent, anything you say can be used against you in court. You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview.” App. 3. See also 969 So. 2d, at 1064.    Acknowledging that he had been informed of his rights, that he “underst[oo]d them,” and that he was “willing to talk” to the officers, Powell signed the form. App. 3. He then admitted that he owned the handgun found in the apartment. Powell knew he was prohibited from possessing a gun because he had previously been convicted of a felony, but said he had nevertheless purchased and carried the firearm for his protection. See 969 So. 2d, at 1064; App. 29.    Powell was charged in state court with possession of a weapon by a prohibited possessor, in violation of Fla. Stat. Ann. §790.23(1) (West 2007). Contending that the Miranda warnings were deficient because they did not adequately convey his right to the presence of an attorney during questioning, he moved to suppress his inculpatory statements. The trial court denied the motion, concluding that the officers had properly notified Powell of his right to counsel. 969 So. 2d, at 1064; App. 28. A jury convicted Powell of the gun-possession charge. 969 So. 2d, at 1064.    On appeal, the Florida Second District Court of Appeal held that the trial court should have suppressed Powell’s statements. Id. , at 1067. The Miranda warnings, the appellate court concluded, did not “adequately inform [Powell] of his . . . right to have an attorney present throughout [the] interrogation.” 969 So. 2d, at 1063. Considering the issue to be “one of great public importance,” the court certified the following question to the Florida Supreme Court: “Does the failure to provide express advice of the right to the presence of counsel during questioning vitiate Miranda warnings which advise of both (A) the right to talk to a lawyer ‘before questioning’ and (B) the ‘right to use’ the right to consult a lawyer ‘at any time’ during questioning?” Id. , at 1067–1068 (some capitalization omitted).    Surveying decisions of this Court as well as Florida precedent, the Florida Supreme Court answered the certified question in the affirmative. 998 So. 2d 531, 532 (2008). “Both Miranda and article I, section 9 of the Florida Constitution,”[ Footnote 1 ] the Florida High Court noted, “require that a suspect be clearly informed of the right to have a lawyer present during questioning.” Id. , at 542. The court found that the advice Powell received was misleading because it suggested that Powell could “only consult with an attorney before questioning” and did not convey Powell’s entitlement to counsel’s presence throughout the interrogation. Id. , at 541. Nor, in the court’s view, did the final catchall warning—“[y]ou have the right to use any of these rights at any time you want during this interview”—cure the defect the court perceived in the right-to-counsel advice: “The catch-all phrase did not supply the missing warning of the right to have counsel present during police questioning,” the court stated, for “a right that has never been expressed cannot be reiterated.” Ibid .    Justice Wells dissented. He considered it “unreasonable to conclude that the broad, unqualified language read to Powell would lead a person of ordinary intelligence to believe that he or she had a limited right to consult with an attorney that could only be exercised before answering the first question posed by law enforcement.” Id. , at 544. The final sentence of the warning, he stressed, “avoid[ed] the implication—unreasonable as it may [have] be[en]—that advice concerning the right of access to counsel before questioning conveys the message that access to counsel is foreclosed during questioning.” Ibid. (internal quotation marks omitted). Criticizing the majority’s “technical adherence to language … that has no connection with whether the person who confessed understood his or her rights,” id. , at 545, he concluded that “[t]he totality of the warning reasonably conveyed to Powell his continuing right of access to counsel,” id. , at 544.    We granted certiorari, 557 U. S. ___ (2009), and now reverse the judgment of the Florida Supreme Court. II We first address Powell’s contention that this Court lacks jurisdiction to hear this case because the Florida Supreme Court, by relying not only on Miranda but also on the Florida Constitution, rested its decision on an adequate and independent state ground. Brief for Petitioner 15–23. See Coleman v. Thompson , 501 U. S. 722 , 729 (1991) (“This Court will not review a question of federal law decided by a state court if the decision … rests on a state law ground that is independent of the federal question and adequate to support the judgment.”). “It is fundamental,” we have observed, “that state courts be left free and unfettered by us in interpreting their state constitutions.” Minnesota v. National Tea Co. , 309 U. S. 551 , 557 (1940). “But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action.” Ibid. To that end, we announced, in Michigan v. Long , 463 U. S. 1032 , 1040–1041 (1983), the following presumption: “[W]hen . . . a state court decision fairly appears to rest primarily on federal law, or to be interwoven with the federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, we will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.” At the same time, we adopted a plain-statement rule to avoid the presumption: “If the state court decision indicates clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent grounds, we, of course, will not undertake to review the decision.” Id. , at 1041.[ Footnote 2 ] Under the Long presumption, we have jurisdiction to entertain this case. Although invoking Florida’s Constitution and precedent in addition to this Court’s decisions, the Florida Supreme Court treated state and federal law as interchangeable and interwoven; the court at no point expressly asserted that state-law sources gave Powell rights distinct from, or broader than, those delineated in Miranda . See Long , 463 U. S., at 1044. Beginning with the certified question—whether the advice the Tampa police gave to Powell “vitiate[d] Miranda ,” 998 So. 2d, at 532 (some capitalization omitted)—and continuing throughout its opinion, the Florida Supreme Court trained on what Miranda demands, rather than on what Florida law independently requires. See, e.g., 998 So. 2d, at 533 (“The issue before this Court is whether the failure to provide express advice of the right to the presence of counsel during custodial interrogation violates the principles espoused in Miranda v. Arizona , 384 U. S. 436 .”); id. , at 538 (“[T]he issue of [what] Miranda requires … has been addressed by several of the Florida district courts of appeal.”); id. , at 542 (Powell received a “narrower and less functional warning than that required by Miranda .”).[ Footnote 3 ] We therefore cannot identify, “from the face of the opinion,” a clear statement that the decision rested on a state ground separate from Miranda . See Long , 463 U. S., at 1041 (the state court “need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached”).[ Footnote 4 ] “To avoid misunderstanding, the [Florida] Supreme Court must itself speak with the clarity it sought to require of its State’s police officers.” Ohio v. Robinette , 519 U. S. 33 , 45 (1996) (Ginsburg, J., concurring in judgment). Powell notes that “ ‘state courts are absolutely free to interpret state constitutional provisions to accord greater protection to individual rights than do similar provisions of the United States Constitution.’ ” Brief for Respondent 19–20 (quoting Arizona v. Evans , 514 U. S. 1 , 8 (1995)). See also, e.g. , Oregon v. Hass , 420 U. S. 714 , 719 (1975); Cooper v. California , 386 U. S. 58 , 62 (1967). Powell is right in this regard. Nothing in our decision today, we emphasize, trenches on the Florida Supreme Court’s authority to impose, based on the State’s Constitution, any additional protections against coerced confessions it deems appropriate. But because the Florida Supreme Court’s decision does not “indicat[e] clearly and expressly that it is alternatively based on bona fide separate, adequate, and independent [state] grounds,” Long , 463 U. S., at 1041, we have jurisdiction to decide this case. III A To give force to the Constitution’s protection against compelled self-incrimination, the Court established in Miranda “certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation.” Duckworth v. Eagan , 492 U. S. 195 , 201 (1989). Intent on “giv[ing] concrete constitutional guidelines for law enforcement agencies and courts to follow,” 384 U. S., at 441–442, Miranda prescribed the following four now-familiar warnings: “[A suspect] must be warned prior to any questioning [1] that he has the right to remain silent, [2] that anything he says can be used against him in a court of law, [3] that he has the right to the presence of an attorney, and [4] that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” Id. , at 479. Miranda ’s third warning—the only one at issue here—addresses our particular concern that “[t]he circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege [to remain silent] by his interrogators.” Id. , at 469. Responsive to that concern, we stated, as “an absolute prerequisite to interrogation,” that an individual held for questioning “must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Id. , at 471. The question before us is whether the warnings Powell received satisfied this requirement. The four warnings Miranda requires are invariable, but this Court has not dictated the words in which the essential information must be conveyed. See California v. Prysock , 453 U. S. 355 , 359 (1981) (per curiam) (“This Court has never indicated that the rigidity of Miranda extends to the precise formulation of the warnings given a criminal defendant.” (internal quotation marks omitted)); Rhode Island v. Innis , 446 U. S. 291 , 297 (1980) (safeguards against self-incrimination include “ Miranda warnings . . . or their equivalent”). In determining whether police officers adequately conveyed the four warnings, we have said, reviewing courts are not required to examine the words employed “as if construing a will or defining the terms of an easement. The inquiry is simply whether the warnings reasonably ‘conve[y] to [a suspect] his rights as required by Miranda .’ ” Duckworth , 492 U. S., at 203 (quoting Prysock , 453 U. S., at 361). B Our decisions in Prysock and Duckworth inform our judgment here. Both concerned a suspect’s entitlement to adequate notification of the right to appointed counsel. In Prysock , an officer informed the suspect of, inter alia , his right to a lawyer’s presence during questioning and his right to counsel appointed at no cost. 453 U. S., at 356–357. The Court of Appeals held the advice inadequate to comply with Miranda because it lacked an express statement that the appointment of an attorney would occur prior to the impending interrogation. See 453 U. S., at 358–359. We reversed. Id. , at 362. “[N]othing in the warnings,” we observed, “suggested any limitation on the right to the presence of appointed counsel different from the clearly conveyed rights to a lawyer in general, including the right to a lawyer before [the suspect is] questioned, … while [he is] being questioned, and all during the questioning.” Id. , at 360–361 (internal quotation marks omitted). Similarly, in Duckworth , we upheld advice that, in relevant part, communicated the right to have an attorney present during the interrogation and the right to an appointed attorney, but also informed the suspect that the lawyer would be appointed “if and when [the suspect goes] to court.” 492 U. S., at 198 (emphasis deleted; internal quotation marks omitted). “The Court of Appeals thought th[e] ‘if and when you go to court’ language suggested that only those accused who can afford an attorney have the right to have one present before answering any questions. ” Id. , at 203 (some internal quotation marks omitted). We thought otherwise. Under the relevant state law, we noted, “counsel is appointed at [a] defendant’s initial appearance in court.” Id., at 204. The “if and when you go to court” advice, we said, “simply anticipate[d]” a question the suspect might be expected to ask after receiving Miranda warnings, i.e. , “ when [will he] obtain counsel.” 492 U. S., at 204. Reading the “if and when” language together with the other information conveyed, we held that the warnings, “in their totality, satisfied Miranda .” Id. , at 205. We reach the same conclusion in this case. The Tampa officers did not “entirely omi[t],” post , at 9, any information Miranda required them to impart. They informed Powell that he had “the right to talk to a lawyer before answering any of [their] questions” and “the right to use any of [his] rights at any time [he] want[ed] during th[e] interview.” App. 3. The first statement communicated that Powell could consult with a lawyer before answering any particular question, and the second statement confirmed that he could exercise that right while the interrogation was underway. In combination, the two warnings reasonably conveyed Powell’s right to have an attorney present, not only at the outset of interrogation, but at all times.[ Footnote 5 ] To reach the opposite conclusion, i.e. , that the attorney would not be present throughout the interrogation, the suspect would have to imagine an unlikely scenario: To consult counsel, he would be obliged to exit and reenter the interrogation room between each query. A reasonable suspect in a custodial setting who has just been read his rights, we believe, would not come to the counterintuitive conclusion that he is obligated, or allowed, to hop in and out of the holding area to seek his attorney’s advice.[ Footnote 6 ] Instead, the suspect would likely assume that he must stay put in the interrogation room and that his lawyer would be there with him the entire time.[ Footnote 7 ] The Florida Supreme Court found the warning misleading because it believed the temporal language—that Powell could “talk to a lawyer before answering any of [the officers’] questions”—suggested Powell could consult with an attorney only before the interrogation started. 998 So. 2d, at 541. See also Brief for Respondent 28–29. In context, however, the term “before” merely conveyed when Powell’s right to an attorney became effective—namely, before he answered any questions at all. Nothing in the words used indicated that counsel’s presence would be restricted after the questioning commenced. Instead, the warning communicated that the right to counsel carried forward to and through the interrogation: Powell could seek his attorney’s advice before responding to “ any of [the officers’] questions” and “ at any time … during th[e] interview.” App. 3 (emphasis added). Although the warnings were not the clearest possible formulation of Miranda ’s right-to-counsel advisement, they were sufficiently comprehensive and comprehensible when given a commonsense reading. Pursuing a different line of argument, Powell points out that most jurisdictions in Florida and across the Nation expressly advise suspects of the right to have counsel present both before and during interrogation. Brief for Respondent 41–44. If we find the advice he received adequate, Powell suggests, law enforcement agencies, hoping to obtain uninformed waivers, will be tempted to end-run Miranda by amending their warnings to introduce ambiguity. Brief for Respondent 50–53. But as the United States explained as amicus curiae in support of the State of Florida, “law enforcement agencies have little reason to assume the litigation risk of experimenting with novel Miranda formulations,” Brief for United States as Amicus Curiae 6; instead, it is “desirable police practice” and “in law enforcement’s own interest” to state warnings with maximum clarity, id. , at 12. See also id. , at 11 (“By using a conventional and precise formulation of the warnings, police can significantly reduce the risk that a court will later suppress the suspect’s statement on the ground that the advice was inadequate.”). For these reasons, “all … federal law enforcement agencies explicitly advise … suspect[s] of the full contours of each [Miranda] right, including the right to the presence of counsel during questioning.” Id. , at 12. The standard warnings used by the Federal Bureau of Investigation are exemplary. They provide, in relevant part: “You have the right to talk to a lawyer for advice before we ask you any questions. You have the right to have a lawyer with you during questioning.” Ibid. , n. 3 (internal quotation marks omitted). This advice is admirably informative, but we decline to declare its precise formulation necessary to meet Miranda ’s requirements. Different words were used in the advice Powell received, but they communicated the same essential message. *  *  * For the reasons stated, the judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Footnote 1 Article I, §9 of the Florida Constitution states that “[n]o person shall … be compelled in any criminal matter to be a witness against oneself.” Footnote 2 Dissenting in Michigan v. Long , 463 U. S. 1032 (1983), Justice Stevens did not urge, as he now does, inspection of state-court decisions to count the number of citations to state and federal provisions and opinions, or heroic efforts to fathom what the state court really meant. See post , at 3–7 (dissenting opinion). Instead, his preferred approach was as clear as the Court’s. In lieu of “presuming that adequate state grounds are not independent unless it clearly appears otherwise,” he would have “presum[ed] that adequate state grounds are independent unless it clearly appears otherwise.” Long , 463 U. S., at 1066; see post , at 2, n. 1. Either presumption would avoid arduous efforts to detect, case by case, whether a state ground of decision is truly “independent of the [state court’s] understanding of federal law.” Long , 463 U. S., at 1066. Today, however, the dissent would require this Court to engage in just that sort of inquiry. Footnote 3 Justice Stevens suggests that these statements refer to Miranda only in a “generic” sense to mean “the warnings suspects must be given before interrogation.” Post , at 6. This explanation fails to account for the Florida Supreme Court’s repeated citations to the opinion in Miranda . In context, it is obvious that the court was attempting to home in on what that opinion—which, of course, interpreted only the Federal Constitution and not Florida law—requires. See, e.g. , 998 So. 2d 531, 533, 534, 537, 538, 539, 540, 541, 542 (2008). Footnote 4 Justice Stevens agrees that the Florida Supreme Court’s decision is interwoven with federal law, post , at 7, and lacks the plain statement contemplated by Long , post , at 3. Nevertheless, he finds it possible to discern an independent state-law basis for the decision. As Long makes clear, however, “when . . . [the] state court decision fairly appears to … be interwoven with … federal law,” the only way to avoid the jurisdictional presumption is to provide a plain statement expressing independent reliance on state law. 463 U. S., at 1040. It is this plain statement that makes “the adequacy and independence of any possible state law ground … clear from the face of the opinion.” Id. , at 1040–1041. See also Ohio v. Robinette , 519 U. S. 33 , 44 (1996) (Ginsburg, J., concurring in judgment) (“ Long governs even when, all things considered, the more plausible reading of the state court’s decision may be that the state court did not regard the Federal Constitution alone as a sufficient basis for its ruling.”). Footnote 5 Justice Stevens asserts that the Court today approves, for “the first time[,] … a warning which, if given its natural reading, entirely omitted an essential element of a suspect’s rights.” Post , at 9. See also post , at 12 (“[T]he warning entirely failed to inform [Powell] of the separate and distinct right ‘to have counsel present during any questioning.’ ”). We find the warning in this case adequate, however, only because it communicated just what Miranda prescribed. Justice Stevens ascribes a different meaning to the warning Powell received, but he cannot credibly suggest that the Court regards the warning to have omitted a vital element of Powell’s rights. Footnote 6 It is equally unlikely that the suspect would anticipate a scenario of this order: His lawyer would be admitted into the interrogation room each time the police ask him a question, then ushered out each time the suspect responds. Footnote 7 Although it does not bear on our decision, Powell seems to have understood the warning this way. The following exchange between Powell and his attorney occurred when Powell testified at his trial: “Q. You waived the right to have an attorney present during your questioning by detectives; is that what you’re telling this jury? “A. Yes.” App. 80. STEVENS, J., DISSENTING FLORIDA V. POWELL 559 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1175 FLORIDA, PETITIONER v. KEVIN DEWAYNE POWELL on writ of certiorari to the supreme court of florida [February 23, 2010]    Justice Stevens, with whom Justice Breyer joins as to Part II, dissenting.    Today, the Court decides a case in which the Florida Supreme Court held a local police practice violated the Florida Constitution. The Court’s power to review that decision is doubtful at best; moreover, the Florida Supreme Court has the better view on the merits. I    In this case, the Florida Supreme Court concluded that “[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning,” and that the warnings given to Powell did not satisfy either the State or the Federal Constitution. 998 So. 2d 531, 542 (2008). In my view, the Florida Supreme Court held on an adequate and independent state-law ground that the warnings provided to Powell did not sufficiently inform him of the “ ‘right to a lawyer’s help’ ” under the Florida Constitution, id. , at 535. This Court therefore lacks jurisdiction to review the judgment below, notwithstanding the failure of that court to include some express sentence that would satisfy this Court’s “plain-statement rule,” ante , at 5.    The adequate-and-independent-state-ground doctrine rests on two “cornerstones”: “[r]espect for the independence of state courts” and “avoidance of rendering advisory opinions.” Michigan v. Long , 463 U. S. 1032 , 1040 (1983). In Long , the Court adopted a novel presumption in favor of jurisdiction when the independence of a state court’s state-law judgment is not clear. But we only respect the independence of state courts and avoid rendering advisory opinions if we limit the application of that presumption to truly ambiguous cases.[ Footnote 1 ] This is not such a case.    “[I]f the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion.” Herb v. Pitcairn , 324 U. S. 117 , 126 (1945). In Long we advised every state court of a formula by which it could assure us that our review would indeed amount to nothing more than an advisory opinion. The state court “need only make clear by a plain statement in its judgment or opinion that the federal cases are being used only for the purpose of guidance, and do not themselves compel the result that the court has reached.” 463 U. S. , at 1041. That advice has sometimes been misunderstood as a command that unless such a plain statement is included in a state-court opinion, the court’s ruling cannot have rested on an adequate and independent state ground. But the real question is whether “the adequacy and independence of any possible state law ground is … clear from the face of the opinion.” Id. , at 1040–1041. Even if a state court opinion does not include the magic words set forth in Long , or some similarly explicit sentence, we lack jurisdiction if it is nonetheless apparent that the decision is indeed supported by an adequate and independent state ground. Contrary to the assumption made by the Court, we have no power to assume jurisdiction that does not otherwise exist simply because the Florida Supreme Court did not include in its decision some express statement that its interpretation of state law is independent.    In my view, we can tell from the face of the Florida Supreme Court’s opinion that “the decision rested on a state ground separate from Miranda ,” ante , at 6 . This case is easily distinguished from Long in that regard. In Long , although the Michigan Supreme Court had twice cited the Michigan Constitution in its opinion, it “relied exclusively on its understanding of Terry [v. Ohio , 392 U. S. 1 (1968),] and other federal cases. Not a single state case was cited to support the state court’s holding that the search of the passenger compartment was unconstitutional.” 463 U. S. , at 1043. There was, in short, nothing to “indicate that the decision below rested on grounds in any way independent from the state court’s interpretation of federal law.” Id., at 1044.    Other cases in which we have applied the Long presumption have been similarly devoid of independent state-law analysis. We typically apply the Long presumption when the state court’s decision cited a state constitutional provision only a few times or not at all, and rested exclusively upon federal cases or upon state cases that themselves cited only federal law.[ Footnote 2 ] We have also applied Long when the state court’s decision indicated that under state law, the relevant state constitutional provision is considered coextensive with the federal one.[ Footnote 3 ] This case shares none of those features.[ Footnote 4 ]    The Florida Supreme Court did not merely cite the Florida Constitution a time or two without state-law analysis.[ Footnote 5 ] Rather, the court discussed and relied on the separate rights provided under Art. I, §9 of the Florida Constitution. For example, after a paragraph describing the general scope of Miranda warnings under federal law, the Court explained the general scope of warnings under state law. 998 So. 2d, at 534–535 (“[T]o ensure the voluntariness of confessions as required by article I, section 9 of the Florida Constitution, this Court in Traylor v. State , 596 So. 2d 957 (Fla. 1992), outlined the … rights Florida suspects must be told of prior to custodial interrogation,” which includes “ ‘that they have a right to a lawyer’s help’ ”). The court consistently referred to these state-law rights as separate and distinct from Miranda , noting that in its earlier cases, it had explained that “the requirements of both the Fifth Amendment, as explained in Miranda , and the Florida Constitution, as explained in Traylor ,” include “the requirement that a suspect be informed of the right to have counsel present during questioning.” 998 So. 2d, at 537–538. And when applying the law to the specific facts of this case, the Florida Supreme Court again invoked the specific and distinct “right to a lawyer’s help” under the Florida Constitution. Id. , at 540.    Moreover, the state cases relied upon by the Florida Supreme Court did not themselves rely exclusively on federal law. The primary case relied upon for the state-law holding, Traylor , rested exclusively upon state law. See 596 So. 2d, at 961. In that decision, the Florida Supreme Court embraced the principle that “[w]hen called upon to decide matters of fundamental rights, Florida’s state courts are bound under federalist principles to give primacy to our state Constitution and to give independent legal import to every phrase and clause contained therein.” Id. , at 962. Elaborating upon the meaning of Art. I, §9 of the Florida Constitution, the Florida Supreme Court explained the roots of Florida’s commitment to protecting its citizens from self-incrimination. Florida has long “required as a matter of state law that one charged with a crime be informed of his rights prior to rendering a confession.” Id. , at 964. It has required warnings before some interrogations since at least 1889, and has for that long excluded confessions obtained in violation of those rules. Ibid. In sum, this case looks quite different from those cases in which we have applied the Long presumption in the past.    The Court concludes otherwise by relying primarily upon the formulation of the certified question and restatements of that question within the Florida Supreme Court’s opinion. See ante , at 6. Yet while the certified question asks whether particular phrases “vitiate[d] Miranda warnings,” 998 So. 2d, at 532 (capitalization and footnote omitted), Miranda has become a generic term to refer to the warnings suspects must be given before interrogation, see Merriam-Webster’s Collegiate Dictionary 792 (11th ed. 2003) (defining “Miranda” as “of, relating to, or being the legal rights of an arrested person to have an attorney and to remain silent so as to avoid self-incrimination”). Thus, its invocation of Miranda in the certified question and in its statement of the issue presented is entirely consistent with the fact that the state-law basis for its decision is fully adequate and independent.    That said, I agree with the Court that the decision below is interwoven with federal law. In reaching its state-law holding, the Florida Supreme Court found Miranda and our other precedents instructive.[ Footnote 6 ] But that alone is insufficient to assure our jurisdiction, even under Long . In my view, the judgment—reversal of Powell’s conviction—is supported by the Florida Supreme Court’s independent and carefully considered holding that these warnings were inadequate under the Florida Constitution. See 998 So. 2d, at 534–535, 537–538, 540, 542.    The Court acknowledges that nothing in today’s decision “trenches on the Florida Supreme Court’s authority to impose, based on the State’s Constitution, any additional protections against coerced confessions it deems appropriate.” Ante , at 7. As the Florida Supreme Court has noted on more than one occasion, its interpretation of the Florida Constitution’s privilege against self-incrimination need not track our construction of the parallel provision in the Federal Constitution. See Rigterink v. State , 2 So. 3d 221, 241 (2009) (“[T]he federal Constitution sets the floor, not the ceiling, and this Court retains the ability to interpret the right against self-incrimination afforded by the Florida Constitution more broadly than that afforded by its federal counterpart”); Traylor , 596 So. 2d, at 961–963. In this very case, the Florida Supreme Court may reinstate its judgment upon remand. If the Florida Supreme Court does so, as I expect it will, this Court’s opinion on the merits will qualify as the sort of advisory opinion that we should studiously seek to avoid. II    The Court’s decision on the merits is also unpersuasive. As we recognized in Miranda , “the right to have counsel present at [an] interrogation is indispensable to the protection of the Fifth Amendment privilege.” Miranda v. Arizona , 384 U. S. 436 , 469 (1966). Furthermore, “the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning.” Id. , at 470. Because the “accused who does not know his rights and therefore does not make a request may be the person who most needs counsel,” id. , at 470–471, a defendant “must be clearly informed” regarding two aspects of his right to consult an attorney: “the right to consult with a lawyer and to have the lawyer with him during interrogation,” id. , at 471.    In this case, the form regularly used by the Tampa police warned Powell that he had “the right to talk to a lawyer before answering any of our questions.” App. 3. This informed him only of the right to consult with a lawyer before questioning, the very right the Miranda Court identified as insufficient to protect the Fifth Amendment privilege. The warning did not say anything about the right to have counsel present during interrogation. Although we have never required “rigidity in the form of the required warnings,” California v. Prysock , 453 U. S. 355 , 359 (1981) (per curiam) , this is, I believe, the first time the Court has approved a warning which, if given its natural reading, entirely omitted an essential element of a suspect’s rights.    Despite the failure of the warning to mention it, in the Court’s view the warning “reasonably conveyed” to Powell that he had the right to a lawyer’s presence during the interrogation. Ante , at 10. The Court cobbles together this conclusion from two elements of the warning. First, the Court assumes the warning regarding Powell’s right “to talk to a lawyer before answering any of [the officers’] questions,” App. 3, conveyed that “Powell could consult with a lawyer before answering any particular question,” ante , at 10 (emphasis added).[ Footnote 7 ] Second, in the Court’s view, the addition of a catchall clause at the end of the recitation of rights “confirmed” that Powell could use his right to consult an attorney “while the interrogation was underway.” Ibid .    The more natural reading of the warning Powell was given, which (1) contained a temporal limit and (2) failed to mention his right to the presence of counsel in the interrogation room, is that Powell only had the right to consult with an attorney before the interrogation began, not that he had the right to have an attorney with him during questioning. Even those few Courts of Appeals that have approved warnings that did not expressly mention the right to an attorney’s presence during interrogation[ Footnote 8 ] have found language of the sort used in Powell’s warning to be misleading. For instance, petitioner cites the Second Circuit’s decision in United States v. Lamia , 429 F. 2d 373 (1970), as an example of a court applying the properly flexible approach to Miranda . But in that case, the Second Circuit expressly distinguished a warning that a suspect “ ‘could consult an attorney prior to any question,’ ” which was “affirmatively misleading since it was thought to imply that the attorney could not be present during questioning.” 429 F. 2d, at 377.[ Footnote 9 ] That even the Courts of Appeals taking the most flexible approach to Miranda have found warnings like Powell’s misleading should caution the Court against concluding that such a warning reasonably conveyed Powell’s right to have an attorney with him during the interrogation.    When the relevant clause of the warning in this case is given its most natural reading, the catchall clause does not meaningfully clarify Powell’s rights. It communicated that Powell could exercise the previously listed rights at any time. Yet the only previously listed right was the “right to talk to a lawyer before answering any of [the officers’] questions.” App. 3 (emphasis added). Informing Powell that he could exercise, at any time during the interview, the right to talk to a lawyer before answering any questions did not reasonably convey the right to talk to a lawyer after answering some questions, much less implicitly inform Powell of his right to have a lawyer with him at all times during interrogation. An intelligent suspect could reasonably conclude that all he was provided was a one-time right to consult with an attorney, not a right to have an attorney present with him in the interrogation room at all times.[ Footnote 10 ]    The Court relies on Duckworth v. Eagan , 492 U. S. 195 (1989), and Prysock , 453 U. S. 355 , but in neither case did the warning at issue completely omit one of a suspect’s rights. In Prysock , the warning regarding the right to an appointed attorney contained no temporal limitation, see id. , at 360–361, which clearly distinguishes that case from Powell’s. In Duckworth , the suspect was explicitly informed that he had the right “to talk to a lawyer for advice before we ask you any questions, and to have him with you during questioning,” and that he had “this right to the advice and presence of a lawyer even if you cannot afford to hire one.” 492 U. S., at 198 (emphasis deleted; internal quotation marks omitted). The warning thus conveyed in full the right to appointed counsel before and during the interrogation. Although the warning was arguably undercut by the addition of a statement that an attorney would be appointed “if and when you go to court,” the Court found the suspect was informed of his full rights and the warning simply added additional, truthful information regarding when counsel would be appointed. Ibid . (emphasis deleted; internal quotation marks omitted). Unlike the Duckworth warning, Powell’s warning did not convey his Miranda rights in full with the addition of some arguably misleading statement. Rather, the warning entirely failed to inform him of the separate and distinct right “to have counsel present during any questioning.” Miranda , 384 U. S., at 470.    In sum, the warning at issue in this case did not reasonably convey to Powell his right to have a lawyer with him during the interrogation. “The requirement of warnings … [is] fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” Id. , at 476. In determining that the warning implied what it did not say, it is the Court “that is guilty of attaching greater importance to the form of the Miranda ritual than to the substance of the message it is intended to convey.” Prysock, 453 U. S., at 366 (Stevens, J., dissenting). III    Whether we focus on Powell’s particular case, or the use of the warning form as the standard used in one jurisdiction, it is clear that the form is imperfect. See ante , at 12. As the majority’s decision today demonstrates, reasonable judges may well differ over the question whether the deficiency is serious enough to violate the Federal Constitution. That difference of opinion, in my judgment, falls short of providing a justification for reviewing this case when the judges of the highest court of the State have decided the warning is insufficiently protective of the rights of the State’s citizens. In my view, respect for the independence of state courts, and their authority to set the rules by which their citizens are protected, should result in a dismissal of this petition.    I respectfully dissent. Footnote 1 In my view, this Court would better respect the independence of state courts by applying the opposite presumption, as it did in the years prior to 1983. See Long , 463 U. S., at 1066–1067 (Stevens, J., dissenting). But accepting Long as the law, we can limit its negative effects—unnecessary intrusion into the business of the state courts and unnecessary advisory opinions—only if we limit its application to cases in which the independence of the state-law ground is in serious doubt. See Pennsylvania v. Labron , 518 U. S. 938 , 950 (1996) (Stevens, J., dissenting) (“[T]he unfortunate effects of [its] rule” are “exacerbate[d] … to a nearly intolerable degree” when the Long presumption is applied to cases in which “the state-law ground supporting th[e] judgmen[t] is so much clearer than has been true on most prior occasions”). Footnote 2 See, e.g. , Illinois v. Fisher , 540 U. S. 544 , 547, n. (2004) (per curiam) (describing decision below as relying upon the portion of a state precedent that solely discussed due process under the Federal Constitution); Ohio v. Robinette , 519 U. S. 33 , 37 (1996) (“[T]he only cases [the opinion] discusses or even cites are federal cases, except for one state case which itself applies the Federal Constitution”); Illinois v. Rodriguez , 497 U. S. 177 , 182 (1990) (“The opinion does not rely on (or even mention) any specific provision of the Illinois Constitution, nor even the Illinois Constitution generally. Even the Illinois cases cited by the opinion rely on no constitutional provisions other than the Fourth and Fourteenth Amendments of the United States Constitution”); Florida v. Riley , 488 U. S. 445 , 448, n. 1 (1989) (plurality opinion) (finding Florida Supreme Court mentioned the State Constitution three times but the discussion “focused exclusively on federal cases dealing with the Fourth Amendment”); Michigan v. Chesternut , 486 U. S. 567 , 571, n. 3 (1988) (describing state court as resting its holding on two state cases that each relied upon federal law); New York v. P. J. Video, Inc. , 475 U. S. 868 , 872, n. 4 (1986) (“Here, the New York Court of Appeals cited the New York Constitution only once, near the beginning of its opinion … [and] repeatedly referred to the ‘First Amendment’ and ‘Fourth Amendment’ during its discussion of the merits of the case”); Oliver v. United States , 466 U. S. 170 , 175, n. 5 (1984) (“The Maine Supreme Judicial court referred only to the Fourth Amendment … [and] the prior state cases that the court cited also construed the Federal Constitution”). Footnote 3 See, e.g. , Fitzgerald v. Racing Assn. of Central Iowa , 539 U. S. 103 , 106 (2003) (“The Iowa Supreme Court’s opinion … says that ‘Iowa courts are to “apply the same analysis in considering the state equal protection clause as … in considering the federal equal protection claim” ’ ”); Pennsylvania v. Muniz , 496 U. S. 582 , 588, n. 4 (1990) (state court explained that relevant state constitutional provision “offers a protection against self-incrimination identical to that provided by the Fifth Amendment” (internal quotation marks omitted)); Maryland v. Garrison, 480 U. S. 79 , 83–84 (1987) (state-court opinion relied on state cases but indicated “that the Maryland constitutional provision is construed in pari materia with the Fourth Amendment”). Footnote 4 I do not mean to suggest that this Court has never reached out beyond these bounds in order to decide a case. For example, in Labron , 518 U. S. 938 , we found that a state court decision resting on the “Commonwealth’s jurisprudence of the automobile exception,” Commonwealth v. Labron , 543 Pa. 86, 100, 669 A. 2d 917, 924 (1995), was not so clearly based on state law that the Long presumption did not apply, even though only “some” of the state cases discussed in the state court’s opinion analyzed federal law. 518 U. S., at 939. The Court’s analysis proved wrong; on remand, the Pennsylvania Supreme Court reaffirmed its prior holding and “explicitly note[d] that it was, in fact, decided upon independent grounds, i.e., Article I, Section 8 of the Pennsylvania Constitution.” Commonwealth v. Labron , 547 Pa. 344, 345, 690 A. 2d 228 (1997). That we have overreached before is no reason to repeat the mistake again. Footnote 5 In examining what the state-court opinion said regarding state law, and whether the state precedent cited in the opinion relied upon state law, I am undertaking no effort more arduous than what the Court has typically undertaken in order to determine whether the Long presumption applies: examining how frequently a state-court opinion cited state law, whether state law is coextensive with federal law, and whether the cited state cases relied upon federal law. See nn. 2–3, supra . Footnote 6 The Florida Supreme Court need not have decided that state-law sources “gave Powell rights … broader than … those delineated in Miranda ,” ante , at 6, in order for its judgment to have rested upon an independent state-law ground. The independence of a state-law ground may be especially clear when a state court explicitly finds that the state constitution is more protective of a certain right than the national charter, but a state constitutional provision is no less independent for providing the same protection in a given case as does the federal provision, so long as the content of the state-law right is not compelled by or dependent upon federal law. Unlike other provisions of Art. I of the Florida Constitution, §9 does not contain an express proviso requiring that the right be construed in conformity with the analogous federal provision. Compare Fla. Const., Art. I, §9, with Fla. Const., Art I, §12. Furthermore, under Florida law the scope of Art. I, §9 is clearly not dependent upon federal law. Rigterink v. State , 2 So. 3d 221, 241 (Fla. 2009); Traylor v. State , 596 So. 2d 957, 962 (Fla. 1992). Footnote 7 This assumption makes it easier for the Court to conclude the warning conveyed a right to have a lawyer present. If a suspect is told he has the right to consult with an attorney before answering any particular question, the Court may be correct that he would reasonably conclude he has the right to a lawyer’s presence because otherwise he would have to imagine he could consult his attorney in some unlikely fashion ( e.g. , by leaving the interrogation room between every question). Footnote 8 Several Courts of Appeals have held that warnings that did not expressly inform a suspect of his right to have counsel present during interrogation did not adequately inform a suspect of his Miranda rights. See, e.g. , United States v. Tillman , 963 F. 2d 137, 141 (CA6 1992); United States v. Bland , 908 F. 2d 471, 474 (CA9 1990); United States v. Anthon , 648 F. 2d 669, 672–673 (CA10 1981); Windsor v. United States , 389 F. 2d 530, 533 (CA5 1968). And most of the Circuits that have not required express mention of the right to an attorney’s presence have approved only general warnings regarding the right to an attorney; that is, warnings which did not specifically mention the right to counsel’s presence during interrogation but which also contained no limiting words that might mislead a suspect as to the broad nature of his right to counsel. See, e.g. , United States v. Frankson , 83 F. 3d 79, 82 (CA4 1996); United States v. Caldwell , 954 F. 2d 496, 502 (CA8 1992); United States v. Adams , 484 F. 2d 357, 361–362 (CA7 1973). I am doubtful that warning a suspect of his “right to counsel,” without more, reasonably conveys a suspect’s full rights under Miranda , but at least such a general warning does not include the same sort of misleading temporal limitation as in Powell’s warning. Footnote 9 Petitioner also cites Bridgers v. Dretke , 431 F. 3d 853 (CA5 2005), in which the Fifth Circuit held the Texas Court of Criminal Appeals did not unreasonably apply clearly established federal law in finding adequate a warning in which a suspect was informed that “he had the right to the presence of an attorney before any questioning commenced.” Id. , at 857 (internal quotation marks omitted). But even assuming that warning would sufficiently apprise an individual of his right to an attorney’s presence during interrogation, the fact that the warning mentioned an attorney’s presence materially distinguishes it from the warning Powell received. The Fifth Circuit quoted with approval the state court’s assessment that warning a suspect solely that “he had the right to consult or speak to an attorney before questioning … might have created the [impermissible] impression that the attorney could not be present during interrogation.” Ibid. (internal quotation marks omitted). Footnote 10 The Court supports its analysis by taking note of Powell’s testimony at trial, given after the trial judge had overruled his lawyer’s objection that the warning he received was inadequate. In my view, the testimony in context is not probative of what Powell thought the warnings meant. It did not explore what Powell understood the warnings to mean, but simply established, as a prelude to Powell’s testimony explaining his prior statement, that he had waived his rights. Regardless, the testimony is irrelevant, as the Court acknowledges. “No amount of circumstantial evidence that a person may have been aware of [the right to have a lawyer with him during interrogation] will suffice to stand” in the stead of an adequate warning. Miranda v. Arizona , 384 U. S. 436 , 471–472 (1966).

The Supreme Court held that a suspect's Miranda rights were not violated when they were informed of their right to speak to a lawyer before and during interrogation, even if they were not explicitly told that a lawyer could be present during the interrogation.

Religion

Reynolds v. U.S.

https://supreme.justia.com/cases/federal/us/98/145/

U.S. Supreme Court Reynolds v. United States, 98 U.S. 145 (1878) Reynolds v. United States 98 U.S. 145 ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH Syllabus 1. Sect. 808 of the Revised Statutes, providing for impaneling grand juries and prescribing the number of which they shall consist, applies only to the Circuit and the District Courts of the United States. An indictment for bigamy under sect. 5352 may, therefore, be found in a district court of Utah, by a grand jury of fifteen persons, impaneled pursuant to the laws of that Territory. 2. A petit juror in a criminal case testified on his voire dire that he believed that he had formed an opinion, although not upon evidence produced in court, as to the guilt or innocence of the prisoner, but that he had not expressed it, and did not think that it would influence his verdict. He was thereupon challenged by the prisoner for cause. The court overruled the challenge. Held, that its action was not erroneous. 3. Where it is apparent from the record that the challenge of a petit juror, if it had been made by the United States for favor, should have been sustained, the judgment against the prisoner will not be reversed simply because the challenge was in form for cause. 4. Although the Constitution declares that, in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him, yet, if they are absent by his procurement, or when enough has been proved to cast upon him the burden of showing, and he, having full opportunity therefor, fails to show that he has not been instrumental in concealing them or in keeping them away, he is in no condition to assert that his constitutional right has been violated by allowing competent evidence of the testimony which they gave on a previous trial between the United States and him upon the same issue. Such evidence is admissible. 5. Said sect. 5352 is in all respects constitutional and valid. 6. The scope and meaning of the first article of the amendments to the Constitution discussed. 7. A party's religious belief cannot be accepted as a justification for his committing an overt act, made criminal by the law of the land. Where, therefore, the prisoner, knowing that his wife was living, married again in Utah, and, when indicted and tried therefor, set up that the church whereto he belonged enjoined upon its male members to practise polygamy, and that he, with the sanction of the recognized authorities of the church, and by a ceremony performed pursuant to its doctrines, did marry again -- held, that the court properly refused to charge the jury that he was entitled to an acquittal although they should find that he had contracted such second marriage pursuant to, and in conformity with, what he believed at the time to be a religious duty. 8. The court told the jury to "consider what are to be the consequences to the innocent victims of this delusion [the doctrine of polygamy]. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children -- innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land." Held, that the charge was not improper. Page 98 U. S. 146 This is an indictment found in the District Court for the third judicial district of the Territory of Utah, charging George Reynolds with bigamy, in violation of sect. 5352 of the Revised Statutes, which, omitting its exceptions, is as follows: "Every person having a husband or wife living, who marries another, whether married or single, in a Territory, or other place over which the United States have exclusive jurisdiction, is guilty of bigamy, and shall be punished by a fine of not more than $500, and by imprisonment for a term of not more than five years." The prisoner pleaded in abatement that the indictment was not found by a legal grand jury, because fifteen persons, and no more, were impaneled and sworn to serve as a grand jury at the term of the court during which the indictment was found, whereas sect. 808 of the Revised Statutes of the United States enacts that every grand jury impaneled before any District or Circuit Court shall consist of not less than sixteen persons. An act of the legislature of Utah of Feb. 18, 1870, provides that the court shall impanel fifteen men to serve as a grand jury. Compiled Laws of Utah, ed. of 1876, p. 357, sect. 4. The court overruled the plea, on the ground that the territorial enactment governed. The prisoner then pleaded not guilty. Several jurors were examined on their voire dire by the district attorney. Among them was Eli Ransohoff, who, in answer to the question, "Have you formed or expressed an opinion as to the guilt or innocence of the prisoner at the bar?" said, "I have expressed an opinion by reading the papers with the reports of the trial." Q. "Would that opinion influence your verdict in hearing the evidence?" A. "I don't think it would." By the defendant: "You stated that you had formed some opinion by reading the reports of the previous trial?" "Yes." Q. "Is that an impression which still remains upon your mind?" Page 98 U. S. 147 A. "No; I don't think it does; I only glanced over it, as everybody else does." Q. "Do you think you could try the case wholly uninfluenced by anything?" A. "Yes." Charles Read, called as a juror, was asked by the district attorney, "Have you formed or expressed any opinion as to the guilt or innocence of this charge?" A. "I believe I have formed an opinion." By the court: "Have you formed and expressed an opinion?" A. "No, sir; I believe not." Q. "You say you have formed an opinion?" A. "I have." Q. "Is that based upon evidence?" A. "Nothing produced in court." Q. "Would that opinion influence your verdict?" A. "I don't think it would." By defendant: "I understood you to say that you had formed an opinion, but not expressed it." A. "I don't know that I have expressed an opinion; I have formed one." Q. "Do you now entertain that opinion?" A. "I do." The defendant challenged each of these jurors for cause. The court overruled the challenge, and permitted them to be sworn. The defendant excepted. The court also, when Homer Brown was called as a juror, allowed the district attorney to ask him the following questions: Q. "Are you living in polygamy?" A. "I would rather not answer that." The court instructed the witness that he must answer the question, unless it would criminate him. By the district attorney: "You understand the conditions upon which you refuse?" A. "Yes, sir." Q. "Have you such an opinion that you could not find a verdict for the commission of that crime?" A. "I have no opinion on it in this particular case. I think, under the evidence and the law, I could render a verdict accordingly." Whereupon the United States challenged the said Brown for favor, which challenge was sustained by the court, and the defendant excepted. Page 98 U. S. 148 John W. Snell, also a juror, was asked by the district attorney on voire dire : Q. "Are you living in polygamy?" A. "I decline to answer that question." Q. "On what ground?" A. "It might criminate myself; but I am only a fornicator." Whereupon Snell was challenged by the United States for cause, which challenge was sustained, and the defendant excepted. After the trial commenced, the district attorney, after proving that the defendant had been married on a certain day to Mary Ann Tuddenham, offered to prove his subsequent marriage to one Amelia Jane Schofield during the lifetime of said Mary. He thereupon called one Pratt, the deputy marshal, and showed him a subpoena for witnesses in this case, and among other names thereon was the name of Mary Jane Schobold, but no such name as Amelia Jane Schofield. He testified that this subpoena was placed in his hands to be served. Q. "Did you see Mr. Reynolds when you went to see Miss Schofield?" A. "Yes, sir." Q. "Who did you inquire for?" A. "I inquired for Mary Jane Schofield, to the best of my knowledge. I will state this, that I inserted the name in the subpoena, and intended it for the name of the woman examined in this case at the former term of the court, and inquired for Mary Jane Schofield, or Mrs. Reynolds, I do not recollect certainly which." Q. "State the reply." A. "He said she was not at home." Q. "Did he say anything further." A. "I asked him then where I could find her. I said, "Where is she? And he said, "You will have to find out." Q. "Did he know you to be a deputy marshal?" A. "Yes, sir." Q. "Did you tell him what your business was as deputy marshal?" A. "I don't remember now; I don't think I did." Q. "What else did he say?" Page 98 U. S. 149 A. "He said, just as I was leaving, as I understood it, that she did not appear in this case." The court then ordered a subpoena to issue for Amelia Jane Schofield, returnable instanter. Upon the following day, at ten o'clock A.M., the said subpoena for the said witness having issued about nine o'clock P.M. of the day before, the said Arthur Pratt was again called upon, and testified as follows: Q. (By district attorney.) "State whether you are the officer that had subpoena in your hands." (Exhibiting subpoena last issued, as above set forth.) A. "Yes, sir." Q. "State to the court what efforts you have made to serve it." A. "I went to the residence of Mr. Reynolds, and a lady was there, his first wife, and she told me that this woman was not there; that that was the only home that she had, but that she hadn't been there for two or three weeks. I went again this morning, and she was not there." Q. "Do you know anything about her home -- where she resides?" A. "I know where I found her before." Q. "Where?" A. "At the same place." Q. "You are the deputy marshal that executed the process of the court?" A. "Yes, sir." Q. "Repeat what Mr. Reynolds said to you when you went with the former subpoena introduced last evening." A. "I will state that I put her name on the subpoena myself. I know the party, and am well acquainted with her, and I intended it for the same party that I subpoenaed before in this case. He said that she was not in, and that I could get a search warrant if I wanted to search the house. I said, "Will you tell me where she is?" He said, "No; that will be for you to find out." He said, just as I was leaving the house -- I don't remember exactly what it was, but my best recollection is that he said she would not appear in this case." Page 98 U. S. 150 Q. "Can't you state that more particularly?" A. "I can't give you the exact words, but I can say that was the purport of them." Q. "Give the words as nearly as you can." A. "Just as I said, I think those were his words." The district attorney then offered to prove what Amelia Jane Schofield had testified to on a trial of another indictment charging the prisoner with bigamy in marrying her, to which the prisoner objected on the ground that a sufficient foundation had not been laid for the introduction of the evidence. A. S. Patterson, having been sworn, read, and other witnesses stated, said Amelia's testimony on the former trial tending to show her marriage with the defendant. The defendant excepted to the admission of the evidence. The court, in summing up to the jury, declined to instruct them, as requested by the prisoner, that if they found that he had married in pursuance of and conformity with what he believed at the time to be a religious duty, their verdict should be "not guilty," but instructed them that if he, under the influence of a religious belief that it was right, had "deliberately married a second time, having a first wife living, the want of consciousness of evil intent -- the want of understanding on his part that he was committing crime -- did not excuse him, but the law inexorably, in such cases, implies criminal intent." The court also said: "I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, and there are pure-minded women and there are innocent children -- innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory, just so do these victims multiply and spread themselves over the land." To the refusal of the court to charge as requested, and to the charge as given, the prisoner excepted. The jury found him guilty, as charged in the indictment, and the judgment that he be imprisoned at hard labor for a term of two years, and pay Page 98 U. S. 151 a fine of $500, rendered by the District Court, having been affirmed by the Supreme Court of the Territory, he sued out this writ of error. The assignments of error are set out in the opinion of the court. Page 98 U. S. 153 MR. CHIEF JUSTICE WAITE delivered the opinion of the court. The assignments of error, when grouped, present the following questions: 1. Was the indictment bad because found by a grand jury of less than sixteen persons? 2. Were the challenges of certain petit jurors by the accused improperly overruled? 3. Were the challenges of certain other jurors by the government improperly sustained? 4. Was the testimony of Amelia Jane Schofield, given at a former trial for the same offence, but under another indictment, improperly admitted in evidence? 5. Should the accused have been acquitted if he married the second time, because he believed it to be his religious duty? 6. Did the court err in that part of the charge which directed the attention of the jury to the consequences of polygamy? These questions will be considered in their order. 1. As to the grand jury. The indictment was found in the District Court of the third judicial district of the Territory. The act of Congress "in relation to courts and judicial officers in the Territory of Utah," approved June 23, 1874 (18 Stat. 253), while regulating the qualifications of jurors in the Territory and prescribing the mode of preparing the lists from which grand and petit jurors are to be drawn, as well as the manner of drawing, makes no provision in respect to the number of persons of which a grand jury shall consist. Sect. 808, Revised Statutes, requires that a grand jury impaneled before any district or circuit court of the United States shall consist of not less than sixteen nor more than twenty-three persons, while a statute of the Territory limits the number in the district courts of the Territory Page 98 U. S. 154 to fifteen. Comp.Laws Utah, 1876, 357. The grand jury which found this indictment consisted of only fifteen persons, and the question to be determined is whether the section of the Revised Statutes referred to or the statute of the Territory governs the case. By sect. 1910 of the Revised Statutes, the district courts of the Territory have the same jurisdiction in all cases arising under the Constitution and laws of the United States as is vested in the circuit and district courts of the United States; but this does not make them circuit and district courts of the United States. We have often so decided. American Insurance Co. v. Canter , 1 Pet. 511; Benner et al. v. Porter , 9 How. 235; Clinton v. Englebrecht , 13 Wall. 434. They are courts of the Territories, invested for some purposes with the powers of the courts of the United States. Writs of error and appeals lie from them to the Supreme Court of the Territory, and from that court as a territorial court to this in some cases. Sect. 808 was not designed to regulate the impaneling of grand juries in all courts where offenders against the laws of the United States could be tried, but only in the circuit and district courts. This leaves the territorial courts free to act in obedience to the requirements of the territorial laws in force for the time being. Clinton v. Englebrecht, supra; 85 U. S. Toombs, 18 Wall. 648. As Congress may at any time assume control of the matter, there is but little danger to be anticipated from improvident territorial legislation in this particular. We are therefore of the opinion that the court below no more erred in sustaining this indictment than it did at a former term, at the instance of this same plaintiff in error, in adjudging another bad which was found against him for the same offence by a grand jury composed of twenty-three persons. 1 Utah 226. 2. As to the challenges by the accused. By the Constitution of the United States (Amend. VI.), the accused was entitled to a trial by an impartial jury. A juror to be impartial must, to use the language of Lord Coke, "be indifferent as he stands unsworn." Co. Litt. 155 b . Lord Coke also says that a principal cause of challenge is "so called because, if it be found true, it standeth sufficient of itself, without Page 98 U. S. 155 leaving anything to the conscience or discretion of the triers" ( id., 156 b ); or, as stated in Bacon's Abridgment, "it is grounded on such a manifest presumption of partiality that, if found to be true, it unquestionably sets aside the . . . juror." Bac.Abr., tit. Juries, E.1. "If the truth of the matter alleged is admitted, the law pronounces the judgment; but if denied, it must be made out by proof to the satisfaction of the court or the triers." Id., E.12. To make out the existence of the fact, the juror who is challenged may be examined on his voire dire, and asked any questions that do not tend to his infamy or disgrace. All of the challenges by the accused were for principal cause. It is good ground for such a challenge that a juror has formed an opinion as to the issue to be tried. The courts are not agreed as to the knowledge upon which the opinion must rest in order to render the juror incompetent, or whether the opinion must be accompanied by malice or ill will; but all unite in holding that it must be founded on some evidence, and be more than a mere impression. Some say it must be positive (Gabbet, Criminal Law, 391); others, that it must be decided and substantial (Armistead's Case, 11 Leigh (Va.) 659; Wormley's Case, 10 Gratt. (Va.) 658; Neely v. The People, 13 Ill. 685); others, fixed ( State v. Benton, 2 Dev. & B. (N.C.) L. 196); and still others deliberate and settled ( Staup v. Commonwealth, 74 Pa.St. 458; Curley v. Commonwealth, 84 id. 151). All concede, however, that, if hypothetical only, the partiality is not so manifest as to necessarily set the juror aside. Mr. Chief Justice Marshall, in Burr's Trial (1 Burr's Trial 416), states the rule to be that "light impressions, which may fairly be presumed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of the testimony, constitute no sufficient objection to a juror, but that those strong and deep impressions which close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him." The theory of the law is that a juror who has formed an opinion cannot be impartial. Every opinion which he may entertain need not necessarily have that effect. In these days of newspaper enterprise and universal education, every case of public interest is almost, as a matter of necessity, Page 98 U. S. 156 brought to the attention of all the intelligent people in the vicinity, and scarcely anyone can be found among those best fitted for jurors who has not read or heard of it, and who has not some impression or some opinion in respect to its merits. It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause, the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not, in law, be deemed impartial. The case must be one in which it is manifest the law left nothing to the "conscience or discretion" of the court. The challenge in this case most relied upon in the argument here is that of Charles Read. He was sworn on his voire dire, and his evidence,{1} taken as a whole, shows that he "believed" he had formed an opinion which he had never expressed, but which he did not think would influence his verdict on hearing the testimony. We cannot think this is such a manifestation of partiality as to leave nothing to the "conscience or discretion" of the triers. The reading of the evidence leaves the impression that the juror had some hypothetical opinion about the case, but it falls far short of raising a manifest presumption of partiality. In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases, the manner of the Page 98 U. S. 157 juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to refuse to do so. Such a case, in our opinion, was not made out upon the challenge of Read. The fact that he had not expressed his opinion is important only as tending to show that he had not formed one which disqualified him. If a positive and decided opinion had been formed, he would have been incompetent even though it had not been expressed. Under these circumstances, it is unnecessary to consider the case of Ransohoff, for it was confessedly not as strong as that of Read. 3. As to the challenges by the government. The questions raised upon these assignments of error are not whether the district attorney should have been permitted to interrogate the jurors while under examination upon their voire dire as to the fact of their living in polygamy. No objection was made below to the questions, but only to the ruling of the court upon the challenges after the testimony taken in answer to the questions was in. From the testimony, it is apparent that all the jurors to whom the challenges related were or had been living in polygamy. It needs no argument to show that such a jury could not have gone into the box entirely free from bias and prejudice, and that, if the challenge was not good for principal cause, it was for favor. A judgment will not be reversed simply because a challenge good for favor was sustained in form for cause. As the jurors were incompetent and properly excluded, it matters not here upon what form of challenge they were set aside. In one case, the challenge was for favor. In the courts of the United States, all challenges are tried by the court without the aid of triers (Rev.Stat. sect. 819), and we are not advised that the practice in the territorial courts of Utah is different. Page 98 U. S. 158 4. As to the admission of evidence to prove what was sworn to by Amelia Jane Schofield on a former trial of the accused for the same offence but under a different indictment. The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his own wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated. In Lord Morley's Case (6 State Trials, 770), as long ago as the year 1666, it was resolved in the House of Lords "that, in case oath should be made that any witness, who had been examined by the coroner and was then absent, was detained by the means or procurement of the prisoner, and the opinion of the judges asked whether such examination might be read, we should answer, that, if their lordships were satisfied by the evidence they had heard that the witness was detained by means or procurement of the prisoner, then the examination might be read; but whether he was detained by means or procurement of the prisoner was matter of fact, of which we were not the judges, but their lordships." This resolution was followed in Harrison's Case (12 id. 851), and seems to have been recognized as the law in England ever since. In Regina v. Scaife (17 Ad. & El.N.S. 242), all the judges agreed that, if the prisoner had resorted to a contrivance to keep a witness out of the way, the deposition of the witness, taken before a magistrate and in the presence of the prisoner, might be read. Other cases to the same effect are to be found, and in this country the ruling has been in the same way. Drayton v. Wells, 1 Nott & M. (S.C.) 409; Williams v. The State, 19 Ga. 403. So that now, in the leading textbooks, it is laid down that, if a witness is kept away by the adverse party, Page 98 U. S. 159 his testimony, taken on a former trial between the same parties upon the same issues, may be given in evidence. 1 Greenl.Evid., sect. 163; 1 Taylor, Evid., sect. 446. Mr. Wharton (1 Whart.Evid., sect. 178) seemingly limits the rule somewhat, and confines it to cases where the witness has been corruptly kept away by the party against whom he is to be called, but in reality his statement is the same as that of the others; for in all it is implied that the witness must have been wrongfully kept away. The rule has its foundation in the maxim that no one shall be permitted to take advantage of his own wrong, and, consequently, if there has not been, in legal contemplation, a wrong committed, the way has not been opened for the introduction of the testimony. We are content with this long-established usage, which, so far as we have been able to discover, has rarely been departed from. It is the outgrowth of a maxim based on the principles of common honesty, and, if properly administered, can harm no one. Such being the rule, the question becomes practically one of fact, to be settled as a preliminary to the admission of secondary evidence. In this respect, it is like the preliminary question of the proof of loss of a written instrument, before secondary evidence of the contents of the instrument can be admitted. In Lord Morley's Case ( supra ), it would seem to have been considered a question for the trial court alone, and not subject to review on error or appeal; but without deeming it necessary in this case to go so far as that, we have no hesitation in saying that the finding of the court below is, at least, to have the effect of a verdict of a jury upon a question of fact, and should not be disturbed unless the error is manifest. The testimony shows that the absent witness was the alleged second wife of the accused; that she had testified on a former trial for the same offence under another indictment; that she had no home, except with the accused; that, at some time before the trial, a subpoena had been issued for her, but, by mistake, she was named as Mary Jane Schobold; that an officer who knew the witness personally went to the house of the accused to serve the subpoena, and on his arrival inquired for her, either by the name of Mary Jane Schofield or Mrs. Reynolds; that he was told by the accused she was not at home; Page 98 U. S. 160 that he then said, "Will you tell me where she is?" that the reply was "No; that will be for you to find out;" that the officer then remarked she was making him considerable trouble, and that she would get into trouble herself; and the accused replied, "Oh, no; she won't, till the subpoena is served upon her," and then, after some further conversation, that "She does not appear in this case." It being discovered after the trial commenced that a wrong name had been inserted in the subpoena, a new subpoena was issued with the right name, at nine o'clock in the evening. With this, the officer went again to the house, and there found a person known as the first wife of the accused. He was told by her that the witness was not there, and had not been for three weeks. He went again the next morning, and, not finding her or being able to ascertain where she was by inquiring in the neighborhood, made return of that fact to the court. At ten o'clock that morning, the case was again called, and, the foregoing facts being made to appear, the court ruled that evidence of what the witness had sworn to at the former trial was admissible. In this we see no error. The accused was himself personally present in court when the showing was made, and had full opportunity to account for the absence of the witness, if he would, or to deny under oath that he had kept her away. Clearly, enough had been proven to cast the burden upon him of showing that he had not been instrumental in concealing or keeping the witness away. Having the means of making the necessary explanation, and having every inducement to do so if he would, the presumption is that he considered it better to rely upon the weakness of the case made against him than to attempt to develop the strength of his own. Upon the testimony as it stood, it is clear to our minds that the judgment should not be reversed because secondary evidence was admitted. This brings us to the consideration of what the former testimony was, and the evidence by which it was proven to the jury. It was testimony given on a former trial of the same person for the same offence, but under another indictment. It was Page 98 U. S. 161 substantially testimony given at another time in the same cause. The accused was present at the time the testimony was given, and had full opportunity of cross-examination. This brings the case clearly within the well established rules. The cases are fully cited in 1 Whart.Evid., sect. 177. The objection to the reading by Mr. Patterson of what was sworn to on the former trial does not seem to have been because the paper from which he read was not a true record of the evidence as given, but because the foundation for admitting the secondary evidence had not been laid. This objection, as has already been seen, was not well taken. 5. As to the defence of religious belief or duty. On the trial, the plaintiff in error, the accused, proved that, at the time of his alleged second marriage, he was, and for many years before had been, a member of the Church of Jesus Christ of Latter-Day Saints, commonly called the Mormon Church, and a believer in its doctrines; that it was an accepted doctrine of that church "that it was the duty of male members of said church, circumstances permitting, to practise polygamy; . . . that this duty was enjoined by different books which the members of said church believed to be of divine origin, and, among others, the Holy Bible, and also that the members of the church believed that the practice of polygamy was directly enjoined upon the male members thereof by the Almighty God, in a revelation to Joseph Smith, the founder and prophet of said church; that the failing or refusing to practise polygamy by such male members of said church, when circumstances would admit, would be punished, and that the penalty for such failure and refusal would be damnation in the life to come." He also proved "that he had received permission from the recognized authorities in said church to enter into polygamous marriage; . . . that Daniel H. Wells, one having authority in said church to perform the marriage ceremony, married the said defendant on or about the time the crime is alleged to have been committed, to some woman by the name of Schofield, and that such marriage ceremony was performed under and pursuant to the doctrines of said church." Upon this proof, he asked the court to instruct the jury that, if they found from the evidence that he "was married as Page 98 U. S. 162 charged -- if he was married -- in pursuance of and in conformity with what he believed at the time to be a religious duty, that the verdict must be 'not guilty.'" This request was refused, and the court did charge "that there must have been a criminal intent, but that if the defendant, under the influence of a religious belief that it was right -- under an inspiration, if you please, that it was right -- deliberately married a second time, having a first wife living, the want of consciousness of evil intent -- the want of understanding on his part that he was committing a crime -- did not excuse him, but the law inexorably in such case implies the criminal intent." Upon this charge and refusal to charge, the question is raised whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land. The inquiry is not as to the power of Congress to prescribe criminal laws for the Territories, but as to the guilt of one who knowingly violates a law which has been properly enacted if he entertains a religious belief that the law is wrong. Congress cannot pass a law for the government of the Territories which shall prohibit the free exercise of religion. The first amendment to the Constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States, so far as congressional interference is concerned. The question to be determined is, whether the law now under consideration comes within this prohibition. The word "religion" is not defined in the Constitution. We must go elsewhere, therefore, to ascertain its meaning, and nowhere more appropriately, we think, than to the history of the times in the midst of which the provision was adopted. The precise point of the inquiry is what is the religious freedom which has been guaranteed. Before the adoption of the Constitution, attempts were made in some of the colonies and States to legislate not only in respect to the establishment of religion, but in respect to its doctrines and precepts as well. The people were taxed, against their will, for the support of religion, and sometimes for the support of particular sects to whose tenets they could not and did not subscribe. Punishments were prescribed for a failure to attend upon public worship, and sometimes for entertaining Page 98 U. S. 163 heretical opinions. The controversy upon this general subject was animated in many of the States, but seemed at last to culminate in Virginia. In 1784, the House of Delegates of that State, having under consideration "a bill establishing provision for teachers of the Christian religion," postponed it until the next session, and directed that the bill should be published and distributed, and that the people be requested "to signify their opinion respecting the adoption of such a bill at the next session of assembly." This brought out a determined opposition. Amongst others, Mr. Madison prepared a "Memorial and Remonstrance," which was widely circulated and signed, and in which he demonstrated "that religion, or the duty we owe the Creator," was not within the cognizance of civil government. Semple's Virginia Baptists, Appendix. At the next session, the proposed bill was not only defeated, but another, "for establishing religious freedom," drafted by Mr. Jefferson, was passed. 1 Jeff. Works, 45; 2 Howison, Hist. of Va. 298. In the preamble of this act (12 Hening's Stat. 84) religious freedom is defined, and, after a recital "that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy which at once destroys all religious liberty," it is declared "that it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." In these two sentences is found the true distinction between what properly belongs to the church and what to the State. In a little more than a year after the passage of this statute, the convention met which prepared the Constitution of the United States. Of this convention, Mr. Jefferson was not a member, he being then absent as minister to France. As soon as he saw the draft of the Constitution proposed for adoption, he, in a letter to a friend, expressed his disappointment at the absence of an express declaration insuring the freedom of religion (2 Jeff.Works 355), but was willing to accept it as it was, trusting that the good sense and honest intentions of the people would bring about the necessary alterations. Page 98 U. S. 164 1 Jeff. Works 79. Five of the States, while adopting the Constitution, proposed amendments. Three -- New Hampshire, New York, and Virginia -- included in one form or another a declaration of religious freedom in the changes they desired to have made, as did also North Carolina, where the convention at first declined to ratify the Constitution until the proposed amendments were acted upon. Accordingly, at the first session of the first Congress, the amendment now under consideration was proposed with others by Mr. Madison. It met the views of the advocates of religious freedom, and was adopted. Mr. Jefferson afterwards, in reply to an address to him by a committee of the Danbury Baptist Association (8 id. 113), took occasion to say: "Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions -- I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion or prohibiting the free exercise thereof,' thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties." Coming as this does from an acknowledged leader of the advocates of the measure, it may be accepted almost as an authoritative declaration of the scope and effect of the amendment thus secured. Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order. Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people. At common law, the second marriage was always void (2 Kent, Com. 79), and from the earliest history of England, polygamy has been treated as an offence against society. After the establishment of the ecclesiastical Page 98 U. S. 165 courts, and until the time of James I, it was punished through the instrumentality of those tribunals not merely because ecclesiastical rights had been violated, but because upon the separation of the ecclesiastical courts from the civil the ecclesiastical were supposed to be the most appropriate for the trial of matrimonial causes and offences against the rights of marriage, just as they were for testamentary causes and the settlement of the estates of deceased persons. By the statute of 1 James I (c. 11), the offence, if committed in England or Wales, was made punishable in the civil courts, and the penalty was death. As this statute was limited in its operation to England and Wales, it was at a very early period reenacted, generally with some modifications, in all the colonies. In connection with the case we are now considering, it is a significant fact that, on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that "all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience," the legislature of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, "it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth." 12 Hening's Stat. 691. From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life. Marriage, while from its very nature a sacred obligation, is nevertheless, in most civilized nations, a civil contract, and usually regulated by law. Upon it society may be said to be built, and out of its fruits spring social relations and social obligations and duties with which government is necessarily required to deal. In fact, according as monogamous or polygamous marriages are allowed, do we find the principles on which the government of Page 98 U. S. 166 the people, to a greater or less extent, rests. Professor, Lieber says, polygamy leads to the patriarchal principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy. Chancellor Kent observes that this remark is equally striking and profound. 2 Kent, Com. 81, note (e). An exceptional colony of polygamists under an exceptional leadership may sometimes exist for a time without appearing to disturb the social condition of the people who surround it; but there cannot be a doubt that, unless restricted by some form of constitution, it is within the legitimate scope of the power of every civil government to determine whether polygamy or monogamy shall be the law of social life under its dominion. In our opinion, the statute immediately under consideration is within the legislative power of Congress. It is constitutional and valid as prescribing a rule of action for all those residing in the Territories, and in places over which the United States have exclusive control. This being so, the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice? So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practices to the contrary because of his religious belief? Page 98 U. S. 167 To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances. A criminal intent is generally an element of crime, but every man is presumed to intend the necessary and legitimate consequences of what he knowingly does. Here, the accused knew he had been once married, and that his first wife was living. He also knew that his second marriage was forbidden by law. When, therefore, he married the second time, he is presumed to have intended to break the law. And the breaking of the law is the crime. Every act necessary to constitute the crime was knowingly done, and the crime was therefore knowingly committed. Ignorance of a fact may sometimes be taken as evidence of a want of criminal intent, but not ignorance of the law. The only defence of the accused in this case is his belief that the law ought not to have been enacted. It matters not that his belief was a part of his professed religion; it was still belief, and belief only. In Regina v. Wagstaff (10 Cox Crim.Cases, 531), the parents of a sick child, who omitted to call in medical attendance because of their religious belief that what they did for its cure would be effective, were held not to be guilty of manslaughter, while it was said the contrary would have been the result if the child had actually been starved to death by the parents under the notion that it was their religious duty to abstain from giving it food. But when the offence consists of a positive act which is knowingly done, it would be dangerous to hold that the offender might escape punishment because he religiously believed the law which he had broken ought never to have been made. No case, we believe, can be found that has gone so far. 6. As to that part of the charge which directed the attention of the jury to the consequences of polygamy. The passage complained of is as follows: "I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on, they multiply, Page 98 U. S. 168 and there are pure-minded women and there are innocent children -- innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land." While every appeal by the court to the passions or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of a reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862 (12 Stat. 501), saw fit to make bigamy a crime in the Territories. This was done because of the evil consequences that were supposed to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions, no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted, and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial. Upon a careful consideration of the whole case, we are satisfied that no error was committed by the court below. Judgment affirmed. * Supra, p. 89 U. S. 147 . MR. JUSTICE FIELD. I concur with the majority of the court on the several points decided except one -- that which relates to the admission of the testimony of Amelia Jane Schofield given on a former trial upon a different indictment. I do not think that a sufficient foundation was laid for its introduction. The authorities cited by the Chief Justice to sustain its admissibility seem to me to establish conclusively the exact reverse. NOTE. At a subsequent day of the term, a petition for a rehearing having been filed, MR. CHIEF JUSTICE WAITE delivered the opinion of the court. Since our judgment in this case was announced, a petition for rehearing has been filed, in which our attention is called to the fact that the sentence of the Page 98 U. S. 169 court below requires the imprisonment to be at hard labor, when the act of Congress under which the indictment was found provides for punishment by imprisonment only. This was not assigned for error on the former hearing, and we might on that account decline to consider it now; but as the irregularity is one which appears on the face of the record, we vacate our former judgment of affirmance, and reverse the judgment of the court below for the purpose of correcting the only error which appears in the record, to-wit, in the form of the sentence. The cause is remanded, with instructions to cause the sentence of the District Court to be set aside and a new one entered on the verdict in all respects like that before imposed, except so far as it requires the imprisonment to be at hard labor.

Here is a summary of the verdict of the Reynolds v. United States case: The Supreme Court upheld the validity of a federal law criminalizing bigamy in Utah, rejecting the defendant's argument that his religious beliefs justified his practice of polygamy. The Court affirmed the defendant's conviction, ruling that religious belief cannot be a defense for committing an act made criminal by law. The Court also addressed several procedural issues, including jury selection and the admission of witness testimony from a previous trial. The case established the principle that an individual's religious beliefs do not exempt them from obeying laws that apply to everyone.

Religion

Minersville School District v. Gobitis

https://supreme.justia.com/cases/federal/us/310/586/

U.S. Supreme Court Minersville Sch. Dist. v. Board of Educ., 310 U.S. 586 (1940) Minersville School District v. Board of Education No. 690 Argued April 25, 1940 Decided June 3, 1940 310 U.S. 586 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT Syllabus 1. A state regulation requiring that pupils in the public schools, on pain of expulsion, participate in a daily ceremony of saluting the national flag whilst reciting in unison a pledge of allegiance to it "and to the Republic for which it stands; one Nation indivisible, with liberty and justice for all" -- held within the scope of legislative power, and consistent with the Fourteenth Amendment, as applied to children brought up in, and entertaining, a conscientious religious belief that such obeisance to the flag is forbidden by the Bible and that the Bible, as the Word of God, is the supreme authority. P. 310 U. S. 591 . 2. Religious convictions do not relieve the individual from obedience to an otherwise valid general law not aimed at the promotion or restriction of religious beliefs. P. 310 U. S. 594 . 3. So far as the Federal Constitution is concerned, it is within the province of the legislatures and school authorities of the several States to adopt appropriate means to evoke and foster a sentiment of national unity among the children in the public schools. P. 310 U. S. 597 . 4. This Court cannot exercise censorship over the conviction of legislatures that a particular program or exercise will best promote in the minds of children who attend the common schools an attachment to the institutions of their country, nor overrule the local judgment against granting exemptions from observance of such a program. P. 310 U. S. 598 . 108 F.2d 683, reversed. CERTIORARI, 309 U.S. 645, to review the affirmance of a decree ( 24 F. Supp. 271 ; opinion, 21 F.Supp. 581) which perpetually enjoined the above-named School District, the members of its board of education, and its superintendent of public schools from continuing to enforce an order expelling from the public schools certain minors (suing in this case by their father as next friend), and from Page 310 U. S. 587 requiring them to salute the national flag as a condition to their right to attend. Page 310 U. S. 591 MR. JUSTICE FRANKFURTER delivered the opinion of the Court. A grave responsibility confronts this Court whenever, in course of litigation, it must reconcile the conflicting claims of liberty and authority. But when the liberty invoked is liberty of conscience, and the authority is authority to safeguard the nation's fellowship, judicial conscience is put to its severest test. Of such a nature is the present controversy. Lillian Gobitis, aged twelve, and her brother William, aged ten, were expelled from the public schools of Minersville, Pennsylvania, for refusing to salute the national flag as part of a daily school exercise. The local Board of Education required both teachers and pupils to participate in this ceremony. The ceremony is a familiar one. The right hand is placed on the breast and the following pledge recited in unison: "I pledge allegiance to my flag, and to the Republic for which it stands; one nation indivisible, with liberty and justice for all." While the words are spoken, teachers and pupils extend their right hands in salute to the flag. The Gobitis family are affiliated with "Jehovah's Witnesses," for whom the Bible as the Word of God is the supreme authority. The children Page 310 U. S. 592 had been brought up conscientiously to believe that such a gesture of respect for the flag was forbidden by command of Scripture. [ Footnote 1 ] The Gobitis children were of an age for which Pennsylvania makes school attendance compulsory. Thus, they were denied a free education, and their parents had to put them into private schools. To be relieved of the financial burden thereby entailed, their father, on behalf of the children and in his own behalf, brought this suit. He sough to enjoin the authorities from continuing to exact participation in the flag salute ceremony as a condition of his children's attendance at the Minersville school. After trial of the issues, Judge Maris gave relief in the District Court, 24 F. Supp. 271 , on the basis of a thoughtful opinion at a preliminary stage of the litigation, 21 F. Supp. 581 ; his decree was affirmed by the Circuit Court of Appeals, 108 F.2d 683. Since this decision ran counter to several per curiam dispositions of this Court, [ Footnote 2 ] we granted certiorari to give the matter full reconsideration. 309 U.S. 645. By their able submissions, he Committee on the Bill of Rights of the American Bar Association and the American Civil Liberties Union, as friends of the Court, have helped us to our conclusion. We must decide whether the requirement of participation in such a ceremony, exacted from a child who refuses Page 310 U. S. 593 upon sincere religious grounds, infringes without due process of law the liberty guaranteed by the Fourteenth Amendment. Centuries of strife over the erection of particular dogmas as exclusive or all-comprehending faiths led to the inclusion of a guarantee for religious freedom in the Bill of Rights. The First Amendment, and the Fourteenth through its absorption of the First, sought to guard against repetition of those bitter religious struggles by prohibiting the establishment of a state religion and by securing to every sect the free exercise of its faith. So pervasive is the acceptance of this precious right that its scope is brought into question, as here, only when the conscience of individuals collides with the felt necessities of society. Certainly the affirmative pursuit of one's convictions about the ultimate mystery of the universe and man's relation to it is placed beyond the reach of law. Government may not interfere with organized or individual expression of belief or disbelief. Propagation of belief -- or even of disbelief -- in the supernatural is protected, whether in church or chapel, mosque or synagogue, tabernacle or meetinghouse. Likewise, the Constitution assures generous immunity to the individual from imposition of penalties for offending, in the course of his own religious activities, the religious views of others, be they a minority or those who are dominant in government. Cantwell v. Connecticut, ante, p. 310 U. S. 296 . But the manifold character of man's relations may bring his conception of religious duty into conflict with the secular interests of his fellow men. When does the constitutional guarantee compel exemption from doing what society thinks necessary for the promotion of some great common end, or from a penalty for conduct which appears dangerous to the general good? To state the Page 310 U. S. 594 problem is to recall the truth that no single principle can answer all of life's complexities. The right to freedom of religious belief, however dissident and however obnoxious to the cherished beliefs of others -- even of a majority -- is itself the denial of an absolute. But to affirm that the freedom to follow conscience has itself no limits in the life of a society would deny that very plurality of principles which, as a matter of history, underlies protection of religious toleration. Compare Mr. Justice Holmes in Hudson Water Co. v. McCarter, 209 U. S. 349 , 209 U. S. 355 . Our present task, then, as so often the case with courts, is to reconcile two rights in order to prevent either from destroying the other. But, because, in safeguarding conscience, we are dealing with interests so subtle and so dear, every possible leeway should be given to the claims of religious faith. In the judicial enforcement of religious freedom, we are concerned with a historic concept. See Mr. Justice Cardozo in Hamilton v. Regents, 293 U.S. at 293 U. S. 265 . The religious liberty which the Constitution protects has never excluded legislation of general scope not directed against doctrinal loyalties of particular sects. Judicial nullification of legislation cannot be justified by attributing to the framers of the Bill of Rights views for which there is no historic warrant. Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. [ Footnote 3 ] The mere possession of religious convictions Page 310 U. S. 595 which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. The necessity for this adjustment has again and again been recognized. In a number of situations, the exertion of political authority has been sustained, while basic considerations of religious freedom have been left inviolate. Reynolds v. United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 ; Selective Draft Law Cases, 245 U. S. 366 ; Hamilton v. Regents, 293 U. S. 245 . In all these cases, the general laws in question, upheld in their application to those who refused obedience from religious conviction, were manifestations of specific powers of government deemed by the legislature essential to secure and maintain that orderly, tranquil, and free society without which religious toleration itself is unattainable. Nor does the freedom of speech assured by Due Process move in a more absolute circle of immunity than that enjoyed by religious freedom. Even if it were assumed that freedom of speech goes beyond the historic concept of full opportunity to utter and to disseminate views, however heretical or offensive to dominant opinion, and includes freedom from conveying what may be deemed an implied but rejected affirmation, the question remains whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion. We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security. To deny the legislature the right to select appropriate means for its attainment presents a totally different order of problem from that of the propriety of subordinating the possible ugliness of littered streets to the free expression of opinion through distribution of handbills. Compare Schneider v. State, 308 U. S. 147 . Page 310 U. S. 596 Situations like the present are phases of the profoundest problem confronting a democracy -- the problem which Lincoln cast in memorable dilemma: "Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?" No mere textual reading or logical talisman can solve the dilemma. And when the issue demands judicial determination, it is not the personal notion of judges of what wise adjustment requires which must prevail. Unlike the instances we have cited, the case before us is not concerned with an exertion of legislative power for the promotion of some specific need or interest of secular society -- the protection of the family, the promotion of health, the common defense, the raising of public revenues to defray the cost of government. But all these specific activities of government presuppose the existence of an organized political society. The ultimate foundation of a free society is the binding tie of cohesive sentiment. Such a sentiment is fostered by all those agencies of the mind and spirit which may serve to gather up the traditions of a people, transmit them from generation to generation, and thereby create that continuity of a treasured common life which constitutes a civilization. "We live by symbols." The flag is the symbol of our national unity, transcending all internal differences, however large, within the framework of the Constitution. This Court has had occasion to say that ". . . the flag is the symbol of the Nation's power, the emblem of freedom in its truest, best sense. . . . it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power, and absolute safety for free institutions against foreign aggression." Halter v. Nebraska, 205 U. S. 34 , 205 U. S. 43 . And see Page 310 U. S. 597 United States v. Glettysburg Electric Ry. Co., 160 U. S. 668 . [ Footnote 4 ] The case before us must be viewed as though the legislature of Pennsylvania had itself formally directed the flag salute for the children of Minersville; had made no exemption for children whose parents were possessed of conscientious scruples like those of the Gobitis family, and had indicated its belief in the desirable ends to be secured by having its public school children share a common experience at those periods of development when their minds are supposedly receptive to its assimilation, by an exercise appropriate in time and place and setting, and one designed to evoke in them appreciation of the nation's hopes and dreams, its sufferings and sacrifices. The precise issue, then, for us to decide is whether the legislatures of the various states and the authorities in a thousand counties and school districts of this country are barred from determining the appropriateness of various means to evoke that unifying sentiment without which there can ultimately be no liberties, civil or religious. [ Footnote 5 ] To stigmatize legislative judgment in providing for this universal gesture of respect for the symbol of our national life in the setting of the common school as a lawless inroad on that freedom of conscience which the Constitution protects, would amount to no less than the pronouncement of pedagogical and psychological dogma in a field where courts possess no marked and certainly no Page 310 U. S. 598 controlling competence. The influences which help toward a common feeling for the common country are manifold. Some may seem harsh, and others no doubt are foolish. Surely, however, the end is legitimate. And the effective means for its attainment are still so uncertain and so unauthenticated by science as to preclude us from putting the widely prevalent belief in flag saluting beyond the pale of legislative power. It mocks reason and denies our whole history to find in the allowance of a requirement to salute our flag on fitting occasions the seeds of sanction for obeisance to a leader. The wisdom of training children in patriotic impulses by those compulsions which necessarily pervade so much of the educational process is not for our independent judgment. Even were we convinced of the folly of such a measure, such belief would be no proof of its unconstitutionality. For ourselves, we might be tempted to say that the deepest patriotism is best engendered by giving unfettered scope to the most crochety beliefs. Perhaps it is best, even from the standpoint of those interests which ordinances like the one under review seek to promote, to give to the least popular sect leave from conformities like those here in issue. But the courtroom is not the arena for debating issues of educational policy. It is not our province to choose among competing considerations in the subtle process of securing effective loyalty to the traditional ideals of democracy, while respecting at the same time individual idiosyncracies among a people so diversified in racial origins and religious allegiances. So to hold would, in effect, make us the school board for the country. That authority has not been given to this Court, nor should we assume it. We are dealing here with the formative period in the development of citizenship. Great diversity of psychological and ethical opinion exists among us concerning the best way to train children for their place in society. Because Page 310 U. S. 599 of these differences and because of reluctance to permit a single, iron-cast system of education to be imposed upon a nation compounded of so many strains, we have held that, even though public education is one of our most cherished democratic institutions, the Bill of Rights bars a state from compelling all children to attend the public schools. Pierce v. Society of Sisters, 268 U. S. 510 . But it is a very different thing for this Court to exercise censorship over the conviction of legislatures that a particular program or exercise will best promote in the minds of children who attend the common schools an attachment to the institutions of their country. What the school authorities are really asserting is the right to awaken in the child's mind considerations as to the significance of the flag contrary to those implanted by the parent. In such an attempt, the state is normally at a disadvantage in competing with the parent's authority, so long -- and this is the vital aspect of religious toleration -- as parents are unmolested in their right to counteract by their own persuasiveness the wisdom and rightness of those loyalties which the state's educational system is seeking to promote. Except where the transgression of constitutional liberty is too plain for argument, personal freedom is best maintained -- so long as the remedial channels of the democratic process remain open and unobstructed [ Footnote 6 ] -- when it is ingrained in a people's habits, and not enforced against popular policy by the coercion of adjudicated law. That the flag salute is an allowable portion of a school program for those who do not invoke conscientious scruples is surely not debatable. But for us to insist that, though the ceremony may be required, exceptional immunity must be Page 310 U. S. 600 given to dissidents, is to maintain that there is no basis for a legislative judgment that such an exemption might introduce elements of difficulty into the school discipline, might cast doubts in the minds of the other children which would themselves weaken the effect of the exercise. The preciousness of the family relation, the authority and independence which give dignity to parenthood, indeed the enjoyment of all freedom, presuppose the kind of ordered society which is summarized by our flag. A society which is dedicated to the preservation of these ultimate values of civilization may, in self-protection, utilize the educational process for inculcating those almost unconscious feelings which bind men together in a comprehending loyalty, whatever may be their lesser differences and difficulties. That is to say, the process may be utilized so long as men's right to believe as they please, to win others to their way of belief, and their right to assemble in their chosen places of worship for the devotional ceremonies of their faith, are all fully respected. Judicial review, itself a limitation on popular government, is a fundamental part of our constitutional scheme. But to the legislature no less than to courts is committed the guardianship of deeply cherished liberties. See Missouri, K. & T. Ry. Co. v. May, 194 U. S. 267 , 194 U. S. 270 . Where all the effective means of inducing political changes are left free from interference, education in the abandonment of foolish legislation is itself a training in liberty. To fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies, rather than to transfer such a contest to the judicial arena, serves to vindicate the self-confidence of a free people. [ Footnote 7 ] Reversed. Page 310 U. S. 601 [ Footnote 1 ] Reliance is especially placed on the following verses from Chapter 20 of Exodus: "3. Thou shalt have no other gods before me." "4. Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: " "5. Thou shalt not bow down thyself to them, nor serve them: . . ." [ Footnote 2 ] Leoles v. Landers, 302 U.S. 656; Hering v. State Board of Education, 303 U.S. 624; Gabrielli v. Knickerbocker, 306 U.S. 621; Johnson v. Deerfield, 306 U.S. 621. Compare New York v. Sandstrom, 279 N.Y. 523; 18 N.E.2d 840; Nicholls v. Mayor and School Committee of Lynn, 7 N.E.2d 577 (Mass.). [ Footnote 3 ] Compare II Writings of Thomas Jefferson (Ford ed.) p. 102; 3 Letters and Other Writings of James Madison, pp. 274, 307-308; 1 Rhode Island Colonial Records, pp. 378-80; 2 Id. pp. 6; Wiener, Roger Williams' Contribution to Modern Thought, 28 Rhode Island Historical Society Collections, No. 1; Ernst, The Political Thought of Roger Williams, chap. VII; W. K. Jordan, The Development of Religious Toleration in England, passim. See Commonwealth v. Herr, 229 Pa. 132; 78 A. 68. [ Footnote 4 ] For the origin and history of the American flag, see 8 Journals of the Continental Congress, p. 464; 22 id., pp. 338-340; Annals of Congress, 15th Cong., 1st Sess., Vol. 1, pp. 566 et seq.; id., Vol. 2, pp. 1458 et seq. [ Footnote 5 ] Compare Balfour, Introduction to Bagehot's English Constitution, p. XXII; Santayana, Character and Opinion in the United States, pp. 110-111. [ Footnote 6 ] In cases like Fiske v. Kansas, 274 U. S. 380 ; De Jonge v. Oregon, 299 U. S. 353 ; Lovell v. Griffin, 303 U. S. 444 ; Hague v. CIO, 307 U. S. 496 , and Schneider v. State, 308 U. S. 147 , the Court was concerned with restrictions cutting off appropriate means through which, in a free society, the processes of popular rule may effectively function. [ Footnote 7 ] It is to be noted that the Congress has not entered the field of legislation here under consideration. MR. JUSTICE STONE, dissenting: I think the judgment below should be affirmed. Two youths, now fifteen and sixteen years of age, are by the judgment of this Court held liable to expulsion from the public schools and to denial of all publicly supported educational privileges because of their refusal to yield to the compulsion of a law which commands their participation in a school ceremony contrary to their religious convictions. They and their father are citizens, and have not exhibited by any action or statement of opinion, any disloyalty to the Government of the United States. They are ready and willing to obey all its laws which do not conflict with what they sincerely believe to be the higher commandments of God. It is not doubted that these convictions are religious, that they are genuine, or that the refusal to yield to the compulsion of the law is in good faith, and with all sincerity. It would be a denial of their faith, as well as the teachings of most religions, to say that children of their age could not have religious convictions. The law which is thus sustained is unique in the history of Anglo-American legislation. It does more than suppress freedom of speech, and more than prohibit the free exercise of religion, which concededly are forbidden by the First Amendment and are violations of the liberty guaranteed by the Fourteenth. For, by this law, the state seeks to coerce these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions. It is not denied that such compulsion is a prohibited infringement of personal liberty, freedom of speech and religion, guaranteed by the Bill of Rights, except insofar as it may be justified and supported as a proper exercise of the state's power over public education. Since the state, Page 310 U. S. 602 in competition with parents, may, through teaching in the public schools, indoctrinate the minds of the young, it is said that, in aid of its undertaking to inspire loyalty and devotion to constituted authority and the flag which symbolizes it, it may coerce the pupil to make affirmation contrary to his belief and in violation of his religious faith. And, finally, it is said that, since the Minersville School Board and others are of the opinion that the country will be better served by conformity than by the observance of religious liberty which the Constitution prescribes, the courts are not free to pass judgment on the Board's choice. Concededly the constitutional guaranties of personal liberty are not always absolutes. Government has a right to survive and powers conferred upon it are not necessarily set at naught by the express prohibitions of the Bill of Rights. It may make war and raise armies. To that end, it may compel citizens to give military service, Selective Draft Law Cases, 245 U. S. 366 , and subject them to military training despite their religious objections. Hamilton v. Regents, 293 U. S. 245 . It may suppress religious practices dangerous to morals, and presumably those also which are inimical to public safety, health and good order. Davis v. Beason, 133 U. S. 333 . But it is a long step, and one which I am unable to take, to the position that government may, as a supposed educational measure and as a means of disciplining the young, compel public affirmations which violate their religious conscience. The very fact that we have constitutional guaranties of civil liberties and the specificity of their command where freedom of speech and of religion are concerned require some accommodation of the powers which government normally exercises, when no question of civil liberty is involved, to the constitutional demand that those liberties be protected against the action of government Page 310 U. S. 603 itself. The state concededly has power to require and control the education of its citizens, but it cannot, by a general law compelling attendance at public schools, preclude attendance at a private school adequate in its instruction where the parent seeks to secure for the child the benefits of religious instruction not provided by the public school. Pierce v. Society of Sisters, 268 U. S. 510 . And only recently we have held that the state's authority to control its public streets by generally applicable regulations is not an absolute to which free speech must yield, and cannot be made the medium of its suppression, Hague v. Committee for Industrial Organization, 307 U. S. 496 , 307 U. S. 514 , et seq., any more than can its authority to penalize littering of the streets by a general law be used to suppress the distribution of handbills as a means of communicating ideas to their recipients. Schneider v. State, 308 U. S. 147 . In these cases, it was pointed out that, where there are competing demands of the interests of government and of liberty under the Constitution, and where the performance of governmental functions is brought into conflict with specific constitutional restrictions, there must, when that is possible, be reasonable accommodation between them so as to preserve the essentials of both, and that it is the function of courts to determine whether such accommodation is reasonably possible. In the cases just mentioned, the Court was of opinion that there were ways enough to secure the legitimate state end without infringing the asserted immunity, or that the inconvenience caused by the inability to secure that end satisfactorily through other means, did not outweigh freedom of speech or religion. So here, even if we believe that such compulsions will contribute to national unity, there are other ways to teach loyalty and patriotism, which are the sources of national unity, than by compelling the pupil to affirm that which he does not believe, and by Page 310 U. S. 604 commanding a form of affirmance which violates his religious convictions. Without recourse to such compulsion, the state is free to compel attendance at school and require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guaranties of civil liberty which tend to inspire patriotism and love of country. I cannot say that government here is deprived of any interest or function which it is entitled to maintain at the expense of the protection of civil liberties by requiring it to resort to the alternatives which do not coerce an affirmation of belief. The guaranties of civil liberty are but guaranties of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them. They presuppose the right of the individual to hold such opinions as he will and to give them reasonably free expression, and his freedom, and that of the state as well, to teach and persuade others by the communication of ideas. The very essence of the liberty which they guaranty is the freedom of the individual from compulsion as to what he shall think and what he shall say, at least where the compulsion is to bear false witness to his religion. If these guaranties are to have any meaning, they must, I think, be deemed to withhold from the state any authority to compel belief or the expression of it where that expression violates religious convictions, whatever may be the legislative view of the desirability of such compulsion. History teaches us that there have been but few infringements of personal liberty by the state which have not been justified, as they are here, in the name of righteousness and the public good, and few which have not been directed, as they are now, at politically helpless minorities. The framers were not unaware that, under the system which they created, most governmental curtailments Page 310 U. S. 605 of personal liberty would have the support of a legislative judgment that the public interest would be better served by its curtailment than by its constitutional protection. I cannot conceive that, in prescribing, as limitations upon the powers of government, the freedom of the mind and spirit secured by the explicit guaranties of freedom of speech and religion, they intended or rightly could have left any latitude for a legislative judgment that the compulsory expression of belief which violates religious convictions would better serve the public interest than their protection. The Constitution may well elicit expressions of loyalty to it and to the government which it created, but it does not command such expressions or otherwise give any indication that compulsory expressions of loyalty play any such part in our scheme of government as to override the constitutional protection of freedom of speech and religion. And while such expressions of loyalty, when voluntarily given, may promote national unity, it is quite another matter to say that their compulsory expression by children in violation of their own and their parents' religious convictions can be regarded as playing so important a part in our national unity as to leave school boards free to exact it despite the constitutional guarantee of freedom of religion. The very terms of the Bill of Rights preclude, it seems to me, any reconciliation of such compulsions with the constitutional guaranties by a legislative declaration that they are more important to the public welfare than the Bill of Rights. But even if this view be rejected and it is considered that there is some scope for the determination by legislatures whether the citizen shall be compelled to give public expression of such sentiments contrary to his religion, I am not persuaded that we should refrain from passing upon the legislative judgment "as long as the remedial Page 310 U. S. 606 channels of the democratic process remain open and unobstructed." This seems to me no less than the surrender of the constitutional protection of the liberty of small minorities to the popular will. We have previously pointed to the importance of a searching judicial inquiry into the legislative judgment in situations where prejudice against discrete and insular minorities may tend to curtail the operation of those political processes ordinarily to be relied on to protect minorities. See United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 , note 4. And, until now, we have not hesitated similarly to scrutinize legislation restricting the civil liberty of racial and religious minorities although no political process was affected. Meyer v. Nebraska, 262 U. S. 390 ; Pierce v. Society of Sisters, supra; Farrington v. Tokushige, 273 U. S. 284 . Here we have such a small minority entertaining in good faith a religious belief, which is such a departure from the usual course of human conduct, that most persons are disposed to regard it with little toleration or concern. In such circumstances, careful scrutiny of legislative efforts to secure conformity of belief and opinion by a compulsory affirmation of the desired belief, is especially needful if civil rights are to receive any protection. Tested by this standard, I am not prepared to say that the right of this small and helpless minority, including children having a strong religious conviction, whether they understand its nature or not, to refrain from an expression obnoxious to their religion, is to be overborne by the interest of the state in maintaining discipline in the schools. The Constitution expresses more than the conviction of the people that democratic processes must be preserved at all costs. It is also an expression of faith and a command that freedom of mind and spirit must be preserved, which government must obey if it is to adhere to that justice and moderation without which no free government can exist. Page 310 U. S. 607 For this reason, it would seem that legislation which operates to repress the religious freedom of small minorities, which is admittedly within the scope of the protection of the Bill of Rights, must at least be subject to the same judicial scrutiny as legislation which we have recently held to infringe the constitutional liberty of religious and racial minorities. With such scrutiny I cannot say that the inconveniences which may attend some sensible adjustment of school discipline in order that the religious convictions of these children may be spared presents a problem so momentous or pressing as to outweigh the freedom from compulsory violation of religious faith which has been thought worthy of constitutional protection.

The Supreme Court ruled that a state regulation requiring students to salute the flag and recite the Pledge of Allegiance is constitutional, even for those with religious objections. Religious beliefs do not exempt individuals from obeying general laws that are not aimed at promoting or restricting religious beliefs. The Court upheld the authority of state legislatures and school authorities to foster national unity and patriotism in public schools. Dissenting opinions emphasized the importance of protecting religious freedom and scrutinizing laws that infringe on the civil liberties of minorities.

Religion

Everson v. Board of Education

https://supreme.justia.com/cases/federal/us/330/1/

U.S. Supreme Court Everson v. Board of Education, 330 U.S. 1 (1947) Everson v. Board of Education of the Township of Ewing No. 52 Argued November 20, 1946 Decided February 10, 1947 330 U.S. 1 APPEAL FROM THE COURT OF ERRORS AND APPEALS OF NEW JERSEY Syllabus Pursuant to a New Jersey statute authorizing district boards of education to make rules and contracts for the transportation of children to and from schools other than private schools operated for profit, a board of education by resolution authorized the reimbursement of parents for fares paid for the transportation by public carrier of children attending public and Catholic schools. The Catholic schools operated under the superintendency of a Catholic priest and, in addition to secular education, gave religious instruction in the Catholic Faith. A district taxpayer challenged the validity under the Federal Constitution of the statute and resolution so far as they authorized reimbursement to parents for the transportation of children attending sectarian schools. No question was raised as to whether the exclusion of private schools operated for profit denied equal protection of the laws; nor did the record show that there were any children in the district who attended, or would have attended but for the cost of transportation, any but public or Catholic schools. Held: 1. The expenditure of tax raised funds thus authorized was for a public purpose, and did not violate the due process clause of the Fourteenth Amendment. Pp. 330 U. S. 5 -8. 2. The statute and resolution did not violate the provision of the First Amendment (made applicable to the states by the Fourteenth Amendment) prohibiting any "law respecting an establishment of religion." Pp. 330 U. S. 8 -18. 133 N.J.L. 350, 44 A.2d 333, affirmed. Page 330 U. S. 2 In a suit by a taxpayer, the New Jersey Supreme Court held that the state legislature was without power under the state constitution to authorize reimbursement to parents of bus fares paid for transporting their children to schools other than public schools. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor a resolution passed pursuant to it violated the state constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. On appeal of the federal questions to this Court, affirmed, p. 330 U. S. 18 . Page 330 U. S. 3 MR. JUSTICE BLACK delivered the opinion of the Court. A New Jersey statute authorizes its local school districts to make rules and contracts for the transportation of children to and from schools. [ Footnote 1 ] The appellee, a township board of education, acting pursuant to this statute, authorized reimbursement to parents of money expended by them for the bus transportation of their children on regular busses operated by the public transportation system. Part of this money was for the payment of transportation of some children in the community to Catholic parochial schools. These church schools give their students, in addition to secular education, regular religious instruction conforming to the religious tenets and modes of worship of the Catholic Faith. The superintendent of these schools is a Catholic priest. The appellant, in his capacity as a district taxpayer, filed suit in a state court challenging the right of the Board to reimburse parents of parochial school students. He Page 330 U. S. 4 contended that the statute and the resolution passed pursuant to it violated both the State and the Federal Constitutions. That court held that the legislature was without power to authorize such payment under the state constitution. 132 N.J.L. 98, 39 A.2d 75. The New Jersey Court of Errors and Appeals reversed, holding that neither the statute nor the resolution passed pursuant to it was in conflict with the State constitution or the provisions of the Federal Constitution in issue. 133 N.J.L. 350, 44 A.2d 333. The case is here on appeal under 28 U.S.C. § 344(a). Since there has been no attack on the statute on the ground that a part of its language excludes children attending private schools operated for profit from enjoying State payment for their transportation, we need not consider this exclusionary language; it has no relevancy to any constitutional question here presented. [ Footnote 2 ] Furthermore, if the exclusion clause had been properly challenged, we do not know whether New Jersey's highest court would construe its statutes as precluding payment of the school Page 330 U. S. 5 transportation of any group of pupils, even those of a private school run for profit. [ Footnote 3 ] Consequently, we put to one side the question as to the validity of the statute against the claim that it does not authorize payment for the transportation generally of school children in New Jersey. The only contention here is that the state statute and the resolution, insofar as they authorized reimbursement to parents of children attending parochial schools, violate the Federal Constitution in these two respects, which to some extent overlap. First. They authorize the State to take by taxation the private property of some and bestow it upon others to be used for their own private purposes. This, it is alleged, violates the due process clause of the Fourteenth Amendment. Second. The statute and the resolution forced inhabitants to pay taxes to help support and maintain schools which are dedicated to, and which regularly teach, the Catholic Faith. This is alleged to be a use of state power to support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made applicable to the states. First. The due process argument that the state law taxes some people to help others carry out their private Page 330 U. S. 6 purposes is framed in two phases. The first phase is that a state cannot tax A to reimburse B for the cost of transporting his children to church schools. This is said to violate the due process clause because the children are sent to these church schools to satisfy the personal desires of their parents, rather than the public's interest in the general education of all children. This argument, if valid, would apply equally to prohibit state payment for the transportation of children to any nonpublic school, whether operated by a church or any other nongovernment individual or group. But the New Jersey legislature has decided that a public purpose will be served by using tax raised funds to pay the bus fares of all school children, including those who attend parochial schools. The New Jersey Court of Errors and Appeals has reached the same conclusion. The fact that a state law, passed to satisfy a public need, coincides with the personal desires of the individuals most directly affected is certainly an inadequate reason for us to say that a legislature has erroneously appraised the public need. It is true that this Court has, in rare instances, struck down state statutes on the ground that the purpose for which tax raised funds were to be expended was not a public one. Loan Association v. Topeka , 20 Wall. 655; Parkersburg v. Brown, 106 U. S. 487 ; Thompson v. Consolidated Gas Utilities Corp., 300 U. S. 55 . But the Court has also pointed out that this far-reaching authority must be exercised with the most extreme caution. Green v. Frazier, 253 U. S. 233 , 253 U. S. 240 . Otherwise, a state's power to legislate for the public welfare might be seriously curtailed, a power which is a primary reason for the existence of states. Changing local conditions create new local problems which may lead a state's people and its local authorities to believe that laws authorizing new types of public services are necessary to promote the general wellbeing Page 330 U. S. 7 of the people. The Fourteenth Amendment did not strip the states of their power to meet problems previously left for individual solution. Davidson v. New Orleans, 96 U. S. 97 , 96 U. S. 103 -104; Barbier v. Connolly, 113 U. S. 27 , 113 U. S. 31 -32; Fallbrook Irrigation District v. Bradley, 164 U. S. 112 , 164 U. S. 157 -158. It is much too late to argue that legislation intended to facilitate the opportunity of children to get a secular education serves no public purpose. Cochran v. Louisiana State Board of Education, 281 U. S. 370 ; Holmes, J., in Interstate Ry. v. Massachusetts, 207 U. S. 79 , 207 U. S. 87 . See opinion of Cooley, J., in Stuart v. School District No. 1 of Kalamazoo, 30 Mich. 69 (1874). The same thing is no less true of legislation to reimburse needy parents, or all parents, for payment of the fares of their children so that they can ride in public busses to and from schools, rather than run the risk of traffic and other hazards incident to walking or "hitchhiking." See Barbier v. Connolly, supra, at 113 U. S. 31 . See also cases collected 63 A.L.R. 413; 118 A.L.R. 806. Nor does it follow that a law has a private, rather than a public, purpose because it provides that tax-raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program. See Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 518 . Subsidies and loans to individuals such as farmers and home owners, and to privately owned transportation systems, as well as many other kinds of businesses, have been commonplace practices in our state and national history. Insofar as the second phase of the due process argument may differ from the first, it is by suggesting that taxation for transportation of children to church schools constitutes support of a religion by the State. But if the law is invalid for this reason, it is because it violates the First Amendment's prohibition against the establishment of religion Page 330 U. S. 8 by law. This is the exact question raised by appellant's second contention, to consideration of which we now turn. Second. The New Jersey statute is challenged as a "law respecting an establishment of religion." The First Amendment, as made applicable to the states by the Fourteenth, Murdock v. Pennsylvania, 319 U. S. 105 , commands that a state "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." These words of the First Amendment reflected in the minds of early Americans a vivid mental picture of conditions and practices which they fervently wished to stamp out in order to preserve liberty for themselves and for their posterity. Doubtless their goal has not been entirely reached; but so far has the Nation moved toward it that the expression "law respecting an establishment of religion" probably does not so vividly remind present-day Americans of the evils, fears, and political problems that caused that expression to be written into our Bill of Rights. Whether this New Jersey law is one respecting an "establishment of religion" requires an understanding of the meaning of that language, particularly with respect to the imposition of taxes. Once again, [ Footnote 4 ] therefore, it is not inappropriate briefly to review the background and environment of the period in which that constitutional language was fashioned and adopted. A large proportion of the early settlers of this country came here from Europe to escape the bondage of laws which compelled them to support and attend government-favored churches. The centuries immediately before and contemporaneous with the colonization of America had been filled with turmoil, civil strife and persecutions, generated in large part by established sects determined to Page 330 U. S. 9 maintain their absolute political and religious supremacy. With the power of government supporting them, at various times and places, Catholics had persecuted Protestants, Protestants had persecuted Catholics, Protestant sects had persecuted other Protestant sects, Catholics of one shade of belief had persecuted Catholics of another shade of belief, and all of these had from time to time persecuted Jews. In efforts to force loyalty to whatever religious group happened to be on top and in league with the government of a particular time and place, men and women had been fined, cast in jail, cruelly tortured, and killed. Among the offenses for which these punishments had been inflicted were such things as speaking disrespectfully of the views of ministers of government-established churches, non-attendance at those churches, expressions of nonbelief in their doctrines, and failure to pay taxes and tithes to support them. [ Footnote 5 ] These practices of the old world were transplanted to, and began to thrive in, the soil of the new America. The very charters granted by the English Crown to the individuals and companies designated to make the laws which would control the destinies of the colonials authorized these individuals and companies to erect religious establishments which all, whether believers or nonbelievers, would be required to support and attend. [ Footnote 6 ] An exercise of Page 330 U. S. 10 this authority was accompanied by a repetition of many of the old-world practices and persecutions. Catholics found themselves hounded and proscribed because of their faith; Quakers who followed their conscience went to jail; Baptists were peculiarly obnoxious to certain dominant Protestant sects; men and women of varied faiths who happened to be in a minority in a particular locality were persecuted because they steadfastly persisted in worshipping God only as their own consciences dictated. [ Footnote 7 ] And all of these dissenters were compelled to pay tithes and taxes [ Footnote 8 ] to support government-sponsored churches whose ministers preached inflammatory sermons designed to strengthen and consolidate the established faith by generating a burning hatred against dissenters. Page 330 U. S. 11 These practices became so commonplace as to shock the freedom-loving colonials into a feeling of abhorrence. [ Footnote 9 ] The imposition of taxes to pay ministers' salaries and to build and maintain churches and church property aroused their indignation. [ Footnote 10 ] It was these feelings which found expression in the First Amendment. No one locality and no one group throughout the Colonies can rightly be given entire credit for having aroused the sentiment that culminated in adoption of the Bill of Rights' provisions embracing religious liberty. But Virginia, where the established church had achieved a dominant influence in political affairs and where many excesses attracted wide public attention, provided a great stimulus and able leadership for the movement. The people there, as elsewhere, reached the conviction that individual religious liberty could be achieved best under a government which was stripped of all power to tax, to support, or otherwise to assist any or all religions, or to interfere with the beliefs of any religious individual or group. The movement toward this end reached its dramatic climax in Virginia in 1785-86 when the Virginia legislative body was about to renew Virginia's tax levy for the support of the established church. Thomas Jefferson Page 330 U. S. 12 and James Madison led the fight against this tax. Madison wrote his great Memorial and Remonstrance against the law. [ Footnote 11 ] In it, he eloquently argued that a true religion did not need the support of law; that no person, either believer or nonbeliever, should be taxed to support a religious institution of any kind; that the best interest of a society required that the minds of men always be wholly free, and that cruel persecutions were the inevitable result of government-established religions. Madison's Remonstrance received strong support throughout Virginia, [ Footnote 12 ] and the Assembly postponed consideration of the proposed tax measure until its next session. When the proposal came up for consideration at that session, it not only died in committee, but the Assembly enacted the famous "Virginia Bill for Religious Liberty" originally written by Thomas Jefferson. [ Footnote 13 ] The preamble to that Bill stated, among other things, that "Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are Page 330 U. S. 13 a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either . . . ; that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern. . . ." And the statute itself enacted "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief. . . . [ Footnote 14 ]" This Court has previously recognized that the provisions of the First Amendment, in the drafting and adoption of which Madison and Jefferson played such leading roles, had the same objective, and were intended to provide the same protection against governmental intrusion on religious liberty as the Virginia statute. Reynolds v. United States, supra, at 98 U. S. 164 ; Watson v. Jones , 13 Wall. 679; Davis v. Beason, 133 U. S. 333 , 133 U. S. 342 . Prior to the adoption of the Fourteenth Amendment, the First Amendment did not apply as a restraint against the states. [ Footnote 15 ] Most of them did soon provide similar constitutional protections Page 330 U. S. 14 for religious liberty. [ Footnote 16 ] But some states persisted for about half a century in imposing restraints upon the free exercise of religion and in discriminating against particular religious groups. [ Footnote 17 ] In recent years, so far as the provision against the establishment of a religion is concerned, the question has most frequently arisen in connection with proposed state aid to church schools and efforts to carry on religious teachings in the public schools in accordance with the tenets of a particular sect. [ Footnote 18 ] Some churches have either sought or accepted state financial support for their schools. Here again, the efforts to obtain state aid or acceptance of it have not been limited to any one particular faith. [ Footnote 19 ] The state courts, in the main, have remained faithful to the language of their own constitutional provisions designed to protect religious freedom and to separate religions and governments. Their decisions, however, show the difficulty in drawing the line between tax legislation which provides funds for the welfare of the general public and that which is designed to support institutions which teach religion. [ Footnote 20 ] The meaning and scope of the First Amendment, preventing establishment of religion or prohibiting the free exercise thereof, in the light of its history and the evils it Page 330 U. S. 15 was designed forever to suppress, have been several times elaborated by the decisions of this Court prior to the application of the First Amendment to the states by the Fourteenth. [ Footnote 21 ] The broad meaning given the Amendment by these earlier cases has been accepted by this Court in its decisions concerning an individual's religious freedom rendered since the Fourteenth Amendment was interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. [ Footnote 22 ] There is every reason to give the same application and broad interpretation to the "establishment of religion" clause. The interrelation of these complementary clauses was well summarized in a statement of the Court of Appeals of South Carolina, [ Footnote 23 ] quoted with approval by this Court in Watson v. Jones , 13 Wall. 679, 80 U. S. 730 : "The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority." The "establishment of religion" clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining Page 330 U. S. 16 or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." Reynolds v. United States, supra, at 98 U. S. 164 . We must consider the New Jersey statute in accordance with the foregoing limitations imposed by the First Amendment. But we must not strike that state statute down if it is within the State's constitutional power, even though it approaches the verge of that power. See Interstate Ry. v. Massachusetts, Holmes, J., supra, at 207 U. S. 85 , 207 U. S. 88 . New Jersey cannot, consistently with the "establishment of religion" clause of the First Amendment, contribute tax raised funds to the support of an institution which teaches the tenets and faith of any church. On the other hand, other language of the amendment commands that New Jersey cannot hamper its citizens in the free exercise of their own religion. Consequently, it cannot exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Nonbelievers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation. While we do not mean to intimate that a state could not provide transportation only to children attending public schools, we must be careful, in protecting the citizens of New Jersey against state-established churches, to be sure that we do not inadvertently prohibit New Jersey from extending its general state law benefits to all its citizens without regard to their religious belief. Page 330 U. S. 17 Measured by these standards, we cannot say that the First Amendment prohibits New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools. It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State. The same possibility exists where the state requires a local transit company to provide reduced fares to school children, including those attending parochial schools, [ Footnote 24 ] or where a municipally owned transportation system undertakes to carry all school children free of charge. Moreover, state-paid policemen, detailed to protect children going to and from church schools from the very real hazards of traffic, would serve much the same purpose and accomplish much the same result as state provisions intended to guarantee free transportation of a kind which the state deems to be best for the school children's welfare. And parents might refuse to risk their children to the serious danger of traffic accidents going to and from parochial schools the approaches to which were not protected by policemen. Similarly, parents might be reluctant to permit their children to attend schools which the state had cut off from such general government services as ordinary police and fire protection, connections for sewage disposal, public Page 330 U. S. 18 highways and sidewalks. Of course, cutting off church schools from these services so separate and so indisputably marked off from the religious function would make it far more difficult for the schools to operate. But such is obviously not the purpose of the First Amendment. That Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions than it is to favor them. This Court has said that parents may, in the discharge of their duty under state compulsory education laws, send their children to a religious, rather than a public, school if the school meets the secular educational requirements which the state has power to impose. See Pierce v. Society of Sisters, 26 U. S. 510 . It appears that these parochial schools meet New Jersey's requirements. The State contributes no money to the schools. It does not support them. Its legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here. Affirmed. [ Footnote 1 ] "Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school, including the transportation of school children to and from school other than a public school, except such school as is operated for profit in whole or in part." "When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part." New Jersey Laws, 1941, c.191, p. 581; N.J.R.S.Cum.Supp., tit. 18, c. 14,§ 8. [ Footnote 2 ] Appellant does not challenge the New Jersey statute or the resolution on the ground that either violates the equal protection clause of the Fourteenth Amendment by excluding payment for the transportation of any pupil who attends a "private school run for profit." Although the township resolution authorized reimbursement only for parents of Public and Catholic school pupils, appellant does not allege, nor is there anything in the record which would offer the slightest support to an allegation, that there were any children in the township who attended or would have attended, but for want of transportation, any but public and Catholic schools. It will be appropriate to consider the exclusion of students of private schools operated for profit when and if it is proved to have occurred, is made the basis of a suit by one in a position to challenge it, and New Jersey's highest court has ruled adversely to the challenger. Striking down a state law is not a matter of such light moment that it should be done by a federal court ex mero motu on a postulate neither charged nor proved, but which rests on nothing but a possibility. Cf. Liverpool, N.Y. & P. S.S. Co. v. Comm'rs of Emigration, 113 U. S. 33 , 113 U. S. 39 . [ Footnote 3 ] It might hold the excepting clause to be invalid, and sustain the statute with that clause excised. N.J.R.S., tit. 1, c. 1, § 10, provides with regard to any statute that, if "any provision thereof, shall be declared to be unconstitutional . . . in whole or in part, by a court of competent jurisdiction, such . . . article . . . shall, to the extent that it is not unconstitutional, . . . be enforced. . . ." The opinion of the Court of Errors and Appeals in this very case suggests that state law now authorizes transportation of all pupils. Its opinion stated: "Since we hold that the legislature may appropriate general state funds or authorize the use of local funds for the transportation of pupils to any school, we conclude that such authorization of the use of local funds is likewise authorized by Pamph.L. 1941, ch.191, and R.S. 18:7-78." 133 N.J.L. 350, 354, 44 A.2d 333, 337. (Italics supplied.) [ Footnote 4 ] See Reynolds v. United States, 98 U. S. 145 , 98 U. S. 162 ; cf. Knowlton v. Moore, 178 U. S. 41 , 178 U. S. 89 , 106. [ Footnote 5 ] See, e.g., Macaulay, History of England (1849) I, cc. 2, 4; The Cambridge Modern History (1908) V, cc. V, IX, XI; Beard, Rise of American Civilization (1933) I, 60; Cobb, Rise of Religious Liberty in America (1902) c. II; Sweet, The Story of Religion in America (1939) c. II; Sweet, Religion in Colonial America (1942) 320-322. [ Footnote 6 ] See e.g., the charter of the colony of Carolina, which gave the grantees the right of "patronage and advowsons of all the churches and chapels . . . together with licence and power to build and found churches, chapels and oratories . . . and to cause them to be dedicated and consecrated according to the ecclesiastical laws of our kingdom of England." Poore, Constitutions (1878) II, 1390, 1391. That of Maryland gave to the grantee Lord Baltimore "the Patronages, and Advowsons of all Churches which . . . shall happen to be built, together with Licence and Faculty of erecting and founding Churches, Chapels, and Places of Worship . . . and of causing the same to be dedicated and consecrated according to the Ecclesiastical Laws of our Kingdom of England, with all, and singular such, and as ample lights, Jurisdictions, Privileges, . . . as any Bishop . . . in our Kingdom of England, ever . . . hath had. . . ." MacDonald, Documentary Source Book of American History (1934) 31, 33. The Commission of New Hampshire of 1680, Poore, supra, II, 1277, stated: "And above all things We do by these presents will, require and comand our said Councill to take all possible care for ye discountenancing of vice and encouraging of virtue and good living, and that, by such examples ye infidle may be invited and desire to partake of ye Christian Religion, and for ye greater ease and satisfaction of ye sd loving subjects in matters of religion, We do hereby require and comand yt liberty of conscience shall be allowed unto all protestants; yt such especially as shall be conformable to ye rites of ye Church of Engd shall be particularly countenanced and encouraged." See also Pawlet v. Clark , 9 Cranch 292. [ Footnote 7 ] See, e.g., Semple, Baptists in Virginia (1894); Sweet, Religion in Colonial America, supra, at 131-152, 322-339. [ Footnote 8 ] Almost every colony exacted some kind of tax for church support. See e.g. Cobb, op. cit. supra, note 5 110 (Virginia); 131 (North Carolina); 169 (Massachusetts); 270 (Connecticut); 304, 310, 339 (New York); 386 (Maryland); 295 (New Hampshire). [ Footnote 9 ] Madison wrote to a friend in 1774: "That diabolical, hell-conceived principle of persecution rages among some. . . . This vexes me the worst of anything whatever. There are at this time in the adjacent country not less than five or six well meaning men in close jail for publishing their religious sentiments, which in the main are very orthodox. I have neither patience to hear, talk, or think of anything relative to this matter; for I have squabbled and scolded, abused and ridiculed, so long about it to little purpose, that I am without common patience. So I must beg you to pity me, and pray for liberty of conscience to all." I Writings of James Madison (1900) 18, 21. [ Footnote 10 ] Virginia's resistance to taxation for church support was crystallized in the famous "Parsons' Cause" argued by Patrick Henry in 1763. For an account, see Cobb, op. cit. supra, note 5 108-111. [ Footnote 11 ] II Writings of James Madison, 183. [ Footnote 12 ] In a recently discovered collection of Madison's papers, Madison recollected that his Remonstrance "met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part, and even of not a few of the Sect formerly established by law." Madison, Monopolies, Perpetuities, Corporations, Ecclesiastical Endowments, in Fleet, Madison's "Detached Memorandum," 3 William and Mary Q. (1946) 534, 551, 555. [ Footnote 13 ] For accounts of background and evolution of the Virginia Bill for Religious Liberty see, e.g., James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia: The Baptists (1900); Cobb, op. cit. supra, note 5 74-115; Madison, Monopolies, Perpetuities Corporations, Ecclesiastical Endowments, op. cit. supra, note 12 554, 556. [ Footnote 14 ] 12 Hening, Statutes of Virginia (1823) 84; Commager, Documents of American History (1944) 125. [ Footnote 15 ] Permoli v. New Orleans , 3 How. 589. Cf. 32 U. S. Baltimore, 7 Pet. 243. [ Footnote 16 ] For a collection of state constitutional provisions on freedom of religion see Gabel, Public Funds for Church and Private Schools (1937) 148-149. See also 2 Cooley, Constitutional Limitations (1927) 960-985. [ Footnote 17 ] Test provisions forbade officeholders to "deny . . . the truth of the Protestant religion," e.g., Constitution of North Carolina (1776) § XXXII, II Poore, supra, 1413. Maryland permitted taxation for support of the Christian religion and limited civil office to Christians until 1818, id. I, 819, 820, 832. [ Footnote 18 ] See Note 50 Yale L.J. (1941) 917; see also cases collected 14 L.R.A. 418; 5 A.L.R. 8, 9; 141 A.L.R. 1148. [ Footnote 19 ] See cases collected 14 L.R.A. 418; 5 A.L.R. 879; 141 A.L.R. 1148. [ Footnote 20 ] Ibid. See also Cooley, op. cit. supra, note 16 [ Footnote 21 ] Terrett v. Taylor , 9 Cranch 43; Watson v. Jones , 13 Wall. 679; Davis v. Beason, 133 U. S. 333 ; cf. Reynolds v. United States, supra, 98 U. S. 162 ; Reuben Quick Bear v. Leupp, 210 U. S. 50 . [ Footnote 22 ] Cantwell v. Connecticut, 310 U. S. 296 ; Jamison v. Texas, 318 U. S. 413 ; Largent v. Texas, 318 U. S. 418 ; Murdock v. Pennsylvania, supra; West Virginia State Board of Education v. Barnette, 319 U. S. 624 ; Follett v. McCormick, 321 U. S. 573 ; Marsh v. Alabama, 326 U. S. 501 . Cf. Bradfield v. Roberts, 175 U. S. 291 . [ Footnote 23 ] Harmon v. Dreher, Speer's Equity Reports (S.C. 1843), 87, 120. [ Footnote 24 ] New Jersey long ago permitted public utilities to charge school children reduced rates. See Public S. R. Co. v. Public Utility Comm'rs, 81 N. J L. 363, 80 A. 27 (1911); see also Interstate Ry. v. Massachusetts, supra. The District of Columbia Code requires that the new charter of the District public transportation company provide a three-cent fare "for school children . . . going to and from public, parochial, or like schools. . . ." 47 Stat. 752, 759. MR. JUSTICE JACKSON, dissenting. I find myself, contrary to first impressions, unable to join in this decision. I have a sympathy, though it is not ideological, with Catholic citizens who are compelled by law to pay taxes for public schools, and also feel constrained by conscience and discipline to support other schools for their own children. Such relief to them as Page 330 U. S. 19 this case involves is not, in itself, a serious burden to taxpayers, and I had assumed it to be as little serious in principle. Study of this case convinces me otherwise. The Court's opinion marshals every argument in favor of state aid, and puts the case in its most favorable light, but much of its reasoning confirms my conclusions that there are no good grounds upon which to support the present legislation. In fact, the undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion, yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, "whispering I will ne'er consent,' -- consented." I The Court sustains this legislation by assuming two deviations from the facts of this particular case; first, it assumes a state of facts the record does not support, and secondly, it refuses to consider facts which are inescapable on the record. The Court concludes that this "legislation, as applied, does no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools," and it draws a comparison between "state provisions intended to guarantee free transportation" for school children with services such as police and fire protection, and implies that we are here dealing with "laws authorizing new types of public services. . . ." This hypothesis permeates the opinion. The facts will not bear that construction. The Township of Ewing is not furnishing transportation to the children in any form; it is not operating school busses itself, or contracting for their operation, and it is not performing any public service of any kind with this Page 330 U. S. 20 taxpayer's money. All school children are left to ride as ordinary paying passengers on the regular busses operated by the public transportation system. What the Township does, and what the taxpayer complains of, is, at stated intervals, to reimburse parents for the fares paid, provided the children attend either public schools or Catholic Church schools. This expenditure of tax funds has no possible effect on the child's safety or expedition in transit. As passengers on the public busses, they travel as fast, and no faster, and are as safe, and no safer, since their parents are reimbursed, as before. In addition to thus assuming a type of service that does not exist, the Court also insists that we must close our eyes to a discrimination which does exist. The resolution which authorizes disbursement of this taxpayer's money limits reimbursement to those who attend public schools and Catholic schools. That is the way the Act is applied to this taxpayer. The New Jersey Act in question makes the character of the school, not the needs of the children, determine the eligibility of parents to reimbursement. The Act permits payment for transportation to parochial schools or public schools, but prohibits it to private schools operated in whole or in part for profit. Children often are sent to private schools because their parents feel that they require more individual instruction than public schools can provide, or because they are backward or defective, and need special attention. If all children of the state were objects of impartial solicitude, no reason is obvious for denying transportation reimbursement to students of this class, for these often are as needy and as worthy as those who go to public or parochial schools. Refusal to reimburse those who attend such schools is understandable only in the light of a purpose to aid the schools, because the state might well abstain from aiding a profit-making private enterprise. Thus, under the Act Page 330 U. S. 21 and resolution brought to us by this case, children are classified according to the schools they attend, and are to be aided if they attend the public schools or private Catholic schools, and they are not allowed to be aided if they attend private secular schools or private religious schools of other faiths. Of course, this case is not one of a Baptist or a Jew or an Episcopalian or a pupil of a private school complaining of discrimination. It is one of a taxpayer urging that he is being taxed for an unconstitutional purpose. I think he is entitled to have us consider the Act just as it is written. The statement by the New Jersey court that it holds the Legislature may authorize use of local funds "for the transportation of pupils to any school," 133 N.J.L. 350, 354, 44 A.2d 333, 337, in view of the other constitutional views expressed, is not a holding that this Act authorizes transportation of all pupils to all schools. As applied to this taxpayer by the action he complains of, certainly the Act does not authorize reimbursement to those who choose any alternative to the public school except Catholic Church schools. If we are to decide this case on the facts before us, our question is simply this: is it constitutional to tax this complainant to pay the cost of carrying pupils to Church schools of one specified denomination? II Whether the taxpayer constitutionally can be made to contribute aid to parents of students because of their attendance at parochial schools depends upon the nature of those schools and their relation to the Church. The Constitution says nothing of education. It lays no obligation on the states to provide schools, and does not undertake to regulate state systems of education if they see fit to maintain them. But they cannot, through school policy any more than through other means, invade rights secured Page 330 U. S. 22 to citizens by the Constitution of the United States. West Virginia State Board of Education v. Barnette, 319 U. S. 624 . One of our basic rights is to be free of taxation to support a transgression of the constitutional command that the authorities "shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." U.S.Const., Amend. I; Cantwell v. Connecticut, 310 U. S. 296 . The function of the Church school is a subject on which this record is meager. It shows only that the schools are under superintendence of a priest, and that "religion is taught as part of the curriculum." But we know that such schools are parochial only in name -- they, in fact, represent a worldwide and age-old policy of the Roman Catholic Church. Under the rubric "Catholic Schools," the Canon Law of the Church, by which all Catholics are bound, provides: "1215. Catholic children are to be educated in schools where not only nothing contrary to Catholic faith and morals is taught, but rather in schools where religious and moral training occupy the first place. . . . (Canon 1372.)" "1216. In every elementary school, the children must, according to their age, be instructed in Christian doctrine." "The young people who attend the higher schools are to receive a deeper religious knowledge, and the bishops shall appoint priests qualified for such work by their learning and piety. (Canon 1373.)" "1217. Catholic children shall not attend non-Catholic, indifferent schools that are mixed, that is to say, schools open to Catholics and non-Catholics alike. The bishop of the diocese only has the right, in harmony with the instructions of the Holy See, to decide under what circumstances, and with what safeguards Page 330 U. S. 23 to prevent loss of faith, it may be tolerated that Catholic children go to such schools. (Canon 1374.)" "1224. The religious teaching of youth in any schools is subject to the authority and inspection of the Church." "The local Ordinaries have the right and duty to watch that nothing is taught contrary to faith or good morals in any of the schools of their territory." "They, moreover, have the right to approve the books of Christian doctrine and the teachers of religion, and to demand, for the sake of safeguarding religion and morals, the removal of teachers and books. (Canon 1381.)" (Woywod, Rev. Stanislaus, The New Canon Law, under imprimatur of Most Rev. Francis J. Spellman, Archbishop of New York and others, 1940.) It is no exaggeration to say that the whole historic conflict in temporal policy between the Catholic Church and non-Catholics comes to a focus in their respective school policies. The Roman Catholic Church, counseled by experience in many ages and many lands and with all sorts and conditions of men, takes what, from the viewpoint of its own progress and the success of its mission, is a wise estimate of the importance of education to religion. It does not leave the individual to pick up religion by chance. It relies on early and indelible indoctrination in the faith and order of the Church by the word and example of persons consecrated to the task. Our public school, if not a product of Protestantism, at least is more consistent with it than with the Catholic culture and scheme of values. It is a relatively recent development, dating from about 1840. * It is organized on Page 330 U. S. 24 the premise that secular education can be isolated from all religious teaching, so that the school can inculcate all needed temporal knowledge and also maintain a strict and lofty neutrality as to religion. The assumption is that, after the individual has been instructed in worldly wisdom, he will be better fitted to choose his religion. Whether such a disjunction is possible, and, if possible, whether it is wise, are questions I need not try to answer. I should be surprised if any Catholic would deny that the parochial school is a vital, if not the most vital, part of the Roman Catholic Church. If put to the choice, that venerable institution, I should expect, would forego its whole service for mature persons before it would give up education of the young, and it would be a wise choice. Its growth and cohesion, discipline and loyalty, spring from its schools. Catholic education is the rock on which the whole structure rests, and to render tax aid to its Church school is indistinguishable to me from rendering the same aid to the Church itself. III It is of no importance in this situation whether the beneficiary of this expenditure of tax raised funds is primarily the parochial school and incidentally the pupil, or whether the aid is directly bestowed on the pupil, with indirect benefits to the school. The state cannot maintain a Church, and it can no more tax its citizens to furnish free carriage to those who attend a Church. The prohibition against establishment of religion cannot be circumvented by a subsidy, bonus or reimbursement of expense to individuals for receiving religious instruction and indoctrination. The Court, however, compares this to other subsidies and loans to individuals, and says, "Nor does it follow that a law has a private, rather than a public, purpose because Page 330 U. S. 25 it provides that tax raised funds will be paid to reimburse individuals on account of money spent by them in a way which furthers a public program. See Carmichael v. Southern Coal & Coke Co., 301 U. S. 495 , 301 U. S. 518 ." Of course, the state may pay out tax raised funds to relieve pauperism, but it may not, under our Constitution, do so to induce or reward piety. It may spend funds to secure old age against want, but it may not spend funds to secure religion against skepticism. It may compensate individuals for loss of employment, but it cannot compensate them for adherence to a creed. It seems to me that the basic fallacy in the Court's reasoning, which accounts for its failure to apply the principles it avows, is in ignoring the essentially religious test by which beneficiaries of this expenditure are selected. A policeman protects a Catholic, of course, -- but not because he is a Catholic; it is because he is a man, and a member of our society. The fireman protects the Church school -- but not because it is a Church school; it is because it is property, part of the assets of our society. Neither the fireman nor the policeman has to ask before he renders aid, "is this man or building identified with the Catholic Church?" But, before these school authorities draw a check to reimburse for a student's fare, they must ask just that question, and, if the school is a Catholic one, they may render aid because it is such, while if it is of any other faith or is run for profit, the help must be withheld. To consider the converse of the Court's reasoning will best disclose its fallacy. That there is no parallel between police and fire protection and this plan of reimbursement is apparent from the incongruity of the limitation of this Act if applied to police and fire service. Could we sustain an Act that said the police shall protect pupils on the way to or from public schools and Catholic schools, but not Page 330 U. S. 26 while going to and coming from other schools, and firemen shall extinguish a blaze in public or Catholic school buildings, but shall not put out a blaze in Protestant Church schools or private schools operated for profit? That is the true analogy to the case we have before us, and I should think it pretty plain that such a scheme would not be valid. The Court's holding is that this taxpayer has no grievance, because the state has decided to make the reimbursement a public purpose, and therefore we are bound to regard it as such. I agree that this Court has left, and always should leave, to each state great latitude in deciding for itself, in the light of its own conditions, what shall be public purposes in its scheme of things. It may socialize utilities and economic enterprises and make taxpayers' business out of what conventionally had been private business. It may make public business of individual welfare, health, education, entertainment or security. But it cannot make public business of religious worship or instruction, or of attendance at religious institutions of any character. There is no answer to the proposition, more fully expounded by MR. JUSTICE RUTLEDGE, that the effect of the religious freedom Amendment to our Constitution was to take every form of propagation of religion out of the realm of things which could directly or indirectly be made public business, and thereby be supported in whole or in part at taxpayers' expense. That is a difference which the Constitution sets up between religion and almost every other subject matter of legislation, a difference which goes to the very root of religious freedom and which the Court is overlooking today. This freedom was first in the Bill of Rights because it was first in the forefathers' minds; it was set forth in absolute terms, and its strength is its rigidity. It was intended not only to keep the states' hands out of religion, but to Page 330 U. S. 27 keep religion's hands off the state, and, above all, to keep bitter religious controversy out of public life by denying to every denomination any advantage from getting control of public policy or the public purse. Those great ends, I cannot but think, are immeasurably compromised by today's decision. This policy of our Federal Constitution has never been wholly pleasing to most religious groups. They all are quick to invoke its protections; they all are irked when they feel its restraints. This Court has gone a long way, if not an unreasonable way, to hold that public business of such paramount importance as maintenance of public order, protection of the privacy of the home, and taxation may not be pursued by a state in a way that even indirectly will interfere with religious proselyting. See dissent in Douglas v. Jeannette, 319 U. S. 157 , 319 U. S. 166 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Martin v. Struthers, 319 U. S. 141 ; Jones v. Opelika, 316 U. S. 584 , reversed on rehearing, 319 U. S. 103 . But we cannot have it both ways. Religious teaching cannot be a private affair when the state seeks to impose regulations which infringe on it indirectly, and a public affair when it comes to taxing citizens of one faith to aid another, or those of no faith to aid all. If these principles seem harsh in prohibiting aid to Catholic education, it must not be forgotten that it is the same Constitution that alone assures Catholics the right to maintain these schools at all when predominant local sentiment would forbid them. Pierce v. Society of Sisters, 268 U. S. 510 . Nor should I think that those who have done so well without this aid would want to see this separation between Church and State broken down. If the state may aid these religious schools, it may therefore regulate them. Many groups have sought aid from tax funds, only to find that it carried political controls with it. Indeed, this Court has Page 330 U. S. 28 declared that "It is hardly lack of due process for the Government to regulate that which it subsidizes." Wickard v. Filburn, 317 U. S. 111 , 317 U. S. 131 . But, in any event, the great purposes of the Constitution do not depend on the approval or convenience of those they restrain. I cannot read the history of the struggle to separate political from ecclesiastical affairs, well summarized in the opinion of MR. JUSTICE RUTLEDGE, in which I generally concur, without a conviction that the Court today is unconsciously giving the clock's hands a backward turn. MR. JUSTICE FRANKFURTER joins in this opinion. * See Cubberley, Public Education in the United States (1934) ch. VI; Knight, Education in the United States (1941) ch. VIII. MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE FRANKFURTER, MR. JUSTICE JACKSON and MR. JUSTICE BURTON agree, dissenting. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." U.S.Const., Amend. I. ------- "Well aware that Almighty God hath created the mind free; . . . that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; . . . ." " We, the General Assembly, do enact, That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief. . . . [ Footnote 2/1 ] " Page 330 U. S. 29 I cannot believe that the great author of those words, or the men who made them law, could have joined in this decision. Neither so high nor so impregnable today as yesterday is the wall raised between church and state by Virginia's great statute of religious freedom and the First Amendment, now made applicable to all the states by the Fourteenth. [ Footnote 2/2 ] New Jersey's statute sustained is the first, if indeed it is not the second, breach to be made by this Court's action. That a third, and a fourth, and still others will be attempted we may be sure. For just as Cochran v. Board of Education, 281 U. S. 370 , has opened the way by oblique ruling [ Footnote 2/3 ] for this decision, so will the two make wider the breach for a third. Thus, with time, the most solid freedom steadily gives way before continuing corrosive decision. This case forces us to determine squarely for the first time [ Footnote 2/4 ] what was "an establishment of religion" in the First Amendment's conception, and by that measure to decide whether New Jersey's action violates its command. The facts may be stated shortly, to give setting and color to the constitutional problem. By statute, New Jersey has authorized local boards of education to provide for the transportation of children "to and from school other than a public school" except one Page 330 U. S. 30 operated for profit wholly or in part, over established public school routes, or by other means, when the child lives "remote from any school." [ Footnote 2/5 ] The school board of Ewing Township has provided by resolution for "the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier. . . ." [ Footnote 2/6 ] Named parents have paid the cost of public conveyance of their children from their homes in Ewing to three public high schools and four parochial schools outside the district. [ Footnote 2/7 ] Semiannually, the Board has reimbursed the parents from public school funds raised by general taxation. Religion is taught as part of the curriculum in each Page 330 U. S. 31 of the four private schools, as appears affirmatively by the testimony of the superintendent of parochial schools in the Diocese of Trenton. The Court of Errors and Appeals of New Jersey, reversing the Supreme Court's decision, 132 N.J.L. 98, 39 A.2d 75, has held the Ewing board's action not in contravention of the state constitution or statutes or of the Federal Constitution. 133 N.J.L. 350, 44 A.2d 333. We have to consider only whether this ruling accords with the prohibition of the First Amendment implied in the due process clause of the Fourteenth. I Not simply an established church, but any law respecting an establishment of religion, is forbidden. The Amendment was broadly, but not loosely, phrased. It is the compact and exact summation of its author's views formed during his long struggle for religious freedom. In Madison's own words characterizing Jefferson's Bill for Establishing Religious Freedom, the guaranty he put in our national charter, like the bill he piloted through the Virginia Assembly, was "a Model of technical precision, and perspicuous brevity." [ Footnote 2/8 ] Madison could not have confused "church" and "religion," or "an established church" and "an establishment of religion." The Amendment's purpose was not to strike merely at the official establishment of a single sect, creed or religion, outlawing only a formal relation such as had prevailed in England and some of the colonies. Necessarily, it was to uproot all such relationships. But the object was broader than separating church and state in this narrow sense. It was to create a complete and permanent separation of the Page 330 U. S. 32 spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion. In proof, the Amendment's wording and history unite with this Court's consistent utterances whenever attention has been fixed directly upon the question. "Religion" appears only once in the Amendment. But the word governs two prohibitions, and governs them alike. It does not have two meanings, one narrow, to forbid "an establishment," and another much broader, for securing "the free exercise thereof." "Thereof" brings down "religion" with its entire and exact content, no more and no less, from the first into the second guaranty, so that Congress, and now the states, are as broadly restricted concerning the one as they are regarding the other. No one would claim today that the Amendment is constricted, in "prohibiting the free exercise" of religion, to securing the free exercise of some formal or creedal observance, of one sect or of many. It secures all forms of religious expression, creedal, sectarian or nonsectarian, wherever and however taking place, except conduct which trenches upon the like freedoms of others or clearly and presently endangers the community's good order and security. [ Footnote 2/9 ] For the protective purposes of this phase of the basic freedom, street preaching, oral or by distribution of Page 330 U. S. 33 literature, has been given "the same high estate under the First Amendment as . . . worship in the churches and preaching from the pulpits." [ Footnote 2/10 ] And on this basis, parents have been held entitled to send their children to private religious schools. Pierce v. Society of Sisters, 268 U. S. 510 . Accordingly, daily religious education commingled with secular is "religion" within the guaranty's comprehensive scope. So are religious training and teaching in whatever form. The word connotes the broadest content, determined not by the form or formality of the teaching or where it occurs, but by its essential nature, regardless of those details. "Religion" has the same broad significance in the twin prohibition concerning "an establishment." The Amendment was not duplicitous. "Religion" and "establishment" were not used in any formal or technical sense. The prohibition broadly forbids state support, financial or other, of religion in any guise, form or degree. It outlaws all use of public funds for religious purposes. II No provision of the Constitution is more closely tied to or given content by its generating history than the religious clause of the First Amendment. It is at once the refined product and the terse summation of that history. The history includes not only Madison's authorship and the proceedings before the First Congress, but also the long and intensive struggle for religious freedom in America, more especially in Virginia, [ Footnote 2/11 ] of which the Amendment Page 330 U. S. 34 was the direct culmination. [ Footnote 2/12 ] In the documents of the times, particularly of Madison, who was leader in the Virginia struggle before he became the Amendment's sponsor, but also in the writings of Jefferson and others and in the issues which engendered them is to be found irrefutable confirmation of the Amendment's sweeping content. For Madison, as also for Jefferson, religious freedom was the crux of the struggle for freedom in general. Remonstrance, Par. 15, 330 U.S. 1 app|>Appendix hereto. Madison was coauthor with George Mason of the religious clause in Virginia's great Declaration of Rights of 1776. He is credited with changing it from a mere statement of the principle of tolerance to the first official legislative pronouncement that freedom of conscience and religion are inherent rights of the individual. [ Footnote 2/13 ] He sought also to have the Declaration Page 330 U. S. 35 expressly condemn the existing Virginia establishment. [ Footnote 2/14 ] But the forces supporting it were then too strong. Accordingly, Madison yielded on this phase, but not for long. At once, he resumed the fight, continuing it before succeeding legislative sessions. As a member of the General Assembly in 1779, he threw his full weight behind Jefferson's historic Bill for Establishing Religious Freedom. That bill was a prime phase of Jefferson's broad program of democratic reform undertaken on his return from the Continental Congress in 1776 and submitted for the General Assembly's consideration in 1779 as his proposed revised Virginia code. [ Footnote 2/15 ] With Jefferson's departure for Europe in 1784, Madison became the Bill's prime Page 330 U. S. 36 sponsor. [ Footnote 2/16 ] Enactment failed in successive legislatures from its introduction in June, 1779, until its adoption in January, 1786. But, during all this time, the fight for religious freedom moved forward in Virginia on various fronts with growing intensity. Madison led throughout, against Patrick Henry's powerful opposing leadership until Henry was elected governor in November, 1784. The climax came in the legislative struggle of 1784-1785 over the Assessment Bill. See Supplemental 330 U.S. 1 app2|>Appendix hereto. This was nothing more nor less than a taxing measure for the support of religion, designed to revive the payment of tithes suspended since 1777. So long as it singled out a particular sect for preference, it incurred the active and general hostility of dissentient groups. It was broadened to include them, with the result that some subsided temporarily in their opposition. [ Footnote 2/17 ] As altered, the bill gave to each taxpayer the privilege of designating which church should receive his share of the tax. In default of designation, the legislature applied it to pious uses. [ Footnote 2/18 ] But what is of the utmost significance here, "in Page 330 U. S. 37 its final form, the bill left the taxpayer the option of giving his tax to education." [ Footnote 2/19 ] Madison was unyielding at all times, opposing with all his vigor the general and nondiscriminatory, as he had the earlier particular and discriminatory, assessments proposed. The modified Assessment Bill passed second reading in December, 1784, and was all but enacted. Madison and his followers, however, maneuvered deferment of final consideration until November, 1785. And, before the Assembly reconvened in the fall, he issued his historic Memorial and Remonstrance. [ Footnote 2/20 ] This is Madison's complete, though not his only, interpretation of religious liberty. [ Footnote 2/21 ] It is a broadside attack upon all forms of "establishment" of religion, both general and particular, nondiscriminatory or selective. Reflecting not only the many legislative conflicts over the Assessment Bill and the Bill for Establishing Religious Freedom, but also, for example, the struggles for religious incorporations and the continued maintenance of the glebes, the Remonstrance is at once the most concise and the most accurate statement of the views of the First Amendment's author concerning what is "an establishment of religion." Because it behooves us in the dimming distance of time not Page 330 U. S. 38 to lose sight of what he and his coworkers had in mind when, by a single sweeping stroke of the pen, they forbade an establishment of religion and secured its free exercise, the text of the Remonstrance is 330 U.S. 1 app|>appended at the end of this opinion for its wider current reference, together with a copy of the bill against which it was directed. The Remonstrance, stirring up a storm of popular protest, killed the Assessment Bill. [ Footnote 2/22 ] It collapsed in committee shortly before Christmas, 1785. With this, the way was cleared at last for enactment of Jefferson's Bill for Establishing Religious Freedom. Madison promptly drove it through in January of 1786, seven years from the time it was first introduced. This dual victory substantially ended the fight over establishments, settling the issue against them. See 330 U.S. 1 fn2/33|>note 33. The next year, Madison became a member of the Constitutional Convention. Its work done, he fought valiantly to secure the ratification of its great product in Virginia, as elsewhere, and nowhere else more effectively. [ Footnote 2/23 ] Madison was certain in his own mind that, under the Constitution "there is not a shadow of right in the general government to intermeddle with religion," [ Footnote 2/24 ] and that "this subject is, for the honor of America, perfectly free and Page 330 U. S. 39 unshackled. The government has no jurisdiction over it. . . ." [ Footnote 2/25 ] Nevertheless he pledged that he would work for a Bill of Rights, including a specific guaranty of religious freedom, and Virginia, with other states, ratified the Constitution on this assurance. [ Footnote 2/26 ] Ratification thus accomplished, Madison was sent to the first Congress. There he went at once about performing his pledge to establish freedom for the nation as he had done in Virginia. Within a little more than three years from his legislative victory at home, he had proposed and secured the submission and ratification of the First Amendment as the first article of our Bill of Rights. [ Footnote 2/27 ] All the great instruments of the Virginia struggle for religious liberty thus became warp and woof of our constitutional tradition, not simply by the course of history, but by the common unifying force of Madison's life, thought and sponsorship. He epitomized the whole of that tradition in the Amendment's compact, but nonetheless comprehensive, phrasing. As the Remonstrance discloses throughout, Madison opposed every form and degree of official relation between religion and civil authority. For him, religion was a wholly private matter beyond the scope of civil power Page 330 U. S. 40 either to restrain or to support. [ Footnote 2/28 ] Denial or abridgment of religious freedom was a violation of rights both of conscience and of natural equality. State aid was no less obnoxious or destructive to freedom and to religion itself than other forms of state interference. "Establishment" and "free exercise" were correlative and coextensive ideas, representing only different facets of the single great and fundamental freedom. The Remonstrance, following the Virginia statute's example, referred to the history of religious conflicts and the effects of all sorts of establishments, current and historical, to suppress religion's free exercise. With Jefferson, Madison believed that to tolerate any fragment of establishment would be by so much to perpetuate restraint upon that freedom. Hence, he sought to tear out the institution not partially, but root and branch, and to bar its return forever. In no phase was he more unrelentingly absolute than in opposing state support or aid by taxation. Not even "three pence" contribution was thus to be exacted from any citizen for such a purpose. Remonstrance, Par. 3. [ Footnote 2/29 ] Page 330 U. S. 41 Tithes had been the lifeblood of establishment before and after other compulsions disappeared. Madison and his coworkers made no exceptions or abridgments to the complete separation they created. Their objection was not to small tithes. It was to any tithes whatsoever. "If it were lawful to impose a small tax for religion, the admission would pave the way for oppressive levies." [ Footnote 2/30 ] Not the amount, but "the principle of assessment, was wrong." And the principle was as much to prevent "the interference of law in religion" as to restrain religious intervention in political matters. [ Footnote 2/31 ] In this field, the authors of our freedom would not tolerate "the first experiment on our liberties" or "wait till usurped power had strengthened itself by exercise, and entangled the question in precedents." Remonstrance, Par. 3. Nor should we. In view of this history, no further proof is needed that the Amendment forbids any appropriation, large or small, from public funds to aid or support any and all religious exercises. But if more were called for, the debates in the First Congress and this Court's consistent expressions, whenever it has touched on the matter directly, [ Footnote 2/32 ] supply it. Page 330 U. S. 42 By contrast with the Virginia history, the congressional debates on consideration of the Amendment reveal only sparse discussion, reflecting the fact that the essential issues had been settled. [ Footnote 2/33 ] Indeed, the matter had become so well understood as to have been taken for granted in all but formal phrasing. Hence, the only enlightening reference shows concern not to preserve any power to use public funds in aid of religion, but to prevent the Amendment from outlawing private gifts inadvertently by virtue of the breadth of its wording. [ Footnote 2/34 ] In the Page 330 U. S. 43 margin are noted also the principal decisions in which expressions of this Court confirm the Amendment's broad prohibition. [ Footnote 2/35 ] Page 330 U. S. 44 III . Compulsory attendance upon religious exercises went out early in the process of separating church and state, together with forced observance of religious forms and ceremonies. [ Footnote 2/36 ] Test oaths and religious qualification for office followed later. [ Footnote 2/37 ] These things none devoted to our great tradition of religious liberty would think of bringing back. Hence, today, apart from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious surviving threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through use of the taxing power to support religion, religious establishments, or establishments having a religious foundation, whatever their form or special religious function. Does New Jersey's action furnish support for religion by use of the taxing power? Certainly it does, if the test remains undiluted as Jefferson and Madison made it, that money taken by taxation from one is not to be used or given to support another's religious training or belief, or indeed one's own. [ Footnote 2/38 ] Today, as then, the furnishing of "contributions Page 330 U. S. 45 of money for the propagation of opinions which he disbelieves" is the forbidden exaction, and the prohibition is absolute for whatever measure brings that consequence and whatever amount may be sought or given to that end. The funds used here were raised by taxation. The Court does not dispute, nor could it, that their use does, in fact, give aid and encouragement to religious instruction. It only concludes that this aid is not "support" in law. But Madison and Jefferson were concerned with aid and support in fact, not as a legal conclusion "entangled in precedents." Remonstrance, Par. 3. Here, parents pay money to send their children to parochial schools, and funds raised by taxation are used to reimburse them. This not only helps the children to get to school and the parents to send them. It aids them in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching. Believers of all faiths, and others who do not express their feeling toward ultimate issues of existence in any creedal form, pay the New Jersey tax. When the money so raised is used to pay for transportation to religious schools, the Catholic taxpayer, to the extent of his proportionate share, pays for the transportation of Lutheran, Jewish and otherwise religiously affiliated children to receive their non-Catholic religious instruction. Their parents likewise pay proportionately for the transportation of Catholic children to receive Catholic instruction. Each thus contributes to "the propagation of opinions which he disbelieves" in so far as their religions differ, as do others who accept no creed without regard to those differences. Each Page 330 U. S. 46 thus pays taxes also to support the teaching of his own religion, an exaction equally forbidden, since it denies "the comfortable liberty" of giving one's contribution to the particular agency of instruction he approves. [ Footnote 2/39 ] New Jersey's action therefore exactly fits the type of exaction and the kind of evil at which Madison and Jefferson struck. Under the test they framed, it cannot be said that the cost of transportation is no part of the cost of education or of the religious instruction given. That it is a substantial and a necessary element is shown most plainly by the continuing and increasing demand for the state to assume it. Nor is there pretense that it relates only to the secular instruction given in religious schools, or that any attempt is or could be made toward allocating proportional shares as between the secular and the religious instruction. It is precisely because the instruction is religious and relates to a particular faith, whether one or another, that parents send their children to religious schools under the Pierce doctrine. And the very purpose of the state's contribution is to defray the cost of conveying the pupil to the place where he will receive not simply secular, but also and primarily religious, teaching and guidance. Indeed, the view is sincerely avowed by many of various faiths, [ Footnote 2/40 ] that the basic purpose of all education is or should be religious, that the secular cannot be and should not be separated from the religious phase and emphasis. Hence Page 330 U. S. 47 the inadequacy of public or secular education and the necessity for sending the child to a school where religion is taught. But whatever may be the philosophy or its justification, there is undeniably an admixture of religious with secular teaching in all such institutions. That is the very reason for their being. Certainly, for purposes of constitutionality, we cannot contradict the whole basis of the ethical and educational convictions of people who believe in religious schooling. Yet this very admixture is what was disestablished when the First Amendment forbade "an establishment of religion." Commingling the religious with the secular teaching does not divest the whole of its religious permeation and emphasis, or make them of minor part, if proportion were material. Indeed, on any other view, the constitutional prohibition always could be brought to naught by adding a modicum of the secular. An appropriation from the public treasury to pay the cost of transportation to Sunday school, to weekday special classes at the church or parish house, or to the meetings of various young people's religious societies, such as the YMCA, the YWCA, the YMHA, the Epworth League, could not withstand the constitutional attack. This would be true whether or not secular activities were mixed with the religious. If such an appropriation could not stand, then it is hard to see how one becomes valid for the same thing upon the more extended scale of daily instruction. Surely constitutionality does not turn on where or how often the mixed teaching occurs. Finally, transportation, where it is needed, is as essential to education as any other element. Its cost is as much a part of the total expense, except at times in amount, as the cost of textbooks, of school lunches, of athletic equipment, of writing and other materials; indeed, of all other Page 330 U. S. 48 items composing the total burden. Now, as always, the core of the educational process is the teacher-pupil relationship. Without this, the richest equipment and facilities would go for naught. See Judd v. Board of Education, 278 N.Y. 200, 212, 15 N.E.2d 576, 582. But the proverbial Mark Hopkins conception no longer suffices for the country's requirements. Without buildings, without equipment, without library, textbooks and other materials, and without transportation to bring teacher and pupil together in such an effective teaching environment, there can be not even the skeleton of what our times require. Hardly can it be maintained that transportation is the least essential of these items, or that it does not, in fact, aid, encourage, sustain and support, just as they do, the very process which is its purpose to accomplish. No less essential is it, or the payment of its cost, than the very teaching in the classroom or payment of the teacher's sustenance. Many types of equipment, now considered essential, better could be done without. For me, therefore, the feat is impossible to select so indispensable an item from the composite of total costs and characterize it as not aiding, contributing to, promoting or sustaining the propagation of beliefs which it is the very end of all to bring about. Unless this can be maintained, and the Court does not maintain it, the aid thus given is outlawed. Payment of transportation is no more, nor is it any the less, essential to education, whether religious or secular, than payment for tuitions, for teachers' salaries, for buildings, equipment, and necessary materials. Nor is it any the less directly related, in a school giving religious instruction, to the primary religious objective all those essential items of cost are intended to achieve. No rational line can be drawn between payment for such larger, but not more necessary, items and payment for transportation. The only line that can be so drawn is one between more dollars and less. Certainly, in this Page 330 U. S. 49 realm, such a line can be no valid constitutional measure. Murdock v. Pennsylvania, 319 U. S. 105 ; Thomas v. Collins, 323 U. S. 516 . [ Footnote 2/41 ] Now, as in Madison's time, not the amount, but the principle, of assessment is wrong. Remonstrance, Par. 3. IV But we are told that the New Jersey statute is valid in its present application because the appropriation is for a public, not a private, purpose, namely, the promotion of education, and the majority accept this idea in the conclusion that all we have here is "public welfare legislation." If that is true, and the Amendment's force can be thus destroyed, what has been said becomes all the more pertinent. For then there could be no possible objection to more extensive support of religious education by New Jersey. If the fact alone be determinative that religious schools are engaged in education, thus promoting the general and individual welfare, together with the legislature's decision that the payment of public moneys for their aid makes their work a public function, then I can see no possible basis, except one of dubious legislative policy, for the state's refusal to make full appropriation for support of private, religious schools, just as is done for public Page 330 U. S. 50 instruction. There could not be, on that basis, valid constitutional objection. [ Footnote 2/42 ] Of course, paying the cost of transportation promotes the general cause of education and the welfare of the individual. So does paying all other items of educational expense. And obviously, as the majority say, it is much too late to urge that legislation designed to facilitate the opportunities of children to secure a secular education serves no public purpose. Our nationwide system of public education rests on the contrary view, as do all grants in aid of education, public or private, which is not religious in character. These things are beside the real question. They have no possible materiality except to obscure the all-pervading, inescapable issue. Cf. Cochran v. Board of Education, supra. Stripped of its religious phase, the case presents no substantial federal question. Ibid. The public function argument, by casting the issue in terms of promoting the general cause of education and the welfare of the individual, ignores the religious factor and its essential connection with the transportation, thereby leaving out the only vital element in the case. So, of course, do the "public welfare" and "social legislation" ideas, for they come to the same thing. Page 330 U. S. 51 We have here, then, one substantial issue, not two. To say that New Jersey's appropriation and her use of the power of taxation for raising the funds appropriated are not for public purposes, but are for private ends, is to say that they are for the support of religion and religious teaching. Conversely, to say that they are for public purposes is to say that they are not for religious ones. This is precisely for the reason that education which includes religious training and teaching, and its support, have been made matters of private right and function, not public, by the very terms of the First Amendment. That is the effect not only in its guaranty of religion's free exercise, but also in the prohibition of establishments. It was on this basis of the private character of the function of religious education that this Court held parents entitled to send their children to private, religious schools. Pierce v. Society of Sisters, supra. Now it declares, in effect, that the appropriation of public funds to defray part of the cost of attending those schools is for a public purpose. If so, I do not understand why the state cannot go farther, or why this case approaches the verge of its power. In truth, this view contradicts the whole purpose and effect of the First Amendment as heretofore conceived. The "public function" -- "public welfare" -- "social legislation" argument seeks, in Madison's words, to "employ Religion [that is, here, religious education] as an engine of Civil policy." Remonstrance, Par. 5. It is of one piece with the Assessment Bill's preamble, although with the vital difference that it wholly ignores what that preamble explicitly states. [ Footnote 2/43 ] Page 330 U. S. 52 Our constitutional policy is exactly the opposite. It does not deny the value or the necessity for religious training, teaching or observance. Rather, it secures their free exercise. But, to that end, it does deny that the state can undertake or sustain them in any form or degree. For this reason, the sphere of religious activity, as distinguished from the secular intellectual liberties, has been given the two-fold protection, and, as the state cannot forbid, neither can it perform or aid in performing, the religious function. The dual prohibition makes that function altogether private. It cannot be made a public one by legislative act. This was the very heart of Madison's Remonstrance, as it is of the Amendment itself. It is not because religious teaching does not promote the public or the individual's welfare, but because neither is furthered when the state promotes religious education, that the Constitution forbids it to do so. Both legislatures and courts are bound by that distinction. In failure to observe it lies the fallacy of the "public function"/"social legislation" argument, a fallacy facilitated by easy transference of the argument's basing from due process unrelated to any religious aspect to the First Amendment. By no declaration that a gift of public money to religious uses will promote the general or individual welfare, or the cause of education generally, can legislative bodies overcome the Amendment's bar. Nor may the courts sustain their attempts to do so by finding such consequences for appropriations which, in fact, give aid to or promote religious uses. Cf. Norris v. Alabama, 294 U. S. 587 , 294 U. S. 590 ; Hooven & Allison Co. v. Evatt, 324 U. S. 652 , 324 U. S. 659 ; Akins v. Texas, 325 U. S. 398 , 325 U. S. 402 . Legislatures are free to make, Page 330 U. S. 53 and courts to sustain, appropriations only when it can be found that, in fact, they do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small. No such finding has been or could be made in this case. The Amendment has removed this form of promoting the public welfare from legislative and judicial competence to make a public function. It is exclusively a private affair. The reasons underlying the Amendment's policy have not vanished with time or diminished in force. Now as when it was adopted, the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8. [ Footnote 2/44 ] The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation, it vanishes with the resting. Id. Par. 7, 8. [ Footnote 2/45 ] Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings, too, the struggle of sect against sect for the larger share, or for any. Here, one by numbers alone will benefit most; there, another. That is precisely the history of societies which have had an established religion and dissident Page 330 U. S. 54 groups. Id., Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit, or all will embroil the state in their dissensions. Id., Par. 11. [ Footnote 2/46 ] Exactly such conflicts have centered of late around providing transportation to religious schools from public funds. [ Footnote 2/47 ] The issue and the dissension work typically, in Madison's phrase, to "destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion, has produced amongst its several sects." Id., Par. 11. This occurs, as he well knew, over measures Page 330 U. S. 55 at the very threshold of departure from the principle. Id., Par. 3, 9, 11. In these conflicts, wherever success has been obtained, it has been upon the contention that, by providing the transportation, the general cause of education, the general welfare, and the welfare of the individual will be forwarded; hence, that the matter lies within the realm of public function, for legislative determination. [ Footnote 2/48 ] State courts have divided upon the issue, some taking the view that only the individual, others that the institution, receives the benefit. [ Footnote 2/49 ] A few have recognized that this dichotomy is false -- that both, in fact, are aided. [ Footnote 2/50 ] Page 330 U. S. 56 The majority here does not accept, in terms, any of those views. But neither does it deny that the individual or the school, or indeed both, are benefited directly and substantially. [ Footnote 2/51 ] To do so would cut the ground from under the public function/social legislation thesis. On the contrary, the opinion concedes that the children are aided by being helped to get to the religious schooling. By converse necessary implication, as well as by the absence of express denial, it must be taken to concede also that the school is helped to reach the child with its religious teaching. The religious enterprise is common to both, as is the interest in having transportation for its religious purposes provided. Notwithstanding the recognition that this two-way aid is given, and the absence of any denial that religious teaching is thus furthered, the Court concludes that the aid so given is not "support" of religion. It is, rather, only support of education as such, without reference to its religious content, and thus becomes public welfare legislation. To this elision of the religious element from the case is added gloss in two respects, one that the aid extended partakes of the nature of a safety measure, the other that failure to provide it would make the state unneutral in religious matters, discriminating against or hampering such children concerning public benefits all others receive. Page 330 U. S. 57 As will be noted, the one gloss is contradicted by the facts of record, and the other is of whole cloth with the "public function" argument's excision of the religious factor. [ Footnote 2/52 ] But most important is that this approach, if valid, supplies a ready method for nullifying the Amendment's guaranty not only for this case and others involving small grants in aid for religious education, but equally for larger ones. The only thing needed will be for the Court again to transplant the "public welfare/public function" view from its proper nonreligious due process bearing to First Amendment application, holding that religious education is not "supported," though it may be aided, by the appropriation, and that the cause of education generally is furthered by helping the pupil to secure that type of training. This is not therefore just a little case over bus fares. In paraphrase of Madison, distant as it may be in its present form from a complete establishment of religion, it differs from it only in degree, and is the first step in that direction. Id.. Par. 9. [ Footnote 2/53 ] Today, as in his time, "the same authority which can force a citizen to contribute three pence only . . . for the support of any one [religious] establishment, may force him" to pay more, or "to conform to ally other establishment in all cases whatsoever." And now, as then, "either . . . we must say, that the will of the Legislature is the only measure of their authority, and that, in the plenitude of this authority, they may sweep away all our fundamental rights, or that they are bound to leave this particular right untouched and sacred." Remonstrance, Par. 15. The realm of religious training and belief remains, as the Amendment made it, the kingdom of the individual Page 330 U. S. 58 man and his God. It should be kept inviolately private, not "entangled . . . in precedents" [ Footnote 2/54 ] or confounded with what legislatures legitimately may take over into the public domain. V No one conscious of religious values can be unsympathetic toward the burden which our constitutional separation puts on parents who desire religious instruction mixed with secular for their children. They pay taxes for others' children's education; at the same time, the added cost of instruction for their own. Nor can one happily see benefits denied to children which others receive because, in conscience, they, or their parents for them, desire a different kind of training others do not demand. But if those feelings should prevail, there would be an end to our historic constitutional policy and command. No more unjust or discriminatory, in fact, is it to deny attendants at religious schools the cost of their transportation than it is to deny them tuitions, sustenance for their teachers, or any other educational expense which others receive at public cost. Hardship, in fact, there is which none can blink. But, for assuring to those who undergo it the greater, the most comprehensive freedom, it is one written by design and firm intent into our basic law. Of course, discrimination in the legal sense does not exist. The child attending the religious school has the same right as any other to attend the public school. But he foregoes exercising it because the same guaranty which assures this freedom forbids the public school or any agency of the Page 330 U. S. 59 state to give or aid him in securing the religious instruction he seeks. Were he to accept the common school, he would be the first to protest the teaching there of any creed or faith not his own. And it is precisely for the reason that their atmosphere is wholly secular that children are not sent to public schools under the Pierce doctrine. But that is a constitutional necessity, because we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion. Remonstrance, Par. 8, 12. That policy necessarily entails hardship upon persons who forego the right to educational advantages the state can supply in order to secure others it is precluded from giving. Indeed, this may hamper the parent and the child forced by conscience to that choice. But it does not make the state unneutral to withhold what the Constitution forbids it to give. On the contrary, it is only by observing the prohibition rigidly that the state can maintain its neutrality and avoid partisanship in the dissensions inevitable when sect opposes sect over demands for public moneys to further religious education, teaching or training in any form or degree, directly or indirectly. Like St. Paul's freedom, religious liberty with a great price must be bought. And for those who exercise it most fully, by insisting upon religious education for their children mixed with secular, by the terms of our Constitution, the price is greater than for others. The problem, then, cannot be cast in terms of legal discrimination or its absence. This would be true even though the state, in giving aid, should treat all religious instruction alike. Thus, if the present statute and its application were shown to apply equally to all religious schools Page 330 U. S. 60 of whatever faith, [ Footnote 2/55 ] yet, in the light of our tradition, it could not stand. For then, the adherent of one creed still would pay for the support of another, the childless taxpayer with others more fortunate. Then too there would seem to be no bar to making appropriations for transportation and other expenses of children attending public or other secular schools, after hours in separate places and classes for their exclusively religious instruction. The person who embraces no creed also would be forced to pay for teaching what he does not believe. Again, it was the furnishing of "contributions of money for the propagation of opinions which he disbelieves" that the fathers outlawed. That consequence and effect are not removed by multiplying to all-inclusiveness the sects for which support is exacted. The Constitution requires not comprehensive identification of state with religion, but complete separation. VI Short treatment will dispose of what remains. Whatever might be said of some other application of New Jersey's statute, the one made here has no semblance of bearing as a safety measure or, indeed, for securing expeditious conveyance. The transportation supplied is by public conveyance, subject to all the hazards and delays of the highway and the streets incurred by the public generally in going about its multifarious business. Nor is the case comparable to one of furnishing fire or police protection, or access to public highways. These things are matters of common right, part of the general Page 330 U. S. 61 need for safety. [ Footnote 2/56 ] Certainly the fire department must not stand idly by while the church burns. Nor is this reason why the state should pay the expense of transportation or other items of the cost of religious education. [ Footnote 2/57 ] Needless to add, we have no such case as Green v. Frazier, 253 U. S. 233 , or Carmichael v. Southern Coal Co., 301 U. S. 495 , which dealt with matters wholly unrelated to the First Amendment, involving only situations where the "public function" issue was determinative. I have chosen to place my dissent upon the broad ground I think decisive, though, strictly speaking, the case might be decided on narrower issues. The New Jersey statute might be held invalid on its face for the exclusion of children Page 330 U. S. 62 who attend private, profit-making schools. [ Footnote 2/58 ] I cannot assume, as does the majority, that the New Jersey courts would write off this explicit limitation from the statute. Moreover, the resolution by which the statute was applied expressly limits its benefits to students of public and Catholic schools. [ Footnote 2/59 ] There is no showing that there are no other private or religious schools in this populous district. [ Footnote 2/60 ] I do not think it can be assumed there were none. [ Footnote 2/61 ] But, in the view I have taken, it is unnecessary to limit grounding to these matters. Page 330 U. S. 63 Two great drives are constantly in motion to abridge, in the name of education, the complete division of religion and civil authority which our forefathers made. One is to introduce religious education and observances into the public schools. The other, to obtain public funds for the aid and support of various private religious schools. See Johnson, The Legal Status of Church-State Relationships in the United States (1934); Thayer, Religion in Public Education (1947); Note (1941) 50 Yale L.J. 917. In my opinion, both avenues were closed by the Constitution. Neither should be opened by this Court. The matter is not one of quantity, to be measured by the amount of money expended. Now, as in Madison's day, it is one of principle, to keep separate the separate spheres as the First Amendment drew them, to prevent the first experiment upon our liberties, and to keep the question from becoming entangled in corrosive precedents. We should not be less strict to keep strong and untarnished the one side of the shield of religious freedom than we have been of the other. The judgment should be reversed. [ Footnote 2/1 ] "A Bill for Establishing Religious Freedom," enacted by the General Assembly of Virginia, January 19, 1786. See 1 Randall, The Life of Thomas Jefferson (1858) 219-220; XII Hening's Statutes of Virginia (1823) 84. [ Footnote 2/2 ] Schneider v. State, 308 U. S. 147 ; Cantwell v. Connecticut, 310 U. S. 296 ; Murdock v. Pennsylvania, 319 U. S. 105 ; Prince v. Massachusetts, 321 U. S. 158 ; Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 . [ Footnote 2/3 ] The briefs did not raise the First Amendment issue. The only one presented was whether the state's action involved a public or an exclusively private function under the due process clause of the Fourteenth Amendment. See 330 U. S. infra. On the facts, the cost of transportation here is inseparable from both religious and secular teaching at the religious school. In the Cochran case, the state furnished secular textbooks only. But see text, infra at 330 U.S. 1 fn2/40|>note 40 et seq., and 330 U. S. [ Footnote 2/4 ] Cf. 330 U.S. 1 fn2/3|>note 3 and text, 330 U. S. see also 330 U.S. 1 fn2/35|>note 35. [ Footnote 2/5 ] The statute reads: "Whenever in any district there are children living remote from any schoolhouse, the board of education of the district may make rules and contracts for the transportation of such children to and from school . . . other than a public school, except such school as is operated for profit in whole or in part." "When any school district provides any transportation for public school children to and from school, transportation from any point in such established school route to any other point in such established school route shall be supplied to school children residing in such school district in going to and from school other than a public school, except such school as is operated for profit in whole or in part." Laws of New Jersey (1941) c.191. [ Footnote 2/6 ] The full text of the resolution is given in 330 U.S. 1 fn2/59|>note 59 infra. [ Footnote 2/7 ] The public schools attended were the Trenton Senior High School, the Trenton Junior High School, and the Pennington High School. Ewing Township itself provides no public high schools, affording only elementary public schools which stop with the eighth grade. The Ewing school board pays for both transportation and tuitions of pupils attending the public high schools. The only private schools, all Catholic, covered in application of the resolution are St. Mary's Cathedral High School, Trenton Catholic Boys High School, and two elementary parochial schools, St. Hedwig's Parochial School and St. Francis School. The Ewing board pays only for transportation to these schools, not for tuitions. So far as the record discloses, the board does not pay for or provide transportation to any other elementary school, public or private. See notes 330 U.S. 1 fn2/58|>58, 330 U.S. 1 fn2/59|>59 and text infra. [ Footnote 2/8 ] IX Writings of James Madison (ed. by Hunt, 1910) 288; Padover, Jefferson (1942) 74. Madison's characterization related to Jefferson's entire revision of the Virginia Code, of which the Bill for Establishing Religious Freedom was part. See 330 U.S. 1 fn2/15|>note 15. [ Footnote 2/9 ] See Reynolds v. United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 ; Mormon Church v. United States, 136 U. S. 1 ; Jacobson v. Massachusetts, 197 U. S. 11 ; Prince v. Massachusetts, 321 U. S. 158 ; also Cleveland v. United States, 329 U. S. 14 . Possibly the first official declaration of the "clear and present danger" doctrine was Jefferson's declaration in the Virginia Statute for Establishing Religious Freedom: "That it is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order." 1 Randall, The Life of Thomas Jefferson (1858) 220; Padover, Jefferson (1942) 81. For Madison's view to the same effect, see 330 U.S. 1 fn2/28|>note 28 infra. [ Footnote 2/10 ] Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 109 ; Martin v. Struthers, 319 U. S. 141 ; Jamison v. Texas, 318 U. S. 413 ; Marsh v. Alabama, 326 U. S. 501 ; Tucker v. Texas, 326 U. S. 517 . [ Footnote 2/11 ] Conflicts in other states, and earlier in the colonies, contributed much to generation of the Amendment, but none so directly as that in Virginia or with such formative influence on the Amendment's content and wording. See Cobb, Rise of Religious Liberty in America (1902); Sweet, The Story of Religion in America (1939). The Charter of Rhode Island of 1663, II Poore, Constitutions (1878) 1595, was the first colonial charter to provide for religious freedom. The climactic period of the Virginia struggle covers the decade 1776-1786, from adoption of the Declaration of Rights to enactment of the Statute for Religious Freedom. For short accounts, see Padover, Jefferson (1942) c. V; Brant, James Madison, The Virginia Revolutionist (1941) cc. XII, XV; James, The Struggle for Religious Liberty in Virginia (1900) cc. X, XI; Eckenrode, Separation of Church and State in Virginia (1910). These works and Randall, see 330 U.S. 1 fn2/1|>note 1, will be cited in this opinion by the names of their authors. Citations to "Jefferson" refer to The Works of Thomas Jefferson (ed. by Ford, 1904-1905); to "Madison," to The Writings of James Madison (ed. by Hunt, 1901-1910). [ Footnote 2/12 ] Brant, cc. XII, XV; James, cc. X, XI; Eckenrode. [ Footnote 2/13 ] See Brant, c. XII, particularly at 243. Cf. Madison's Remonstrance, 330 U.S. 1 app|>Appendix to this opinion. Jefferson, of course, held the same view. See 330 U.S. 1 fn2/15|>note 15. "Madison looked upon . . . religious freedom, to judge from the concentrated attention he gave it, as the fundamental freedom." Brant, 243, and see Remonstrance, Par. 1, 4, 15, 330 U.S. 1 app|>Appendix. [ Footnote 2/14 ] See Brant, 245-246. Madison quoted liberally from the Declaration in his Remonstrance, and the use made of the quotations indicates that he considered the Declaration to have outlawed the prevailing establishment in principle, if not technically. [ Footnote 2/15 ] Jefferson was chairman of the revising committee and chief draftsman. Co-revisers were Wythe, Pendleton, Mason and Lee. The first enacted portion of the revision, which became known as Jefferson's Code, was the statute barring entailments. Primogeniture soon followed. Much longer the author was to wait for enactment of the Bill for Religious Freedom, and not until after his death was the corollary bill to be accepted in principle which he considered most important of all, namely, to provide for common education at public expense. See V Jefferson, 153. However, he linked this with disestablishment as corollary prime parts in a system of basic freedoms. I Jefferson, 78. Jefferson, and Madison by his sponsorship, sought to give the Bill for Establishing Religious Freedom as nearly constitutional status as they could at the time. Acknowledging that one legislature could not "restrain the acts of succeeding Assemblies . . . and that, therefore, to declare this act irrevocable would be of no effect in law," the Bill's concluding provision, as enacted, nevertheless asserted: "Yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that, if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right." 1 Randall, 220. [ Footnote 2/16 ] See I Jefferson, 70-71; XII Jefferson, 447; Padover, 80. [ Footnote 2/17 ] Madison regarded this action as desertion. See his letter to Monroe of April 12, 175; II Madison, 129, 131-132; James, cc. X, XI. But see Eckenrode, 91, suggesting it was surrender to the inevitable. The bill provided: "That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid. . . ." See also notes 330 U.S. 1 fn2/1|>1, 330 U.S. 1 fn2/43|>43 infra. A copy of the Assessment Bill is to be found among the Washington manuscripts in the Library of Congress. Papers of George Washington, Vol. 231. Because of its crucial role in the Virginia struggle and bearing upon the First Amendment's meaning, the text of the Bill is set forth in the 330 U.S. 1 app2|>Supplemental Appendix to this opinion. [ Footnote 2/18 ] Eckenrode, 99, 100. [ Footnote 2/19 ] Id., 100; II Madison, 113. The bill directed the sheriff to pay "all sums which . . . may not he appropriated by the person paying the same . . . into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever." 330 U.S. 1 app2|>Supplemental Appendix. [ Footnote 2/20 ] See generally Eckenrode, c. V; Brant, James, and other authorities cited in 330 U.S. 1 fn2/1|>note 11 above. [ Footnote 2/21 ] II Madison, 183; and the 330 U.S. 1 app|>Appendix to this opinion. Eckenrode, 100 ff. See also Fleet, Madison's "Detached Memoranda" (1946) III William & Mary Q. (3rd Series) 534, 554-562. [ Footnote 2/22 ] The major causes assigned for its defeat include the elevation of Patrick Henry to the governorship in November of 1784; the blunder of the proponents in allowing the Bill for Incorporations to come to the floor and incur defeat before the Assessment Bill was acted on; Madison's astute leadership, taking advantage of every "break" to convert his initial minority into a majority, including the deferment of action on the third reading to the fall; the Remonstrance, bringing a flood of protesting petitions, and the general poverty of the time. See Eckenrode, c. V, for an excellent short, detailed account. [ Footnote 2/23 ] See James, Brant, op. cit. supra, note 11. [ Footnote 2/24 ] V Madison, 176. Cf. notes 330 U.S. 1 fn2/33|>33, 330 U.S. 1 fn2/37|>37. [ Footnote 2/25 ] V Madison, 132. [ Footnote 2/26 ] Brant, 250. The assurance made first to his constituents was responsible for Madison's becoming a member of the Virginia Convention which ratified the Constitution. See James, 154-158. [ Footnote 2/27 ] The amendment with respect to religious liberties read, as Madison introduced it: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." 1 Annals of Congress 434. In the process of debate, this was modified to its present form. See especially 1 Annals of Congress 729-731, 765; also 330 U.S. 1 fn2/34|>note 34. [ Footnote 2/28 ] See text of the Remonstrance, 330 U.S. 1 app|>Appendix; also notes 330 U.S. 1 fn2/13|>13, 330 U.S. 1 fn2/15|>15, 330 U.S. 1 fn2/24|>24, 330 U.S. 1 fn2/25|>25 supra, and text. Madison's one exception concerning restraint was for "preserving public order." This he declared in a private letter, IX Madison, 484, 487, written after the First Amendment was adopted: "The tendency to a usurpation on one side or the other, or to a corrupting coalition or alliance between them, will be best guarded agst. by an entire abstinance of the Govt. from interference in any way whatever, beyond the necessity of preserving public order & protecting each sect agst. trespasses on its legal rights by others." Cf. 330 U.S. 1 fn2/9|>note 9. [ Footnote 2/29 ] The third ground of remonstrance, see the 330 U.S. 1 app|>Appendix, bears repetition for emphasis here: "Because it is proper to take alarm at the first experiment on our liberties . . . , [t]he freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that . . . the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever?" (Emphasis added.) II Madison 183, 185-186. [ Footnote 2/30 ] Eckenrode, 105, in summary of the Remonstrance. [ Footnote 2/31 ] "Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretention falsified by the contradictory opinions of Rulers in all ages, and throughout the world; the second an unhallowed perversion of the means of salvation." Remonstrance, Appendix, Par. 5; II Madison 183, 187. [ Footnote 2/32 ] As is pointed out above, 330 U.S. 1 fn2/3|>note 3, and in 330 U. S. infra, Cochran v. Board of Education, 281 U. S. 370 , was not such a case. [ Footnote 2/33 ] See text supra at notes 330 U.S. 1 fn2/24|>24, 330 U.S. 1 fn2/25|>25. Madison, of course, was but one of many holding such views, but nevertheless agreeing to the common understanding for adoption of a Bill of Rights in order to remove all doubt engendered by the absence of explicit guaranties in the original Constitution. By 1791, the great fight over establishments had ended, although some vestiges remained then and later, even in Virginia. The glebes, for example, were not sold there until 1802. Cf. Eckenrode, 147. Fixing an exact date for "disestablishment" is almost impossible, since the process was piecemeal. Although Madison failed in having the Virginia Bill of Rights declare explicitly against establishment in 1776, cf. 330 U.S. 1 fn2/14|>note 14 and text supra, in 1777, the levy for support of the Anglican clergy was suspended. It was never resumed. Eckenrode states: "This act, in effect, destroyed the establishment. Many dates have been given for its end, but it really came on January 1, 1777, when the act suspending the payment of tithes became effective. This was not seen at the time. . . . But, in freeing almost half of the taxpayers from the burden of the state religion, the state religion was at an end. Nobody could be forced to support it, and an attempt to levy tithes upon Anglicans alone would be to recruit the ranks of dissent." P. 53. See also pp. 61, 64. The question of assessment however was revived "with far more strength than ever, in the summer of 1784." Id. at 64. It would seem more factual, therefore, to fix the time of disestablishment as of December, 1785-January, 1786, when the issue in large was finally settled. [ Footnote 2/34 ] At one point, the wording was proposed: "No religion shall be established by law, nor shall the equal rights of conscience be infringed." 1 Annals of Congress 729. Cf. 330 U.S. 1 fn2/27|>note 27. Representative Huntington of Connecticut feared this might be construed to prevent judicial enforcement of private pledges. He stated "that he feared . . . that the words might be taken in such latitude as to be extremely hurtful to the cause of religion. He understood the amendment to mean what had been expressed by the gentleman from Virginia, but others might find it convenient to put another construction upon it. The ministers of their congregations to the Eastward were maintained by the contributions of those who belonged to their society; the expense of building meeting-houses was contributed in the same manner. These things were regulated by by laws. If an action was brought before a Federal Court on any of these cases, the person who had neglected to perform his engagements could not be compelled to do it, for a support of ministers or building of places of worship might be construed into a religious establishment." 1 Annals of Congress 730. To avoid any such possibility, Madison suggested inserting the word "national" before "religion," thereby not only again disclaiming intent to bring about the result Huntington feared, but also showing unmistakably that "establishment" meant public "support" of religion in the financial sense. 1 Annals of Congress 731. See also IX Madison, 484-487. [ Footnote 2/35 ] The decision most closely touching the question, where it as squarely raised, is Quick Bear v. Leupp, 210 U. S. 50 . The Court distinguished sharply between appropriations from public funds for the support of religious education and appropriations from funds held in trust by the Government essentially as trustee for private individuals, Indian wards, as beneficial owners. The ruling was that the latter could be disbursed to private, religious schools at the designation of those patrons for paying the cost of their education. But it was stated also that such a use of public moneys would violate both the First Amendment and the specific statutory declaration involved, namely, that "it is hereby declared to be the settled policy of the Government to hereafter make no appropriation whatever for education in any sectarian school." 210 U.S. at 210 U. S. 79 . Cf. Ponce v. Roman Catholic Apostolic Church, 210 U. S. 296 , 210 U. S. 322 . And see Bradfield v. Roberts, 175 U. S. 291 , an instance of highly artificial grounding to support a decision sustaining an appropriation for the care of indigent patients pursuant to a contract with a private hospital. Cf. also the authorities cited in 330 U.S. 1 fn2/9|>note 9. [ Footnote 2/36 ] See text at 330 U.S. 1 fn2/1|>note 1. [ Footnote 2/37 ] " . . . but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Const., Art. VI, § 3. See also the two forms prescribed for the President's Oath or Affirmation. Const., Art. II, § 1. Cf. 71 U. S. 4 Wall. 333; Cummings v. Missouri , 4 Wall. 277; United States v. Lovett, 328 U. S. 303 . [ Footnote 2/38 ] In the words of the Virginia statute, following the portion of the preamble quoted at the beginning of this opinion: ". . . even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporary rewards which, ceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind. . . ." [ Footnote 2/39 ] See 330 U.S. 1 fn2/38|>note 38. [ Footnote 2/40 ] See Bower, Church and State in Education (1944) 58: ". . . the fundamental division of the education of the whole self into the secular and the religious could not be justified on the grounds of either a sound educational philosophy or a modern functional concept of the relation of religion to personal and social experience." See also Vere, The Elementary School, in Essays on Catholic Education in the United States (1942) 110-111; Gabel, Public Funds for Church and Private Schools (1937) 737-739 [ Footnote 2/41 ] It would seem a strange ruling that a "reasonable," that is, presumably a small, license fee cannot be placed upon the exercise of the right of religious instruction, yet that, under the correlative constitutional guaranty against "an establishment," taxes may be levied and used to aid and promote religious instruction, if only the amounts so used are small. See notes 330 U.S. 1 fn2/30|>30-31 supra, and text. Madison's objection to "three pence" contributions and his stress upon "denying the principle" without waiting until "usurped power had . . . entangled the question in precedents," 330 U.S. 1 fn2/20|>note 29, were reinforced by his further characterization of the Assessment Bill: "Distant as it may be, in its present form, from the Inquisition, it differs from it only in degree. The one is the first step, the other the last, in the career of intolerance." Remonstrance, Par. 9; II Madison 183, 188. [ Footnote 2/42 ] If it is part of the state's function to supply to religious schools or their patrons the smaller items of educational expense, because the legislature may say they perform a public function, it is hard to see why the larger ones also my not he paid. Indeed, it would seem even more proper and necessary for the state to do this. For if one class of expenditures is justified on the ground that it supports the general cause of education or benefits the individual, or can he made to do so by legislative declaration, so even more certainly would he the other. To sustain payment for transportation to school, for textbooks, for other essential materials, or perhaps for school lunches, and not for what makes all these things effective for their intended end, would be to make a public function of the smaller items and their cumulative effect, but to make wholly private in character the larger things without which the smaller could have no meaning or use. [ Footnote 2/43 ] "Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens, as, from their circumstances and want of education, cannot otherwise attain such knowledge, and it is judged that such provision may be made by the Legislature, without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of preeminence amongst the different societies of communities of Christians; . . . ." 330 U.S. 1 app2|>Supplemental Appendix; Foote, Sketches of Virginia (1850) 340. [ Footnote 2/44 ] "Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world. . . . Because the establishment in question is not necessary for the support of Civil Government. . . . What influence, in fact, have ecclesiastical establishments had on Civil Society? . . . [I]n no instance have they been seen the guardians of the liberties of the people." II Madison 183, 187, 188. [ Footnote 2/45 ] "Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." II Madison 183, 187. [ Footnote 2/46 ] "At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that 'Christian forbearance, love and charity' which, of late, mutually prevailed into animosities and jealousies which may not soon be appeased." II Madison 183, 189. [ Footnote 2/47 ] In this case, briefs amici curiae have been filed on behalf of various organizations representing three religious sects, one labor union, the American Civil Liberties Union, and the states of Illinois, Indiana, Louisiana, Massachusetts, Michigan and New York. All these states have laws similar to New Jersey's, and all of them, with one religious sect, support the constitutionality of New Jersey's action. The others oppose it. Maryland and Mississippi have sustained similar legislation. 330 U.S. 1 fn2/49|>Note 49 infra. No state without legislation of this sort has filed an opposing brief. But at least six states have held such action invalid, namely, Delaware, Oklahoma, New York, South Dakota, Washington, and Wisconsin. 330 U.S. 1 fn2/49|>Note 49, infra. The New York ruling was overturned by amendment to the state constitution in 1938. Constitution of New York, Art. XI, 4. Furthermore, in this case, the New Jersey courts divided, the Supreme Court holding the statute and resolution invalid, 132 N.J.L. 98, 39 A.2d 75, the Court of Errors and Appeals reversing that decision, 133 N.J.L. 350, 44 A.2d 333. In both courts, as here, the judges split, one of three dissenting in the Supreme Court, three of nine in the Court of Errors and Appeals. The division is typical. See the cases cited in 330 U.S. 1 fn2/49|>note 49. [ Footnote 2/48 ] See the authorities cited in 330 U.S. 1 fn2/49|>note 49, and see 330 U.S. 1 fn2/19|>note 54. [ Footnote 2/49 ] Some state courts have sustained statutes granting free transportation or free school books to children attending denominational schools on the theory that the aid as a benefit to the child, rather than to the school. See Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930, with which compare Sherrard v. Jefferson County Board of Education, 294 Ky. 469, 171 S.W.2d 963; Cochran v. Board of Education, 168 La. 1030, 123 So. 664, aff'd, 281 U. S. 281 U.S. 370; Borden v. Board of Education, 168 La. 1005, 123 So. 655; Board of Education v. Wheat, 174 Md. 314, 199 A. 628; Adams v. St. Mary's County, 180 Md. 550, 26 A.2d 377; Chance v. State Textbook R. & P. Board, 190 Miss. 453, 200 So. 706. See also Bowker v. Baer, 73 Cal. App. 2d 653 , 167 P.2d 256. Other courts have held such statutes unconstitutional under state constitutions as aid to the schools. Judd v. Board of Education, 278 N.Y. 200, 15 N.E.2d 576, but see 330 U.S. 1 fn2/47|>note 47, supra; Smith v. Donahue, 202 App.Div. 656, 195 N.Y.S. 715; State ex rel. Traub v. Brown, 36 Del. 181, 172 A. 835; Gurney v. Ferguson, 190 Okla. 254 , 122 P.2d 1002 ; Mitchell v. Consolidated School District, 17 Wash. 2d 61, 135 P.2d 79; Van Straten v. Milquet, 180 Wis. 109, 192 N.W. 392. And cf. Hlebanja v. Brewe, 58 S.D. 351, 236 N.W. 296. And since many state constitutions have provisions forbidding the appropriation of public funds for private purposes, in these and other cases, the issue whether the statute was for a "public" or "private" purpose has been present. See Note (1941) 50 Yale L.J. 917, 925. [ Footnote 2/50 ] E.g, Gurney v. Ferguson, 190 Okla. 254 , 255, 122 P.2d 1002 , 1003; Mitchell v. Consolidated School District, 17 Wash. 2d 61, 68, 135 P.2d 79, 82; Smith v. Donahue, 202 App.Div. 656, 664, 195 N.Y.S. 715, 722; Board of Education v. Wheat, 174 Md. 314, dissenting opinion at 340, 199 A. 628 at 639. This is true whether the appropriation and payment are in form to the individual, or to the institution. Ibid. Questions of this gravity turn upon the purpose and effect of the state's expenditure to accomplish the forbidden object, not upon who receives the amount and applies it to that end or the form and manner of the payment. [ Footnote 2/51 ] The payments here averaged roughly $40.00 a year per child. [ Footnote 2/52 ] See 330 U. S. [ Footnote 2/53 ] See also 330 U.S. 1 fn2/46|>note 46 supra, and Remonstrance, Par. 3. [ Footnote 2/54 ] Thus, each brief filed here by the supporters of New Jersey's action, see 330 U.S. 1 fn2/47|>note 47, not only relies strongly on Cochran v. Board of Education, 281 U. S. 370 , but either explicitly or in effect maintains that it is controlling in the present case. [ Footnote 2/55 ] See text at 330 U.S. 1 fn2/17|>notes 17-19 supra, and authorities cited; also Foote, Sketches of Virginia (1850) c. XV. Madison's entire thesis, as reflected throughout the Remonstrance and in his other writings, as well as in his opposition to the final form of the Assessment Bill, see 330 U.S. 1 fn2/43|>note 43, was altogether incompatible with acceptance of general and "nondiscriminatory" support. See Brant, c. XII. [ Footnote 2/56 ] The protections are of a nature which does not require appropriations specially made from the public treasury and earmarked, as is New Jersey's here, particularly for religious institutions or uses. The First Amendment does not exclude religious property or activities from protection against disorder or the ordinary accidental incidents of community life. It forbids support, not protection from interference or destruction. It is a matter not frequently recalled that President Grant opposed tax exemption of religious property as leading to a violation of the principle of separation of church and state. See President Grant's Seventh Annual Message to Congress, December 7, 1875, in IX Messages and Papers of the Presidents (1897) 4288-4289. Garfield, in a letter accepting the nomination for the presidency, said: ". . . it would be unjust to our people, and dangerous to our institutions, to apply any portion of the revenues of the nation, or of the States, to the support of sectarian schools. The separation of the Church and the State in everything relating to taxation should be absolute." II The Works of James Abram Garfield (ed. by Hinsdale, 1883) 783. [ Footnote 2/57 ] Neither do we have here a case of ratemaking by which a public utility extends reduced fares to all school children, including patrons of religious schools. Whether or not legislative compulsion upon a private utility to extend such an and advantage would be valid, or its extension by a municipally owned system, we are not required to consider. In the former instance, at any rate, and generally, if not always, in the latter, the vice of using the taxing power to raise funds for the support of religion would not be present. [ Footnote 2/58 ] It would seem at least a doubtfully sufficient basis for reasonable classification that some children should be excluded simply because the only school feasible for them to attend, in view of geographic or other situation, might be one conducted in whole or in part for profit. Cf. 330 U.S. 1 fn2/5|>note 5. [ Footnote 2/59 ] See 330 U.S. 1 fn2/7|>note 7 supra. The resolution was as follows, according to the school board's minutes read in proof: "The transportation committee recommended the transportation of pupils of Ewing to the Trenton and Pennington High Schools and Catholic Schools by way of public carrier as in recent years. On Motion of Mr. Ralph Ryan and Mr. M. French. the same was adopted." (Emphasis added.) The New Jersey court's holding that the resolution was within the authority conferred by the state statute is binding on us. Reinman v. Little Rock, 237 U. S. 171 , 237 U. S. 176 ; Hadacheck v. Sebastian, 239 U. S. 394 , 239 U. S. 414 . [ Footnote 2/60 ] The population of Ewing Township, located near the City of Trenton, was 10,146 according to the census of 1940. Sixteenth Census of the United States, Population, Vol. 1, 674. [ Footnote 2/61 ] In Thomas v. Collins, 323 U. S. 516 , 323 U. S. 530 , it was said that the preferred place given in our scheme to the great democratic freedoms secured by the First Amendment gives them "a sanctity and a sanction not permitting dubious intrusions." Cf. Remonstrance, Par. 3, 9. And, in other cases, it has been held that the usual presumption of constitutionality will not work to save such legislative excursions in this field. United States v. Carolene Products Co., 304 U. S. 144 , 304 U. S. 152 , note 4; see Wechsler, Stone and the Constitution (1946) 46 Col.L.Rev. 764, 795 et seq. Apart from the Court's admission that New Jersey's present action approaches the verge of her power, it would seem that a statute, ordinance or resolution which, on its face, singles out one sect only by name for enjoyment of the same advantages as public schools or their students, should be held discriminatory on its face by virtue of that fact alone, unless it were positively shown that no other sects sought or were available to receive the same advantages. | 330 U.S. 1 app| APPENDIX MEMORIAL AND REMONSTRANCE AGAINST RELIGIOUS ASSESSMENTS To THE HONORABLE THE GENERAL ASSEMBLY OF THE COMMONWEALTH OF VIRGINIA. A MEMORIAL AND REMONSTRANCE. We, the subscribers, citizens of the said Commonwealth, having taken into serious consideration a Bill printed by order of the last Session of General Assembly, entitled "A Page 330 U. S. 64 Bill establishing a provision for Teachers of the Christian Religion," and conceiving that the same, if finally armed with the sanctions of a law, will be a dangerous abuse of power, are bound, as faithful members of a free State, to remonstrate against it, and to declare the reasons by which we are determined. We remonstrate against the said Bill, 1. Because we hold it for a fundamental and undeniable truth "that Religion or the duty which we owe to our Creator and the Manner of discharging it, can be directed only by reason and conviction, not by force or violence." [ Footnote 3/1 ] The Religion then of every man must be left to the conviction and conscience of every man, and it is the right of every man to exercise it as these may dictate. This right is, in its nature, an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds, cannot follow the dictates of other men. It is unalienable also because what is here a right towards men is a duty towards the Creator. It is the duty of every man to render to the Creator such homage, and such only, as he believes to be acceptable to him. This duty is precedent, both in order of time and degree of obligation, to the claims of Civil Society. Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe. And if a member of Civil Society who enters into any subordinate Association must always do it with a reservation of his duty to the general authority, much more must every man who becomes a member of any particular Civil Society do it with a saving of his allegiance to the Universal Sovereign. We maintain, therefore, that, in matters of Religion, no man's right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance. Page 330 U. S. 65 True it is that no other rule exists by which any question which may divide a Society can be ultimately determined but the will of the majority; but it is also true that the majority may trespass on the rights of the minority. 2. Because, if religion be exempt from the authority of the Society at large, still less can it be subject to that of the Legislative Body. The latter are but the creatures and vicegerents of the former. Their jurisdiction is both derivative and limited: it is limited with regard to the coordinate departments; more necessarily is it limited with regard to the constituents. The preservation of a free government requires not merely that the metes and bounds which separate each department of power may be invariably maintained, but, more especially, that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves. 3. Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of citizens, and one of [the] noblest characteristics of the late Revolution. The freemen of America did not wait till usurped power had strengthened itself by exercise and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity in exclusion of all other Religions may establish with the same ease any particular sect of Christians in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence Page 330 U. S. 66 only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever? 4. Because the bill violates that equality which ought to be the basis of every law, and which is more indispensable in proportion as the validity or expediency of any law is more liable to be impeached. If "all men are, by nature, equally free and independent," [ Footnote 3/2 ] all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of conscience." [ Footnote 3/3 ] Whilst we assert for ourselves a freedom to embrace, to profess, and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man. To God, therefore, not to men, must an account of it be rendered. As the Bill violates equality by subjecting some to peculiar burdens, so it violates the same principle by granting to others peculiar exemptions. Are the Quakers and Menonists the only sects who think a compulsive support of their religions unnecessary and unwarrantable? Can their piety alone be intrusted with the care of public worship? Ought their Religions to be endowed above all others, with extraordinary privileges by which proselytes may be enticed from all others? We think too favorably of the justice and good sense of these denominations to believe that they either covet preeminencies over their fellow citizens or that they will be seduced by them from the common opposition to the measure. Page 330 U. S. 67 5. Because the bill implies either that the Civil Magistrate is a competent Judge of Religious truth or that he may employ Religion as an engine of Civil policy. The first is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages and throughout the world. The second an unhallowed perversion of the means of salvation. 6. Because the establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is is a contradiction to the Christian Religion itself, for every page of it disavows a dependence on the powers of this world; it is a contradiction to fact, for it is known that this Religion both existed and flourished not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms, for a Religion not invented by human policy must have preexisted and been supported before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author, and to foster in those who still reject it a suspicion that its friends are too conscious of its fallacies to trust it to its own merits. 7. Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect point to the ages prior Page 330 U. S. 68 to its incorporation with Civil policy. Propose a restoration of this primitive state in which its Teachers depended on the voluntary rewards of their flocks; many of them predict its downfall. On which side ought their testimony to have greatest weight, when for or when against their interest? 8. Because the establishment in question is not necessary for the support of Civil Government. If it be urged as necessary for the support of Civil Government only as it is a means of supporting Religion, and it be not necessary for the latter purpose, it cannot be necessary for the former. If Religion be not within [the] cognizance of Civil Government, how can its legal establishment be said to be necessary to civil Government? What influence, in fact, have ecclesiastical establishments had on Civil Society? In some instances, they have been seen to erect a spiritual tyranny on the ruins of Civil authority; in many instances, they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people. Rulers who wished to subvert the public liberty may have found an established clergy convenient auxiliaries. A just government, instituted to secure & perpetuate it, needs them not. Such a government will be best supported by protecting every citizen in the enjoyment of his Religion with the same equal hand which protects his person and his property -- by neither invading the equal rights of any Sect nor suffering any Sect to invade those of another. 9. Because the proposed establishment is a departure from that generous policy which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country, and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal Page 330 U. S. 69 of persecution. It degrades from the equal rank of Citizens all those whose opinions in Religion do not bend to those of the Legislative authority. Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last, in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions must view the Bill as a Beacon on our Coast, warning him to seek some other haven where liberty and philanthropy in their due extent may offer a more certain repose from his troubles. 10. Because it will have a like tendency to banish our Citizens. The allurements presented by other situations are every day thinning their number. To superadd a fresh motive to emigration by revoking the liberty which they now enjoy would be the same species of folly which has dishonoured and depopulated flourishing kingdoms. 11. Because, it will destroy that moderation and harmony which the forbearance of our laws to intermeddle with Religion has produced amongst its several sects. Torrents of blood have been spilt in the old world by vain attempts of the secular arm to extinguish Religious discord by proscribing all difference in Religious opinions. Time has at length revealed the true remedy. Every relaxation of narrow and rigorous policy, wherever it has been tried, has been found to assuage the disease. The American Theatre has exhibited proofs that equal and compleat liberty, if it does not wholly eradicate it, sufficiently destroys its malignant influence on the health and prosperity of the State. If, with the salutary effects of this system under our own eyes, we begin to contract the bonds of Religious freedom, we know no name that will too severely reproach our folly. At least let warning be taken at the first fruits of the threatened innovation. The very appearance of the Bill has transformed that "Christian Page 330 U. S. 70 forbearance, [ Footnote 3/4 ] love and charity" which of late mutually prevailed into animosities and jealousies which may not soon be appeased. What mischiefs may not be dreaded should this enemy to the public quiet be armed with the force of a law? 12. Because the policy of the bill is adverse to the diffusion of the light of Christianity. The first wish of those who enjoy this precious gift ought to be that it may be imparted to the whole race of mankind. Compare the number of those who have as yet received it with the number still remaining under the dominion of false Religions, and how small is the former. Does the policy of the Bill tend to lessen the disproportion? No; it at once discourages those who are strangers to the light of [revelation] from coming into the Region of it and countenances by example the nations who continue in darkness in shutting out those who might convey it to them. Instead of leveling as far as possible every obstacle to the victorious progress of truth, the Bill, with an ignoble and unchristian timidity would circumscribe it with a wall of defence against the encroachments of error. 13. Because attempts to enforce by legal sanctions acts obnoxious to so great a proportion of Citizens tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous?, and what may be the effect of so striking an example of impotency in the Government on its general authority. 14. Because a measure of such singular magnitude and delicacy ought not to be imposed without the clearest evidence that it is called for by a majority of citizens, and no satisfactory method is yet proposed by which the voice of the majority in this case may be determined or its influence secured. "The people of the respective counties Page 330 U. S. 71 are indeed requested to signify their opinion respecting the adoption of the Bill to the next Session of Assembly." But the representation must be made equal before the voice either of the Representatives or of the Counties will be that of the people. Our hope is that neither of the former will, after due consideration, espouse the dangerous principle of the Bill. Should the event disappoint us, it will still leave us in full confidence that a fair appeal to the latter will reverse the sentence against our liberties. 15. Because, finally, "the equal right of every citizen to the free exercise of his Religion according to the dictates of conscience" is held by the same tenure with all our other rights. If we recur to its origin, it is equally the gift of nature; if we weigh its importance, it cannot be less dear to us; if we consult the Declaration of those rights which pertain to the good people of Virginia as the "basis and foundation of Government," [ Footnote 3/5 ] it is enumerated with equal solemnity, or rather, studied emphasis. Either then we must say, that the will of the Legislature is the only measure of their authority, and that, in the plenitude of this authority, they may sweep away all our fundamental rights, or that they are bound to leave this particular right untouched and sacred. Either we must say that they may controul the freedom of the press, may abolish the trial by jury, may swallow up the Executive and Judiciary Powers of the State, nay, that they may despoil us of our very right of suffrage, and erect themselves into an independent and hereditary assembly, or we must say that they have no authority to enact into law the Bill under consideration. We, the subscribers say, that the General Assembly of this Commonwealth have no such authority. And that no effort may be omitted on our part against so dangerous an usurpation, we oppose to it, this remonstrance; earnestly praying, as we are in duty Page 330 U. S. 72 bound, that the Supreme Lawgiver of the Universe, by illuminating those to whom it is addressed, may, on the one hand, turn their councils from every act which would affront his holy prerogative or violate the trust committed to them, and, on the other, guide them into every measure which may he worthy of his [blessing, may re]dound to their own praise, and may establish more firmly the liberties, the prosperity, and the Happiness of the Commonwealth. rj: II Madison, 183-191 lj: : [ Footnote 3/1 ] Decl.Rights, Art. 16. [Note in the original.] [ Footnote 3/2 ] Decl.Rights, Art. 1. [Note in the original.] [ Footnote 3/3 ] Art. 16. [Note in the original.] [ Footnote 3/4 ] Art. 16. [Note in the original.] [ Footnote 3/5 ] Decl.Rights -- title. [Note in the original.] | 330 U.S. 1 app2| SUPPLEMENTAL APPENDIX A BILL ESTABLISHING A PROVISION FOR TEACHERS OF THE CHRISTIAN RELIGION Whereas the general diffusion of Christian knowledge hath a natural tendency to correct the morals of men, restrain their vices, and preserve the peace of society, which cannot be effected without a competent provision for learned teachers, who may be thereby enabled to devote their time and attention to the duty of instructing such citizens as, from their circumstances and want of education, cannot otherwise attain such knowledge, and it is judged that such provision may be made by the Legislature without counteracting the liberal principle heretofore adopted and intended to be preserved by abolishing all distinctions of preeminence amongst the different societies or communities of Christians; Be it therefore enacted by the General Assembly, That, for the support of Christian teachers, percentum on the amount, or in the pound on the sum payable for tax on the property within this Commonwealth is hereby assessed, and shall be paid by every person chargeable with the said tax at the time the same shall become due, and the Sheriffs of the several Counties shall have power to levy and collect the same in the same manner and under Page 330 U. S. 73 the like restrictions and limitations as are or may be prescribed by the laws for raising the Revenues of this State. And be it enacted, That, for every sum so paid, the Sheriff or Collector shall give a receipt expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. The Sheriff of every County, shall, on or before the ___ day of _______ in every year, return to the Court, upon oath, two alphabetical lists of the payments to him made, distinguishing in columns opposite to the names of the persons who shall have paid the same, the society to which the money so paid was by them appropriated, and one column for the names where no appropriation shall be made. One of which lists, after being recorded in a book to be kept for that purpose, shall be filed by the Clerk in his office; the other shall by the Sheriff be fixed up in the Court-house, there to remain for the inspection of all concerned. And the Sheriff, after deducting five percentum for the collection, shall forthwith pay to such person or persons as shall be appointed to receive the same by the Vestry, Elders, or Directors, however denominated of each such society, the sum so stated to be due to that society; or in default thereof, upon the motion of such person or persons to the next or any succeeding Court, execution shall be awarded for the same against the Sheriff and his security, his and their executors or administrators; provided that ten days previous notice be given of such motion. And upon every such execution, the Officer serving the same shall proceed to immediate sale of the estate taken and shall not accept of security for payment at the end of three months, nor to have the goods forthcoming at the day of sale; for his better direction wherein, the Clerk shall endorse upon every such execution that no security of any kind shall be taken. Page 330 U. S. 74 And be it further enacted, That the money to be raised by virtue of this Act, shall be by the Vestries Elders, or Directors of each religious society, appropriated to a provision for a Minister or Teacher of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever; except in the denominations of Quakers and Menonists, who may receive what is collected from their members, and place it in their general fund, to be disposed of in a manner which they shall think best calculated to promote their particular mode of worship. And be it enacted, That all sums which at the time of payment to the Sheriff or Collector may not be appropriated by the person paying the same, shall be accounted for with the Court in manner as by this Act is directed, and after deducting for his collection, the Sheriff shall pay the amount thereof (upon account certified by the Court to the Auditors of Public Accounts, and by them to the Treasurer) into the public Treasury, to be disposed of under the direction of the General Assembly, for the encouragement of seminaries of learning within the Counties whence such sums shall arise, and to no other use or purpose whatsoever. THIS Act shall commence, and be in force, from and after the ___day of _____ in the year ____. A Copy from the Engrossed Bill. rj: JOHN BECKLEY, C.H.D. lj: Washington Mss. (Papers of George Washington, Vol. 21); Library of Congress. * * This copy of the Assessment Bill is from one of the handbills which, on December 24, 1784, when the third reading of the bill was postponed, were ordered distributed to the Virginia counties by the House of Delegates. See Journal of the Virginia House of Delegates, December 24, 1784; Eckenrode, 102-103. The bill is therefore in its final form, for it never again reached the floor of the House. Eckenrode, 113.

In Everson v. Board of Education, the U.S. Supreme Court upheld a New Jersey statute allowing reimbursement for parents who sent their children to Catholic schools, ruling that it did not violate the Establishment Clause of the First Amendment, as it provided a public benefit to all students regardless of religious affiliation. The Court also ruled that the statute did not violate the Due Process Clause of the Fourteenth Amendment, as it served a valid public purpose. This case established an important precedent for the separation of church and state, and the Court's interpretation of the Establishment Clause has had a significant impact on religious freedom in the U.S.

Miranda Rights

Howes v. Fields

https://supreme.justia.com/cases/federal/us/565/499/

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press. SUPREME COURT OF THE UNITED STATES _________________ No. 10–680 _________________ CAROL HOWES, WARDEN, PETITIONER v. RANDALL LEE FIELDS on writ of certiorari to the united states court of appeals for the sixth circuit [February 21, 2012] Justice Alito delivered the opinion of the Court. The United States Court of Appeals for the Sixth Circuit held that our precedents clearly establish that a prisoner is in custody within the meaning of Miranda v. Arizona , 384 U.S. 436 (1966), if the prisoner is taken aside and questioned about events that occurred outside the prison walls. Our decisions, however, do not clearly establish such a rule, and therefore the Court of Appeals erred in holding that this rule provides a permissible basis for federal habeas relief under the relevant provision of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d)(1). Indeed, the rule applied by the court below does not represent a correct interpretation of our Miranda case law. We therefore reverse. I While serving a sentence in a Michigan jail, Randall Fields was escorted by a corrections officer to a conference room where two sheriff’s deputies questioned him about allegations that, before he came to prison, he had engaged in sexual conduct with a 12-year-old boy. In order to get to the conference room, Fields had to go down one floor and pass through a locked door that separated two sections of the facility. See App. to Pet. for Cert. 66a, 69a. Fields arrived at the conference room between 7 p.m. and 9 p.m.[ 1 ] and was questioned for between five and seven hours.[ 2 ] At the beginning of the interview, Fields was told that he was free to leave and return to his cell. See id., at 70a. Later, he was again told that he could leave whenever he wanted. See id., at 90a. The two interviewing deputies were armed during the interview, but Fields remained free of handcuffs and other restraints. The door to the conference room was sometimes open and sometimes shut. See id., at 70a–75a. About halfway through the interview, after Fields had been confronted with the allegations of abuse, he became agitated and began to yell. See id., at 80a, 125a. Fields testified that one of the deputies, using an expletive, told him to sit down and said that “if [he] didn’t want to cooperate, [he] could leave.” Id., at 89a; see also id., at 70a–71a. Fields eventually confessed to engaging in sex acts with the boy. According to Fields’ testimony at a suppression hearing, he said several times during the interview that he no longer wanted to talk to the deputies, but he did not ask to go back to his cell prior to the end of the interview. See id., at 92a–93a. When he was eventually ready to leave, he had to wait an additional 20 minutes or so because a corrections officer had to be summoned to escort him back to his cell, and he did not return to his cell until well after the hour when he generally retired.[ 3 ] At no time was Fields given Miranda warnings or advised that he did not have to speak with the deputies. The State of Michigan charged Fields with criminal sexual conduct. Relying on Miranda , Fields moved to suppress his confession, but the trial court denied his motion. Over the renewed objection of defense counsel, one of the interviewing deputies testified at trial about Fields’ admissions. The jury convicted Fields of two counts of third-degree criminal sexual conduct, and the judge sentenced him to a term of 10 to 15 years of imprisonment. On direct appeal, the Michigan Court of Appeals affirmed, rejecting Fields’ contention that his statements should have been suppressed because he was subjected to custodial interrogation without a Miranda warning. The court ruled that Fields had not been in custody for pur- poses of Miranda during the interview, so no Miranda warnings were required. The court emphasized that Fields was told that he was free to leave and return to his cell but that he never asked to do so. The Michigan Supreme Court denied discretionary review. Fields then filed a petition for a writ of habeas corpus in Federal District Court, and the court granted relief. The Sixth Circuit affirmed, holding that the interview in the conference room was a “custodial interrogation” within the meaning of Miranda because isolation from the general prison population combined with questioning about conduct occurring outside the prison makes any such interrogation custodial per se . The Court of Appeals reasoned that this Court clearly established in Mathis v. United States , 391 U.S. 1 (1968), that “ Miranda warnings must be administered when law enforcement officers remove an inmate from the general prison population and interrogate him regarding criminal conduct that took place outside the jail or prison.” 617 F.3d 813, 820 (CA6 2010); see also id., at 818 (“The central holding of Mathis is that a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population and interrogated, i.e.[,] questioned in a manner likely to lead to self-incrimination, about conduct occurring outside of the prison”). Because Fields was isolated from the general prison population and interrogated about conduct occurring in the outside world, the Court of Appeals found that the state court’s decision was contrary to clearly established federal law as determined by this Court in Mathis . 617 F. 3d, at 823. We granted certiorari. 562 U. S. ___ (2011). II Under AEDPA, a federal court may grant a state prisoner’s application for a writ of habeas corpus if the state-court adjudication pursuant to which the prisoner is held “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”  28 U. S. C. §2254(d)(1). In this context, “clearly established law” signifies “the holdings, as opposed to the dicta, of this Court’s decisions.” Williams v. Taylor , 529 U.S. 362 , 412 (2000). In this case, it is abundantly clear that our precedents do not clearly establish the categorical rule on which the Court of Appeals relied, i.e., that the questioning of a prisoner is always custodial when the prisoner is removed from the general prison population and questioned about events that occurred outside the prison. On the contrary, we have repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial. In Illinois v. Perkins , 496 U.S. 292 (1990), where we upheld the admission of un-Mirandized statements elicited from an inmate by an undercover officer masquerading as another inmate, we noted that “[t]he bare fact of cus- tody may not in every instance require a warning even when the suspect is aware that he is speaking to an official, but we do not have occasion to explore that issue here .” Id ., at 299 (emphasis added). Instead, we simply “reject[ed] the argument that Miranda warnings are required whenever a suspect is in custody in a technical sense and converses with someone who happens to be a government agent.” Id ., at 297. Most recently, in Maryland v. Shatzer , 559 U. S. ___ (2010), we expressly declined to adopt a bright-line rule for determining the applicability of Miranda in prisons. Shatzer considered whether a break in custody ends the presumption of involuntariness established in Edwards v. Arizona , 451 U.S. 477 (1981), and, if so, whether a prisoner’s return to the general prison population after a custodial interrogation constitutes a break in Miranda custody. See 559 U. S., at ___ (slip op., at 3–4). In considering the latter question, we noted first that “[w]e have never decided whether incarceration constitutes custody for Miranda purposes, and have indeed explicitly declined to address the issue.” Id ., at ___ (slip op., at 13) (citing Perkins , supra, at 299; emphasis added). The answer to this question, we noted, would “depen[d] upon whether [incar- ceration] exerts the coercive pressure that Miranda was designed to guard against—the ‘danger of coercion [that] results from the interaction of custody and official inter- rogation.’ ” 559 U. S., at ___ (slip op., at 13) (quoting Perkins , supra, at 297). In concluding that our precedents establish a categorical rule, the Court of Appeals placed great weight on the decision in Mathis , but the Court of Appeals misread the holding in that case. In Mathis , an inmate in a state prison was questioned by an Internal Revenue agent and was subsequently convicted for federal offenses. The Court of Appeals held that Miranda did not apply to this interview for two reasons: A criminal investigation had not been commenced at the time of the interview, and the prisoner was incarcerated for an “unconnected offense.” Mathis v . United States , 376 F.2d 595, 597 (CA5 1967). This Court rejected both of those grounds for distinguishing Miranda, 391 U. S., at 4, and thus the holding in Mathis is simply that a prisoner who otherwise meets the requirements for Miranda custody is not taken outside the scope of Miranda by either of the two factors on which the Court of Appeals had relied. Mathis did not hold that imprisonment, in and of itself, is enough to constitute Miranda custody.[ 4 ] Nor, contrary to respondent’s submission, see Brief for Respondent 14, did Oregon v . Mathiason , 429 U.S. 492 , 494 (1977) (per curiam) , which simply restated in dictum the holding in Mathis . The Court of Appeals purported to find support for its per se rule in Shatzer , relying on our statement that “[n]o one questions that Shatzer was in custody for Miranda purposes” when he was interviewed. 559 U. S., at ___ (slip op., at 13). But this statement means only that the issue of custody was not contested before us. It strains credulity to read the statement as constituting an “unambiguous conclusion” or “finding” by this Court that Shatzer was in custody. 617 F. 3d, at 822. Finally, contrary to respondent’s suggestion, see Brief for Respondent 12–15, Miranda itself did not clearly establish the rule applied by the Court of Appeals. Miranda adopted a “set of prophylactic measures” designed to ward off the “ ‘inherently compelling pressures’ of custodial interrogation,” Shatzer, supra, at ___ (slip op., at 4) (quoting Miranda , 384 U. S., at 467), but Miranda did not hold that such pressures are always present when a prisoner is taken aside and questioned about events outside the prison walls. Indeed, Miranda did not even establish that police questioning of a suspect at the station house is always custodial. See Mathiason , supra, at 495 (declining to find that Miranda warnings are required “simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect”). In sum, our decisions do not clearly establish that a prisoner is always in custody for purposes of Miranda whenever a prisoner is isolated from the general prison population and questioned about conduct outside the prison.[ 5 ] III Not only does the categorical rule applied below go well beyond anything that is clearly established in our prior decisions, it is simply wrong. The three elements of that rule—(1) imprisonment, (2) questioning in private, and (3) questioning about events in the outside world—are not necessarily enough to create a custodial situation for Miranda purposes. A As used in our Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of “the objective cir- cumstances of the interrogation,” Stansbury v. Califor- nia, 511 U.S. 318 , 322–323, 325 (1994) (per curiam) , a “reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” Thompson v . Keohane , 516 U.S. 99 , 112 (1995). And in order to determine how a suspect would have “gauge[d]” his “freedom of movement,” courts must examine “all of the circumstances surrounding the interrogation.” Stansbury , supra, at 322, 325 (internal quotation marks omitted). Relevant factors include the location of the questioning, see Shatzer , supra, at ___–___ (slip op., at 13–16), its duration, see Berkemer v. McCarty , 468 U.S. 420 , 437–438 (1984), statements made during the interview, see Mathiason , supra, at 495; Yarborough v. Alvarado , 541 U.S. 652 , 665 (2004); Stansbury , supra, at 325, the presence or absence of physical restraints during the questioning, see New York v. Quarles , 467 U.S. 649 , 655 (1984), and the release of the interviewee at the end of the questioning, see California v. Beheler , 463 U.S. 1121 , 1122–1123 (1983) (per curiam) . Determining whether an individual’s freedom of movement was curtailed, however, is simply the first step in the analysis, not the last. Not all restraints on freedom of movement amount to custody for purposes of Miranda . We have “decline[d] to accord talismanic power” to the freedom-of-movement inquiry, Berkemer , supra, at 437, and have instead asked the additional question whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda . “Our cases make clear . . . that the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody.” Shatzer , 559 U. S., at ___ (slip op., at 14). This important point is illustrated by our decision in Berkemer v . McCarty , supra. In that case, we held that the roadside questioning of a motorist who was pulled over in a routine traffic stop did not constitute custodial interrogation. Id., at 423, 441–442. We acknowledged that “a traffic stop significantly curtails the ‘freedom of action’ of the driver and the passengers,” and that it is generally “a crime either to ignore a policeman’s signal to stop one’s car or, once having stopped, to drive away without permission.” Id ., at 436. “[F]ew motorists,” we noted, “would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.” Ibid . Nevertheless, we held that a person detained as a result of a traffic stop is not in Miranda custody because such detention does not “sufficiently impair [the detained person’s] free exercise of his privilege against self-incrimination to require that he be warned of his consti- tutional rights.” 468 U. S., at 437. As we later put it, the “temporary and relatively nonthreatening detention in- volved in a traffic stop or Terry stop does not constitute Miranda custody,” Shatzer , supra, at ___ (slip op., at 14) (citation omitted). See Terry v. Ohio , 392 U.S. 1 (1968). It may be thought that the situation in Berkemer —the questioning of a motorist subjected to a brief traffic stop—is worlds away from those present when an inmate is questioned in a prison, but the same cannot be said of Shatz er, where we again distinguished between restraints on freedom of movement and Miranda custody. Shatzer, as noted , concerned the Edwards prophylactic rule, which limits the ability of the police to initiate further questioning of a suspect in Miranda custody once the suspect invokes the right to counsel. We held in Shatzer that this rule does not apply when there is a sufficient break in custody between the suspect’s invocation of the right to counsel and the initiation of subsequent questioning. See 559 U. S., at ___ (slip op., at 13-16). And, what is significant for present purposes, we further held that a break in custody may occur while a suspect is serving a term in prison. If a break in custody can occur while a prisoner is serving an uninterrupted term of imprisonment, it must follow that imprisonment alone is not enough to create a custodial situation within the meaning of Miranda . There are at least three strong grounds for this conclusion. First, questioning a person who is already serving a prison term does not generally involve the shock that very often accompanies arrest. In the paradigmatic Miranda situation—a person is arrested in his home or on the street and whisked to a police station for questioning—detention represents a sharp and ominous change, and the shock may give rise to coercive pressures. A person who is “cut off from his normal life and companions,” Shatzer , supra, at ___ (slip op., at 7), and abruptly transported from the street into a “police-dominated atmosphere,” Miranda , 384 U. S., at 456, may feel coerced into answering questions. By contrast, when a person who is already serving a term of imprisonment is questioned, there is usually no such change. “Interrogated suspects who have previously been convicted of crime live in prison.” Shatzer, 559 U. S., at ___ (slip op., at 14). For a person serving a term of incarceration, we reasoned in Shatzer , the ordinary restrictions of prison life, while no doubt unpleasant, are expected and familiar and thus do not involve the same “inherently compelling pressures” that are often present when a suspect is yanked from familiar surroundings in the outside world and subjected to interrogation in a police station. Id., at ___ (slip op., at 4). Second, a prisoner, unlike a person who has not been sentenced to a term of incarceration, is unlikely to be lured into speaking by a longing for prompt release. When a person is arrested and taken to a station house for interrogation, the person who is questioned may be pressured to speak by the hope that, after doing so, he will be allowed to leave and go home. On the other hand, when a prisoner is questioned, he knows that when the questioning ceases, he will remain under confinement. Id., at ___– ___, n. 8 (slip op., at 14–15, n. 8). Third, a prisoner, unlike a person who has not been convicted and sentenced, knows that the law enforcement officers who question him probably lack the authority to affect the duration of his sentence. Id., at ___–___ (slip op., at 14–15). And “where the possibility of parole exists,” the interrogating officers probably also lack the power to bring about an early release. Ibid . “When the suspect has no reason to think that the listeners have official power over him, it should not be assumed that his words are motivated by the reaction he expects from his listeners.” Perkins , 496 U. S., at 297. Under such circumstances, there is little “basis for the assumption that a suspect . . . will feel compelled to speak by the fear of reprisal for remaining silent or in the hope of [a] more lenient treatment should he confess.” Id. , at 296–297. In short, standard conditions of confinement and associated restrictions on freedom will not necessarily implicate the same interests that the Court sought to protect when it afforded special safeguards to persons subjected to custodial interrogation. Thus, service of a term of imprisonment, without more, is not enough to constitute Miranda custody. B The two other elements included in the Court of Appeals’ rule—questioning in private and questioning about events that took place outside the prison—are likewise insufficient. Taking a prisoner aside for questioning—as opposed to questioning the prisoner in the presence of fellow inmates—does not necessarily convert a “noncustodial situation . . . to one in which Miranda applies.” Mathiason , 429 U. S., at 495. When a person who is not serving a prison term is questioned, isolation may contribute to a coercive atmosphere by preventing family members, friends, and others who may be sympathetic from providing either advice or emotional support. And without any such assistance, the person who is questioned may feel overwhelming pressure to speak and to refrain from asking that the interview be terminated. By contrast, questioning a prisoner in private does not generally remove the prisoner from a supportive atmosphere. Fellow inmates are by no means necessarily friends. On the contrary, they may be hostile and, for a variety of reasons, may react negatively to what the questioning reveals. In the present case, for example, would respondent have felt more at ease if he had been questioned in the presence of other inmates about the sexual abuse of an adolescent boy? Isolation from the general prison population is often in the best interest of the interviewee and, in any event, does not suggest on its own the atmosphere of coercion that concerned the Court in Miranda . It is true that taking a prisoner aside for questioning may necessitate some additional limitations on his freedom of movement. A prisoner may, for example, be removed from an exercise yard and taken, under close guard, to the room where the interview is to be held. But such procedures are an ordinary and familiar attribute of life behind bars. Escorts and special security precautions may be standard procedures regardless of the purpose for which an inmate is removed from his regular routine and taken to a special location. For example, ordinary prison procedure may require such measures when a prisoner is led to a meeting with an attorney. Finally, we fail to see why questioning about criminal activity outside the prison should be regarded as having a significantly greater potential for coercion than questioning under otherwise identical circumstances about criminal activity within the prison walls. In both instances, there is the potential for additional criminal liability and punishment. If anything, the distinction would seem to cut the other way, as an inmate who confesses to misconduct that occurred within the prison may also incur administrative penalties, but even this is not enough to tip the scale in the direction of custody. “The threat to a citizen’s Fifth Amendment rights that Miranda was designed to neutralize” is neither mitigated nor magnified by the location of the conduct about which questions are asked. Berkemer, 468 U. S., at 435, n. 22. For these reasons, the Court of Appeals’ categorical rule is unsound. IV A When a prisoner is questioned, the determination of custody should focus on all of the features of the interrogation. These include the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted. See Yarborough , 541 U. S., at 665. An inmate who is removed from the general prison population for questioning and is “thereafter . . . subjected to treatment” in connection with the interrogation “that renders him ‘in custody’ for practical purposes . . . will be entitled to the full panoply of protections prescribed by Miranda .” Berkemer , 468 U. S., at 440. “Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Id., at 437; see Shatzer , 559 U. S., at ___ (slip op., at 9); Mathiason , supra, at 495. Confessions voluntarily made by prisoners in other situations should not be suppressed. “Voluntary confessions are not merely a proper element in law enforcement, they are an unmitigated good, essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.” Shatzer , supra, at ___ (slip op., at 9) (internal quotation marks and citations omitted). B The record in this case reveals that respondent was not taken into custody for purposes of Miranda . To be sure, respondent did not invite the interview or consent to it in advance, and he was not advised that he was free to decline to speak with the deputies. The following facts also lend some support to respondent’s argument that Miranda ’s custody requirement was met: The interview lasted for between five and seven hours in the evening and continued well past the hour when respondent generally went to bed; the deputies who questioned respondent were armed; and one of the deputies, according to respondent, “[u]sed a very sharp tone,” App. to Pet. for Cert. 76a, and, on one occasion, profanity, see id., at 77a. These circumstances, however, were offset by others. Most important, respondent was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted. See id., at 89a–90a (“I was told I could get up and leave whenever I wanted”); id ., at 70a–71a. Moreover, respondent was not physically restrained or threatened and was interviewed in a well-lit, average-sized conference room, where he was “not uncomfortable.” Id., at 90a; see id ., at 71a, 88a–89a. He was offered food and water, and the door to the conference room was sometimes left open. See id., at 70a, 74a. “All of these objective facts are consistent with an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.” Yarborough, supra, at 664–665. Because he was in prison, respondent was not free to leave the conference room by himself and to make his own way through the facility to his cell. Instead, he was escorted to the conference room and, when he ultimately decided to end the interview, he had to wait about 20 minutes for a corrections officer to arrive and escort him to his cell. But he would have been subject to this same restraint even if he had been taken to the conference room for some reason other than police questioning; under no circumstances could he have reasonably expected to be able to roam free.[ 6 ] And while respondent testified that he “was told . . . if I did not want to cooperate, I needed to go back to my cell,” these words did not coerce cooperation by threatening harsher conditions. App. to Pet. for Cert. 71a; see id ., at 89a (“I was told, if I didn’t want to cooperate, I could leave”). Returning to his cell would merely have returned him to his usual environment. See Shatzer , supra , at ___ (slip op., at 14) (“Interrogated suspects who have previously been convicted of crime live in prison. When they are released back into the general prison population, they return to their accustomed surroundings and daily routine—they regain the degree of control they had over their lives prior to the interrogation”). Taking into account all of the circumstances of the questioning—including especially the undisputed fact that respondent was told that he was free to end the questioning and to return to his cell—we hold that respondent was not in custody within the meaning of Miranda . *  *  * The judgment of the Court of Appeals is Reversed. Notes 1 Fields testified that he left his cell around 8 p.m. and that the in-terview began around 8:30 p.m. App. to Pet. for Cert. 77a. Both the Michigan Court of Appeals and the Sixth Circuit stated that the interview began between 7 p.m. and 9 p.m. See id., at 4a, 54a. 2 The Court of Appeals stated that the interview lasted for approximately seven hours, see id., at 4a, a figure that appears to be basedon the testimony of one of the interviewing deputies, see id., at 123a. Fields put the number of hours between five and five and a half, saying the interview began around 8:30 p.m. and continued until 1:30 a.m. or 2 a.m. See id., at 77a. The Michigan Court of Appeals stated that the interview ended around midnight, which would put the length of the interview at between three and five hours. 3 Fields testified that his normal bedtime was 10:30 p.m. or 11 p.m. See id., at 78a. 4 Indeed, it is impossible to tell from either the opinion of this Court or that of the court below whether the prisoner’s interview was routine or whether there were special features that may have created an especially coercive atmosphere. 5 The state-court decision applied the traditional context-specific analysis to determine whether the circumstances of respondent’s interrogation gave rise to “the coercive pressure that Miranda was designed to guard against.” Shatzer, 559 U. S., at ___ (slip op., at 13). The court first observed: “That a defendant is in prison for an unrelated offense when being questioned does not, without more , mean that he was in custody for the purpose of determining whether Miranda warnings were required.” App. to Pet. for Cert. 56a (internal quotation marks omitted and emphasis added). In this case, the court noted, the “defendant was unquestionably in custody, but on a matter unrelated to the interrogation.” Ibid . The Sixth Circuit concluded that the state court thereby limited Miranda in a way rejected by Mathis v. United States , 391 U.S. 1 (1968), and “curtail[ed] the warnings to be given persons under interrogation by officers based on the reason why the person is in custody.” Id., at 4–5. We think the better reading is that the state court merely meant to draw a distinction between incarceration and Miranda custody. This reading is supported by the state court’s subsequent consideration of whether the facts of the case were likely to create an atmosphere of coercion. App. to Pet. for Cert. 56a. 6 Respondent did not testify to the contrary. The following colloquy occurred at his Miranda hearing: “Q. You’re not generally allowed to just roam around Lenawee County Jail on your own, are you? “A. No, I never have. “Q. So wouldn’t it make sense to you, since you had that experience, that in fact you would have been escorted just like you were escorted . . . into this conference room? “A. That makes common sense. “Q. So when they said that you were free to leave and you get up—could get up and go and all you had to do was tell them you wanted to go, in your mind, did you understand that to mean that somebody would come get you and take you back to your cell? “A. But that doesn’t give me freedom to just get up and walk away. “Q. I understand it doesn’t— “A. So, no. “Q. The question is this, sir, not whether you had freedom to get up and walk away, but did you understand that what that meant was that a jailer would come get you and— “A. No— “Q. —take you back to your cell? “A. I did not understand that. “Q. You didn’t? “A. No. “Q. Why not? That’s how you got there. “A. Because I did not know if a jailer would take me back or if one of those gentlemen would take me back. “Q. But you understood that, if you asked, one of them or a jailer would take you back to your cell? “A. I assumed that. “Q. And you believed that to be true? “A. I assumed that.” App. to Pet. for Cert. 91a–92a. SUPREME COURT OF THE UNITED STATES _________________ No. 10–680 _________________ CAROL HOWES, WARDEN, PETITIONER v. RANDALL LEE FIELDS on writ of certiorari to the united states court of appeals for the sixth circuit [February 21, 2012] Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, concurring in part and dissenting in part. Given this Court’s controlling decisions on what counts as “custody” for Miranda purposes, I agree that the law is not “clearly established” in respondent Fields’s favor. See, e.g. , Maryland v. Shatzer , 559 U. S. ___, ___ (2010) (slip op., at 13–16); Thompson v. Keohane , 516 U.S. 99 , 112 (1995). But I disagree with the Court’s further determination that Fields was not in custody under Miranda . Were the case here on direct review, I would vote to hold that Miranda precludes the State’s introduction of Fields’s confession as evidence against him. Miranda v. Arizona , 384 U.S. 436 (1966), reacted to police interrogation tactics that eroded the Fifth Amendment’s ban on compulsory self-incrimination. The opinion did so by requiring interrogators to convey to suspects the now-familiar warnings: The suspect is to be informed, prior to interrogation, that he “has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. , at 444. Under what circumstances are Miranda warnings required? Miranda tells us “in all settings in which [a person’s] freedom of action is curtailed in any significant way.” Id ., at 467. Given the reality that police interrogators “trad[e] on the weakness of individuals,” i.e. , their “insecurity about [themselves] or [their] surroundings,” id ., at 455, the Court found the preinterrogation warnings set out in the opinion “indispensable,” id. , at 469. Those warnings, the Court elaborated, are “an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere,” id. , at 468; they “insure” that the suspect is timely told of his Fifth Amendment privilege, and his freedom to exercise it, id. , at 469. Fields, serving time for disorderly conduct, was, of course, “i[n] custody,” but not “for purposes of Miranda ,” the Court concludes. Ante , at 14. I would not train, as the Court does, on the question whether there can be custody within custody. Instead, I would ask, as Miranda put it, whether Fields was subjected to “incommunicado interrogation . . . in a police-dominated atmosphere,” 384 U. S., at 445, whether he was placed, against his will, in an inherently stressful situation, see id. , at 468, and whether his “freedom of action [was] curtailed in any significant way,” id. , at 467. Those should be the key questions, and to each I would answer “Yes.” As the Court acknowledges, Fields did not invite or consent to the interview. Ante , at 14. He was removed from his cell in the evening, taken to a conference room in the sheriff’s quarters, and questioned by two armed deputies long into the night and early morning. Ibid . He was not told at the outset that he had the right to decline to speak with the deputies. Ibid. Shut in with the armed officers, Fields felt “trapped.” App. to Pet. for Cert. 71a. Although told he could return to his cell if he did not want to cooperate, id. , at 71a–72a, Fields believed the deputies “would not have allowed [him] to leave the room,” id. , at 72a. And with good reason. More than once, “he told the officers . . . he did not want to speak with them anymore.” 617 F.3d 813, 815 (CA6 2010). He was given water, App. to Pet. for Cert. 74a, but not his evening medications, id. , at 79a.[ 1 ]* Yet the Court concludes that Fields was in “an interrogation environment in which a reasonable person would have felt free to terminate the interview and leave.” Ante , at 15 (quoting Yarborough v. Alvarado , 541 U.S. 652 , 665 (2004)). Critical to the Court’s judgment is “the undisputed fact that [Fields] was told that he was free to end the questioning and to return to his cell.” Ante , at 17. Never mind the facts suggesting that Fields’s submission to the overnight interview was anything but voluntary. Was Fields “held for interrogation”? See Miranda , 384 U. S., at 471. Brought to, and left alone with, the gun-bearing deputies, he surely was in my judgment. Miranda instructed that such a person “must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Ibid. Those warnings, along with “warnings of the right to remain silent and that anything stated can be used in evidence against [the speaker],” Miranda explained, are necessary “prerequisite[s] to [an] interrogation” compatible with the Fifth Amendment. Ibid . Today, for people already in prison, the Court finds it adequate for the police to say: “You are free to terminate this interrogation and return to your cell.” Such a statement is no substitute for one ensuring that an individual is aware of his rights. For the reasons stated, I would hold that the “incommunicado interrogation [of Fields] in a police-dominated atmosphere,” id. , at 445, without informing him of his rights, dishonored the Fifth Amendment privilege Miranda was designed to safeguard. Notes 1 * Each night, Fields took an antidepressant and, due to his kidney transplant surgery, two antirejection medications. App. to Pet. for Cert. 79a.

The Supreme Court case of Howes v. Fields (2012) dealt with the question of whether a prisoner is considered to be in custody for the purposes of Miranda v. Arizona (1966) when questioned about events that occurred outside the prison. The Court held that the prisoner, Randall Fields, was not in custody during the interrogation and therefore, Miranda warnings were not required. Fields was serving a sentence in a Michigan jail when he was escorted by a corrections officer to a conference room for questioning by two sheriff's deputies about allegations of sexual conduct with a minor before his incarceration. Fields was told he was free to leave and return to his cell, and the door to the conference room was sometimes open. The Court concluded that Fields was in an interrogation environment where a reasonable person would have felt free to terminate the interview and leave, and thus, Miranda warnings were not necessary.

Miranda Rights

Berghuis v. Thompkins

https://supreme.justia.com/cases/federal/us/560/370/

OPINION OF THE COURT BERGHUIS V. THOMPKINS 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1470 MARY BERGHUIS, WARDEN, PETITIONER v. VAN CHESTER THOMPKINS on writ of certiorari to the united states court of appeals for the sixth circuit [June 1, 2010]    Justice Kennedy delivered the opinion of the Court.    The United States Court of Appeals for the Sixth Circuit, in a habeas corpus proceeding challenging a Michigan conviction for first-degree murder and certain other offenses, ruled that there had been two separate constitutional errors in the trial that led to the jury’s guilty verdict. First, the Court of Appeals determined that a statement by the accused, relied on at trial by the prosecution, had been elicited in violation of Miranda v. Arizona , 384 U. S. 436 (1966). Second, it found that failure to ask for an instruction relating to testimony from an accomplice was ineffective assistance by defense counsel. See Strickland v. Washington , 466 U. S. 668 (1984). Both of these contentions had been rejected in Michigan courts and in the habeas corpus proceedings before the United States District Court. Certiorari was granted to review the decision by the Court of Appeals on both points. The warden of a Michigan correctional facility is the petitioner here, and Van Chester Thompkins, who was convicted, is the respondent. I A    On January 10, 2000, a shooting occurred outside a mall in Southfield, Michigan. Among the victims was Samuel Morris, who died from multiple gunshot wounds. The other victim, Frederick France, recovered from his injuries and later testified. Thompkins, who was a suspect, fled. About one year later he was found in Ohio and arrested there.    Two Southfield police officers traveled to Ohio to interrogate Thompkins, then awaiting transfer to Michigan. The interrogation began around 1:30 p.m. and lasted about three hours. The interrogation was conducted in a room that was 8 by 10 feet, and Thompkins sat in a chair that resembled a school desk (it had an arm on it that swings around to provide a surface to write on). App. 144a–145a. At the beginning of the interrogation, one of the officers, Detective Helgert, presented Thompkins with a form derived from the Miranda rule. It stated: “NOTIFICATION OF CONSTITUTIONAL RIGHTS AND STATEMENT “1. You have the right to remain silent. “2. Anything you say can and will be used against you in a court of law. “3. You have a right to talk to a lawyer before answering    any questions and you have the right to have a lawyer present with you while you are answering any    questions. “4. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish one. “5. You have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Brief for Petitioner 60 (some capitalization omitted).    Helgert asked Thompkins to read the fifth warning out loud. App. 8a. Thompkins complied. Helgert later said this was to ensure that Thompkins could read, and Helgert concluded that Thompkins understood English. Id. , at 9a. Helgert then read the other four Miranda warnings out loud and asked Thompkins to sign the form to demonstrate that he understood his rights. App. 8a–9a. Thompkins declined to sign the form. The record contains conflicting evidence about whether Thompkins then verbally confirmed that he understood the rights listed on the form. Compare id. , at 9a (at a suppression hearing, Helgert testified that Thompkins verbally confirmed that he understood his rights), with id. , at 148a (at trial, Helgert stated, “I don’t know that I orally asked him” whether Thompkins understood his rights).    Officers began an interrogation. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Id. , at 10a. Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. Id. , at 19a. He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t know.” And on occasion he communicated by nodding his head. Id. , at 23a. Thompkins also said that he “didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting in was hard.” Id. , at 152a.    About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Id. , at 11a, 153a. Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with tears.” Id. , at 11a. Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Id. , at 11a, 153a. Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Id. , at 153a. Thompkins answered “Yes” and looked away. Ibid. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later. Id. , at 11a.    Thompkins was charged with first-degree murder, assault with intent to commit murder, and certain firearms-related offenses. He moved to suppress the statements made during the interrogation. He argued that he had invoked his Fifth Amendment right to remain silent, requiring police to end the interrogation at once, see Michigan v. Mosley , 423 U. S. 96 , 103 (1975) (citing Miranda , 384 U. S., at 474), that he had not waived his right to remain silent, and that his inculpatory statements were involuntary. The trial court denied the motion.    At trial, the prosecution’s theory was that Thompkins shot the victims from the passenger seat of a van driven by Eric Purifoy. Purifoy testified that he had been driving the van and that Thompkins was in the passenger seat while another man, one Myzell Woodward, was in the back. The defense strategy was to pin the blame on Purifoy. Purifoy testified he did not see who fired the weapon because the van was stopped and he was bending over near the floor when shots were fired. Purifoy explained that, just after the shooting, Thompkins, holding a pistol, told Purifoy, “What the hell you doing? Pull off.” Purifoy then drove away from the scene. App. 170a.    So that the Thompkins jury could assess Purifoy’s credibility and knowledge, the prosecution elicited testimony from Purifoy that he had been tried earlier for the shooting under an aiding-and-abetting theory. Purifoy and Detective Helgert testified that a jury acquitted him of the murder and assault charges, convicted him of carrying a concealed weapon in a motor vehicle, and hung on two other firearms offenses to which he later pleaded guilty. At Purifoy’s trial, the prosecution had argued that Purifoy was the driver and Thompkins was the shooter. This was consistent with the prosecution’s argument at Thompkins’s trial.    After Purifoy’s trial had ended—but before Thompkins’s trial began—Purifoy sent Thompkins some letters. The letters expressed Purifoy’s disappointment that Thompkins’s family thought Purifoy was a “snitch” and a “rat.” Id. , at 179a–180a. In one letter Purifoy offered to send a copy of his trial transcript to Thompkins as proof that Purifoy did not place the blame on Thompkins for the shooting. Id. , at 180a. The letters also contained statements by Purifoy that claimed they were both innocent. Id. , at 178a–179a. At Thompkins’s trial, the prosecution suggested that one of Purifoy’s letters appeared to give Thompkins a trial strategy. It was, the prosecution suggested, that Woodward shot the victims, allowing Purifoy and Thompkins to say they dropped to the floor when the shooting started. Id. , at 187a–189a.    During closing arguments, the prosecution suggested that Purifoy lied when he testified that he did not see Thompkins shoot the victims: “Did Eric Purifoy’s Jury make the right decision? I’m not here to judge that. You are not bound by what his Jury found. Take his testimony for what it was, [a] twisted attempt to help not just an acquaintance but his tight buddy.” Id. , at 202a. Defense counsel did not object. Defense counsel also did not ask for an instruction informing the jury that it could consider evidence of the outcome of Purifoy’s trial only to assess Purifoy’s credibility, not to establish Thompkins’s guilt.    The jury found Thompkins guilty on all counts. He was sentenced to life in prison without parole. B    The trial court denied a motion for new trial filed by Thompkins’s appellate counsel. The trial court rejected the claim of ineffective assistance of trial counsel for failure to ask for a limiting instruction regarding the outcome of Purifoy’s trial, reasoning that this did not prejudice Thompkins. Id. , at 236a.    Thompkins appealed this ruling, along with the trial court’s refusal to suppress his pretrial statements under Miranda . The Michigan Court of Appeals rejected the Miranda claim, ruling that Thompkins had not invoked his right to remain silent and had waived it. It also rejected the ineffective-assistance-of-counsel claim, finding that Thompkins failed to show that evidence of Purifoy’s conviction for firearms offenses resulted in prejudice. App. to Pet. for Cert. 74a–82a. The Michigan Supreme Court denied discretionary review. 471 Mich. 866, 683 N. W. 2d 676 (2004) (table).    Thompkins filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. The District Court rejected Thompkins’s Miranda and ineffective-assistance claims. App. to Pet. for Cert. 39a–72a. It noted that, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court cannot grant a petition for a writ of habeas corpus unless the state court’s adjudication of the merits was “contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U. S. C. §2254(d)(1). The District Court reasoned that Thompkins did not invoke his right to remain silent and was not coerced into making statements during the interrogation. It held further that the Michigan Court of Appeals was not unreasonable in determining that Thompkins had waived his right to remain silent.    The United States Court of Appeals for the Sixth Circuit reversed, ruling for Thompkins on both his Miranda and ineffective-assistance-of-counsel claims. 547 F. 3d 572 (2008). The Court of Appeals ruled that the state court, in rejecting Thompkins’s Miranda claim, unreasonably applied clearly established federal law and based its decision on an unreasonable determination of the facts. See 28 U. S. C. §2254(d). The Court of Appeals acknowledged that a waiver of the right to remain silent need not be express, as it can be “ ‘inferred from the actions and words of the person interrogated.’ ” 547 F. 3d, at 582 (quoting North Carolina v. Butler , 441 U. S. 369 , 373 (1979)). The panel held, nevertheless, that the state court was unreasonable in finding an implied waiver in the circumstances here. The Court of Appeals found that the state court unreasonably determined the facts because “the evidence demonstrates that Thompkins was silent for two hours and forty-five minutes.” 547 F. 3d, at 586. According to the Court of Appeals, Thompkins’s “persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.” Id. , at 588.    The Court of Appeals next determined that the state court unreasonably applied clearly established federal law by rejecting Thompkins’s ineffective-assistance-of-counsel claim based on counsel’s failure to ask for a limiting instruction regarding Purifoy’s acquittal. The Court of Appeals asserted that because Thompkins’s central strategy was to pin the blame on Purifoy, there was a reasonable probability that the result of Thompkins’s trial would have been different if there had been a limiting instruction regarding Purifoy’s acquittal.    We granted certiorari. 557 U. S. ___ (2009). II    Under AEDPA, a federal court may not grant a habeas corpus application “with respect to any claim that was adjudicated on the merits in State court proceedings,” 28 U. S. C. §2254(d), unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” §2254(d)(1), or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” §2254(d)(2). See Knowles v. Mirzayance , 556 U. S. ___, ___ (2009) (slip op., at 1). The relevant state-court decision here is the Michigan Court of Appeals’ decision affirming Thompkins’s conviction and rejecting his Miranda and ineffective-assistance-of-counsel claims on the merits. III    The Miranda Court formulated a warning that must be given to suspects before they can be subjected to custodial interrogation. The substance of the warning still must be given to suspects today. A suspect in custody must be advised as follows: “He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 384 U. S., at 479. All concede that the warning given in this case was in full compliance with these requirements. The dispute centers on the response—or nonresponse—from the suspect. A    Thompkins makes various arguments that his answers to questions from the detectives were inadmissible. He first contends that he “invoke[d] his privilege” to remain silent by not saying anything for a sufficient period of time, so the interrogation should have “cease[d]” before he made his inculpatory statements. Id. , at 474; see Mosley , 423 U. S., at 103 (police must “ ‘scrupulously hono[r]’ ” this “critical safeguard” when the accused invokes his or her “ ‘right to cut off questioning’ ” (quoting Miranda , supra , at 474, 479)).    This argument is unpersuasive. In the context of invoking the Miranda right to counsel, the Court in Davis v. United States , 512 U. S. 452 , 459 (1994), held that a suspect must do so “unambiguously.” If an accused makes a statement concerning the right to counsel “that is ambiguous or equivocal” or makes no statement, the police are not required to end the interrogation, ibid. , or ask questions to clarify whether the accused wants to invoke his or her Miranda rights, 512 U. S., at 461–462.    The Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal, but there is no principled reason to adopt different standards for determining when an accused has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in Davis . See, e.g., Solem v. Stumes , 465 U. S. 638 , 648 (1984) (“[M]uch of the logic and language of [Mosley] ,” which discussed the Miranda right to remain silent, “could be applied to the invocation of the [ Miranda right to counsel]”). Both protect the privilege against compulsory self-incrimination, Miranda , supra , at 467–473, by requiring an interrogation to cease when either right is invoked, Mosley , supra , at 103 (citing Miranda , supra , at 474); Fare v. Michael C. , 442 U. S. 707 , 719 (1979).    There is good reason to require an accused who wants to invoke his or her right to remain silent to do so unambiguously. A requirement of an unambiguous invocation of Miranda rights results in an objective inquiry that “avoid[s] difficulties of proof and . . . provide[s] guidance to officers” on how to proceed in the face of ambiguity. Davis , 512 U. S., at 458–459. If an ambiguous act, omission, or statement could require police to end the interrogation, police would be required to make difficult decisions about an accused’s unclear intent and face the consequence of suppression “if they guess wrong.” Id. , at 461. Suppression of a voluntary confession in these circumstances would place a significant burden on society’s interest in prosecuting criminal activity. See id. , at 459–461; Moran v. Burbine , 475 U. S. 412 , 427 (1986). Treating an ambiguous or equivocal act, omission, or statement as an invocation of Miranda rights “might add marginally to Miranda ’s goal of dispelling the compulsion inherent in custodial interrogation.” Burbine , 475 U. S., at 425. But “as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process.” Id. , at 427; see Davis , supra , at 460.    Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his “ ‘right to cut off questioning.’ ” Mosley , supra , at 103 (quoting Miranda , supra , at 474). Here he did neither, so he did not invoke his right to remain silent. B    We next consider whether Thompkins waived his right to remain silent. Even absent the accused’s invocation of the right to remain silent, the accused’s statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused “in fact knowingly and voluntarily waived [Miranda] rights” when making the statement. Butler , 441 U. S., at 373. The waiver inquiry “has two distinct dimensions”: waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,” and “made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Burbine , supra , at 421.    Some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement. Miranda said “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” 384 U. S., at 475; see id. , at 470 (“No effective waiver . . . can be recognized unless specifically made after the [Miranda] warnings . . . have been given”). In addition, the Miranda Court stated that “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Id. , at 475.    The course of decisions since Miranda , informed by the application of Miranda warnings in the whole course of law enforcement, demonstrates that waivers can be established even absent formal or express statements of waiver that would be expected in, say, a judicial hearing to determine if a guilty plea has been properly entered. Cf. Fed. Rule Crim. Proc. 11. The main purpose of Miranda is to ensure that an accused is advised of and understands the right to remain silent and the right to counsel. See Davis , supra , at 460; Burbine , supra , at 427. Thus, “[i]f anything, our subsequent cases have reduced the impact of the Miranda rule on legitimate law enforcement while reaffirming the decision’s core ruling that unwarned statements may not be used as evidence in the prosecution’s case in chief.” Dickerson v. United States , 530 U. S. 428 , 443–444 (2000).    One of the first cases to decide the meaning and import of Miranda with respect to the question of waiver was North Carolina v. Butler . The Butler Court, after discussing some of the problems created by the language in Miranda , established certain important propositions. Butler interpreted the Miranda language concerning the “heavy burden” to show waiver, 384 U. S., at 475, in accord with usual principles of determining waiver, which can include waiver implied from all the circumstances. See Butler , supra , at 373, 376. And in a later case, the Court stated that this “heavy burden” is not more than the burden to establish waiver by a preponderance of the evidence. Colorado v. Connelly , 479 U. S. 157 , 168 (1986).    The prosecution therefore does not need to show that a waiver of Miranda rights was express. An “implicit waiver” of the “right to remain silent” is sufficient to admit a suspect’s statement into evidence. Butler , supra , at 376. Butler made clear that a waiver of Miranda rights may be implied through “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver.” 441 U. S., at 373. The Court in Butler therefore “retreated” from the “language and tenor of the Miranda opinion,” which “suggested that the Court would require that a waiver . . . be ‘specifically made.’ ” Connecticut v. Barrett , 479 U. S. 523 , 531–532 (1987) (Brennan, J., concurring in judgment).    If the State establishes that a Miranda warning was given and the accused made an uncoerced statement, this showing, standing alone, is insufficient to demonstrate “a valid waiver” of Miranda rights. Miranda , supra , at 475. The prosecution must make the additional showing that the accused understood these rights. See Colorado v. Spring , 479 U. S. 564 , 573–575 (1987); Barrett , supra , at 530; Burbine , supra , at 421–422. Cf. Tague v. Louisiana , 444 U. S. 469 , 469, 471 (1980) (per curiam) (no evidence that accused understood his Miranda rights); Carnley v. Cochran , 369 U. S. 506 , 516 (1962) (government could not show that accused “understandingly” waived his right to counsel in light of “silent record”). Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.    Although Miranda imposes on the police a rule that is both formalistic and practical when it prevents them from interrogating suspects without first providing them with a Miranda warning, see Burbine , 475 U. S., at 427, it does not impose a formalistic waiver procedure that a suspect must follow to relinquish those rights. As a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford. See, e.g., Butler , supra , at 372–376; Connelly , supra , at 169–170 (“There is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the Miranda waiver context than in the [due process] confession context”). The Court’s cases have recognized that a waiver of Miranda rights need only meet the standard of Johnson v. Zerbst , 304 U. S. 458 , 464 (1938). See Butler , supra , at 374–375; Miranda , supra , at 475–476 (applying Zerbst standard of intentional relinquishment of a known right). As Butler recognized, 441 U. S., at 375–376, Miranda rights can therefore be waived through means less formal than a typical waiver on the record in a courtroom, cf. Fed. Rule Crim. Proc. 11, given the practical constraints and necessities of interrogation and the fact that Miranda ’s main protection lies in advising defendants of their rights, see Davis , 512 U. S., at 460; Burbine , 475 U. S., at 427.    The record in this case shows that Thompkins waived his right to remain silent. There is no basis in this case to conclude that he did not understand his rights; and on these facts it follows that he chose not to invoke or rely on those rights when he did speak. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke. See id. , at 421. There was more than enough evidence in the record to conclude that Thompkins understood his Miranda rights. Thompkins received a written copy of the Miranda warnings; Detective Helgert determined that Thompkins could read and understand English; and Thompkins was given time to read the warnings. Thompkins, furthermore, read aloud the fifth warning, which stated that “you have the right to decide at any time before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned.” Brief for Petitioner 60 (capitalization omitted). He was thus aware that his right to remain silent would not dissipate after a certain amount of time and that police would have to honor his right to be silent and his right to counsel during the whole course of interrogation. Those rights, the warning made clear, could be asserted at any time. Helgert, moreover, read the warnings aloud.    Second, Thompkins’s answer to Detective Helgert’s question about whether Thompkins prayed to God for forgiveness for shooting the victim is a “course of conduct indicating waiver” of the right to remain silent. Butler , supra , at 373. If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver. Police are not required to rewarn suspects from time to time. Thompkins’s answer to Helgert’s question about praying to God for forgiveness for shooting the victim was sufficient to show a course of conduct indicating waiver. This is confirmed by the fact that before then Thompkins had given sporadic answers to questions throughout the interrogation.    Third, there is no evidence that Thompkins’s statement was coerced. See Burbine , supra , at 421. Thompkins does not claim that police threatened or injured him during the interrogation or that he was in any way fearful. The interrogation was conducted in a standard-sized room in the middle of the afternoon. It is true that apparently he was in a straight-backed chair for three hours, but there is no authority for the proposition that an interrogation of this length is inherently coercive. Indeed, even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats. Cf. Connelly , 479 U. S., at 163–164, n. 1. The fact that Helgert’s question referred to Thompkins’s religious beliefs also did not render Thompkins’s statement involuntary. “[T]he Fifth Amendment privilege is not concerned ‘with moral and psychological pressures to confess emanating from sources other than official coercion.’ ” Id. , at 170 (quoting Oregon v. Elstad , 470 U. S. 298 , 305 (1985)). In these circumstances, Thompkins knowingly and voluntarily made a statement to police, so he waived his right to remain silent. C    Thompkins next argues that, even if his answer to Detective Helgert could constitute a waiver of his right to remain silent, the police were not allowed to question him until they obtained a waiver first. Butler forecloses this argument. The Butler Court held that courts can infer a waiver of Miranda rights “from the actions and words of the person interrogated.” 441 U. S., at 373. This principle would be inconsistent with a rule that requires a waiver at the outset. The Butler Court thus rejected the rule proposed by the Butler dissent, which would have “requir[ed] the police to obtain an express waiver of [ Miranda rights] before proceeding with interrogation.” Id. , at 379 (Brennan, J., dissenting). This holding also makes sense given that “the primary protection afforded suspects subject[ed] to custodial interrogation is the Miranda warnings themselves.” Davis , 512 U. S., at 460. The Miranda rule and its requirements are met if a suspect receives adequate Miranda warnings, understands them, and has an opportunity to invoke the rights before giving any answers or admissions. Any waiver, express or implied, may be contradicted by an invocation at any time. If the right to counsel or the right to remain silent is invoked at any point during questioning, further interrogation must cease.    Interrogation provides the suspect with additional information that can put his or her decision to waive, or not to invoke, into perspective. As questioning commences and then continues, the suspect has the opportunity to consider the choices he or she faces and to make a more informed decision, either to insist on silence or to cooperate. When the suspect knows that Miranda rights can be invoked at any time, he or she has the opportunity to reassess his or her immediate and long-term interests. Cooperation with the police may result in more favorable treatment for the suspect; the apprehension of accomplices; the prevention of continuing injury and fear; beginning steps towards relief or solace for the victims; and the beginning of the suspect’s own return to the law and the social order it seeks to protect.    In order for an accused’s statement to be admissible at trial, police must have given the accused a Miranda warning. See Miranda , 384 U. S., at 471. If that condition is established, the court can proceed to consider whether there has been an express or implied waiver of Miranda rights. Id. , at 476. In making its ruling on the admissibility of a statement made during custodial questioning, the trial court, of course, considers whether there is evidence to support the conclusion that, from the whole course of questioning, an express or implied waiver has been established. Thus, after giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived his or her Miranda rights. On these premises, it fol- lows the police were not required to obtain a waiver of Thompkins’s Miranda rights before commencing the interrogation. D    In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins’s right to remain silent before interrogating him. The state court’s decision rejecting Thompkins’s Miranda claim was thus correct under de novo review and therefore necessarily reasonable under the more deferential AEDPA standard of review, 28 U. S. C. §2254(d). See Knowles , 556 U. S., at ___ (slip op., at 11) (state court’s decision was correct under de novo review and not unreasonable under AEDPA). IV    The second issue in this case is whether Thompkins’s counsel provided ineffective assistance by failing to request a limiting instruction regarding how the jury could consider the outcome of Purifoy’s trial. To establish ineffective assistance of counsel, a defendant “must show both deficient performance and prejudice.” Id. , at ___ (slip op., at 10) (citing Strickland , 466 U. S., at 687). To establish prejudice, a “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland , 466 U. S., at 694. In assessing prejudice, courts “must consider the totality of the evidence before the judge or jury.” Id. , at 695. The Court of Appeals, however, neglected to take into account the other evidence presented against Thompkins.    The Court of Appeals determined that the state court was unreasonable, 28 U. S. C. §2254(d), when it found that Thompkins suffered no prejudice from failure of defense counsel to request an instruction regarding Purifoy’s earlier acquittal of the murder and assault charges. The state court had rejected Thompkins’s claim that he was prejudiced by evidence of Purifoy’s earlier conviction for firearms offenses, noting that “the record does not disclose an attempt to argue that conviction for an improper purpose.” App. to Pet. for Cert. 80a. It is unclear what prejudice standard the state court applied. The Court of Appeals ruled that the state court used the incorrect standard for assessing prejudice under Strickland because “[q]uestions of the prosecution’s purpose or intent are completely irrelevant in analyzing whether an error resulted in prejudice, which by definition concerns the error’s effect upon the outcome.” 547 F. 3d, at 591–592 (emphasis deleted).    Even if the state court used an incorrect legal standard, we need not determine whether AEDPA’s deferential standard of review, 28 U. S. C. §2254(d), applies in this situation. Cf. Williams v. Taylor , 529 U. S. 362 , 397–398 (2000). That is because, even if AEDPA deference does not apply, Thompkins cannot show prejudice under de novo review, the more favorable standard of review for Thompkins. Courts cannot grant writs of habeas corpus under §2254 by engaging only in de novo review when it is unclear whether AEDPA deference applies, §2254(d). In those situations, courts must resolve whether AEDPA deference applies, because if it does, a habeas petitioner may not be entitled to a writ of habeas corpus under §2254(d). Courts can, however, deny writs of habeas corpus under §2254 by engaging in de novo review when it is unclear whether AEDPA deference applies, because a habeas petitioner will not be entitled to a writ of habeas corpus if his or her claim is rejected on de novo review, see §2254(a).    It seems doubtful that failure to request the instruction about the earlier acquittal or conviction was deficient representation; but on the assumption that it was, on this record Thompkins cannot show prejudice. The record establishes that it was not reasonably likely that the instruction would have made any difference in light of all the other evidence of guilt. The surviving victim, Frederick France, identified Thompkins as the shooter, and the identification was supported by a photograph taken from a surveillance camera. Thompkins’s friend Omar Stephens testified that Thompkins confessed to him during a phone conversation, and the details of that confession were corroborated by evidence that Thompkins stripped the van and abandoned it after the shooting. The jury, moreover, was capable of assessing Purifoy’s credibility, as it was instructed to do. The jury in Thompkins’s case could have concluded that the earlier jury in Purifoy’s case made a mistake, or alternatively, that Purifoy was not in fact guilty of the crime for which he had been charged. There was ample evidence in the record to support Thompkins’s guilt under either theory, and his jury was instructed to weigh all of the evidence in determining whether there was guilt beyond a reasonable doubt. Under our de novo review of this record, Thompkins cannot show prejudice. *  *  *    The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to deny the petition. It is so ordered. SOTOMAYOR, J., DISSENTING BERGHUIS V. THOMPKINS 560 U. S. ____ (2010) SUPREME COURT OF THE UNITED STATES NO. 08-1470 MARY BERGHUIS, WARDEN, PETITIONER v. VAN CHESTER THOMPKINS on writ of certiorari to the united states court of appeals for the sixth circuit [June 1, 2010]    Justice Sotomayor, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting.    The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police. Both propositions mark a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona , 384 U. S. 436 (1966), has long provided during custodial interrogation. The broad rules the Court announces today are also troubling because they are unnecessary to decide this case, which is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). Because I believe Thompkins is entitled to relief under AEDPA on the ground that his statements were admitted at trial without the prosecution having carried its burden to show that he waived his right to remain silent; because longstanding principles of judicial restraint counsel leaving for another day the questions of law the Court reaches out to decide; and because the Court’s answers to those questions do not result from a faithful application of our prior decisions, I respectfully dissent. I    We granted certiorari to review the judgment of the Court of Appeals for the Sixth Circuit, which held that Thompkins was entitled to habeas relief under both Miranda and Strickland v. Washington , 466 U. S. 668 (1984). 547 F. 3d 572 (2008). As to the Miranda claims, Thompkins argues first that through his conduct during the 3-hour custodial interrogation he effectively invoked his right to remain silent, requiring police to cut off questioning in accordance with Miranda and Michigan v. Mosley , 423 U. S. 96 (1975). Thompkins also contends his statements were in any case inadmissible because the prosecution failed to meet its heavy burden under Miranda of proving that he knowingly and intelligently waived his right to remain silent. The Sixth Circuit agreed with Thompkins as to waiver and declined to reach the question of invocation. 547 F. 3d, at 583–584, n. 4. In my view, even if Thompkins cannot prevail on his invocation claim under AEDPA, he is entitled to relief as to waiver. Because I would affirm the judgment of the Sixth Circuit on that ground, I would not reach Thompkins’ claim that he received constitutionally ineffective assistance of counsel.    The strength of Thompkins’ Miranda claims depends in large part on the circumstances of the 3-hour interrogation, at the end of which he made inculpatory statements later introduced at trial. The Court’s opinion downplays record evidence that Thompkins remained almost completely silent and unresponsive throughout that session. One of the interrogating officers, Detective Helgert, testified that although Thompkins was administered Miranda warnings, the last of which he read aloud, Thompkins expressly declined to sign a written acknowledgment that he had been advised of and understood his rights. There is conflicting evidence in the record about whether Thompkins ever verbally confirmed understanding his rights.[ Footnote 1 ] The record contains no indication that the officers sought or obtained an express waiver.    As to the interrogation itself, Helgert candidly characterized it as “very, very one-sided” and “nearly a monologue.” App. 10a, 17a. Thompkins was “[p]eculiar,” “[s]ullen,” and “[g]enerally quiet.” Id., at 149a. Helgert and his partner “did most of the talking,” as Thompkins was “not verbally communicative” and “[l]argely” remained silent. Id., at 149a, 17a, 19a. To the extent Thompkins gave any response, his answers consisted of “a word or two. A ‘yeah,’ or a ‘no,’ or ‘I don’t know.’ … And sometimes … he simply sat down … with [his] head in [his] hands looking down. Sometimes … he would look up and make eye-contact would be the only response.” Id., at 23a–24a. After proceeding in this fashion for approximately 2 hours and 45 minutes, Helgert asked Thompkins three questions relating to his faith in God. The prosecution relied at trial on Thompkins’ one-word answers of “yes.” See id., at 10a–11a.    Thompkins’ nonresponsiveness is particularly striking in the context of the officers’ interview strategy, later explained as conveying to Thompkins that “this was his opportunity to explain his side [of the story]” because “[e]verybody else, including [his] co-[d]efendants, had given their version,” and asking him “[w]ho is going to speak up for you if you don’t speak up for yourself?” Id., at 10a, 21a. Yet, Helgert confirmed that the “ only thing [Thompkins said] relative to his involvement [in the shooting]” occurred near the end of the interview— i.e. , in response to the questions about God. Id., at 10a–11a (emphasis added). The only other responses Helgert could remember Thompkins giving were that “ ‘[h]e didn’t want a peppermint’ ” and “ ‘the chair that he was sitting in was hard.’ ” Id., at 152a. Nevertheless, the Michigan court concluded on this record that Thompkins had not invoked his right to remain silent because “he continued to talk with the officer, albeit sporadically,” and that he voluntarily waived that right. App. to Pet. for Cert. 75a.    Thompkins’ federal habeas petition is governed by AEDPA, under which a federal court may not grant the writ unless the state court’s adjudication of the merits of the claim at issue “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” §§2254(d)(1), (2).    The relevant clearly established federal law for purposes of §2254(d)(1) begins with our landmark Miranda decision, which “g[a]ve force to the Constitution’s protection against compelled self-incrimination” by establishing “ ‘certain procedural safeguards that require police to advise criminal suspects of their rights under the Fifth and Fourteenth Amendments before commencing custodial interrogation,’ ” Florida v. Powell , 559 U. S. ___, ___–___ (2010) (slip op., at 7–8) (quoting Duckworth v. Eagan , 492 U. S. 195 , 201 (1989)). Miranda prescribed the now-familiar warnings that police must administer prior to questioning. See 384 U. S., at 479; ante , at 8. Miranda and our subsequent cases also require police to “respect the accused’s decision to exercise the rights outlined in the warnings.” Moran v. Burbine , 475 U. S. 412 , 420 (1986). “If [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent” or if he “states that he wants an attorney,” the interrogation “must cease.” 384 U. S., at 473–474.    Even when warnings have been administered and a suspect has not affirmatively invoked his rights, statements made in custodial interrogation may not be admitted as part of the prosecution’s case in chief “unless and until” the prosecution demonstrates that an individual “knowingly and intelligently waive[d] [his] rights.” Id., at 479; accord, ante , at 10. “[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.” Miranda , 384 U. S., at 475. The government must satisfy the “high standar[d] of proof for the waiver of constitutional rights [set forth in] Johnson v. Zerbst , 304 U. S. 458 (1938).” Ibid. The question whether a suspect has validly waived his right is “entirely distinct” as a matter of law from whether he invoked that right. Smith v. Illinois , 469 U. S. 91 , 98 (1984) (per curiam) . The questions are related, however, in terms of the practical effect on the exercise of a suspect’s rights. A suspect may at any time revoke his prior waiver of rights—or, closer to the facts of this case, guard against the possibility of a future finding that he implicitly waived his rights—by invoking the rights and thereby requiring the police to cease questioning. Accord, ante , at 16. II A    Like the Sixth Circuit, I begin with the question whether Thompkins waived his right to remain silent. Even if Thompkins did not invoke that right, he is entitled to relief because Michigan did not satisfy its burden of establishing waiver. Miranda ’s discussion of the prosecution’s burden in proving waiver speaks with particular clarity to the facts of this case and therefore merits reproducing at length:    “If [an] interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel… . Since the State is responsible for establishing the isolated circumstances under which [an] interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.    “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” 384 U. S., at 475. Miranda went further in describing the facts likely to satisfy the prosecution’s burden of establishing the ad-missibility of statements obtained after a lengthy interrogation:    “Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege.” Id., at 476.    This Court’s decisions subsequent to Miranda have emphasized the prosecution’s “heavy burden” in proving waiver. See, e.g., Tague v. Louisiana , 444 U. S. 469 , 470–471 (1980) (per curiam); Fare v. Michael C. , 442 U. S. 707 , 724 (1979). We have also reaffirmed that a court may not presume waiver from a suspect’s silence or from the mere fact that a confession was eventually obtained. See North Carolina v. Butler , 441 U. S. 369 , 373 (1979).    Even in concluding that Miranda does not invariably require an express waiver of the right to silence or the right to counsel, this Court in Butler made clear that the prosecution bears a substantial burden in establishing an implied waiver. The Federal Bureau of Investigation had obtained statements after advising Butler of his rights and confirming that he understood them. When presented with a written waiver-of-rights form, Butler told the agents, “ ‘I will talk to you but I am not signing any form.’ ” 441 U. S., at 371. He then made inculpatory statements, which he later sought to suppress on the ground that he had not expressly waived his right to counsel.    Although this Court reversed the state-court judgment concluding that the statements were inadmissible, we quoted at length portions of the Miranda opinion reproduced above. We cautioned that even an “express written or oral statement of waiver of the right to remain silent or of the right to counsel” is not “inevitably … sufficient to establish waiver,” emphasizing that “[t]he question is … whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” 441 U. S., at 373. Miranda , we observed, “unequivocally said … mere silence is not enough.” 441 U. S., at 373. While we stopped short in Butler of announcing a per se rule that “the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights,” we reiterated that “courts must presume that a defendant did not waive his rights; the prosecution’s burden is great.” Ibid.[ Footnote 2 ] Rarely do this Court’s precedents provide clearly established law so closely on point with the facts of a particular case. Together, Miranda and Butler establish that a court “must presume that a defendant did not waive his right[s]”; the prosecution bears a “heavy burden” in attempting to demonstrate waiver; the fact of a “lengthy interrogation” prior to obtaining statements is “strong evidence” against a finding of valid waiver; “mere silence” in response to questioning is “not enough”; and waiver may not be presumed “simply from the fact that a confession was in fact eventually obtained.” Miranda , supra , at 475–476; Butler , supra , at 372–373.[ Footnote 3 ]    It is undisputed here that Thompkins never expressly waived his right to remain silent. His refusal to sign even an acknowledgment that he understood his Miranda rights evinces, if anything, an intent not to waive those rights. Cf. United States v. Plugh , 576 F. 3d 135, 142 (CA2 2009) (suspect’s refusal to sign waiver-of-rights form “constituted an unequivocally negative answer to the question … whether he was willing to waive his rights”). That Thompkins did not make the inculpatory statements at issue until after approximately 2 hours and 45 minutes of interrogation serves as “strong evidence” against waiver. Miranda and Butler expressly preclude the possibility that the inculpatory statements themselves are sufficient to establish waiver.    In these circumstances, Thompkins’ “actions and words” preceding the inculpatory statements simply do not evidence a “course of conduct indicating waiver” sufficient to carry the prosecution’s burden. See Butler , supra , at 373.[ Footnote 4 ] Although the Michigan court stated that Thompkins “sporadically” participated in the interview, App. to Pet. for Cert. 75a, that court’s opinion and the record before us are silent as to the subject matter or context of even a single question to which Thompkins purportedly responded, other than the exchange about God and the statements respecting the peppermint and the chair. Unlike in Butler , Thompkins made no initial declaration akin to “I will talk to you.” See also 547 F. 3d, at 586–587 (case below) (noting that the case might be different if the record showed Thompkins had responded affirmatively to an invitation to tell his side of the story or described any particular question that Thompkins answered). Indeed, Michigan and the United States concede that no waiver occurred in this case until Thompkins responded “yes” to the questions about God. See Tr. of Oral Arg. 7, 30. I believe it is objectively unreasonable under our clearly established precedents to conclude the prosecution met its “heavy burden” of proof on a record consisting of three one-word answers, following 2 hours and 45 minutes of silence punctuated by a few largely nonverbal responses to unidentified questions. B    Perhaps because our prior Miranda precedents so clearly favor Thompkins, the Court today goes beyond AEDPA’s deferential standard of review and announces a new general principle of law. Any new rule, it must be emphasized, is unnecessary to the disposition of this case. If, in the Court’s view, the Michigan court did not unreasonably apply our Miranda precedents in denying Thompkins relief, it should simply say so and reverse the Sixth Circuit’s judgment on that ground. “It is a fundamental rule of judicial restraint … that this Court will not reach constitutional questions in advance of the necessity of deciding them.” Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C. , 467 U. S. 138 , 157 (1984). Consistent with that rule, we have frequently declined to address questions beyond what is necessary to resolve a case under AEDPA. See, e.g., Tyler v. Cain , 533 U. S. 656 , 667–668 (2001) (declining to address question where any statement by this Court would be “dictum” in light of AEDPA’s statutory constraints on habeas review); cf. Wiggins v. Smith , 539 U. S. 510 , 522 (2003) (noting that Williams v. Taylor , 529 U. S. 362 (2000), “made no new law” because the “case was before us on habeas review”). No necessity exists to justify the Court’s broad announcement today.    The Court concludes that when Miranda warnings have been given and understood, “an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Ante , at 12–13. More broadly still, the Court states that, “[a]s a general proposition, the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford.” Ante , at 13.    These principles flatly contradict our longstanding views that “a valid waiver will not be presumed … simply from the fact that a confession was in fact eventually obtained,” Miranda , 384 U. S., at 475, and that “[t]he courts must presume that a defendant did not waive his rights,” Butler , 441 U. S., at 373. Indeed, we have in the past summarily reversed a state-court decision that inverted Miranda ’s antiwaiver presumption, characterizing the error as “readily apparent.” Tague , 444 U. S., at 470–471. At best, the Court today creates an unworkable and conflicting set of presumptions that will undermine Miranda ’s goal of providing “concrete constitutional guidelines for law enforcement agencies and courts to follow,” 384 U. S., at 442. At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided for the constitutional guarantee against self-incrimination.    The Court’s conclusion that Thompkins’ inculpatory statements were sufficient to establish an implied waiver, ante , at 14, finds no support in Butler . Butler itself distinguished between a sufficient “course of conduct” and inculpatory statements, reiterating Miranda ’s admonition that “ ‘a valid waiver will not be presumed simply from … the fact that a confession was in fact eventually obtained.’ ” Butler , supra , at 373 (quoting Miranda , supra , at 475). Michigan suggests Butler’s silence “ ‘when advised of his right to the assistance of a lawyer,’ ” combined with our remand for the state court to apply the implied-waiver standard, shows that silence followed by statements can be a “ ‘course of conduct.’ ” Brief for Petitioner 26 (quoting Butler , supra , at 371). But the evidence of implied waiver in Butler was worlds apart from the evidence in this case, because Butler unequivocally said “I will talk to you” after having been read Miranda warnings. Thompkins, of course, made no such statement.    The Court also relies heavily on Burbine in characterizing the scope of the prosecution’s burden in proving waiver. Consistent with Burbine , the Court observes, the prosecution must prove that waiver was “ ‘voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation’ ” and “ ‘made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.’ ” Ante , at 10 (quoting 475 U. S., at 421). I agree with the Court’s statement, so far as it goes. What it omits, however, is that the prosecution also bears an antecedent burden of showing there was, in fact, either an express waiver or a “course of conduct” sufficiently clear to support a finding of implied waiver. Nothing in Burbine even hints at removing that obligation. The question in that case, rather, was whether a suspect’s multiple express waivers of his rights were invalid because police “misinformed an inquiring attorney about their plans concerning the suspect or because they failed to inform the suspect of the attorney’s efforts to reach him.” Id., at 420; see also Colorado v. Spring , 479 U. S. 564 , 573 (1987). The Court’s analysis in Burbine was predicated on the existence of waiver-in-fact.    Today’s dilution of the prosecution’s burden of proof to the bare fact that a suspect made inculpatory statements after Miranda warnings were given and understood takes an unprecedented step away from the “high standards of proof for the waiver of constitutional rights” this Court has long demanded. Miranda , supra , at 475; cf. Brewer v. Williams , 430 U. S. 387 , 404 (1977) (“[C]ourts indulge in every reasonable presumption against waiver”); Zerbst , 304 U. S., at 464. When waiver is to be inferred during a custodial interrogation, there are sound reasons to require evidence beyond inculpatory statements themselves. Miranda and our subsequent cases are premised on the idea that custodial interrogation is inherently coercive. See 384 U. S., at 455 (“Even without employing brutality, the ‘third degree’ or [other] specific strategems … the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals”); Dickerson v. United States , 530 U. S. 428 , 435 (2000). Requiring proof of a course of conduct beyond the inculpatory statements themselves is critical to ensuring that those statements are voluntary admissions and not the dubious product of an overborne will.    Today’s decision thus ignores the important interests Miranda safeguards. The underlying constitutional guarantee against self-incrimination reflects “many of our fundamental values and most noble aspirations,” our society’s “preference for an accusatorial rather than an inquisitorial system of criminal justice”; a “fear that self-incriminating statements will be elicited by inhumane treatment and abuses” and a resulting “distrust of self-deprecatory statements”; and a realization that while the privilege is “sometimes a shelter to the guilty, [it] is often a protection to the innocent.” Withrow v. Williams , 507 U. S. 680 , 692 (1993) (internal quotation marks omitted). For these reasons, we have observed, a criminal law system “which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system relying on independent investigation.” Ibid. (some internal quotation marks omitted). “By bracing against ‘the possibility of unreliable statements in every instance of in-custody interrogation,’ ” Miranda ’s prophylactic rules serve to “ ‘protect the fairness of the trial itself.’ ” 507 U. S., at 692 (quoting Johnson v. New Jersey , 384 U. S. 719 , 730 (1966); Schneckloth v. Bustamonte , 412 U. S. 218 , 240 (1973)). Today’s decision bodes poorly for the fundamental principles that Miranda protects. III    Thompkins separately argues that his conduct during the interrogation invoked his right to remain silent, requiring police to terminate questioning. Like the Sixth Circuit, I would not reach this question because Thompkins is in any case entitled to relief as to waiver. But even if Thompkins would not prevail on his invocation claim under AEDPA’s deferential standard of review, I cannot agree with the Court’s much broader ruling that a suspect must clearly invoke his right to silence by speaking. Taken together with the Court’s reformulation of the prosecution’s burden of proof as to waiver, today’s novel clear-statement rule for invocation invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights. Such a result bears little semblance to the “fully effective” prophylaxis, 384 U. S., at 444, that Miranda requires. A    Thompkins’ claim for relief under AEDPA rests on the clearly established federal law of Miranda and Mosley . In Miranda , the Court concluded that “[i]f [an] individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease… . [A]ny statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.” 384 U. S., at 473–474. In Mosley , the Court said that a “critical safeguard” of the right to remain silent is a suspect’s “ ‘right to cut off questioning.’ ” 423 U. S., at 103 (quoting Miranda , supra , at 474). Thus, “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” 423 U. S., at 104.[ Footnote 5 ]    Thompkins contends that in refusing to respond to questions he effectively invoked his right to remain silent, such that police were required to terminate the interrogation prior to his inculpatory statements. In Michigan’s view, Thompkins cannot prevail under AEDPA because this Court’s precedents have not previously established whether a suspect’s ambiguous statements or actions require the police to stop questioning. We have held that a suspect who has “ ‘invoked his right to have counsel present … is not subject to further interrogation by the authorities until counsel has been made available to him, unless [he] initiates further communication, exchanges, or conversations with the police.’ ” Maryland v. Shatzer , 559 U. S. ___, ___ (2010) (slip op., at 5) (quoting Edwards v. Arizona , 451 U. S. 477 , 484–485 (1981)). Notwithstanding Miranda ’s statement that “there can be no questioning” if a suspect “indicates in any manner … that he wishes to consult with an attorney,” 384 U. S., at 444–445, the Court in Davis v. United States , 512 U. S. 452 , 461 (1994) established a clear-statement rule for invoking the right to counsel. After a suspect has knowingly and voluntarily waived his Miranda rights, Davis held, police may continue questioning “until and unless the suspect clearly requests an attorney.” 512 U. S., at 461 (emphasis added).    Because this Court has never decided whether Davis ’ clear-statement rule applies to an invocation of the right to silence, Michigan contends, there was no clearly established federal law prohibiting the state court from requiring an unambiguous invocation. That the state court’s decision was not objectively unreasonable is confirmed, in Michigan’s view, by the number of federal Courts of Appeals to have applied Davis to invocation of the right to silence. Brief for Petitioner 44.    Under AEDPA’s deferential standard of review, it is indeed difficult to conclude that the state court’s application of our precedents was objectively unreasonable. Although the duration and consistency of Thompkins’ refusal to answer questions throughout the 3-hour interrogation provide substantial evidence in support of his claim, Thompkins did not remain absolutely silent, and this Court has not previously addressed whether a suspect can invoke the right to silence by remaining uncooperative and nearly silent for 2 hours and 45 minutes. B    The Court, however, eschews this narrow ground of decision, instead extending Davis to hold that police may continue questioning a suspect until he unambiguously invokes his right to remain silent. Because Thompkins neither said “he wanted to remain silent” nor said “he did not want to talk with the police,” the Court concludes, he did not clearly invoke his right to silence. Ante, at 8–10.[ Footnote 6 ]    I disagree with this novel application of Davis . Neither the rationale nor holding of that case compels today’s result. Davis involved the right to counsel, not the right to silence. The Court in Davis reasoned that extending Edwards ’ “rigid” prophylactic rule to ambiguous requests for a lawyer would transform Miranda into a “ ‘wholly irrational obstacl[e] to legitimate police investigative activity’ ” by “needlessly prevent[ing] the police from questioning a suspect in the absence of counsel even if [he] did not wish to have a lawyer present.” Davis , supra , at 460. But Miranda itself “distinguished between the procedural safeguards triggered by a request to remain silent and a request for an attorney.” Mosley , supra , at 104, n. 10; accord, Edwards , supra , at 485. Mosley upheld the admission of statements when police immediately stopped interrogating a suspect who invoked his right to silence, but reapproached him after a 2-hour delay and obtained inculpatory responses relating to a different crime after administering fresh Miranda warnings. The different effects of invoking the rights are consistent with distinct standards for invocation. To the extent Mosley contemplates a more flexible form of prophylaxis than Edwards —and, in particular, does not categorically bar police from reapproaching a suspect who has invoked his right to remain silent— Davis ’ concern about “ ‘wholly irrational obstacles’ ” to police investigation applies with less force.    In addition, the suspect’s equivocal reference to a lawyer in Davis occurred only after he had given express oral and written waivers of his rights. Davis ’ holding is explicitly predicated on that fact. See 512 U. S. , at 461 (“We therefore hold that, after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney”). The Court ignores this aspect of Davis , as well as the decisions of numerous federal and state courts declining to apply a clear-statement rule when a suspect has not previously given an express waiver of rights.[ Footnote 7 ]    In my mind, a more appropriate standard for addressing a suspect’s ambiguous invocation of the right to remain silent is the constraint Mosley places on questioning a suspect who has invoked that right: The suspect’s “ ‘right to cut off questioning’ ” must be “ ‘scrupulously honored.’ ” See 423 U. S., at 104. Such a standard is necessarily precautionary and fact specific. The rule would acknowledge that some statements or conduct are so equivocal that police may scrupulously honor a suspect’s rights without terminating questioning—for instance, if a suspect’s actions are reasonably understood to indicate a willingness to listen before deciding whether to respond. But other statements or actions—in particular, when a suspect sits silent throughout prolonged interrogation, long past the point when he could be deciding whether to respond—cannot reasonably be understood other than as an invocation of the right to remain silent. Under such circumstances, “scrupulous” respect for the suspect’s rights will require police to terminate questioning under Mosley .[ Footnote 8 ]    To be sure, such a standard does not provide police with a bright-line rule. Cf. ante , at 9–10. But, as we have previously recognized, Mosley itself does not offer clear guidance to police about when and how interrogation may continue after a suspect invokes his rights. See Solem v. Stumes , 465 U. S. 638 , 648 (1984); see also Shatzer , 559 U. S., at ___ (Thomas, J., concurring in part and concurring in judgment) (slip op., at 3). Given that police have for nearly 35 years applied Mosley ’s fact-specific standard in questioning suspects who have invoked their right to remain silent; that our cases did not during that time resolve what statements or actions suffice to invoke that right; and that neither Michigan nor the Solicitor General have provided evidence in this case that the status quo has proved unworkable, I see little reason to believe today’s clear-statement rule is necessary to ensure effective law enforcement. Davis ’ clear-statement rule is also a poor fit for the right to silence. Advising a suspect that he has a “right to remain silent” is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected. Cf. Soffar v. Cockrell , 300 F. 3d 588, 603 (CA5 2002) (en banc) (DeMoss, J., dissenting) (“What in the world must an individual do to exercise his constitutional right to remain silent beyond actually, in fact, remaining silent?”). By contrast, telling a suspect “he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires,” Miranda , 384 U. S., at 479, implies the need for speech to exercise that right. Davis ’ requirement that a suspect must “clearly reques[t] an attorney” to terminate questioning thus aligns with a suspect’s likely understanding of the Miranda warnings in a way today’s rule does not. The Court suggests Thompkins could have employed the “simple, unambiguous” means of saying “he wanted to remain silent” or “did not want to talk with the police.” Ante , at 10. But the Miranda warnings give no hint that a suspect should use those magic words, and there is little reason to believe police—who have ample incentives to avoid invocation—will provide such guidance.    Conversely, the Court’s concern that police will face “difficult decisions about an accused’s unclear intent” and suffer the consequences of “ ‘guess[ing] wrong,’ ” ante, at 9–10 (quoting Davis , 512 U. S., at 461), is misplaced. If a suspect makes an ambiguous statement or engages in conduct that creates uncertainty about his intent to invoke his right, police can simply ask for clarification. See id. , at 467 (Souter, J., concurring in judgment). It is hardly an unreasonable burden for police to ask a suspect, for instance, “Do you want to talk to us?” The majority in Davis itself approved of this approach as protecting suspects’ rights while “minimiz[ing] the chance of a confession [later] being suppressed.” Id., at 461. Given this straightforward mechanism by which police can “scrupulously hono[r]” a suspect’s right to silence, today’s clear-statement rule can only be seen as accepting “as tolerable the certainty that some poorly expressed requests [to remain silent] will be disregarded,” id. , at 471 (opinion of Souter, J.), without any countervailing benefit. Police may well prefer not to seek clarification of an ambiguous statement out of fear that a suspect will invoke his rights. But “our system of justice is not founded on a fear that a suspect will exercise his rights. ‘If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.’ ” Burbine , 475 U. S., at 458 (Stevens, J., dissenting) (quoting Escobedo v. Illinois , 378 U. S. 478 , 490 (1964)).    The Court asserts in passing that treating ambiguous statements or acts as an invocation of the right to silence will only “ ‘marginally’ ” serve Miranda ’s goals. Ante , at 10. Experience suggests the contrary. In the 16 years since Davis was decided, ample evidence has accrued that criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence. A number of lower courts that have (erroneously, in my view) imposed a clear-statement requirement for invocation of the right to silence have rejected as ambiguous an array of statements whose meaning might otherwise be thought plain.[ Footnote 9 ] At a minimum, these decisions suggest that differentiating “clear” from “ambiguous” statements is often a subjective inquiry. Even if some of the cited decisions are themselves in tension with Davis ’ admonition that a suspect need not “ ‘speak with the discrimination of an Oxford don’ ” to invoke his rights, 512 U. S., at 459 (quoting id. , at 476 (opinion of Souter, J.)), they demonstrate that today’s decision will significantly burden the exercise of the right to silence. Notably, when a suspect “understands his (expressed) wishes to have been ignored … in contravention of the ‘rights’ just read to him by his interrogator, he may well see further objection as futile and confession (true or not) as the only way to end his interrogation.” Id., at 472–473.    For these reasons, I believe a precautionary requirement that police “scrupulously hono[r]” a suspect’s right to cut off questioning is a more faithful application of our precedents than the Court’s awkward and needless extension of Davis . *  *  *    Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak. At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent. Footnote 1 At the suppression hearing, Detective Helgert testified that after reading Thompkins the warnings, “I believe I asked him if he understood the Rights, and I think I got a verbal answer to that as a ‘yes.’ ” App. 9a. In denying the motion to suppress, the trial court relied on that factual premise. Id., at 26a. In his later testimony at trial, Helgert remembered the encounter differently. Asked whether Thompkins “indicate[d] that he understood [the warnings]” after they had been read, Helgert stated “I don’t know that I orally asked him that question.” Id., at 148a. Nevertheless, the Michigan Court of Appeals stated that Thompkins verbally acknowledged understanding his rights. App. to Pet. for Cert. 75a. Footnote 2 The Court cites Colorado v. Connelly , 479 U. S. 157 , 168 (1986), for the proposition that the prosecution’s “ ‘heavy burden’ ” under Miranda “is not more than the burden to establish waiver by a preponderance of the evidence.” Ante , at 12. Connelly did reject a clear and convincing evidence standard of proof in favor of a preponderance burden. But nothing in Connelly displaced the core presumption against finding a waiver of rights, and we have subsequently relied on Miranda ’s characterization of the prosecution’s burden as “heavy.” See Arizona v. Roberson , 486 U. S. 675 , 680 (1988). Footnote 3 Likely reflecting the great weight of the prosecution’s burden in proving implied waiver, many contemporary police training resources instruct officers to obtain a waiver of rights prior to proceeding at all with an interrogation. See, e.g., F. Inbau, J. Reid, J. Buckley, & B. Jayne, Criminal Interrogation and Confessions 491 (4th ed. 2004) (hereinafter Inbau) (“Once [a] waiver is given, the police may proceed with the interrogation”); D. Zulawski & D. Wicklander, Practical Aspects of Interview and Interrogation 55 (2d ed. 2002) (“Only upon the waiver of th[e] [Miranda] rights by the suspect can an interrogation occur”); see also Brief for National Association of Criminal Defense Lawyers et al. as Amici Curiae 11–12 (hereinafter NACDL brief) (collecting authorities). Footnote 4 Although such decisions are not controlling under AEDPA, it is notable that lower courts have similarly required a showing of words or conduct beyond inculpatory statements. See, e.g., United States v. Wallace , 848 F. 2d 1464, 1475 (CA9 1988) (no implied waiver when warned suspect “maintained her silence for … perhap[s] as many as ten minutes” before answering a question); McDonald v. Lucas , 677 F. 2d 518, 521–522 (CA5 1982) (no implied waiver when defendant refused to sign waiver and there was “no evidence of words or actions implying a waiver, except the [inculpatory] statement”). Generally, courts have found implied waiver when a warned suspect has made incriminating statements “as part of a steady stream of speech or as part of a back-and-forth conversation with the police,” or when a warned suspect who previously invoked his right “spontaneously recommences the dialogue with his interviewers.” Bui v. DiPaolo , 170 F. 3d 232, 240 (CA1 1999) (citation and internal quotation marks omitted); see also United States v. Smith , 218 F. 3d 777, 781 (CA7 2000) (implied waiver where suspect “immediately began talking to the agents after refusing to sign the waiver form and continued to do so for an hour”); United States v. Scarpa , 897 F. 2d 63, 68 (CA2 1990) (implied waiver where warned suspect engaged in a “ ‘relaxed and friendly’ ” conversation with officers during a 2-hour drive). Footnote 5 In holding that Mosley’s right had been “ ‘scrupulously honored,’ ” the Court observed that he was properly advised of his rights and indicated his understanding in writing; that police “immediately ceased” interrogation when Mosley stated he did not want to discuss the crime and allowed an “interval of more than two hours” to pass before reapproaching Mosley “at another location about an unrelated [crime]”; and that Mosley was readministered “full and complete Miranda warnings at the outset of the second interrogation” and had a “full and fair opportunity to exercise th[o]se options.” 423 U. S., at 103–105. Footnote 6 The Court also ignores a second available avenue to avoid reaching the constitutional question. Because the Sixth Circuit declined to decide Thompkins’ invocation claim, a remand would permit the lower court to address the question in the first instance. Cf. Cutter v. Wilkinson , 544 U. S. 709 , 718, n. 7 (2005). Footnote 7 See, e.g., United States v. Plugh , 576 F. 3d 135, 143 (CA2 2009) (“ Davis only provides guidance … [when] a defendant makes a claim that he subsequently invoked previously waived Fifth Amendment rights”); United States v. Rodriguez , 518 F. 3d 1072, 1074 (CA9 2008) ( Davis ’ “ ‘clear statement’ ” rule “applies only after the police have already obtained an unambiguous and unequivocal waiver of Miranda rights”); State v. Tuttle , 2002 SD 94, ¶14, 650 N. W. 2d 20, 28; State v. Holloway , 2000 ME 172, ¶12, 760 A. 2d 223, 228; State v. Leyva , 951 P. 2d 738, 743 (Utah 1997). Footnote 8 Indeed, this rule appears to reflect widespread contemporary police practice. Thompkins’ amici collect a range of training materials that instruct police not to engage in prolonged interrogation after a suspect has failed to respond to initial questioning. See NACDL Brief 32–34. One widely used police manual, for example, teaches that a suspect who “indicates,” “even by silence itself,” his unwillingness to answer questions “has obviously exercised his constitutional privilege against self-incrimination.” Inbau 498. Footnote 9 See United States v. Sherrod , 445 F. 3d 980, 982 (CA7 2006) (suspect’s statement “ ‘I’m not going to talk about nothin’ ’ ” was ambiguous, “as much a taunt—even a provocation—as it [was] an invocation of the right to remain silent”); Burket v. Angelone , 208 F. 3d 172, 200 (CA4 2000) (upholding on AEDPA review a state court’s conclusion that “ ‘I just don’t think that I should say anything’ ” was not a clear request to remain silent); State v. Jackson , 107 Ohio St. 3d 300, 310, 2006–Ohio–1, ¶¶96–98, 839 N. E. 2d 362, 373 (finding ambiguous “ ‘I don’t even like talking about it man … I told you … what happened, man … I mean, I don’t even want to, you know what I’m saying, discuss no more about it, man’ ”); State v. Speed , 265 Kan. 26, 37–38, 961 P. 2d 13, 24 (1998) (finding ambiguous “ ‘[a]nd since we’re not getting anywhere I just ask you guys to go ahead and get this over with and go ahead and lock me up and let me go and deal with Sedgwick County, I’m ready to go to Sedgwick County, let’s go’ ”); State v. Markwardt , 2007 WI App 242, ¶1, 306 Wis. 2d 420, 424, 742 N. W. 2d 546, 548 (“ ‘Then put me in jail. Just get me out of here. I don’t want to sit here anymore, alright? I’ve been through enough today’ ” ambiguous because it could be construed as part of “ ‘thrust-and-parry’ ” between suspect and interrogator); State v. Deen , 42,403, pp. 2–4 (La. App. 4/27/07), 953 So. 2d 1057, 1058–1060 (“ ‘Okay, if you’re implying that I’ve done it, I wish to not say any more. I’d like to be done with this. Cause that’s just ridiculous. I wish I’d … don’t wish to answer any more questions’ ” ambiguous because conditioned on officer’s implication that suspect committed specific assault). Courts have also construed statements as expressing a desire to remain silent only about a particular subject. See, e.g., People v. Silva , 45 Cal. 3d 604, 629–630, 754 P. 2d 1070, 1083–1084 (1988) (“ ‘I really don’t want to talk about that’ ” only conveyed unwillingness to discuss certain subjects). See generally Strauss, The Sounds of Silence: Reconsidering the Invocation of the Right to Remain Silent under Miranda , 17 Wm. & Mary Bill Rights J. 773, 788–802 (2009) (surveying cases).

Here is a summary of the case: The United States Supreme Court ruled that a suspect's silence during police interrogation does not constitute an invocation of their right to remain silent under the Fifth Amendment's Miranda ruling. The Court also found ineffective assistance by defense counsel, which was determined to be a separate constitutional error. The case involved a Michigan conviction for first-degree murder and other offenses, where the accused's statement was relied on by the prosecution and found to be elicited in violation of Miranda. The Court reviewed and discussed the Miranda ruling and the circumstances under which a suspect's right to remain silent can be considered invoked.

Religion

Girouard v. U.S.

https://supreme.justia.com/cases/federal/us/328/61/

U.S. Supreme Court Girouard v. United States, 328 U.S. 61 (1946) Girouard v. United States No. 572 Argued March 4, 1946 Decided April 22, 1946 328 U.S. 61 CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIRST CIRCUIT Syllabus An alien who is willing to take the oath of allegiance and to serve in the army as a noncombatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship under the Nationality Act of 1940, as amended by the Act of March 27, 1942. United States v. Schwimmer, 279 U. S. 644 ; United States v Macintosh, 283 U. S. 605 , and United States v. Bland, 283 U. S. 636 , overruled. Pp. 328 U. S. 64 -70. 149 F.2d 760 reversed. A District Court admitted petitioner to citizenship. The Circuit Court of Appeals reversed. 149 F.2d 760. This Court granted certiorari. 326 U.S. 714. Reversed, p. 328 U. S. 70 . MR. JUSTICE DOUGLAS delivered the opinion of the Court. In 1943 petitioner, a native of Canada, filed his petition for naturalization in the District Court of Massachusetts. He stated in his application that he understood the principles Page 328 U. S. 62 of the government of the United States, believed in its form of government, and was willing to take the oath of allegiance (54 Stat. 1157, 8 U.S.C. § 735(b)), which reads as follows: "I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same, and that I take this obligation freely without any mental reservation or purpose of evasion. So help me God." To the question in the application "If necessary, are you willing to take up arms in defense of this country?" he replied, "No (Non-combatant) Seventh Day Adventist." He explained that answer before the examiner by saying "it is a purely religious matter with me; I have no political or personal reasons other than that." He did not claim before his Selective Service board exemption from all military service, but only from combatant military duty. At the hearing in the District Court, petitioner testified that he was a member of the Seventh Day Adventist denomination, of whom approximately 10,000 were then serving in the armed forces of the United States as noncombatants, especially in the medical corps, and that he was willing to serve in the army, but would not bear arms. The District Court admitted him to citizenship. The Circuit Court of Appeals reversed, one judge dissenting. 149 F.2d 760. It took that action on the authority of United States v. Schwimmer, 279 U. S. 644 ; United States v. Macintosh, 283 U. S. 605 , and United States v. Bland, 283 U. S. 636 , saying that the facts of the present case brought it squarely within the principles of those cases. The case is here on Page 328 U. S. 63 a petition for a writ of certiorari which we granted so that those authorities might be reexamined. The Schwimmer, Macintosh, and Bland cases involved, as does the present one, a question of statutory construction. At the time of those cases, Congress required an alien, before admission to citizenship, to declare on oath in open court that "he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same." [ Footnote 1 ] It also required the court to be satisfied that the alien had, during the five year period immediately proceeding the date of his application, "behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. [ Footnote 2 ]" Those provisions were reenacted into the present law in substantially the same form. [ Footnote 3 ] While there are some factual distinctions between this case and the Schwimmer and Macintosh cases, the Bland case, on its facts, is indistinguishable. But the principle emerging from the three cases obliterates any factual distinction among them. As we recognized in In Re Summers, 325 U. S. 561 , 325 U. S. 572 , 325 U. S. 577 , they stand for the same general rule -- that an alien who refuses to bear arms will not be admitted to citizenship. As an original proposition, we could not agree with that rule. The fallacies underlying Page 328 U. S. 64 it were, we think demonstrated in the dissents of Mr. Justice Holmes in the Schwimmer case and of Mr. Chief Justice Hughes in the Macintosh case. The oath required of aliens does not in terms require that they promise to bear arms. Nor has Congress expressly made any such finding a prerequisite to citizenship. To hold that it is required is to read it into the Act by implication. But we could not assume that Congress intended to make such an abrupt and radical departure from our traditions unless it spoke in unequivocal terms. The bearing of arms, important as it is, is not the only way in which our institutions may be supported and defended, even in times of great peril. Total war in its modern form dramatizes as never before the great cooperative effort necessary for victory. The nuclear physicists who developed the atomic bomb, the worker at his lathe, the seaman on cargo vessels, construction battalions, nurses, engineers, litter bearers, doctors, chaplains -- these, too, made essential contributions. And many of them made the supreme sacrifice. Mr. Justice Holmes stated in the Schwimmer case (279 U.S. p. 279 U. S. 655 ) that "the Quakers have done their share to make the country what it is." And the annals of the recent war show that many whose religious scruples prevented them from bearing arms nevertheless were unselfish participants in the war effort. Refusal to bear arms is not necessarily a sign of disloyalty or a lack of attachment to our institutions. One may serve his country faithfully and devotedly though his religious scruples make it impossible for him to shoulder a rifle. Devotion to one's country can be as real and as enduring among noncombatants as among combatants. One may adhere to what he deems to be his obligation to God and yet assume all military risks to secure victory. The effort of war is indivisible, and those whose religious scruples prevent them from killing are no less patriots than those whose special traits or handicaps result in their Page 328 U. S. 65 assignment to duties far behind the fighting front. Each is making the utmost contribution according to his capacity. The fact that his role may be limited by religious convictions, rather than by physical characteristics, has no necessary bearing on his attachment to his country or on his willingness to support and defend it to his utmost. Petitioner's religious scruples would not disqualify him from becoming a member of Congress or holding other public offices. While Article VI, Clause 3 of the Constitution provides that such officials, both of the United States and the several States, "shall be bound by Oath or Affirmation, to support this Constitution," it significantly adds that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." The oath required is in no material respect different from that prescribed for aliens under the Naturalization Act. It has long contained the provision "that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion." R.S. § 1757, 5 U.S.C. § 16. As Mr. Chief Justice Hughes stated in his dissent in the Macintosh case (283 U.S. p. 283 U. S. 631 ), "the history of the struggle for religious liberty, the large number of citizens of our country from the very beginning who have been unwilling to sacrifice their religious convictions, and, in particular, those who have been conscientiously opposed to war and who would not yield what they sincerely believed to be their allegiance to the will of God" -- these considerations make it impossible to conclude "that such persons are to be deemed disqualified for public office in this country because of the requirement of the oath which must be taken before they enter upon their duties." There is not the slightest suggestion that Congress set a stricter standard for aliens seeking admission to citizenship Page 328 U. S. 66 than it did for officials who make and enforce the laws of the nation and administer its affairs. It is hard to believe that one need forsake his religious scruples to become a citizen but not to sit in the high councils of state. As Mr. Chief Justice Hughes pointed out ( United States v. Macintosh, supra, p. 283 U. S. 633 ), religious scruples against bearing arms have been recognized by Congress in the various draft laws. This is true of the selective Training and Service Act of 1940, 54 Stat. 889, 50 U.S.C. App. § 305(g), [ Footnote 4 ] as it was of earlier acts. He who is inducted into the armed services takes an oath which includes the provision "that I will bear true faith and allegiance to the United States of America; that I will serve them honestly and faithfully against all their enemies whomsoever. [ Footnote 5 ]" 41 Stat. 809, 10 U.S.C. § 1581. Congress has thus recognized that one may adequately discharge his obligations as a citizen by rendering noncombatant as well as combatant services. This respect by Congress over the years for the conscience of those having Page 328 U. S. 67 religious scruples against bearing arms is cogent evidence of the meaning of the oath. It is recognition by Congress that, even in time of war, one may truly support and defend our institutions though he stops short of using weapons of war. That construction of the naturalization oath received new support in 1942. In the Second War Powers Act, 56 Stat. 176, 182, 8 U.S.C.Supp. IV, § 1001, Congress relaxed certain of the requirements for aliens who served honorably in the armed forces of the United States during World War II and provided machinery to expedite their naturalization. [ Footnote 6 ] Residence requirements were relaxed, educational tests were eliminated, and no fees were required. But no change in the oath was made, nor was any change made in the requirement that the alien be attached to the principles of the Constitution. Yet it is clear that these new provisions cover noncombatants, as well as combatants. [ Footnote 7 ] If petitioner had served as a noncombatant Page 328 U. S. 68 (as he was willing to do), he could have been admitted to citizenship by taking the identical oath which he is willing to take. Can it be that the oath means one thing to one who has served to the extent permitted by his religious scruples and another thing to one equally willing to serve, but who has not had the opportunity? It is not enough to say that petitioner is not entitled to the benefits of the new Act, since he did not serve in the armed forces. He is not seeking the benefits of the expedited procedure and the relaxed requirements. The oath which he must take is identical with the oath which both noncombatants and combatants must take. It would, indeed, be a strange construction to say that "support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic" demands something more from some than it does from others. That oath can hardly be adequate for one who is unwilling to bear arms because of religious scruples, and yet exact from another a promise to bear arms despite religious scruples. Mr. Justice Holmes stated in the Schwimmer case, 279 U.S. at 279 U. S. 654 -655: "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought -- not free thought for those who agree with us, but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within, this country." The struggle for religious liberty has, through the centuries, been an effort to accommodate the demands of the State to the conscience of the individual. The victory for freedom of thought recorded in our Bill of Rights recognizes that, in the domain of conscience, there is a moral power higher than the State. Throughout the ages, men have suffered death rather than subordinate their allegiance to God to the authority of the State. Freedom of religion guaranteed by the First Amendment is the product of that struggle. As we Page 328 U. S. 69 recently stated in United States v. Ballard, 322 U. S. 78 , 322 U. S. 86 , "Freedom of thought, which includes freedom of religious belief, is basic in a society of free men. Board of Education v. Barnette, 319 U. S. 624 ." The test oath is abhorrent to our tradition. Over the years, Congress has meticulously respected that tradition and, even in time of war, has sought to accommodate the military requirements to the religious scruples of the individual. We do not believe that Congress intended to reverse that policy when it came to draft the naturalization oath. Such an abrupt and radical departure from our traditions should not be implied. See Schneiderman v. United States, 320 U. S. 118 , 320 U. S. 132 . Cogent evidence would be necessary to convince us that Congress took that course. We conclude that the Schwimmer, Macintosh, and Bland cases do not state the correct rule of law. We are met, however, with the argument that, even though those cases were wrongly decided, Congress has adopted the rule which they announced. The argument runs as follows: many efforts were made to amend the law so as to change the rule announced by those cases; but, in every instance, the bill died in committee. Moreover, in 1940, when the new Naturalization Act was passed, Congress reenacted the oath in its preexisting form, though, at the same time, it made extensive changes in the requirements and procedure for naturalization. From this it is argued that Congress adopted and reenacted the rule of the Schwimmer, Macintosh, and Bland cases. Cf. Apex Hosiery Co. v. Leader, 310 U. S. 469 , 310 U. S. 488 -489. We stated in Helvering v. Hallock, 309 U. S. 106 , 309 U. S. 119 , that "[i]t would require very persuasive circumstances enveloping Congressional silence to debar this Court from reexamining its own doctrines." It is, at best, treacherous to find in Congressional silence alone the adoption of a controlling rule of law. We do not think, under the circumstances of this legislative history, that we can properly Page 328 U. S. 70 place on the shoulders of Congress the burden of the Court's own error. The history of the 1940 Act is, at most, equivocal. It contains no affirmative recognition of the rule of the Schwimmer, Macintosh, and Bland cases. The silence of Congress and its inaction are as consistent with a desire to leave the problem fluid as they are with an adoption by silence of the rule of those cases. But for us it is enough to say that, since the date of those cases, Congress never acted affirmatively on this question but once, and that was in 1942. At that time, as we have noted, Congress specifically granted naturalization privileges to noncombatants who, like petitioner, were prevented from bearing arms by their religious scruples. That was affirmative recognition that one could be attached to the principles of our government and could support and defend it even though his religious convictions prevented him from bearing arms. And, as we have said, we cannot believe that the oath was designed to exact something more from one person than from another. Thus, the affirmative action taken by Congress in 1942 negatives any inference that otherwise might be drawn from its silence when it reenacted the oath in 1940. Reversed. MR. JUSTICE JACKSON took no part in the consideration or decision of this case. [ Footnote 1 ] Naturalization Act of 1906, § 4, 34 Stat 596. [ Footnote 2 ] Id. [ Footnote 3 ] We have already set forth in the opinion the present form of the oath which is required. It is to be found in the Nationality Act of 1940, 54 Stat. 1137, 1157, 8 U.S.C. § 735(b). Sec. 307(a) of that Act, 8 U.S.C. § 707(a), provides that no person shall be naturalized unless he has been for stated periods and still is "a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." [ Footnote 4 ] Sec. 305(g) provides in part: "Nothing contained in this Act shall be construed to require any person to be subject to combatant training and service in the land or naval forces of the United States who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form. Any such person claiming such exemption from combatant training and service because of such conscientious objections whose claim is sustained by the local board shall, if he is inducted into the land or naval forces under this Act, be assigned to noncombatant service as defined by the President, or shall, if he is found to be conscientiously opposed to participation in such noncombatant service, in lieu of such induction, be assigned to work of national importance under civilian direction." For earlier Acts, see Act of February 21, 1864, 13 Stat. 6, 9; Act of January 21, 1903, 32 Stat. 775; Act of June 3, 1916, 39 Stat. 166, 197; Act of May 18, 1917, 40 Stat. 76, 78. [ Footnote 5 ] And see Billings v. Truesdell, 321 U. S. 542 , 321 U. S. 549 -550; Army Regulations No. 615-500, August 10, 1944, sec. II, 15(f)(2). [ Footnote 6 ] Comparable provision was made in the Act of December 7, 1942, 56 Stat. 1041, 8 U.S.C.Supp. IV, § 723a, for those who served honorably in World War I, in the Spanish American War, or on the Mexican Border. [ Footnote 7 ] In re Kinloch, 53 F. Supp. 521 , involved naturalization proceedings of aliens, one of whom, like petitioner in the present case, was a Seventh Day Adventist. He had been inducted into the army as a noncombatant. His naturalization was opposed by the Immigration Service on the ground that he could not promise to bear arms. The court overruled the objection, stating, p. 523: "If conscientious objectors, who are aliens, performing military duty, and wearing the uniform, are not granted the privileges of citizenship under this act, then the act would be meaningless. It would be so made if an applicant, being a conscientious objector, who has attained the status of a soldier, performs military duty, and honorably wears the uniform (as is admitted in the instant cases), is denied citizenship. If the oath of allegiance is to be construed as requiring such applicant to agree, without mental reservation, to bear arms, then the result would be a denial of citizenship even though Congress has conferred such privilege upon him." And see In re Sawyer, 59 F. Supp. 428. MR. CHIEF JUSTICE STONE dissenting. I think the judgment should be affirmed for the reason that the court below, in applying the controlling provisions of the naturalization statutes, correctly applied them as earlier construed by this Court, whose construction Congress has adopted and confirmed. In three cases, decided more than fifteen years ago, this Court denied citizenship to applicants for naturalization who had announced that they proposed to take the prescribed Page 328 U. S. 71 oath of allegiance with the reservation or qualification that they would not, as naturalized citizens, assist in the defense of this country by force of arms or give their moral support to the government in any war which they did not believe to be morally justified or in the best interests of the country. See United States v. Schwimmer, 279 U. S. 644 ; United States v. Macintosh, 283 U. S. 605 ; United States v. Bland, 283 U. S. 636 . In each of these cases, this Court held that the applicant had failed to meet the conditions which Congress had made prerequisite to naturalization by § 4 of the Naturalization Act of June 29, 1906, c. 3592, 34 Stat. 596, the provisions of which, here relevant, were enacted in the Nationality Act of October 14, 1940. See c. 876, 54 Stat. 1137, as amended by the Act of March 27, 1942, c.199, 56 Stat. 176, 182, 183, and by the Act of December 7, 1942, c. 690, 56 Stat. 1041, 8 U.S.C. §§ 707, 723a, 735. Section 4 of the Naturalization Act of 1906, paragraph "Third," provided that, before the admission to citizenship, the applicant should declare on oath in open court that "he will support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and bear true faith and allegiance to the same." And paragraph "Fourth" required that, before admission it be made to appear "to the satisfaction of the court admitting any alien to citizenship" that, at least for a period of five years immediately preceding his application, the applicant "has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same." In applying these provisions in the cases mentioned, this Court held only that an applicant who is unable to take the oath of allegiance without the reservations or qualifications insisted upon by the applicants in those cases manifests his want of attachment to the principles of the Constitution and his unwillingness to meet Page 328 U. S. 72 the requirements of the oath, that he will support and defend the Constitution of the United States and bear true faith and allegiance to the same, and so does not comply with the statutory conditions of his naturalization. No question of the constitutional power of Congress to withhold citizenship on these grounds was involved. That power was not doubted. See Selective Draft Law Cases, 245 U. S. 366 ; Hamilton v. Regents, 293 U. S. 245 . The only question was of construction of the statute, which Congress at all times has been free to amend if dissatisfied with the construction adopted by the Court. With three other Justices of the Court, I dissented in the Macintosh and Bland cases for reasons which the Court now adopts as ground for overruling them. [ Footnote 2/1 ] Since this Court, in three considered earlier opinions, has rejected the construction of the statute for which the dissenting Justices contended, the question, which for me is decisive of the present case, is whether Congress has likewise rejected that construction by its subsequent legislative action, and has adopted and confirmed the Court's earlier construction of the statutes in question. A study of Congressional action taken with respect to proposals for amendment of the naturalization laws since the decision in the Schwimmer case leads me to conclude that Congress has adopted and confirmed this Court's earlier construction Page 328 U. S. 73 of the naturalization laws. For that reason alone, I think that the judgment should be affirmed. The construction of the naturalization statutes, adopted by this Court in the three cases mentioned, immediately became the target of an active, publicized legislative attack in Congress which persisted for a period of eleven years, until the adoption of the Nationality Act in 1940. Two days after the Schwimmer case was decided, a bill was introduced in the House, H.R. 3547, 71st Cong., 1st Sess., to give the Naturalization Act a construction contrary to that which had been given to it by this Court and which, if adopted, would have made the applicants rejected by this Court in the Schwimmer, Macintosh, and Bland cases eligible for citizenship. This effort to establish by Congressional action that the construction which this Court had placed on the Naturalization Act was not one which Congress had adopted or intended was renewed without success after the decision in the Macintosh and Bland cases, and was continued for a period of about ten years. [ Footnote 2/2 ] All of these measures were of substantially the same pattern as H.R. 297, 72d Cong., 1st Sess., introduced December 8, 1931, at the first session of Congress after the decision in the Macintosh case. It provided that no person otherwise qualified "shall be debarred from citizenship by reason of his or her religious views or philosophical opinions with respect to the lawfulness of war as a means of settling international disputes, but every alien admitted to citizenship shall be subject to the same obligation as the native-born citizen." H.R. 3547, 71st Cong., 1st Sess., Page 328 U. S. 74 introduced immediately after the decision in the Schwimmer case, had contained a like provision, but with the omission of the last clause, beginning "but every alien." Hearings were had before the House Committee on Immigration and Naturalization on both bills at which their proponents had stated clearly their purpose to set aside the interpretation placed on the oath of allegiance by the Schwimmer and Macintosh cases. [ Footnote 2/3 ] There was opposition on each occasion. [ Footnote 2/4 ] Bills identical with H.R. 297 were introduced in three later Congresses. [ Footnote 2/5 ] None of these bills was reported out of Committee. The other proposals, all of which failed of passage ( see 328 U.S. 61 fn2/2|>footnote 2, ante ), had the same purpose and differed only in phraseology. Thus, for six successive Congresses, over a period of more than a decade, there were continuously pending before Congress, in one form or another, proposals to overturn the rulings in the three Supreme Court decisions in question. Congress declined to adopt these proposals after full hearings and after speeches on the floor advocating the change. 72 Cong.Rec. 6966-7; 75th Cong.Rec. 15354-7. In the meantime, the decisions of this Court had been followed in Clarke's Case, 301 Pa. 321, 152 A. 92; Beale v. United States, 71 F.2d 737; In re Warkentin, 93 F.2d 42. In Beale v. United States, supra, the court pointed out that the proposed amendments affecting the provisions of the statutes relating to admission to citizenship had failed, saying: "We must conclude therefore that these statutory requirements as construed Page 328 U. S. 75 by the Supreme Court have Congressional sanction and approval." Any doubts that such were the purpose and will of Congress would seem to have been dissipated by the reenactment by Congress in 1940 of Paragraphs "Third" and "Fourth" of § 4 of the Naturalization Act of 1906, and by the incorporation in the Act of 1940 of the very form of oath which had been administratively prescribed for the applicants in the Schwimmer, Macintosh, and Bland cases. See Rule 8(c), Naturalization Regulations of July 1, 1929. [ Footnote 2/6 ] The Nationality Act of 1940 was a comprehensive, slowly matured, and carefully considered revision of the naturalization laws. The preparation of this measure was not only delegated to a Congressional Committee, but was considered by a committee of Cabinet members, one of whom was the Attorney General. Both were aware of our decisions in the Schwimmer and related cases, and that no other question pertinent to the naturalization laws had been as persistently and continuously before Congress in the ten years following the decision in the Schwimmer case. The modifications in the provisions of Paragraphs "Third" and "Fourth" of § 4 of the 1906 Act show conclusive the careful attention which was given to them. Page 328 U. S. 76 In the face of this legislative history, the "failure of Congress to alter the Act after it had been judicially construed, and the enactment by Congress of legislation which implicitly recognizes the judicial construction as effective, is persuasive of legislative recognition that the judicial construction is the correct one. This is the more so where, as here, the application of the statute . . . has brought forth sharply conflicting views both on the Court and in Congress, and where, after the matter has been fully brought to the attention of the public and the Congress, the latter has not seen fit to change the statute." Apex Hosiery Co. v. Leader, 310 U. S. 469 , 310 U. S. 488 -489. And see, to like effect, United States v. Ryan, 284 U.S. 284 U. S. 167 -175; United States v. Elgin, J. & E. R. Co., 298 U. S. 492 , 298 U. S. 500 ; Missouri v. Ross, 299 U. S. 72 , 299 U. S. 75 ; cf. Helvering v. Winmill, 305 U. S. 79 , 305 U. S. 82 -83. It is the responsibility of Congress, in reenacting a statute, to make known its purpose in a controversial matter of interpretation of its former language, at least when the matter has, for over a decade, been persistently brought to its attention. In the light of this legislative history, it is abundantly clear that Congress has performed that duty. In any case, it is not lightly to be implied that Congress has failed to perform it and has delegated to this Court the responsibility of giving new content to language deliberately readopted after this Court has construed it. For us to make such an assumption is to discourage, if not to deny, legislative responsibility. By thus adopting and confirming this Court's construction of what Congress had enacted in the Naturalization Act of 1906, Congress gave that construction the same legal significance as though it had written the very words into the Act of 1940. The only remaining question is whether Congress repealed this construction by enactment of the 1942 amendments Page 328 U. S. 77 of the Nationality Act. That Act extended special privileges to applicants for naturalization who were aliens and who have served in the armed forces of the United States in time of war by dispensing with or modifying existing requirements, relating to declarations of intention, period of residence, education, and fees. It left unchanged the requirements that the applicant's behavior show his attachment to the principles of the Constitution and that he take the oath of allegiance. In adopting the 1942 amendments, Congress did not have before it any question of the oath of allegiance with which it had been concerned when it adopted the 1940 Act. In 1942, it was concerned with the grant of special favors to those seeking naturalization who had worn the uniform and rendered military service in time of war and who could satisfy such naturalization requirements as had not been dispensed with by the amendments. In the case of those entitled to avail themselves of these privileges, Congress left it to the naturalization authorities, as in other cases, to determine whether, by their applications and their conduct in the military service, they satisfy the requirements for naturalization which had not been waived. It is pointed out that one of the 1942 amendments, 8 U.S.C.Supp. IV, § 1004, provided that the provisions of the amendment should not apply to "any conscientious objector who performed no military duty whatever or refused to wear the uniform." It is said that the implication of this provision is that conscientious objectors who rendered noncombatant service and wore the uniform were, under the 1942 amendments, to be admitted to citizenship. From this it is argued that, since the 1942 amendments apply to those who have been in noncombatant, as well as combatant, military service, the amendment must be taken to include some who have rendered Page 328 U. S. 78 noncombatant service who are also conscientious objectors and who would be admitted to citizenship under the 1942 amendments, even though they made the same reservations as to the oath of allegiance as did the applicants in the Schwimmer, Macintosh, and Bland cases. And it is said that, although the 1942 amendments are not applicable to petitioner, who has not been in military service, the oath cannot mean one thing as to him and another as to those who have been in the noncombatant service. To these suggestions there are two answers. One is that, if the 1942 amendment be construed as including noncombatants who are also conscientious objectors, who are unwilling to take the oath without the reservations made by the applicants in the Schwimmer, Macintosh, and Bland cases, the only effect would be to exempt noncombatant conscientious objectors from the requirements of the oath, which had clearly been made applicable to all objectors, including petitioner, by the Nationality Act of 1940, and from which petitioner was not exempted by the 1942 amendments. If such is the construction of the 1942 Act, there is no constitutional or statutory obstacle to Congress' taking such action. Congress, if it saw fit, could have admitted to citizenship those who had rendered noncombatant service, with a modified oath or without any oath at all. Petitioner has not been so exempted. Since petitioner was never in the military or naval forces of the United States, we need not decide whether the 1942 amendments authorized any different oath for those who had been in noncombatant service than for others. The amendments have been construed as requiring the same oath, without reservations, from conscientious objectors as from others. In re Nielsen, 60 F. Supp. 240 . Not all of those who rendered noncombatant service were conscientious objectors. Few were. There were others in the noncombatant service who had announced their conscientious Page 328 U. S. 79 objections to combatant service, who may have waived or abandoned their objections. Such was the experience in the First World War. See "Statement Concerning the Treatment of Conscientious Objectors in the Army," prepared and published by direction of the Secretary of War, June 18, 1919. All such could have taken the oath without the reservations made by the applicants in the Schwimmer, Macintosh, and Bland cases, and would have been entitled to the benefits of the 1942 amendments provided they had performed military duty and had not refused to wear the uniform. The fact that Congress recognized by indirection, in 8 U.S.C.Supp. IV, § 1004, that those who had appeared in the role of conscientious objectors might become citizens by taking the oath of allegiance and establishing their attachment to the principles of the Constitution does not show that Congress dispensed with the requirements of the oath as construed by this Court and plainly confirmed by Congress in the Nationality Act of 1940. There is no necessary inconsistency in this respect between the 1940 Act and the 1942 amendments. Without it, repeal by implication is not favored. United States v. Borden Co., 308 U. S. 188 , 308 U. S. 198 -199, 308 U. S. 203 -206; Georgia v. Pennsylvania R. Co., 324 U. S. 439 , 324 U. S. 457 ; United States Alkali Export Assn. v. United States, 325 U. S. 196 , 325 U. S. 209 . The amendments and their legislative history give no hint of any purpose of Congress to relax, at least for persons who had rendered no military service, the requirements of the oath of allegiance and proof of attachment to the Constitution as this Court had interpreted them and as the Nationality Act of 1940 plainly required them to be interpreted. It is not the function of this Court to disregard the will of Congress in the exercise of its constitutional power. MR. JUSTICE REED and MR. JUSTICE FRANKFURTER join in this opinion. [ Footnote 2/1 ] In the opinion of the writer, there was evidence in United States v. Schwimmer, 279 U. S. 644 , from which the district court could and presumably did infer that applicant's behavior evidenced a disposition, present and future, actively to resist all laws of the United States and lawful commands of its officers for the furthering of any military enterprise of the United States, and actively to aid and encourage such resistance in others, and this the district court presumably concluded evidenced a want of attachment of the applicant to the principles of the Constitution which the naturalization law requires to be exhibited by the behavior of the applicant preceding the application for citizenship. [ Footnote 2/2 ] H.R.3547, 71st Cong., 1st Sess., 71 Cong.Rec.2184; H.R.297, 72d Cong., 1st Sess., 75 Cong.Rec.95; H.R.298, 72d Cong., 1st Sess., 75 Cong.Rec. 95; S. 3275, 72d Cong., 1st Sess., 75 Cong.Rec. 2600; H.R.1528, 73d Cong., 1st Sess., 77 Cong.Rec. 90; H.R.5170, 74th Cong., 1st Sess., 79 Cong.Rec.1356; H.R.8259, 75th Cong., 1st Sess., 81 Cong.Rec.9193; S.165, 76th Cong., 1st Sess., 84 Cong.Rec. 67. [ Footnote 2/3 ] Hearings on H.R.3547, pp. 12, 22, 29-57, 73-109, 169, 180; Hearings on H.R.297, pp. 4-7, 10, 12, 15-19, 41-48, 53-56, 66-81, 147, 148. [ Footnote 2/4 ] Hearings on H.R.3547, pp. 57-65, 73, 146-169, 181-212; Hearings on H.R.297, pp. 85-140. [ Footnote 2/5 ] H.R.1528, 73d Cong., 1st Sess.; H.R.5170, 74th Cong., 1st Sess.; H.R.8259, 75th Cong., 1st Sess. [ Footnote 2/6 ] Section 307(a) of the Nationality Act, 8 U.S.C. § 707(a), provides that no person shall be naturalized unless, for a period of five years preceding the filing of his petition for naturalization, he "has been and still is a person . . . attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States." Section 335(a) of the Nationality Act, 8 U.S.C. § 735(a), provides that, before an applicant for naturalization shall be admitted to citizenship, he shall take an oath in open court that, inter alia, he will "support and defend the Constitution and laws of the United States against all enemies, foreign and domestic, and . . . bear true faith and allegiance to the same."

The Supreme Court ruled that an alien who is willing to take the oath of allegiance and serve in the US army as a non-combatant but refuses to bear arms due to religious scruples can be granted US citizenship under the Nationality Act of 1940, amended in 1942. This overruled previous cases (United States v. Schwimmer, United States v. Macintosh, and United States v. Bland) that required aliens to be willing to bear arms to demonstrate attachment to the Constitution. The Court respected Congress's intention to relax the oath of allegiance and proof of attachment to the Constitution for those who haven't served in the military.

Religion

McCollum v. Board of Education

https://supreme.justia.com/cases/federal/us/333/203/

U.S. Supreme Court McCollum v. Board of Education, 333 U.S. 203 (1948) Illinois ex rel. McCollum v. Board of Education of School District No. 71, Champaign County, Illinois No. 90 Argued December 8, 1947 Decided March 8, 1948 333 U.S. 203 APPEAL FROM THE SUPREME COURT OF ILLINOIS Syllabus With the permission of a board of education, granted under its general supervisory powers over the use of public school buildings, religious teachers, employed subject to the approval and supervision of the superintendent of schools by a private religious group including representatives of the Catholic, Protestant and Jewish faiths, gave religious instruction in public school buildings once each week. Pupils whose parents so requested were excused from their secular classes during the periods of religious instruction and were required to attend the religious classes; but other pupils were not released from their public school duties, which were compulsory under state law. A resident and taxpayer of the school district whose child was enrolled in the public schools sued in a state court for a writ of mandamus requiring the board of education to terminate this practice. Held: 1. A judgment of the State Supreme Court sustaining denial of the writ of mandamus on the ground that the state statutes granted the board of education authority to establish such a program drew into question "the validity of a statute" of the State within the meaning of § 237 of the Judicial Code, and was appealable to this Court. P. 333 U. S. 206 . 2. As a resident and taxpayer of the school district and the parent of a child required by state law to attend the school, appellant had standing to maintain the suit. P. 333 U. S. 206 . 3. Both state courts having ruled expressly on appellant's claim that the state program violated the Federal Constitution, a motion to dismiss the appeal on the ground that appellant failed properly to present that question in the State Supreme Court cannot be sustained. P. 333 U. S. 207 . 4. This utilization of the State's tax supported public school system and its machinery for compulsory public school attendance to enable sectarian groups to give religious instruction to public school pupils in public school buildings violates the First Amendment of the Constitution, made applicable to the states by the Fourteenth Amendment. Pp. 333 U. S. 209 -212. 396 Ill. 14, 71 N.E.2d 161, reversed. Page 333 U. S. 204 The Supreme Court of Illinois affirmed a denial of a petition for a writ of mandamus requiring a board of education to terminate the giving of religious instruction by private teachers in the public schools. 396 Ill. 14, 71 N.E.2d 161. On appeal to this Court, reversed and remanded, p. 333 U. S. 212 . MR. JUSTICE BLACK delivered the opinion of the Court. This case relates to the power of a state to utilize its tax supported public school system in aid of religious Page 333 U. S. 205 instruction insofar as that power may be restricted by the First and Fourteenth Amendments to the Federal Constitution. The appellant, Vashti McCollum, began this action for mandamus against the Champaign Board of Education in the Circuit Court of Champaign County, Illinois. Her asserted interest was that of a resident and taxpayer of Champaign and of a parent whose child was then enrolled in the Champaign public schools. Illinois has a compulsory education law which, with exceptions, requires parents to send their children, aged seven to sixteen, to its tax-supported public schools, where the children are to remain in attendance during the hours when the schools are regularly in session. Parents who violate this law commit a misdemeanor punishable by fine unless the children attend private or parochial schools which meet educational standards fixed by the State. District boards of education are given general supervisory powers over the use of the public school buildings within the school districts. Ill.Rev.Stat. ch. 122, §§ 123, 301 (1943). Appellant's petition for mandamus alleged that religious teachers, employed by private religious groups, were permitted to come weekly into the school buildings during the regular hours set apart for secular teaching, and then and there, for a period of thirty minutes, substitute their religious teaching for the secular education provided under the compulsory education law. The petitioner charged that this joint public school religious group program violated the First and Fourteenth Amendments to the United States Constitution. The prayer of her petition was that the Board of Education be ordered to "adopt and enforce rules and regulations prohibiting all instruction in and teaching of religious education in all public schools in Champaign School District Number 71, . . . and in all public school houses and buildings in said district when occupied by public schools. " Page 333 U. S. 206 The board first moved to dismiss the petition on the ground that, under Illinois law, appellant had no standing to maintain the action. This motion was denied. An answer was then filed, which admitted that regular weekly religious instruction was given during school hours to those pupils whose parents consented, and that those pupils were released temporarily from their regular secular classes for the limited purpose of attending the religious classes. The answer denied that this coordinated program of religious instruction violated the State or Federal Constitution. Much evidence was heard, findings of fact were made, after which the petition for mandamus was denied on the ground that the school's religious instruction program violated neither the federal nor state constitutional provisions invoked by the appellant. On appeal, the State Supreme Court affirmed. 396 Ill. 14 71 N.E.2d 161. Appellant appealed to this Court under 28 U.S.C. § 344(a), and we noted probable jurisdiction on June 2, 1947. The appellees press a motion to dismiss the appeal on several grounds, the first of which is that the judgment of the State Supreme Court does not draw in question the "validity of a statute of any State" as required by 28 U.S.C. § 344(a). This contention rests on the admitted fact that the challenged program of religious instruction was not expressly authorized by statute. But the State Supreme Court has sustained the validity of the program on the ground that the Illinois statutes granted the board authority to establish such a program. This holding is sufficient to show that the validity of an Illinois statute was drawn in question within the meaning of 28 U.S.C. § 344(a). Hamilton v. Regents of U. of Cal., 293 U. S. 245 , 293 U. S. 258 . A second ground for the motion to dismiss is that the appellant lacks standing to maintain the action, a ground which is also without merit. Coleman v. Miller, 307 U. S. 433 , 307 U. S. 443 , 307 U. S. 445 , 307 U. S. 464 . Page 333 U. S. 207 A third ground for the motion is that the appellant failed properly to present in the State Supreme Court her challenge that the state program violated the Federal Constitution. But in view of the express rulings of both state courts on this question, the argument cannot be successfully maintained. The motion to dismiss the appeal is denied. Although there are disputes between the parties as to various inferences that may or may not properly be drawn from the evidence concerning the religious program, the following facts are shown by the record without dispute. [ Footnote 1 ] In 1940, interested members of the Jewish, Roman Catholic, and a few of the Protestant faiths formed a voluntary association called the Champaign Council on Religious Education. They obtained permission from the Board of Education to offer classes in religious instruction to public school pupils in grades four to nine, inclusive. Classes were made up of pupils whose parents signed printed cards requesting that their children be permitted to attend; [ Footnote 2 ] they were held weekly, thirty minutes for Page 333 U. S. 208 the lower grades, forty-five minutes for the higher. The council employed the religious teachers at no expense to the school authorities, but the instructors were subject to the approval and supervision of the superintendent of schools. [ Footnote 3 ] The classes were taught in three Page 333 U. S. 209 separate religious groups by Protestant teachers, [ Footnote 4 ] Catholic priests, and a Jewish rabbi, although, for the past several years, there have apparently been no classes instructed in the Jewish religion. Classes were conducted in the regular classrooms of the school building. Students who did not choose to take the religious instruction were not released from public school duties; they were required to leave their classrooms and go to some other place in the school building for pursuit of their secular studies. On the other hand, students who were released from secular study for the religious instructions were required to be present at the religious classes. Reports of their presence or absence were to be made to their secular teachers. [ Footnote 5 ] The foregoing facts, without reference to others that appear in the record, show the use of tax supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released Page 333 U. S. 210 in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education, 330 U. S. 1 . There we said: "Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. [ Footnote 6 ] Neither can force or influence a person to go to or to remain away from church against his will, or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or nonattendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called or whatever form they may adopt to teach or practice religion. [ Footnote 7 ] Neither a state nor Page 333 U. S. 211 the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" Id. at 330 U. S. 15 -16. The majority in the Everson case, and the minority as shown by quotations from the dissenting views in our notes 6 and | 6 and S. 203fn7|>7, agreed that the First Amendment's language, properly interpreted, had erected a wall of separation between Church and State. They disagreed as to the facts shown by the record and as to the proper application of the First Amendment's language to those facts. Recognizing that the Illinois program is barred by the First and Fourteenth Amendments if we adhere to the views expressed both by the majority and the minority in the Everson case, counsel for the respondents challenge those views as dicta, and urge that we reconsider and repudiate them. They argue that, historically, the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions. In addition, they ask that we distinguish or overrule our holding in the Everson case that the Fourteenth Amendment made the "establishment of religion" clause of the First Amendment applicable as a prohibition against the States. After giving full consideration to the arguments presented, we are unable to accept either of these contentions. To hold that a state cannot, consistently with the First and Fourteenth Amendments, utilize its public school system to aid any or all religious faiths or sects in the dissemination of their doctrines and ideals does not, as counsel urge, manifest a governmental hostility to religion or religious teachings. A manifestation of such hostility would be at war with our national tradition as embodied in the First Amendment's guaranty of the free Page 333 U. S. 212 exercise of religion. For the First Amendment rests upon the premise that both religion and government can best work to achieve their lofty aims if each is left free from the other within its respective sphere. Or, as we said in the Everson case, the First Amendment has erected a wall between Church and State which must be kept high and impregnable. Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State. The cause is reversed and remanded to the State Supreme Court for proceedings not inconsistent with this opinion. Reversed and remanded. [ Footnote 1 ] Appellant, taking issue with the facts found by the Illinois courts, argues that the religious education program in question is invalid under the Federal Constitution for any one of the following reasons: (1) In actual practice certain Protestant groups have obtained an overshadowing advantage in the propagation of their faiths over other Protestant sects; (2) the religious education program was voluntary in name only, because, in fact, subtle pressures were brought to bear on the students to force them to participate in it, and (3) the power given the school superintendent to reject teachers selected by religious groups and the power given the local Council on Religious Education to determine which religious faiths should participate in the program was a prior censorship of religion. In view of our decision, we find it unnecessary to consider these arguments or the disputed facts upon which they depend. [ Footnote 2 ] The Supreme Court described the request card system as follows: ". . . Admission to the classes was to be allowed only upon the express written request of parents, and then only to classes designated by the parents. . . . Cards were distributed to the parents of elementary students by the public school teachers requesting them to indicate whether they desired their children to receive religious education. After being filled out, the cards were returned to the teachers of religious education classes either by the public school teachers or the children. . . ." On this subject, the trial court found that ". . . those students who have obtained the written consent of their parents therefor are released by the school authorities from their secular work, and in the grade schools for a period of thirty minutes' instruction in each week during said school hours, and forty-five minutes during each week in the junior high school, receive training in religious education. . . . Certain cards are used for obtaining permission of parents for their children to take said religious instruction courses, and they are made available through the offices of the superintendent of schools and through the hands of principals and teachers to the pupils of the school district. Said cards are prepared at the cost of the council of religious education. The handling and distribution of said cards does not interfere with the duties or suspend the regular secular work of the employees of the defendant. . . ." [ Footnote 3 ] The State Supreme Court said: "The record further discloses that the teachers conducting the religious classes were not teachers in the public schools, but were subject to the approval and supervision of the superintendent. . . ." The trial court found: "Before any faith or other group may obtain permission from the defendant for the similar, free and equal use of rooms in the public school buildings, said faith or group must make application to the superintendent of schools of said School District Number 71, who in turn will determine whether or not it is practical for said group to teach in said school system." The president of the local school board testified: ". . . The Protestants would have one group and the Catholics, and would be given a room where they would have the class and we would go along with the plan of the religious people. They were all to be treated alike, with the understanding that the teachers they would bring into the school were approved by the superintendent. . . . The superintendent was the last word so far as the individual was concerned. . . ." [ Footnote 4 ] There were two teachers of the Protestant faith. One was a Presbyterian, and had been a foreign missionary for that church. The second testified as follows: "I am affiliated with the Christian church. I also work in the Methodist Church, and I taught at the Presbyterian. I am married to a Lutheran." [ Footnote 5 ] The director of the Champaign Council on Religious Education testified: ". . . If any pupil is absent, we turn in a slip just like any teacher would to the superintendent's office. The slip is a piece of paper with a number of hours in the school day and a square, and the teacher of the particular room for the particular hour records the absentees. It has their names and the grade and the section to which they belong. It is the same sheet that the geography and history teachers and all the other teachers use, and is furnished by the school. . . ." [ Footnote 6 ] The dissent, agreed to by four judges, said: "The problem then cannot be cast in terms of legal discrimination or its absence. This would be true even though the state, in giving aid, should treat all religious instruction alike. . . . Again, it was the furnishing of 'contributions of money for the propagation of opinions which he disbelieves' that the fathers outlawed. That consequence and effect are not removed by multiplying to all-inclusiveness the sects for which support is exacted. The Constitution requires, not comprehensive identification of state with religion, but complete separation." Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 59 , 330 U. S. 60 . [ Footnote 7 ] The dissenting judges said: "In view of this history, no further proof is needed that the Amendment forbids any appropriation, large or small, from public funds to aid or support any and all religious exercises. . . . Legislatures are free to make, and courts to sustain, appropriations only when it can be found that, in fact, they do not aid, promote, encourage or sustain religious teaching or observances, be the amount large or small." Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 41 , 330 U. S. 52 -53. MR. JUSTICE FRANKFURTER delivered the following opinion, in which MR. JUSTICE JACKSON, MR. JUSTICE RUTLEDGE and MR. JUSTICE BURTON join. * We dissented in Everson v. Board of Education, 330 U. S. 1 , because, in our view, the Constitutional principle requiring separation of Church and State compelled invalidation of the ordinance sustained by the majority. Illinois has here authorized the commingling of sectarian with secular instruction in the public schools. The Constitution of the United States forbids this. This case, in the light of the Everson decision, demonstrates anew that the mere formulation of a relevant Constitutional principle is the beginning of the solution of a problem, not its answer. This is so because the meaning Page 333 U. S. 213 of a spacious conception like that of the separation of Church from State is unfolded as appeal is made to the principle from case to case. We are all agreed that the First and the Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an "established church." But agreement, in the abstract, that the First Amendment was designed to erect a "wall of separation between church and State" does not preclude a clash of views as to what the wall separates. Involved is not only the Constitutional principle, but the implications of judicial review in its enforcement. Accommodation of legislative freedom and Constitutional limitations upon that freedom cannot be achieved by a mere phrase. We cannot illuminatingly apply the "wall of separation" metaphor until we have considered the relevant history of religious education in America, the place of the "released time" movement in that history, and its precise manifestation in the case before us. To understand the particular program now before us as a conscientious attempt to accommodate the allowable functions of Government and the special concerns of the Church within the framework of our Constitution and with due regard to the kind of society for which it was designed, we must put this Champaign program of 1940 in its historic setting. Traditionally, organized education in the Western world was Church education. It could hardly be otherwise when the education of children was primarily study of the Word and the ways of God. Even in the Protestant countries, where there was a less close identification of Church and State, the basis of education was largely the Bible, and its chief purpose inculcation of piety. To the extent that the State intervened, it used its authority to further aims of the Church. The emigrants who came to these shores brought this view of education with them. Colonial schools certainly Page 333 U. S. 214 started with a religious orientation. When the common problems of the early settlers of the Massachusetts Bay Colony revealed the need for common schools, the object was the defeat of "one chief project of that old deluder, Satan, to keep men from the knowledge of the Scriptures." The Laws and Liberties of Massachusetts, 1648 edition (Cambridge 1929) 47. [ Footnote 2/1 ] The evolution of colonial education, largely in the service of religion, into the public school system of today is the story of changing conceptions regarding the American democratic society, of the functions of State-maintained education in such a society, and of the role therein of the free exercise of religion by the people. The modern public school derived from a philosophy of freedom reflected in the First Amendment. It is appropriate to recall that the Remonstrance of James Madison, an event basic in the history of religious liberty, was called forth by a proposal which involved support to religious education. See MR. JUSTICE RUTLEDGE's opinion in the Everson case, supra, 330 U.S. at 330 U. S. 337 . As the momentum for popular education increased and, in turn, evoked strong claims for State support of religious education, contests not unlike that which in Virginia had produced Madison's Remonstrance appeared in various forms in other States. New York and Massachusetts provide famous chapters in the history that established dissociation of religious teaching from State-maintained schools. In New York, the rise of the common schools led, despite fierce sectarian Opposition, to the barring of tax funds to church schools, and later to any school in which sectarian doctrine was Page 333 U. S. 215 taught. [ Footnote 2/2 ] In Massachusetts, largely through the efforts of Horace Mann, all sectarian teachings were barred from the common school to save it from being rent by denominational conflict. [ Footnote 2/3 ] The upshot of these controversies, often long and fierce, is fairly summarized by saying that long before the Fourteenth Amendment subjected the States to new limitations, the prohibition of furtherance by the State of religious instruction became the guiding principle, in law and feeling, of the American people. In sustaining Stephen Girard's will, this Court referred to the inevitable conflicts engendered by matters "connected with religious polity," and particularly "in a country composed of such a variety of religious sects as our country." Vidal v. Girard's Executors , 2 How. 127, 43 U. S. 198 . That was more than one hundred years ago. Separation in the field of education, then, was not imposed upon unwilling States by force of superior law. In this respect, the Fourteenth Amendment merely reflected a principle then dominant in our national life. To the extent that the Constitution thus made it binding upon the States, the basis of the restriction is the whole experience of our people. Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instruments but especially through its educational agencies, was the democratic response of the American community to the particular needs of a young and growing nation, unique in the composition of its Page 333 U. S. 216 people. [ Footnote 2/4 ] A totally different situation elsewhere, as illustrated, for instance, by the English provisions for religious education in State-maintained schools, only serves to illustrate that free societies are not cast in one mould. See the Education Act of 1944, 7 and 8 Geo. VI, c. 31. Different institutions evolve from different historic circumstances. It is pertinent to remind that the establishment of this principle of Separation in the field of education was not due to any decline in the religious beliefs of the people. Horace Mann was a devout Christian, and the deep religious feeling of James Madison is stamped upon the Remonstrance. The secular public school did not imply indifference to the basic role of religion in the life of the people, nor rejection of religious education as a means of fostering it. The claims of religion were not minimized by refusing to make the public schools agencies for their assertion. The nonsectarian or secular public school was the means of reconciling freedom in general with religious freedom. The sharp confinement of the public schools to secular education was a recognition of the need of a democratic society to educate its children, insofar as the State undertook to do so, in an atmosphere free from pressures in a realm in which pressures are most resisted and where conflicts are most easily and most bitterly engendered. Designed to serve as perhaps the most powerful agency for promoting cohesion among a heterogeneous democratic people, the public school must keep scrupulously Page 333 U. S. 217 free from entanglement in the strife of sects. The preservation of the community from divisive conflicts, of Government from irreconcilable pressures by religious groups, of religion from censorship and coercion, however subtly exercised, requires strict confinement of the State to instruction other than religious, leaving to the individual's church and home indoctrination in the faith of his choice. This development of the public school as a symbol of our secular unity was not a sudden achievement, nor attained without violent conflict. [ Footnote 2/5 ] While, in small communities of comparatively homogeneous religious beliefs, the need for absolute separation presented no urgencies, elsewhere the growth of the secular school encountered the resistance of feeling strongly engaged against it. But the inevitability of such attempts is the very reason for Constitutional provisions primarily concerned with the protection of minority groups. And such sects are shifting groups, varying from time to time and place to place, thus representing in their totality the common interest of the nation. Enough has been said to indicate that we are dealing not with a full-blown principle, nor one having the definiteness of a surveyor's metes and bounds. But, by 1875, the separation of public education from Church entanglements, of the State from the teaching of religion, was firmly established in the consciousness of the nation. In Page 333 U. S. 218 that year, President Grant made his famous remarks to the Convention of the Army of the Tennessee: "Encourage free schools, and resolve that not one dollar appropriated for their support shall be appropriated to the support of any sectarian schools. Resolve that neither the State nor nation, nor both combined, shall support institutions of learning other than those sufficient to afford every child growing up in the land the opportunity of a good common school education, unmixed with sectarian, pagan, or atheistical dogmas. Leave the matter of religion to the family altar, the church and the private school, supported entirely by private contributions. Keep the church and the state forever separate." "The President's Speech at Des Moines," 22 Catholic World 433, 434-35 (1876). So strong was this conviction, that, rather than rest on the comprehensive prohibitions of the First and Fourteenth Amendments, President Grant urged that there be written into the United States Constitution particular elaborations, including a specific prohibition against the use of public funds for sectarian education, [ Footnote 2/6 ] such as had Page 333 U. S. 219 been written into many State constitutions. [ Footnote 2/7 ] By 1894, in urging the adoption of such a provision in the New York Constitution, Elihu Root was able to summarize a century of the nation's history: "It is not a question of religion, or of creed, or of party; it is a question of declaring and maintaining the great American principle of eternal separation between Church and State." Root, Addresses on Government and Citizenship, 137, 140. [ Footnote 2/8 ] The extent to which Page 333 U. S. 220 this principle was deemed a presupposition of our Constitutional system is strikingly illustrated by the fact that every State admitted into the Union since 1876 was compelled by Congress to write into its constitution a requirement that it maintain a school system "free from sectarian control." [ Footnote 2/9 ] Prohibition of the commingling of sectarian and secular instruction in the public school is, of course, only half the story. A religious people was naturally concerned about the part of the child's education entrusted "to the family altar, the church, and the private school." The promotion of religious education took many forms. Laboring under financial difficulties and exercising only persuasive authority, various denominations felt handicapped in their task of religious education. Abortive Page 333 U. S. 221 attempts were therefore frequently made to obtain public funds for religious schools. [ Footnote 2/10 ] But the major efforts of religious inculcation were a recognition of the principle of Separation by the establishment of church schools privately supported. Parochial schools were maintained by various denominations. These, however, were often beset by serious handicaps, financial and otherwise, so that the religious aims which they represented found other directions. There were experiments with vacation schools, with Saturday, as well as Sunday, schools. [ Footnote 2/11 ] They all fell short of their purpose. It was urged that, by appearing to make religion a "one day a week" matter, the Page 333 U. S. 222 Sunday school, which acquired national acceptance, tended to relegate the child's religious education, and thereby his religion, to a minor role not unlike the enforced piano lesson. Out of these inadequate efforts evolved the week-day church school, held on one or more afternoons a week after the close of the public school. But children continued to be children; they wanted to play when school was out, particularly when other children were free to do so. Church leaders decided that, if the week-day church school was to succeed, a way had to be found to give the child his religious education during what the child conceived to be his "business hours." The initiation of the movement [ Footnote 2/12 ] may fairly be attributed to Dr. George U. Wenner. The underlying assumption of his proposal, made at the Interfaith Conference on Federation held in New York City in 1905, was that the public school unduly monopolized the child's time, and that the churches were entitled to their share of it. [ Footnote 2/13 ] This, the schools should "release." Accordingly, the Federation, citing the example of the Third Republic of France, [ Footnote 2/14 ] urged that, upon the request of their parents, Page 333 U. S. 223 children be excused from public school on Wednesday afternoon, so that the churches could provide "Sunday school on Wednesday." This was to be carried out on church premises under church authority. Those not desiring to attend church schools would continue their normal classes. Lest these public school classes unfairly compete with the church education, it was requested that the school authorities refrain from scheduling courses or activities of compelling interest or importance. The proposal aroused considerable opposition, and it took another decade for a "released time" scheme to become part of a public school system. Gary, Indiana, inaugurated the movement. At a time when industrial Page 333 U. S. 224 expansion strained the communal facilities of the city, Superintendent of Schools Wirt suggested a fuller use of the school buildings. Building on theories which had become more or less current, he also urged that education was more than instruction in a classroom. The school was only one of several educational agencies. The library, the playground, the home, the church, all have their function in the child's proper unfolding. Accordingly, Wirt's plan sought to rotate the schedules of the children during the school day so that some were in class, others were in the library, still others in the playground. And some, he suggested to the leading ministers of the City, might be released to attend religious classes if the churches of the City cooperated and provided them. They did, in 1914, and thus was "released time" begun. The religious teaching was held on church premises, and the public schools had no hand in the conduct of these church schools. They did not supervise the choice of instructors or the subject matter taught. Nor did they assume responsibility for the attendance, conduct or achievement of the child in a church school, and he received no credit for it. The period of attendance in the religious schools would otherwise have been a play period for the child, with the result that the arrangement did not cut into public school instruction or truly affect the activities or feelings of the children who did not attend the church schools. [ Footnote 2/15 ] From such a beginning, "released time" has attained substantial proportions. In 1914-15, under the Gary program, 619 pupils left the public schools for the church schools during one period a week. According to responsible figures, almost 2,000,000 in some 2,200 communities Page 333 U. S. 225 participated in "released time" programs during 1947. [ Footnote 2/16 ] A movement of such scope indicates the importance of the problem to which the "released time" programs are directed. But to the extent that aspects of these programs are open to Constitutional objection, the more extensively the movement operates, the more ominous the breaches in the wall of separation. Of course, "released time" as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication. Local programs differ from each other in many and crucial respects. Some "released time" classes are under separate denominational auspices, others are conducted jointly by several denominations, often embracing all the religious affiliations of a community. Some classes in religion teach a limited sectarianism; others emphasize democracy, unity and spiritual values not anchored in a particular creed. Insofar as these are manifestations merely of the free exercise of religion, they are quite outside the scope of judicial concern, except insofar as the Court may be called upon to protect the right of religious freedom. It is only when challenge is made to the share that the public schools have in the execution of a particular "released time" program that close judicial scrutiny is demanded of the exact relation between the religious instruction and the public educational system in the specific situation before the Court. [ Footnote 2/17 ] Page 333 U. S. 226 The substantial differences among arrangements lumped together as "released time" emphasize the importance of detailed analysis of the facts to which the Constitutional test of Separation is to be applied. How does "released time" operate in Champaign? Public school teachers distribute to their pupils cards supplied by church groups, so that the parents may indicate whether they desire religious instruction for their children. For those desiring it, religious classes are conducted in the regular classrooms of the public schools by teachers of religion paid by the churches and appointed by them, but, as the State court found, "subject to the approval and supervision of the superintendent." The courses do not profess to give secular instruction in subjects concerning religion. Their candid purpose is sectarian teaching. While a child can go to any of the religious classes offered, a particular sect wishing a teacher for its devotees requires the permission of the school superintendent, "who, in turn, will determine whether or not it is practical for said group to teach in said school Page 333 U. S. 227 system." If no provision is made for religious instruction in the particular faith of a child, or if for other reasons the child is not enrolled in any of the offered classes, he is required to attend a regular school class, or a study period during which he is often left to his own devices. Reports of attendance in the religious classes are submitted by the religious instructor to the school authorities, and the child who fails to attend is presumably deemed a truant. Religious education so conducted on school time and property is patently woven into the working scheme of the school. The Champaign arrangement thus presents powerful elements of inherent pressure by the school system in the interest of religious sects. The fact that this power has not been used to discriminate is beside the point. Separation is a requirement to abstain from fusing functions of Government and of religious sects, not merely to treat them all equally. That a child is offered an alternative may reduce the constraint; it does not eliminate the operation of influence by the school in matters sacred to conscience and outside the school's domain. The law of imitation operates, and nonconformity is not an outstanding characteristic of children. The result is an obvious pressure upon children to attend. [ Footnote 2/18 ] Again, while the Champaign school population represents only a fraction of the more than two hundred and fifty sects of the nation, not even all the practicing sects in Champaign are willing or able to provide religious instruction. The children belonging to these nonparticipating sects will thus have inculcated in them a feeling of separatism when the school should be the training ground for habits of community, or they will have religious instruction in a faith which is not that of Page 333 U. S. 228 their parents. As a result, the public school system of Champaign actively furthers inculcation in the religious tenets of some faiths, and, in the process, sharpens the consciousness of religious differences, at least among some of the children committed to its care. These are consequences not amenable to statistics. But they are precisely the consequences against which the Constitution was directed when it prohibited the Government common to all from becoming embroiled, however innocently, in the destructive religious conflicts of which the history of even this country records some dark pages. [ Footnote 2/19 ] Mention should not be omitted that the integration of religious instruction within the school system as practiced in Champaign is supported by arguments drawn from educational theories as diverse as those derived from Catholic conceptions and from the writings of John Dewey. [ Footnote 2/20 ] Movements like "released time" are seldom Page 333 U. S. 229 single in origin or aim. Nor can the intrusion of religious instruction into the public school system of Champaign be minimized by saying that it absorbs less than an hour a week; in fact, that affords evidence of Page 333 U. S. 230 a design constitutionally objectionable. If it were merely a question of enabling a child to obtain religious instruction with a receptive mind, the thirty or forty-five minutes could readily be found on Saturday or Sunday. If that were all, Champaign might have drawn upon the French system, known in its American manifestation as "dismissed time," whereby one school day is shortened to allow all children to go where they please, leaving those who so desire to go to a religious school. [ Footnote 2/21 ] The momentum of the whole school atmosphere and school planning is presumably put behind religious instruction, as given in Champaign, precisely in order to secure for the religious Page 333 U. S. 231 instruction such momentum and planning. To speak of "released time" as being only half or three quarters of an hour is to draw a thread from a fabric. We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as "released time," present situations differing in aspects that may well be constitutionally crucial. Different forms which "released time" has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable. We do not now attempt to weigh in the Constitutional scale every separate detail or various combination of factors which may establish a valid "released time" program. We find that the basic Constitutional principle of absolute Separation was violated when the State of Illinois, speaking through its Supreme Court, sustained the school authorities of Champaign in sponsoring and effectively furthering religious beliefs by its educational arrangement. Separation means separation, not something less. Jefferson's metaphor in describing the relation between Church and State speaks of a "wall of separation," not of a fine line easily overstepped. The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep out divisive forces than in its schools, to avoid confusing, not to say fusing, what the Constitution sought to keep strictly apart. "The great American principle of eternal separation" -- Elihu Root's phrase bears repetition -- is one of the vital reliances of our Constitutional system for assuring unities among our people stronger than our diversities. It is the Court's duty to enforce this principle in its full integrity. Page 333 U. S. 232 We renew our conviction that "we have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion." Everson v. Board of Education, 330 U.S. at 330 U. S. 59 . If nowhere else, in the relation between Church and State, "good fences make good neighbors." * MR. JUSTICE RUTLEDGE and MR. JUSTICE BURTON concurred also in the Court's opinion. [ Footnote 2/1 ] For an exposition of the religious origins of American education, see S.W. Brown, The Secularization of American Education (1912) cc. I, II; Knight, Education in the United States (2d rev. ed. 1941) cc. III, V; Cubberley, Public Education in the United States (1934) cc. II, III. [ Footnote 2/2 ] See Boese, Public Education in the City of New York (1869) c. XIV; Hall, Religious Education in the Public Schools of the State and City of New York (1914) cc. VI, VII; Palmer, The New York Public School (1905) cc. VI, VII, X, XII. And see New York Laws 1842, c. 150, § 14, amended, New York Laws 1844, c. 320, § 12. [ Footnote 2/3 ] S. M. Smith, The Relation of the State to Religious Education in Massachusetts (1926) c. VII; Culver, Horace Mann and Religion in the Massachusetts Public Schools (1929). [ Footnote 2/4 ] It has been suggested that secular education in this country is the inevitable "product of the utter impossibility of harmonizing multiform creeds.'" T.W.M. Marshall, Secular Education in England and the United States, 1 American Catholic Quarterly Review 28, 308. It is precisely because of this "utter impossibility" that the fathers put into the Constitution the principle of complete "hands off" for a people as religiously heterogeneous as ours. [ Footnote 2/5 ] See Cubberley, Public Education in the United States (1934) pp. 230 et seq.; Zollmann, The Relation of Church and State, in Lotz and Crawford, Studies in Religious Education (1931) 403, 418 et seq.; Payson Smith, The Public Schools and Religious Education, in Religion and Education (Sperr, Editor, 1945) pp. 32 et seq.; also Mahoney, The Relation of the State to Religious Education in Early New York 1633-1825 (1941) c. VI; McLaughlin, A History of State Legislation Affecting Private Elementary and Secondary Schools in the United States, 180-1945 (1946) c. I, and see 333 U.S. 203 fn2/10|>note 10, infra. [ Footnote 2/6 ] President Grant's Annual Message to Congress, December 7, 1875, 4 Cong.Rec. 1, 5 et seq.; Ames, The Proposed Amendments to the Constitution of the United States during the First Century of its History, H.R.Doc. No. 353, Pt. 2, 54th Cong., 2d Sess., pp 277-278. In addition to the first proposal, "The Blaine Amendment," five others to similar effect are cited by Ames. The reason for the failure of these attempts seems to have been in part that the "provisions of the State constitutions are in almost all instances adequate on this subject, and no amendment is likely to be secured." Id. In the form in which it passed the House of Representatives, the Blaine Amendment read as follows: "No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof, and no religious test shall ever be required as a qualification to any office or public trust under any State. No public property, and no public revenue of, nor any loan of credit by or under the authority of, the United States, or any State, Territory, District, or municipal corporation, shall be appropriated to, or made or used for, the support of any school, educational or other institution, under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creed or tenets of any religious or anti-religious sect, organization, or denomination shall be taught. And no such particular creed or tenets shall be read or taught in any school or institution supported in whole or in part by such revenue or loan of credit, and no such appropriation or loan of credit shall be made to any religious or anti-religious sect, organization, or denomination, or to promote its interests or tenets. This article shall not be construed to prohibit the reading of the Bible in any school or institution, and it shall not have the effect to impair rights of property already vested. . . ." H.Res. 1, 44th Cong., 1st Sess. (1876). [ Footnote 2/7 ] See Constitutions of the States and United States, III Report of the New York State Constitutional Convention Committee (1938) Index, pp. 1766-67. [ Footnote 2/8 ] It is worthy of interest that another famous American lawyer, and indeed one of the most distinguished of American judges, Jeremiah S. Black, expressed similar views nearly forty years before Mr. Root: "The manifest object of the men who framed the institutions of this country was to have a State without religion, and a Church without politics -- that is to say, they meant that one should never be used as an engine for any purpose of the other. . . . Our fathers seem to have been perfectly sincere in their belief that the members of the Church would be more patriotic, and the citizens of the State more religious, by keeping their respective functions entirely separate. For that reason, they built up a wall of complete and perfect partition between the two." From Religious Liberty (1856) in Black, Essays and Speeches (1886) 51, 53; cf. Brigance, Jeremiah Sullivan Black (1934). While Jeremiah S. Black and Elihu Root had many things in common, there were also important differences between them, perhaps best illustrated by the fact that one became Secretary of State to President Buchanan, the other to Theodore Roosevelt. That two men, with such different political alignment, should have shared identic views on a matter so basic to the wellbeing of our American democracy affords striking proof of the respect to be accorded to that principle. [ Footnote 2/9 ] 25 Stat. 676, 677, applicable to North Dakota, South Dakota, Montana and Washington, required that the constitutional conventions of those States "provide, by ordinances irrevocable without the consent of the United States and the people of said States . . . for the establishment and maintenance of systems of public schools, which shall be open to all the children of said States, and free from sectarian control. . . ." The same provision was contained in the Enabling Act for Utah, 28 Stat. 107, 108; Oklahoma, 34 Stat. 267, 270; New Mexico and Arizona, 36 Stat. 557, 559, 570. Idaho and Wyoming were admitted after adoption of their constitutions; that of Wyoming contained an irrevocable ordinance in the same terms. Wyoming Constitution, 1889, Ordinances, § 5. The Constitution of Idaho, while it contained no irrevocable ordinance, had a provision even more explicit in its establishment of separation. Idaho Constitution, 1889, art. IX, § 5. [ Footnote 2/10 ] See, e.g., the New York experience, including, inter alia, the famous Hughes controversy of 1840-42, the conflict culminating in the Constitutional Convention of 1894, and the attempts to restore aid to parochial schools by revision of the New York City Charter, in 1901, and at the State Constitutional Convention of 1938. See McLaughlin, A History of State Legislation Affecting Private Elementary and Secondary Schools in the United States, 1870-1945 (1946) pp. 119-25; Mahoney; The Relation of the State to Religious Education in Early New York 1633-1825 (1941) c. VI; Hall, Religious Education in the Public Schools of the State and the City of New York (1914) pp. 46-47; Boese, Public Education in the City of New York (1&69) c. XIV; compare New York Laws 1901, vol. 3, § 1152, p. 492, with amendment, id. p. 668; see Nicholas Murray Butler, Religion and Education (Editorial) in 22 Educational Review 101, June, 1901; New York Times, April 8, 1901, p. 1, col. 1; April 9, 1901, p. 2, col. 5; April 19, 1901, p. 2, col. 2; April 21, 1901, p. 1, col. 3; Editorial, April 22, 1901, p. 6, col. 1. Compare S. 2499, 79th Cong., 2d Sess., providing for Federal aid to education, and the controversy engendered over the inclusion in the aid program of sectarian schools, fully discussed in, e.g., "The Nation's Schools," January through June, 1947. [ Footnote 2/11 ] For surveys of the development of private religious education, see, e.g., A. A. Brown, A History of Religious Education in Recent Times (1923); Athearn, Religious Education and American Democracy (1917); Burns and Kohlbrenner, A History of Catholic Education in the United States (1937); Lotz and Crawford, Studies in Religious Education (1931) Parts I and IV. [ Footnote 2/12 ] Reference should be made to Jacob Gould Schurman, who, in 1903, proposed a plan bearing close resemblance to that of Champaign. See Symposium, 75 The Outlook 635, 636, November 14, 1903; Crooker, Religious Freedom in American Education (1903) pp. 39 et seq. [ Footnote 2/13 ] For the text of the resolution, a brief in its support, as well as an exposition of some of the opposition it inspired, see Wenner's book, Religious Education and the Public School (rev. ed.1913). [ Footnote 2/14 ] The French example is cited not only by Wenner, but also by Nicholas Murray Butler, who thought released time was "restoring the American system in the state of New York." The Place of Religious Instruction in Our Educational System, 7 Vital Speeches 167, 168 (Nov. 28, 1940); see also Report of the President of Columbia University, 1934, pp.22-24. It is important to note, however, that the French practice must be viewed as the result of the struggle to emancipate the French schools from control by the Church. The leaders of this revolution, men like Paul Bert, Ferdinand Buisson, and Jules Ferry, agreed to this measure as one part of a great step towards, rather than a retreat from, the principle of Separation. The history of these events is described in Muzzey, State, Church, and School in France, The School Review, March through June, 1911. In effect, moreover, the French practice differs in crucial respects from both the Wenner proposal and the Champaign system. The law of 1882 provided that "Public elementary schools will be closed one day a week in addition to Sunday in order to permit parents, if they so desire, to have their children given religious instruction outside of school buildings." Law No. 11,696, March 28, 1882, Bulletin des Lois, No. 690. This then approximates that aspect of released time generally known as "dismissed time." No children went to school on that day, and the public school was therefore not an alternative used to impel the children towards the religious school. The religious education was given "outside of school buildings." The Vichy Government attempted to introduce a program of religious instruction within the public school system remarkably similar to that in effect in Champaign. The proposal was defeated by intense opposition, which included the protest of the French clergy, who apparently feared State control of the Church. See Schwartz, Religious Instruction under Petain, 58 Christian Century 1170, Sept. 24, 1941. [ Footnote 2/15 ] Of the many expositions of the Gary plan, see, e.g., A. A. Brown, The Week-Day Church Schools of Gary, Indiana, 11 Religious Education 5 (1916); Wirt, The Gary Public Schools and the Churches, id. at 221 (1916). [ Footnote 2/16 ] See the 1947 Yearbook, International Council of Religious Education, p. 76; also New York Times, September 21, 1947, p. 22, col. 1. [ Footnote 2/17 ] Respects in which programs differ include, for example, the amount of supervision by the public school of attendance and performance in the religious class, of the course of study, of the selection of teachers; methods of enrolment and dismissal from the secular classes; the amount of school time devoted to operation of the program; the extent to which school property and administrative machinery are involved; the effect on the public school program of the introduction of "released time"; the proportion of students who seek to be excused; the effect of the program on nonparticipants; the amount and nature of the publicity for the program in the public schools. The studies of detail in "released time" programs are voluminous. Most of these may be found in the issues of such periodicals as The International Journal of Religious Education, Religious Education, and Christian Century. For some of the more comprehensive studies found elsewhere, see Davis, Weekday Classes in Religious Education, U.S. Office of Education Bulletin 1941, No. 3; Gorham, A Study of the Status of Weekday Church Schools in the United States (1934); Lotz, The Weekday Church School, in Lotz and Crawford, Studies in Religious Education (1931) c. XII; Forsyth, Week-Day Church Schools (1930); Settle, The Weekday Church School, Educational Bulletin No. 601 of The International Council of Religious Education (1930); Shaver, Present-Day Trends in Religious Education (1928) cc. VII, VIII; Gove, Religious Education on Public School Time (1926). [ Footnote 2/18 ] It deserves notice that, in discussing with the relator her son's inability to get along with his classmates, one of his teachers suggested that "allowing him to take the religious education course might help him to become a member of the group." [ Footnote 2/19 ] The divergent views expressed in the briefs submitted here on behalf of various religious organizations, as amici curiae, in themselves suggest that the movement has been a divisive and not an irenic influence in the community: The American Unitarian Association; The General Conference of Seventh Day Adventists; The Joint Conference Committee on Public Relations set up by the Southern Baptist Convention, The Northern Baptist Convention, The National Baptist Convention Inc., and the National Baptist Convention; The Protestant Council of the City of New York, and The Synagogue Council of America and National Community Relations Advisory Council. [ Footnote 2/20 ] There is a prolific literature on the educational, social and religious merits of the "released time" movement. In support of "released time," the following may be mentioned: The International Council of Religious Education, and particularly the writings of Dr. Erwin L. Shaver, for some years Director of its Department of Weekday Religious Education, in publications of the Council and in numerous issues of The International Journal of Religious Education ( e.g., They Reach One-Third, Dec., 1943, p. 11; Weekday Religious Education Today, Jan., 1944, p. 6), and Religious Education ( e.g., Survey of Week-Day Religious Education, Feb., 1922, p. 51; The Movement for Weekday Religious Education, Jan.-Feb., 1946, p. 6); see also Information Service, Federal Council of Churches of Christ, May 29, 1943. See also Cutton, Answering the Arguments, The International Journal of Religious Education, June, 1930, p. 9, and Released Time, id. Sept., 1942, p. 12; Hauser, " Hands off the Public School? ", Religious Education, Mar.-Apr., 1942, p. 99; Collins, Release Time for Religious Instruction, National Catholic Education Association Bulletin, May, 1945, pp. 21, 27-28; Weigle, Public Education and Religion, Religious Education, Apr.-June, 1940, p. 67; Nicholas Murray Butler, The Place of Religious Instruction in Our Educational System, 7 Vital Speeches 167 (Nov. 28, 1940); Howlett, Released Time for Religious Education in New York City, 64 Education 523, May, 1944; Blair, A Case for the Weekday Church School, 7 Frontiers of Democracy 75, Dec. 15, 1940; cf. Allred, Legal Aspects of Release Time (National Catholic Welfare Conference, 1947). Favorable views are also cited in the studies in note 17, supra. Many not opposed to "released time" have declared it "hardly enough" or "pitifully inadequate." E.g., Fleming, God in Our Public Schools (2d ed.1944) pp. 80-86; Howlett, Released Time for Religious Education in New York City, Religious Education, Mar.-Apr., 1942, p. 104; Cavert, Points of Tension Between Church and State in America Today, in Church and State in the Modern World (1937) 161, 168; F. E. Johnson, The Church and Society (1935) 125; Hubner, Professional Attitudes toward Religion in the Public Schools of the United States Since 1900 (1944) 108-109, 113; cf. Ryan, A Protestant Experiment in Religious Education, The Catholic World, June, 1922; Elliott, Are Weekday Church Schools the Solution?, The International Journal of Religious Education, Nov., 1940, p. 8; Elliott, Report of the Discussion, Religious Education, July Sept., 1940, p. 158. For opposing views, see V. T. Thayer, Religion in Public Education (1947) cc. VII, VIII; Moehlman, The Church as Educator (1947) c. X; Chave, A Functional Approach to Religious Education (1947) 104-107; A. W. Johnson, The Legal Status of Church-State Relationships in the United States (1934) 129-130; Newman, The Sectarian Invasion of Our Public Schools (1925). See also Payson Smith, The Public Schools and Religious Education, in Religion and Education (Sperry, Editor, 1945) 32, 42-47; Herrick, Religion in the Public Schools of America, 46 Elementary School Journal 119, Nov., 1945; Kallen, Churchmen's Claims on the Public School, The Nation's Schools, May, 1942, p. 49; June, 1942, p. 52. And cf. John Dewey, Religion in Our Schools (1908), reprinted in 2 Characters and Events (1929) 504, 508, 514. "Released time" was introduced in the public schools of the City of New York over the opposition of organizations like the Public Education Association and the United Parents Associations. The arguments and sources pro and con are collected in Hubner, Professional Attitudes toward Religion in the Public Schools in the United States since 1900 (1944) 94 et seq. And see the symposia, Teaching Religion in a Democracy, The International Journal of Religious Education, Nov., 1940, pp.6-16; The Aims of Week-Day Religious Education, Religious Education, Feb., 1922, p. 11; Released Time in New York City, id. Jan.-Feb., 1943, p. 15; Progress in Weekday Religious Education, id. Jan.-Feb., 1946, p. 6; Can Our Public Schools Do More about Religion?, 125 Journal of Education 245, Nov., 1942, id. at 273, Dec., 1942; Religious Instruction on School Time, 7 Frontiers of Democracy 72-77, Dec. 15, 1940, and the articles in 64 Education 519 et seq., May, 1944. [ Footnote 2/21 ] See 333 U.S. 203 fn2/14|>note 14, supra. Indications are that "dismissed time" is used in an inconsiderable number of the communities employing released time. Davis, Weekday Classes in Religious Education, U.S. Office of Education Bulletin 1941, No. 3, p. 22; Shaver, The Movement for Weekday Religious Education, Religious Education, Jan.-Feb., 1946, pp.6, 9. MR. JUSTICE JACKSON, concurring. I join the opinion of MR. JUSTICE FRANKFURTER, and concur in the result reached by the Court, but with these reservations: I think it is doubtful whether the facts of this case establish jurisdiction in this Court, but, in any event, that we should place some bounds on the demands for interference with local schools that we are empowered or willing to entertain. I make these reservations a matter of record in view of the number of litigations likely to be started as a result of this decision. A Federal Court may interfere with local school authorities only when they invade either a personal liberty or a property right protected by the Federal Constitution. Ordinarily this will come about in either of two ways: First. When a person is required to submit to some religious rite or instruction or is deprived or threatened with deprivation of his freedom for resisting such unconstitutional requirement. We may then set him free or enjoin his prosecution. Typical of such cases was West Virginia State Board of Education v. Barnette, 319 U. S. 624 . There, penalties were threatened against both parent and child for refusal of the latter to perform a compulsory ritual which offended his convictions. We intervened to shield them against the penalty. But here, complainant's son may join religious classes if he chooses and if his parents so request, or he may stay out of them. The complaint is that, when others join and he does not, it sets him apart as a dissenter, which is humiliating. Page 333 U. S. 233 Even admitting this to be true, it may be doubted whether the Constitution, which, of course, protects the right to dissent, can be construed also to protect one from the embarrassment that always attends nonconformity, whether in religion, politics, behavior or dress. Since no legal compulsion is applied to complainant's son himself, and no penalty is imposed or threatened from which we may relieve him, we can hardly base jurisdiction on this ground. Second. Where a complainant is deprived of property by being taxed for unconstitutional purposes, such as directly or indirectly to support a religious establishment. We can protect a taxpayer against such a levy. This was the Everson Case, 330 U. S. 1 , as I saw it then and see it now. It was complained in that case that the school treasurer drew a check on public funds to reimburse parents for a child's bus fare if he went to a Catholic parochial school or a public school, but not if he went to any other private or denominational school. Reference to the record in that case will show that the School District was not operating busses, so it was not a question of allowing Catholic children to ride publicly owned busses along with others in the interests of their safety, health or morals. The child had to travel to and from parochial school on commercial busses like other paying passengers and all other school children, and he was exposed to the same dangers. If it could, in fairness, have been said that the expenditure was a measure for the protection of the safety, health or morals of youngsters, it would not merely have been constitutional to grant it; it would have been unconstitutional to refuse it to any child merely because he was a Catholic. But, in the Everson Case, there was a direct, substantial and measurable burden on the complainant as a taxpayer to raise funds that were used to subsidize transportation to parochial schools. Hence, we Page 333 U. S. 234 had jurisdiction to examine the constitutionality of the levy and to protect against it if a majority had agreed that the subsidy for transportation was unconstitutional. In this case, however, any cost of this plan to the taxpayers is incalculable and negligible. It can be argued, perhaps, that religious classes add some wear and tear on public buildings, and that they should be charged with some expense for heat and light, even though the sessions devoted to religious instruction do not add to the length of the school day. But the cost is neither substantial nor measurable, and no one seriously can say that the complainant's tax bill has been proved to be increased because of this plan. I think it is doubtful whether the taxpayer in this case has shown any substantial property injury. If, however, jurisdiction is found to exist, it is important that we circumscribe our decision with some care. What is asked is not a defensive use of judicial power to set aside a tax levy or reverse a conviction, or to enjoin threats of prosecution or taxation. The relief demanded in this case is the extraordinary writ of mandamus to tell the local Board of Education what it must do. The prayer for relief is that a writ issue against the Board of Education "ordering it to immediately adopt and enforce rules and regulations prohibiting all instruction in and teaching of religious education in all public schools . . . and in all public school houses and buildings in said district when occupied by public schools." The plaintiff, as she has every right to be, is an avowed atheist. What she has asked of the courts is that they not only end the "released time" plan, but also ban every form of teaching which suggests or recognizes that there is a God. She would ban all teaching of the Scriptures. She especially mentions as an example of invasion of her rights "having pupils learn and recite such statements as, The Lord is my Shepherd, I shall not want.'" And she objects to teaching that the King James version of the Bible "is Page 333 U. S. 235 called the Christian's Guide Book, the Holy Writ and the Word of God," and many other similar matters. This Court is directing the Illinois courts generally to sustain plaintiff's complaint without exception of any of these grounds of complaint, without discriminating between them and without laying down any standards to define the limits of the effect of our decision. To me, the sweep and detail of these complaints is a danger signal which warns of the kind of local controversy we will be required to arbitrate if we do not place appropriate limitation on our decision and exact strict compliance with jurisdictional requirements. Authorities list 256 separate and substantial religious bodies to exist in the continental United States. Each of them, through the suit of some discontented but unpenalized and untaxed representative, has as good a right as this plaintiff to demand that the courts compel the schools to sift out of their teaching everything inconsistent with its doctrines. If we are to eliminate everything that is objectionable to any of these warring sects or inconsistent with any of their doctrines, we will leave public education in shreds. Nothing but educational confusion and a discrediting of the public school system can result from subjecting it to constant law suits. While we may and should end such formal and explicit instruction as the Champaign plan, and can at all times prohibit teaching of creed and catechism and ceremonial, and can forbid forthright proselyting in the schools, I think it remains to be demonstrated whether it is possible, even if desirable, to comply with such demands as plaintiff's completely to isolate and cast out of secular education all that some people may reasonably regard as religious instruction. Perhaps subjects such as mathematics, physics or chemistry are, or can be, completely secularized. But it would not seem practical to teach either practice or appreciation of the arts if we are to forbid exposure Page 333 U. S. 236 of youth to any religious influences. Music without sacred music, architecture minus the cathedral, or painting without the scriptural themes would be eccentric and incomplete, even from a secular point of view. Yet the inspirational appeal of religion in these guises is often stronger than in forthright sermon. Even such a "science" as biology raises the issue between evolution and creation as an explanation of our presence on this planet. Certainly a course in English literature that omitted the Bible and other powerful uses of our mother tongue for religious ends would be pretty barren. And I should suppose it is a proper, if not an indispensable, part of preparation for a worldly life to know the roles that religion and religions have played in the tragic story of mankind. The fact is that, for good or for ill, nearly everything in our culture worth transmitting, everything which gives meaning to life, is saturated with religious influences, derived from paganism, Judaism, Christianity -- both Catholic and Protestant -- and other faiths accepted by a large part of the world's peoples. One can hardly respect a system of education that would leave the student wholly ignorant of the currents of religious thought that move the world society for a part in which he is being prepared. But how one can teach, with satisfaction or even with justice to all faiths, such subjects as the story of the Reformation, the Inquisition, or even the New England effort to found "a Church without a Bishop and a State without a King," is more than I know. It is too much to expect that mortals will teach subjects about which their contemporaries have passionate controversies with the detachment they may summon to teaching about remote subjects such as Confucius or Mohammed. When instruction turns to proselyting and imparting knowledge becomes evangelism is, except in the crudest cases, a subtle inquiry. Page 333 U. S. 237 The opinions in this case show that public educational authorities have evolved a considerable variety of practices in dealing with the religious problem. Neighborhoods differ in racial, religious and cultural compositions. It must be expected that they will adopt different customs which will give emphasis to different values and will induce different experiments. And it must be expected that, no matter what practice prevails, there will be many discontented and possibly belligerent minorities. We must leave some flexibility to meet local conditions, some chance to progress by trial and error. While I agree that the religious classes involved here go beyond permissible limits, I also think the complaint demands more than plaintiff is entitled to have granted. So far as I can see, this Court does not tell the State court where it may stop, nor does it set up any standards by which the State court may determine that question for itself. The task of separating the secular from the religious in education is one of magnitude, intricacy and delicacy. To lay down a sweeping constitutional doctrine as demanded by complainant and apparently approved by the Court, applicable alike to all school boards of the nation, "to immediately adopt and enforce rules and regulations prohibiting all instruction in and teaching of religious education in all public schools," is to decree a uniform, rigid and, if we are consistent, an unchanging standard for countless school boards representing and serving highly localized groups which not only differ from each other, but which themselves, from time to time, change attitudes. It seems to me that to do so is to allow zeal for our own ideas of what is good in public instruction to induce us to accept the role of a super board of education for every school district in the nation. It is idle to pretend that this task is one for which we can find in the Constitution one word to help us as judges to decide where the secular ends and the sectarian Page 333 U. S. 238 begins in education. Nor can we find guidance in any other legal source. It is a matter on which we can find no law but our own prepossessions. If, with no surer legal guidance, we are to take up and decide every variation of this controversy, raised by persons not subject to penalty or tax but who are dissatisfied with the way schools are dealing with the problem, we are likely to have much business of the sort. And, more importantly, we are likely to make the legal "wall of separation between church and state" as winding as the famous serpentine wall designed by Mr. Jefferson for the University he founded. MR. JUSTICE REED, dissenting. The decisions reversing the judgment of the Supreme Court of Illinois interpret the prohibition of the First Amendment against the establishment of religion, made effective as to the states by the Fourteenth Amendment, to forbid pupils of the public schools electing, with the approval of their parents, courses in religious education. The courses are given, under the school laws of Illinois as approved by the Supreme Court of that state, by lay or clerical teachers supplied and directed by an interdenominational, local council of religious education. [ Footnote 3/1 ] The classes are held in the respective school buildings of the pupils at study or released time periods so as to avoid conflict with recitations. The teachers and supplies are paid for by the interdenominational group. [ Footnote 3/2 ] As I am Page 333 U. S. 239 convinced that this interpretation of the First Amendment is erroneous, I feel impelled to express the reasons for my disagreement. By directing attention to the many instances of close association of church and state in American society, and by recalling that many of these relations are so much a part of our tradition and culture that they are accepted without more, this dissent may help in an appraisal of the meaning of the clause of the First Amendment concerning the establishment of religion and of the reasons which lead to the approval or disapproval of the judgment below. The reasons for the reversal of the Illinois judgment, as they appear in the respective opinions, may be summarized by the following excerpts. The opinion of the Court, after stating the facts, says: "The foregoing facts, without reference to others that appear in the record, show the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education. . . . And it falls squarely under the ban of the First Amendment (made applicable to the States by the Fourteenth) as we interpreted it in Everson v. Board of Education, 330 U. S. 1 ." Another opinion phrases it thus: "We do not now attempt to weigh in the Constitutional scale every separate detail or various combination of factors which may establish a valid 'released time' program. We find that the basic Constitutional principle of absolute separation was violated when the State of Illinois, speaking through its Supreme Court, sustained the school authorities of Champaign in sponsoring and effectively furthering religious beliefs by its educational arrangement." These expressions in the decisions seem to Page 333 U. S. 240 leave open for further litigation variations from the Champaign plan. Actually, however, future cases must run the gauntlet not only of the judgment entered, but of the accompanying words of the opinions. I find it difficult to extract from the opinions any conclusion as to what it is in the Champaign plan that is unconstitutional. Is it the use of school buildings for religious instruction; the release of pupils by the schools for religious instruction during school hours; the so-called assistance by teachers in handing out the request cards to pupils, in keeping lists of them for release and records of their attendance; or the action of the principals in arranging an opportunity for the classes and the appearance of the Council's instructors? None of the reversing opinions say whether the purpose of the Champaign plan for religious instruction during school hours is unconstitutional, or whether it is some ingredient used in or omitted from the formula that makes the plan unconstitutional. From the tenor of the opinions, I conclude that their teachings are that any use of a pupil's school time, whether that use is on or off the school grounds, with the necessary school regulations to facilitate attendance, falls under the ban. I reach this conclusion notwithstanding one sentence of indefinite meaning in the second opinion: "We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial." The use of the words "cooperation," "fusion," "complete hands-off," "integrate" and "integrated" to describe the relations between the school and the Council in the plan evidences this. So does the interpretation of the word "aid." The criticized "momentum of the whole school atmosphere," "feeling of separatism" engendered in the nonparticipating Page 333 U. S. 241 sects, "obvious pressure . . . to attend," and "divisiveness" lead to the stated conclusion. From the holding and the language of the opinions, I can only deduce that religious instruction of public school children during school hours is prohibited. The history of American education is against such an interpretation of the First Amendment. The opinions do not say in words that the condemned practice of religious education is a law respecting an establishment of religion contrary to the First Amendment. The practice is accepted as a state law by all. I take it that, when the opinion of the Court says that "The operation of the state's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects," and concludes "This is beyond all question a utilization of the tax established and tax-supported public school system to aid religious groups to spread their faith," the intention of its author is to rule that this practice is a law "respecting an establishment of religion." That was the basis of Everson v. Board of Education, 330 U. S. 1 . It seems obvious that the action of the School Board in permitting religious education in certain grades of the schools by all faiths did not prohibit the free exercise of religion. Even assuming that certain children who did not elect to take instruction are embarrassed to remain outside of the classes, one can hardly speak of that embarrassment as a prohibition against the free exercise of religion. As no issue of prohibition upon the free exercise of religion is before us, we need only examine the School Board's action to see if it constitutes an establishment of religion. The facts, as stated in the reversing opinions, are adequately set out if we interpret the abstract words used in the light of the concrete incidents of the record. It is Page 333 U. S. 242 correct to say that the parents "consented" to the religious instruction of the children, if we understand "consent" to mean the signing of a card like the one in the margin. [ Footnote 3/3 ] It is correct to say that "instructors were subject to the approval and supervision of the superintendent of schools," if it is understood that there were no definitive written rules and that the practice was as is shown in the excerpts from the findings below. [ Footnote 3/4 ] The substance of the Page 333 U. S. 243 religious education course is determined by the members of the various churches on the council, not by the superintendent. [ Footnote 3/5 ] The evidence and findings set out in the two preceding notes convince me that the "approval and supervision" referred to above are not of the teachers and the course of studies, but of the orderly presentation of the courses to those students who may elect the instruction. The teaching largely covered Biblical incidents. [ Footnote 3/6 ] The religious teachers and their teachings, in every real sense, Page 333 U. S. 244 were financed and regulated by the Council of Religious Education, not the School Board. The phrase "an establishment of religion" may have been intended by Congress to be aimed only at a state church. When the First Amendment was pending in Congress in substantially its present form, "Mr. Madison said he apprehended the meaning of the words to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. [ Footnote 3/7 ]" Passing years, however, have brought about acceptance of a broader meaning, although never until today, I believe, has this Court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion. A reading of the general statements of eminent statesmen of former days, referred to in the opinions in this case and in Everson v. Board of Education, supra, will show that circumstances such as those in this case were far from the minds of the authors. The words and spirit of those statements may be wholeheartedly accepted without in the least impugning the judgment of the State of Illinois. [ Footnote 3/8 ] Page 333 U. S. 245 Mr. Jefferson, as one of the founders of the University of Virginia, a school which, from its establishment in 1819, has been wholly governed, managed and controlled by the State of Virginia, [ Footnote 3/9 ] was faced with the same problem that is before this Court today: the question of the Constitutional limitation upon religious education in public schools. In his annual report as Rector, to the President and Directors of the Literary Fund, dated October 7, 1822, approved by the Visitors of the University of whom Mr. Madison was one, [ Footnote 3/10 ] Mr. Jefferson set forth his views at some length. [ Footnote 3/11 ] These suggestions of Mr. Jefferson were Page 333 U. S. 246 adopted [ Footnote 3/12 ] and ch. II, § 1, of the Regulations of the University of October 4, 1824, provided that "Should the religious sects of this State, or any of them, according to the invitation held out to them, establish within, or adjacent to, the precincts of the University, schools for instruction in the religion of their sect, the students of the University will be free, and expected to attend religious worship at the establishment of their respective sects, in the morning, and in time to meet their school in the University at its stated hour. [ Footnote 3/13 ] " Page 333 U. S. 247 Thus, the "wall of separation between church and State" that Mr. Jefferson built at the University which he founded did not exclude religious education from that school. The difference between the generality of his statements on the separation of church and state and the specificity of his conclusions on education are considerable. A rule of law should not be drawn from a figure of speech. Mr. Madison's Memorial and Remonstrance against Religious Assessments, [ Footnote 3/14 ] relied upon by the dissenting Justices in Everson, is not applicable here. [ Footnote 3/15 ] Mr. Madison was one of the principal opponents in the Virginia General Assembly of A Bill Establishing a Provision for Teachers of the Christian Religion. The monies raised by the taxing section [ Footnote 3/16 ] of that bill were to be appropriated "by the Vestries, Elders, or Directors of each religious society, . . . to a provision for a Minister or Teacher Page 333 U. S. 248 of the Gospel of their denomination, or the providing places of divine worship, and to none other use whatsoever. . . ." The conclusive legislative struggle over this act took place in the fall of 1785, before the adoption of the Bill of Rights. The Remonstrance had been issued before the General Assembly convened, and was instrumental in the final defeat of the act, which died in committee. Throughout the Remonstrance, Mr. Madison speaks of the "establishment" sought to be effected by the act. It is clear from its historical setting and its language that the Remonstrance was a protest against an effort by Virginia to support Christian sects by taxation. Issues similar to those raised by the instant case were not discussed. Thus, Mr. Madison's approval of Mr. Jefferson's report as Rector gives, in my opinion, a clearer indication of his views on the constitutionality of religious education in public schools than his general statements on a different subject. This Court summarized the amendment's accepted reach into the religious field, as I understand its scope, in Everson v. Board of Education, supra. The Court's opinion quotes the gist of the Court's reasoning in Everson. I agree, as there stated, that none of our governmental entities can "set up a church." I agree that they cannot "aid" all or any religions or prefer one "over another." But "aid" must be understood as a purposeful assistance directly to the church itself or to some religious group or organization doing religious work of such a character that it may fairly be said to be performing ecclesiastical functions. "Prefer" must give an advantage to one "over another." I agree that pupils cannot "be released in part from their legal duty" of school attendance upon condition that they attend religious classes. But, as Illinois has held that it is within the discretion of the School Board to permit absence from school for religious instruction, Page 333 U. S. 249 no legal duty of school attendance is violated. 396 Ill. 14, 71 N.E.2d 161. If the sentence in the Court's opinion concerning the pupils' release from legal duty is intended to mean that the Constitution forbids a school to excuse a pupil from secular control during school hours to attend voluntarily a class in religious education, whether in or out of school buildings, I disagree. Of course, no tax can be levied to support organizations intended "to teach or practice religion." I agree, too, that the state cannot influence one toward religion against his will, or punish him for his beliefs. Champaign's religious education course does none of these things. It seems clear to me that the "aid" referred to by the Court in the Everson case could not have been those incidental advantages that religious bodies, with other groups similarly situated, obtain as a by-product of organized society. This explains the well known fact that all churches receive "aid" from government in the form of freedom from taxation. The Everson decision itself justified the transportation of children to church schools by New Jersey for safety reasons. It accords with Cochran v. Louisiana State Board of Education, 281 U. S. 370 , where this Court upheld a free textbook statute of Louisiana against a charge that it aided private schools on the ground that the books were for the education of the children, not to aid religious schools. Likewise, the National School Lunch Act aids all school children attending tax exempt schools. [ Footnote 3/17 ] In Bradfield v. Roberts, 175 U. S. 291 , this Court held proper the payment of money by the Federal Government to build an addition to a hospital, chartered by individuals who were members of a Roman Catholic sisterhood and operated under the auspices of the Roman Catholic Church. This was done over the objection that it aided the establishment Page 333 U. S. 250 of religion. [ Footnote 3/18 ] While obviously in these instances the respective churches, in a certain sense, were aided, this Court has never held that such "aid" was in violation of the First or Fourteenth Amendment. Well recognized and long-established practices support the validity of the Illinois statute here in question. That statute, as construed in this case, is comparable to those in many states. [ Footnote 3/19 ] All differ to some extent. New York may be taken as a fair example. [ Footnote 3/20 ] In many states, the program Page 333 U. S. 251 is under the supervision of a religious council composed of delegates who are themselves communicants of various faiths. [ Footnote 3/21 ] As is shown by Bradfield v. Roberts, supra, the fact that the members of the council have religious affiliations is not significant. In some, instruction Page 333 U. S. 252 is given outside of the school buildings; in others, within these buildings. Metropolitan centers like New York usually would have available quarters convenient to schools. Unless smaller cities and rural communities use the school building at times that do not interfere with recitations, they may be compelled to give up religious education. I understand that pupils not taking religious education usually are given other work of a secular nature within the schools. [ Footnote 3/22 ] Since all these states use the facilities of the schools to aid the religious education to some extent, their desire to permit religious education to school children is thwarted by this Court's judgment. [ Footnote 3/23 ] Under it, as I understand its language, children cannot be released or dismissed from school to attend classes in religion while other children must remain to pursue secular education. Teachers cannot keep the records as to which pupils are to be dismissed and which retained. To do so is said to be an "aid" in establishing religion; the use of public money for religion. Cases running into the scores have been in the state courts of last resort that involved religion and the schools. Except where the exercises with religious significance partook of the ceremonial practice of sects or groups, their Page 333 U. S. 253 constitutionality has been generally upheld. [ Footnote 3/24 ] Illinois itself promptly struck down as violative of its own constitution required exercises partaking of a religious ceremony. People ex rel. Ring v. Board of Education, 245 Ill. 334, 92 N.E. 251. In that case, compulsory religious exercises -- a reading from the King James Bible, the Lord's Prayer and the singing of hymns -- were forbidden as "worship services." In this case, the Supreme Court of Illinois pointed out that, in the Ring case, the activities in the school were ceremonial and compulsory; in this, voluntary and educational. 396 Ill. 14, 221, 71 N.E.2d 161, 164. The practices of the federal government offer many examples of this kind of "aid" by the state to religion. The Congress of the United States has a chaplain for each House who daily invokes divine blessings and guidance for Page 333 U. S. 254 the proceedings. [ Footnote 3/25 ] The armed forces have commissioned chaplains from early days. [ Footnote 3/26 ] They conduct the public services in accordance with the liturgical requirements of their respective faiths, ashore and afloat, employing for the purpose property belonging to the United States and dedicated to the services of religion. [ Footnote 3/27 ] Under the Servicemen's Readjustment Act of 1944, eligible veterans may receive training at government expense for the ministry in denominational schools. [ Footnote 3/28 ] The schools of the District of Columbia have opening exercises which "include a reading from the Bible without note or comment, and the Lord's prayer." [ Footnote 3/29 ] In the United States Naval Academy and the United States Military Academy, schools wholly supported and completely controlled by the federal government, there are a number of religious activities. Chaplains are attached to both schools. Attendance at church services on Sunday is compulsory at both the Military and Naval Academies. [ Footnote 3/30 ] At West Point, the Protestant services are Page 333 U. S. 255 held in the Cadet Chapel, the Catholic in the Catholic Chapel, and the Jewish in the Old Cadet Chapel; at Annapolis, only Protestant services are held on the reservation, midshipmen of other religious persuasions attend the churches of the city of Annapolis. These facts indicate that both schools, since their earliest beginnings, have maintained and enforced a pattern of participation in formal worship. With the general statements in the opinions concerning the constitutional requirement that the nation and the states, by virtue of the First and Fourteenth Amendments, [ Footnote 3/31 ] may "make no law respecting an establishment of religion," I am in agreement. But, in the light of the meaning given to those words by the precedents, customs, and practices which I have detailed above, I cannot agree with the Court's conclusion that, when pupils compelled by law to go to school for secular education are released from school so as to attend the religious classes, churches are unconstitutionally aided. Whatever may be the wisdom of the arrangement as to the use of the school buildings made with the Champaign Council of Religious Education, it is clear to me that past practice shows such cooperation between the schools and a nonecclesiastical body is not forbidden by the First Amendment. When actual church services have always been permitted on government property, the mere use of the school buildings by a nonsectarian group for religious education ought not to be condemned as an establishment of religion. For a nonsectarian organization to give the type of instruction here offered cannot be said to violate our rule as to the establishment of religion by the state. The prohibition of enactments respecting the establishment of religion do Page 333 U. S. 256 not bar every friendly gesture between church and state. It is not an absolute prohibition against every conceivable situation where the two may work together, any more than the other provisions of the First Amendment -- free speech, free press -- are absolutes. [ Footnote 3/32 ] If abuses occur, such as the use of the instruction hour for sectarian purposes, I have no doubt, in view of the Ring case, that Illinois will promptly correct them. If they are of a kind that tend to the establishment of a church or interfere with the free exercise of religion, this Court is open for a review of any erroneous decision. This Court cannot be too cautious in upsetting practices embedded in our society by many years of experience. A state is entitled to have great leeway in its legislation when dealing with the important social problems of its population. [ Footnote 3/33 ] A definite violation of legislative limits must be established. The Constitution should not be stretched to forbid national customs in the way courts act to reach arrangements to avoid federal taxation. [ Footnote 3/34 ] Devotion to the great principle of religious liberty should not lead us into a rigid interpretation of the constitutional guarantee that conflicts with accepted habits of our people. This is an instance where, for me, the history of past practices is determinative of the meaning of a constitutional clause, not a decorous introduction to the study of its text. The judgment should be affirmed. [ Footnote 3/1 ] The trial court found that: "'The Champaign Council of Religious Education' [is] a voluntary association made up of the representatives of the Jewish, Roman Catholic and Protestant faiths in the school district." [ Footnote 3/2 ] There is no extra cost to the state, but, as a theoretical accounting problem, it may be correct to charge to the classes their comparable proportion of the state expense for buildings, operation and teachers. In connection with the classes, the teachers need only keep a record of the pupils who attend. Increased custodial requirements are likewise nominal. It is customary to use school buildings for community activities when not needed for school purposes. See Ill.Rev.Stat., ch. 122, § 123. [ Footnote 3/3 ] " CHAMPAIGN COUNCIL OF RELIGIOUS EDUCATION" " 1945-1946" " Parent's Request Card" "Please permit _______________ in Grade ___ at ____________ School to attend a class in Religious Education one period a week under the Auspices of the Champaign Council of Religious Education." "(Check which) Date _________ ____ ( ) Interdenominational" "( ) Protestant" "( ) Roman Catholic" "( ) Jewish" "Signed ______________________" "(Parent Name)" "Parent's Church ___________________" "Telephone No. _________ Address _______________________" "A fee of 25 cents a semester is charged each pupil to help cover the cost of material used." "If you wish your child to receive religious instruction, please sign this card and return to the school." "Mae Chapin, Director" Mae Chapin, the Director, was not a school employee. [ Footnote 3/4 ] "The superintendent testified that Jehovah's Witnesses or any other sect would be allowed to teach provided their teachers had proper educational qualifications, so that bad grammar, for instance, would not be taught to the pupils. A similar situation developed with reference to the Missouri Synod of the Lutheran Church. The evidence tends to show that, during the course of the trial, that group indicated it would affiliate with the Council of Religious Education." "Before any faith or other group may obtain permission from the defendant for the similar, free and equal use of rooms in the public school buildings said faith or group must make application to the superintendent of schools of said School District Number 71, who, in turn, will determine whether or not it is practical for said group to teach in said school system." "The court feels from all the facts in the record that an honest attempt has been made and is being made to permit religious instruction to be given by qualified outside teachers of any sect to people of their own faith in the manner above outlined. The evidence shows that no sect or religious group has ever been denied the right to use the schools in this manner." [ Footnote 3/5 ] A finding reads: "The curriculum of studies in the Protestant classes is determined by a committee of the Protestant members of the council of religious education after consultation with representatives of all the different faiths included in said council. The Jewish classes, of course, would deny the divinity of Jesus Christ. The teaching in the Catholic classes, of course, explains to Catholic pupils the teaching of the Catholic religion, and are not shared by other students who are Protestants or Jews. The teachings in the Protestant classes would undoubtedly, from the evidence, teach some doctrines that would not be accepted by the other two religions." [ Footnote 3/6 ] It was found: "The testimony shows that sectarian differences between the sects are not taught or emphasized in the actual teaching as it is conducted in the schools. The testimony of the religious education teachers, the secular teachers who testified, and the many children, mostly from Protestant families, who either took or did not take religious education courses, is to the effect that religious education classes have fostered tolerance, rather than intolerance." The Supreme Court of Illinois said: "The religious education courses do not go to the extent of being worship services, and do not include prayers or the singing of hymns." 396 Ill. 14, 21, 71 N.E.2d 161, 164. [ Footnote 3/7 ] Annals of Congress 730. [ Footnote 3/8 ] For example, Mr. Jefferson's striking phrase as to the "wall of separation between church and State" appears in a letter acknowledging "The affectionate sentiments of esteem and approbation" included in a testimonial to himself. In its context, it reads as follows: "Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between church and State." 8 The Writings of Thomas Jefferson (Washington ed., 1861) 113. [ Footnote 3/9 ] Acts of the Assembly of 1818-19 (1819) 15; Phillips v. The Rector and Visitors of the University of Virginia, 97 Va. 472, 474 75, 34 S.E. 66, 67. [ Footnote 3/10 ] 19 The Writings of Thomas Jefferson (Memorial edition, 1904) 408, 409. [ Footnote 3/11 ] Id., pp. 414-417: "It was not, however, to be understood that instruction in religious opinion and duties was meant to be precluded by the public authorities, as indifferent to the interests of society. On the contrary, the relations which exist between man and his Maker, and the duties resulting from those relations, are the most interesting and important to every human being, and the most incumbent on his study and investigation. The want of instruction in the various creeds of religious faith existing among our citizens presents, therefore, a chasm in a general institution of the useful sciences. . . . A remedy, however, has been suggested of promising aspect which, while it excludes the public authorities from the domain of religious freedom, will give to the sectarian schools of divinity the full benefit the public provisions made for instruction in the other branches of science. . . . It has therefore been in contemplation, and suggested by some pious individuals, who perceive the advantages of associating other studies with those of religion, to establish their religious schools on the confines of the University so as to give to their students ready and convenient access and attendance on the scientific lectures of the University and to maintain, by that means, those destined for the religious professions on as high a standing of science, and of personal weight and respectability, as may be obtained by others from the benefits of the University. Such establishments would offer the further and greater advantage of enabling the students of the University to attend religious exercises with the professor of their particular sect, either in the rooms of the building still to be erected, and destined to that purpose under impartial regulations, as proposed in the same report of the commissioners, or in the lecturing room of such professor. . . . Such an arrangement as would complete the circle of the useful sciences embraced by this institution, and would fill the chasm now existing, on principles which would leave inviolate the constitutional freedom of religion, the most inalienable and sacred of all human rights, over which the people and authorities of this state, individually and publicly, have ever manifested the most watchful jealousy; and could this jealousy be now alarmed, in the opinion of the legislature, by what is here suggested, the idea will be relinquished on any surmise of disapprobation which they might think proper to express." Mr. Jefferson commented upon the report on November 2, 1822, in a letter to Dr. Thomas Cooper, as follows: "And by bringing the sects together, and mixing them with the mass of other students, we shall soften their asperities, liberalize and neutralize their prejudices, and make the general religion a religion of peace, reason, and morality." 12 Ford, The Works of Thomas Jefferson, (Fed. ed., 1905), 272. [ Footnote 3/12 ] 3 Randall, Life of Thomas Jefferson (1858) 471. [ Footnote 3/13 ] 19 The Writings of Thomas Jefferson (Memorial edition, 1904) 449. [ Footnote 3/14 ] The texts of the Memorial and Remonstrance and the bill against which it was aimed, to-wit, A Bill Establishing a Provision for Teachers of the Christian Religion, are set forth in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 28 , 63-74. [ Footnote 3/15 ] See generally the dissent of MR. JUSTICE RUTLEDGE, 330 U. S. 330 U.S. 1, 330 U. S. 28 . [ Footnote 3/16 ] 330 U.S. at 330 U. S. 72 -73: " Be it therefore enacted by the General Assembly, That for the support of Christian teachers, percentum on the amount, or in the pound on the sum payable for tax on the property within this Commonwealth, is hereby assessed, and shall be paid by every person chargeable with the said tax at the time the same shall become due, and the Sheriffs of the several Counties shall have power to levy and collect the same in the same manner and under the like restrictions and limitations, as are or may be prescribed by the laws for raising the Revenues of this State." " And be it enacted, That for every sum so paid, the Sheriff or Collector shall give a receipt, expressing therein to what society of Christians the person from whom he may receive the same shall direct the money to be paid, keeping a distinct account thereof in his books. . . ." [ Footnote 3/17 ] 60 Stat. 230, ch. 281, §§ 4, 11(d)(3). [ Footnote 3/18 ] See Selective Draft Law Cases, 245 U. S. 366 , 245 U. S. 390 ; Quick Bear v. Leupp, 210 U. S. 50 . [ Footnote 3/19 ] Ed.Code of Cal. (Deering, 1944) § 8286; 6 Ind.Stat.Ann. (Burns, 1933) 1945 Supp. § 28-505a; 1 Code of Iowa ch. 299, § 299.2 (1946); Ky.Rev.Stat. (1946) § 158.220; 1 Rev.Stat. of Maine (1944) ch. 37, § 131; 2 Ann.Laws of Mass. (1945) ch. 76, § 1; Minn.Stat. (1945) § 132.05; N.Y. Education Law § 3210(1); 8 Ore.Comp.Laws Ann. (1940) § 111-3014; 24 Pa.Stat.Ann. (Purdon, 1930) 1947 Supp. § 1563; 1 Code of S.D. (1939) § 15.3202; 1 Code of W.Va. (1943) § 1847. [ Footnote 3/20 ] Education Law § 3210(1) provides that: "a. A minor required by the provisions of part one of this article to attend upon instruction shall attend regularly as prescribed where he resides or is employed, for the entire time the appropriate public schools or classes are in session and shall be subordinate and orderly while so attending." "b. Absence for religious observance and education shall be permitted under rules that the commissioner shall establish." Acting under the authority of the New York law, the State Commissioner of Education issued, on July 4, 1940, these regulations: "1 Absence of a pupil from school during school hours for religious observance and education to be had outside the school building and grounds will be excused upon the request in writing signed by the parent or guardian of the pupil." "2 The courses in religious observance and education must be maintained and operated by or under the control of a duly constituted religious body or of duly constituted religious bodies." "3 Pupils must be registered for the courses and a copy of the registration filed with the local public school authorities." "4 Reports of attendance of pupils upon such courses shall be filed with the principal or teacher at the end of each week." "5 Such absence shall be for not more than one hour each week at the close of a session at a time to be fixed by the local school authorities." "6 In the event that more than one school for religious observance and education is maintained in any district, the hour for absence for each particular public school in such district shall be the same for all such religious schools." On November 13, 1940, rules to govern the released time program of the New York City schools were adopted by the Board of Education of the City of New York. Under these rules, the practice of the religious education program is this: classes in religious education are to be held outside of school buildings; establishment of the program rests in the initiative of the church and home; enrollment is voluntary, and accomplished by this technique: the church distributes cards to the parents, and these are filled out and presented to the school; records of enrollment and arrangements for release are handled by school authorities; discipline is the responsibility of the church, and children who do not attend are kept at school and given other work. See Rules of the Board of Education of the City of New York adopted Nov. 13, 1940; Public Education Association, Released Time for Religious Education in New York City's Schools (1943); id. (1945). Constitutional approval by the New York Court of Appeals of these practices was given before the passage of Education Law § 3210(1). People ex rel. Lewis v. Graves, 245 N.Y. 195, 156 N.E. 663. [ Footnote 3/21 ] The New York City program is supervised by The Greater New York Coordinating Committee on Released Time, a group of laymen drawn from Jews, Protestants and Roman Catholics. This Committee is an example of a broad national effort to bring about religious education of children through cooperative action of schools and groups of members of various religious denominations. The methods vary in different states and cities, but are basically like the work of the New York City Committee. See Brief Sketches of Weekday Church Schools, Department of Weekday Religious Education, International Council of Religious Education, Chicago, Illinois (1944). [ Footnote 3/22 ] See 333 U.S. 203 fn3/20|>note 20 supra. [ Footnote 3/23 ] The use of school buildings is not unusual. See Davis, Weekday Classes in Religious Education, U.S. Office of Education (Bulletin 1941, No. 3) 27; National Education Association, The State and Sectarian Education, Research Bulletin (Feb.1946) 36. The International Council of Religious Education advises that church buildings be used if possible. Shaver, Remember the Weekday, International Council of Religious Education (1946). "Today, approximately two thousand communities in all but two states provide religious education in cooperation with the public schools for more than a million and a half of pupils." Shaver, The Movement for Weekday Religious Education, Religious Education (Jan.-Feb.1946), p. 7. [ Footnote 3/24 ] Many uses of religious material in the public schools in a manner that has some religious significance have been sanctioned by state courts. These practices have been permitted: reading selections from the King James Bible without comment; reading the Bible and repeating the Lord's Prayer; teaching the Ten Commandments; saying prayers, and using textbooks based upon the Bible and emphasizing its fundamental teachings. When conducted in a sectarian manner, reading from the Bible and singing hymns in the school's morning exercise have been prohibited, as has using the Bible as a textbook. There is a conflict of authority on the question of the constitutionality of wearing religious garb while teaching in the public schools. It has been held to be constitutional for school authorities to prohibit the reading of the Bible in the public schools. There is a conflict of authority on the constitutionality of the use of public school buildings for religious services held outside of school hours. The constitutionality, under state constitutions, of furnishing free textbooks and free transportation to parochial school children is in conflict. See Nichols v. Henry, 301 Ky. 434, 191 S.W.2d 930; Findley v. City of Conneaut, 12 Ohio Supp. 161. The earlier cases are collected in 5 A.L.R. 866 and 141 A.L.R. 1144. [ Footnote 3/25 ] Rules of the House of Representatives (1943) Rule VII; Senate Manual (1947) 6, fn. 2. [ Footnote 3/26 ] 3 Stat. 297 (1816). [ Footnote 3/27 ] Army Reg., No. 60-5 (1944); U.S. Navy Reg. (1920), ch. 1, § 2 and ch. 34, §§ 1-2. [ Footnote 3/28 ] 58 Stat. 289. [ Footnote 3/29 ] Board of Education Rules, ch. VI, § 4. [ Footnote 3/30 ] Reg. for the U.S. Corps of Cadets (1947) 47: "Attendance at chapel is part of a cadet's training; no cadet will be exempted. Each cadet will receive religious training in one of the three principal faiths: Catholic, Protestant, or Jewish." U.S. Naval Academy Reg., Art. 4301(b): "Midshipmen shall attend church services on Sundays at the Naval Academy Chapel or at one of the regularly established churches in the city of Annapolis." Morning prayers are also required at Annapolis. U.S. Naval Academy Reg., Art. 4301(a): "Daily, except on Sundays, a Chaplain will conduct prayers in the mess hall, immediately before breakfast." Protestant and Catholic Chaplains take their turn in leading these prayers. [ Footnote 3/31 ] The principles of the First Amendment were absorbed by the Fourteenth Amendment. Pennecamp v. Florida, 328 U. S. 331 , 328 U. S. 335 . [ Footnote 3/32 ] See Whitney v. California, 274 U. S. 357 , 274 U. S. 371 ; Reynolds v. United States, 98 U. S. 145 , 98 U. S. 166 ; Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 ; Cox v. New Hampshire, 312 U. S. 569 , 312 U. S. 574 , 312 U. S. 576 ; Chaplinsky v. New Hampshire, 315 U. S. 568 , 315 U. S. 571 ; Prince v. Massachusetts, 321 U. S. 158 . [ Footnote 3/33 ] Cf. Bob-Lo Excursion Co. v. Michigan, 333 U. S. 28 . [ Footnote 3/34 ] Higgins v. Smith, 308 U. S. 473 ; Helvering v. Clifford, 309 U. S. 331 ; Comm'r v. Tower, 327 U. S. 280 ; Lusthaus v. Comm'r, 327 U. S. 293 .

In McCollum v. Board of Education, the U.S. Supreme Court ruled that a school board's practice of allowing religious instruction in public schools by private religious teachers, with students required to attend based on their parents' requests, violated the First Amendment's Establishment Clause, which prohibits the government from establishing or promoting a particular religion. The Court held that using the public school system and compulsory attendance laws to facilitate religious instruction by sectarian groups in public school buildings was unconstitutional. This decision affirmed the separation of church and state in public education.

Religion

McGowan v. Maryland

https://supreme.justia.com/cases/federal/us/366/420/

U.S. Supreme Court McGowan v. Maryland, 366 U.S. 420 (1961) McGowan v. Maryland No. 8 Argued December 8, 1960 Decided May 29, 1961 366 U.S. 420 APPEAL FROM THE COURT OF APPEALS OF MARYLAND Syllabus Appellants, employees of a large department store on a highway in Anne Arundel County, Md., were convicted and fined in a Maryland State Court for selling on Sunday a loose-leaf binder, a can of floor wax, a stapler, staples and a toy, in violation of Md.Ann.Code, Art. 27, § 521, which generally prohibits the sale on Sunday of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruit, gasoline, oils, greases, drugs, medicines, newspapers and periodicals. Recent amendments now except from the prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs, and exempt entirely any retail establishment in that County which employs not more than one person other than the owner. There are many other Maryland laws which prohibit specific activities on Sundays or limit them to certain hours, places or conditions. Held: Art. 27, § 521 does not violate the Equal Protection or Due Process Clause of the Fourteenth Amendment or constitute a law respecting an establishment of religion, within the meaning of the First Amendment, which is made applicable to the States by the Fourteenth Amendment. Pp. 366 U. S. 422 -453. 1. Art. 27, § 521 does not violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 366 U. S. 425 -428. (a) On the record in this case, it cannot be said that the classifications made by the statute are without rational and substantial relation to the objects of the legislation, so as to exceed the wide discretion permitted the States in enacting laws which affect some groups of citizens differently from others. Pp. 366 U. S. 425 -427. (b) Provisions of the statute which permit only certain Anne Arundel County retailers to sell merchandise essential to, or customarily sold at, or incidental to, the operation of bathing beaches, amusement parks, etc., do not discriminate invidiously against retailers in other Maryland counties. P. 366 U. S. 427 . (c) The Equal Protection Clause is not violated by Art . 27, § 509, which permits only certain merchants in Anne Arundel County (operators of bathing beaches, amusement parks, etc.) Page 366 U. S. 421 to sell merchandise customarily sold at such places while forbidding its sale by other vendors, such as appellants' employer. Pp. 366 U. S. 427 -428. 2. Art. 27, § 509, which exempts retail sales of "merchandise essential to, or customarily sold at, or incidental to, the operation of" bathing beaches, amusement parks, etc., is not so vague as to violate the Due Process Clause of the Fourteenth Amendment. Pp. 366 U. S. 428 -429. 3. Art. 27, § 521 is not a law respecting an establishment of religion, within the meaning of the First Amendment. Pp. 366 U. S. 429 -453. (a) Since appellants allege only economic injury to themselves, and do not allege any infringement of their own religious freedoms, they have no standing to raise the question whether the statute prohibits the free exercise of religion, contrary to the First Amendment. Pp. 366 U. S. 429 -430. (b) Since appellants have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion, they have standing to complain that the statute is a law respecting an establishment of religion. Pp. 366 U. S. 430 -431. (c) In the light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is concluded that, as presently written and administered, most of them, at least, are of a secular, rather than of a religious, character, and that presently they bear no relationship to establishment of religion, as those words are used in the Constitution of the United States. Pp. 366 U. S. 431 -444. (d) The present purpose and effect of most of our Sunday Closing Laws is to provide a uniform day of rest for all citizens, and the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. Pp. 366 U. S. 444 -445. (e) After engaging in the close scrutiny demanded of it when First Amendment liberties are at issue, this Court accepts the determination of the State Supreme Court that the present purpose and effect of the statute here involved is not to aid religion, but to set aside a day of rest and recreation. Pp. 366 U. S. 445 -449. (f) This Court rejects appellants' contention that the State has other means at its disposal to accomplish its secular purpose that would not even remotely or incidentally give state aid to religion. Pp. 366 U. S. 449 -453. 220 Md. 117, 151 A.2d 156, affirmed. Page 366 U. S. 422 MR. CHIEF JUSTICE WARREN delivered the opinion of the Court. The issues in this case concern the constitutional validity of Maryland criminal statutes, [ Footnote 1 ] commonly known as Sunday Closing Laws or Sunday Blue Laws. These statutes, with exceptions to be noted hereafter, generally proscribe all labor, business and other commercial activities on Sunday. The questions presented are whether the classifications within the statutes bring about a denial of equal protection of the law, whether the laws are so vague as to fail to give reasonable notice of the forbidden conduct and therefore violate due process, and whether the statutes are laws respecting an establishment of religion or prohibiting the free exercise thereof. Appellants are seven employees of a large discount department store located on a highway in Anne Arundel County, Maryland. They were indicted for the Sunday sale of a three-ring loose-leaf binder, a can of floor wax, a stapler and staples, and a toy submarine in violation of Md.Ann.Code, Art. 27, § 521. Generally, this section prohibited, throughout the State, the Sunday sale of all merchandise except the retail sale of tobacco products, confectioneries, milk, bread, fruits, gasoline, oils, greases, Page 366 U. S. 423 drugs and medicines, and newspapers and periodicals. Recently amended, this section also now excepts from the general prohibition the retail sale in Anne Arundel County of all foodstuffs, automobile and boating accessories, flowers, toilet goods, hospital supplies and souvenirs. It now further provides that any retail establishment in Anne Arundel County which does not employ more than one person other than the owner may operate on Sunday. Although appellants were indicted only under § 521, in order properly to consider several of the broad constitutional contentions, we must examine the whole body of Maryland Sunday laws. Several sections of the Maryland statutes are particularly relevant to evaluation of the issues presented. Section 492 of Md.Ann.Code, Art. 27, forbids all persons from doing any work or bodily labor on Sunday and forbids permitting children or servants to work on that day or to engage in fishing, hunting and unlawful pastimes or recreations. The section excepts all works of necessity and charity. Section 522 of Md.Ann.Code, Art. 27, disallows the opening or use of any dancing saloon, opera house, bowling alley or barber shop on Sunday. However, in addition to the exceptions noted above, Md.Ann.Code, Art. 27, § 509, exempts, for Anne Arundel County, the Sunday operation of any bathing beach, bathhouse, dancing saloon and amusement park, and activities incident thereto and retail sales of merchandise customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses. Section 90 of Md.Ann.Code, Art. 2B, makes generally unlawful the sale of alcoholic beverages on Sunday. However, this section, and immediately succeeding ones, provide various immunities for the Sunday sale of different kinds of alcoholic beverages, at different hours during the day, by vendors holding different types of licenses, in different political divisions of the State -- particularly Page 366 U. S. 424 in Anne Arundel County. See Md.Ann.Code, Art. 2B, § 28(a). The remaining statutory sections concern a myriad of exceptions for various counties, districts of counties, cities and towns throughout the State. Among the activities allowed in certain areas on Sunday are such sports as football, baseball, golf, tennis, bowling, croquet, basketball, lacrosse, soccer, hockey, swimming, softball, boating, fishing, skating, horseback riding, stock car racing and pool or billiards. Other immunized activities permitted in some regions of the State include group singing or playing of musical instruments; the exhibition of motion pictures; dancing; the operation of recreation centers, picnic grounds, swimming pools, skating rinks and miniature golf courses. The taking of oysters and the hunting or killing of game is generally forbidden, but shooting conducted by organized rod and gun clubs is permitted in one county. In some of the subdivisions within the State, the exempted Sunday activities are sanctioned throughout the day; in others, they may not commence until early afternoon or evening; in many, the activities may only be conducted during the afternoon and late in the evening. Certain localities do not permit the allowed Sunday activity to be carried on within one hundred yards of any church where religious services are being held. Local ordinances and regulations concerning certain limited activities supplement the State's statutory scheme. In Anne Arundel County, for example, slot machines, pinball machines and bingo may be played on Sunday. Among other things, appellants contended at the trial that the Maryland statutes under which they were charged were contrary to the Fourteenth Amendment for the reasons stated at the outset of this opinion. Appellants were convicted, and each was fined five dollars and costs. The Maryland Court of Appeals affirmed, 220 Page 366 U. S. 425 Md. 117, 151 A.2d 156; on appeal brought under 28 U.S.C. § 1257(2), we noted probable jurisdiction. 362 U.S. 959. I Appellants argue that the Maryland statutes violate the "Equal Protection" Clause of the Fourteenth Amendment on several counts. First, they contend that the classifications contained in the statutes concerning which commodities may or may not be sold on Sunday are without rational and substantial relation to the object of the legislation. [ Footnote 2 ] Specifically, appellants allege that the statutory exemptions for the Sunday sale of the merchandise mentioned above render arbitrary the statute under which they were convicted. Appellants further allege that § 521 is capricious because of the exemptions for the operation of the various amusements that have been listed and because slot machines, pin-ball machines, and bingo are legalized and are freely played on Sunday. The standards under which this proposition is to be evaluated have been set forth many times by this Court. Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws Page 366 U. S. 426 result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. See Koch v. Board of River Port Pilot Comm'rs, 330 U. S. 552 ; Metropolitan Casualty Ins. Co. v. Brownell, 294 U. S. 580 ; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 ; Atchison, T. & S.F. R. Co. v. Matthews, 174 U. S. 96 . [ Footnote 3 ] It would seem that a legislature could reasonably find that the Sunday sale of the exempted commodities was necessary either for the health of the populace or for the enhancement of the recreational atmosphere of the day -- that a family which takes a Sunday ride into the country will need gasoline for the automobile, and may find pleasant a soft drink or fresh fruit; that those who go to the beach may wish ice cream or some other item normally sold there; that some people will prefer alcoholic beverages or games of chance to add to their relaxation; that newspapers and drug products should always be available to the public. The record is barren of any indication that this apparently reasonable basis does not exist, that the statutory distinctions are invidious, that local tradition and custom might not rationally call for this legislative treatment. See Salsburg v. Maryland, 346 U. S. 545 , 346 U. S. 552 -553; Kotch Page 366 U. S. 427 v. Board of River Port Pilot Comm'rs, supra. Likewise, the fact that these exemptions exist and deny some vendors and operators the day of rest and recreation contemplated by the legislature does not render the statutes violative of equal protection, since there would appear to be many valid reasons for these exemptions, as stated above, and no evidence to dispel them. Secondly, appellants contend that the statutory arrangement which permits only certain Anne Arundel County retailers to sell merchandise essential to, or customarily sold at, or incidental to, the operation of bathing beaches, amusement parks et cetera is contrary to the "Equal Protection" Clause because it discriminates unreasonably against retailers in other Maryland counties. But we have held that the Equal Protection Clause relates to equality between persons as such, rather than between areas, and that territorial uniformity is not a constitutional prerequisite. With particular reference to the State of Maryland, we have noted that the prescription of different substantive offenses in different counties is generally a matter for legislative discretion. We find no invidious discrimination here. See Salsburg v. Maryland, supra. Thirdly, appellants contend that this same statutory provision, Art. 27, § 509, violates the "Equal Protection" Clause because it permits only certain merchants within Anne Arundel County (operators of bathing beaches and amusement parks et cetera) to sell merchandise customarily sold at these places while forbidding its sale by other vendors of this merchandise, such as appellants' employer. [ Footnote 4 ] Here again, it would seem that a legislature Page 366 U. S. 428 could reasonably find that these commodities, necessary for the health and recreation of its citizens, should only be sold on Sunday by those vendors at the locations where the commodities are most likely to be immediately put to use. Such a determination would seem to serve the consuming public and, at the same time, secure Sunday rest for those employees, like appellants, of all other retail establishments. In addition, the enforcement problems which would accrue if large retail establishments, like appellants' employer, were permitted to remain open on Sunday but were restricted to the sale of the merchandise in question would be far greater than the problems accruing if only beach and amusement park vendors were exempted. Here again, there has been no indication of the unreasonableness of this differentiation. On the record before us, we cannot say that these statutes do not provide equal protection of the laws. II Another question presented by appellants is whether Art. 27, § 509, which exempts the Sunday retail sale of "merchandise essential to, or customarily sold at, or incidental to, the operation of" bathing beaches, amusement parks et cetera in Anne Arundel County, is unconstitutionally vague. We believe that business people of ordinary intelligence in the position of appellants' employer would be able to know what exceptions are encompassed by the statute either as a matter of ordinary commercial knowledge or by simply making a reasonable investigation at a nearby bathing beach or amusement park within the county. See United States v. Harriss, 347 U. S. 612 , 347 U. S. 617 -618. Under these circumstances, there is no necessity to guess at the statute's meaning in order to determine what conduct it makes criminal. Connally v. General Construction Co., 269 U. S. 385 , 269 U. S. 391 . Questions concerning proof that the items appellants sold were customarily Page 366 U. S. 429 sold at, or incidental to the operation of, a bathing beach or amusement park were not raised in the Maryland Court of Appeals, nor are they raised here. Thus, we cannot consider the matter. Whitney v. California, 274 U. S. 357 , 274 U. S. 362 -363. III The final questions for decision are whether the Maryland Sunday Closing Laws conflict with the Federal Constitution's provisions for religious liberty. First, appellants contend here that the statutes applicable to Anne Arundel County violate the constitutional guarantee of freedom of religion in that the statutes' effect is to prohibit the free exercise of religion in contravention of the First Amendment, made applicable to the States by the Fourteenth Amendment. [ Footnote 5 ] But appellants allege only economic injury to themselves; they do not allege any infringement of their own religious freedoms due to Sunday closing. In fact, the record is silent as to what appellants' religious beliefs are. Since the general rule is that "a litigant may only assert his own constitutional rights or immunities," United States v. Raines, 362 U. S. 17 , 362 U. S. 22 , we hold that appellants have no standing to raise this contention. [ Footnote 6 ] Tileston v. Ullman, 318 U. S. 44 , 318 U. S. 46 . Furthermore, since appellants do not specifically allege that the statutes infringe upon the religious beliefs of the department store's present or prospective patrons, we Page 366 U. S. 430 have no occasion here to consider the standing question of Pierce v. Society of Sisters, 268 U. S. 510 , 268 U. S. 535 -536. Those persons whose religious rights are allegedly impaired by the statutes are not without effective ways to assert these rights. Cf. NAACP v. Alabama, 357 U. S. 449 , 357 U. S. 459 -460; Barrows v. Jackson, 346 U. S. 249 , 346 U. S. 257 . Appellants present no weighty countervailing policies here to cause an exception to our general principles. See United States v. Raines, supra. Secondly, appellants contend that the statutes violate the guarantee of separation of church and state in that the statutes are laws respecting an establishment of religion contrary to the First Amendment, made applicable to the States by the Fourteenth Amendment. If the purpose of the "establishment" clause was only to insure protection for the "free exercise" of religion, then what we have said above concerning appellants' standing to raise the "free exercise" contention would appear to be true here. However, the writings of Madison, who was the First Amendment's architect, demonstrate that the establishment of a religion was equally feared because of its tendencies to political tyranny and subversion of civil authority. [ Footnote 7 ] Thus, in Everson v. Board of Education, supra, the Court permitted a district taxpayer to challenge, on "establishment" grounds, a state statute which authorized district boards of education to reimburse parents for fares paid for the transportation of their children to both public and Catholic schools. Appellants here concededly have suffered direct economic injury, allegedly due to the imposition on them of the tenets of the Christian religion. [ Footnote 8 ] We find that, in these circumstances, Page 366 U. S. 431 these appellants have standing to complain that the statutes are laws respecting an establishment of religion. The essence of appellants' "establishment" argument is that Sunday is the Sabbath day of the predominant Christian sects; that the purpose of the enforced stoppage of labor on that day is to facilitate and encourage church attendance; that the purpose of setting Sunday as a day of universal rest is to induce people with no religion or people with marginal religious beliefs to join the predominant Christian sects; that the purpose of the atmosphere of tranquility created by Sunday closing is to aid the conduct of church services and religious observance of the sacred day. In substantiating their "establishment" argument, appellants rely on the wording of the present Maryland statutes, on earlier versions of the current Sunday laws, and on prior judicial characterizations of these laws by the Maryland Court of Appeals. Although only the constitutionality of § 521, the section under which appellants have been convicted, is immediately before us in this litigation, inquiry into the history of Sunday Closing Laws in our country, in addition to an examination of the Maryland Sunday closing statutes in their entirety and of their history, is relevant to the decision of whether the Maryland Sunday law in question is one respecting an establishment of religion. There is no dispute that the original laws which dealt with Sunday labor were motivated by religious forces. But what we must decide is whether present Sunday legislation, having undergone extensive changes from the earliest forms, still retains its religious character. Sunday Closing Laws go far back into American history, having been brought to the colonies with a background of English legislation dating to the thirteenth century. In 1237, Henry III forbade the frequenting of markets on Page 366 U. S. 432 Sunday; the Sunday showing of wools at the staple was banned by Edward III in 1354; in 1409, Henry IV prohibited the playing of unlawful games on Sunday; Henry VI proscribed Sunday fairs in churchyards in 1444 and, four years later, made unlawful all fairs and markets and all showings of any goods or merchandise; Edward VI disallowed Sunday bodily labor by several injunctions in the mid-sixteenth century; various Sunday sports and amusements were restricted in 1625 by Charles I. Lewis, A Critical History of Sunday Legislation, 82-108; Johnson and Yost, Separation of Church and State, 221. The law of the colonies to the time of the Revolution and the basis of the Sunday laws in the States was 29 Charles II, c. 7 (1677). It provided, in part: "For the better observation and keeping holy the Lord's day, commonly called Sunday: be it enacted . . . that all the laws enacted and in force concerning the observation of the day, and repairing to the church thereon, be carefully put in execution, and that all and every person and persons whatsoever shall upon every Lord's day apply themselves to the observation of the same, by exercising themselves thereon in the duties of piety and true religion, publicly and privately, and that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor or business or work of their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity only excepted); . . . and that no person or persons whatsoever shall publicly cry, show forth, or expose for sale any wares, merchandise, fruit, herbs, goods, or chattels, whatsoever, upon the Lord's day, or any part thereof. . . ." (Emphasis added.) [ Footnote 9 ] Page 366 U. S. 433 Observation of the above language, and of that of the prior mandates, reveals clearly that the English Sunday legislation was in aid of the established church. The American colonial Sunday restrictions arose soon after settlement. Starting in 1650, the Plymouth Colony proscribed servile work, unnecessary traveling, sports, and the sale of alcoholic beverages on the Lord's day, and enacted laws concerning church attendance. The Massachusetts Bay Colony and the Connecticut and New Haven Colonies enacted similar prohibitions, some even earlier in the seventeenth century. The religious orientation of the colonial statutes was equally apparent. For example, a 1629 Massachusetts Bay instruction began, "And to the end the Sabbath may be celebrated in a religious manner. . . ." A 1653 enactment spoke of Sunday activities "which things tend much to the dishonor of God, the reproach of religion, and the profanation of his holy Sabbath, the sanctification whereof is sometimes put for all duties immediately respecting the service of God. . . ." Lewis, op. cit. supra, at pp. 160-195, particularly at 167, 169. [ Footnote 10 ] These laws persevered after the Revolution and, at about the time of the First Amendment's adoption, each of the colonies had laws of some sort restricting Sunday labor. See note, 73 Harv.L.Rev. 729-730, 739-740; Johnson and Yost, op. cit. supra, at pp. 222-223. But, despite the strongly religious origin of these laws, beginning before the eighteenth century, nonreligious Page 366 U. S. 434 arguments for Sunday closing began to be heard more distinctly, and the statutes began to lose some of their totally religious flavor. In the middle 1700's, Blackstone wrote, "[T]he keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness." 4 Bl.Comm. 63. A 1788 English statute dealing with chimney sweeps, 28 Geo. III, c. 48, in addition to providing for their Sunday religious affairs, also regulated their hours of work. The preamble to a 1679 Rhode Island enactment stated that the reason for the ban on Sunday employment was that "persons being eville minded, have presumed to employ in servile labor, more than necessity requireth, their servants. . . ." 3 Records of the Colony of Rhode Island and Providence Plantations 31. The New York law of 1788 omitted the term "Lord's day" and substituted "the first day of the week commonly called Sunday." 2 Laws of N.Y. 1785-1788, 680. Similar changes marked the Maryland statutes, discussed below. With the advent of the First Amendment, the colonial provisions requiring church attendance were soon repealed. Note, 73 Harv.L.Rev. supra at pp. 729-730. More recently, further secular justifications have been advanced for making Sunday a day of rest, a day when people may recover from the labors of the week just passed and may physically and mentally prepare for the week's work to come. In England, during the First World War, a committee investigating the health conditions of munitions workers reported that "if the maximum output is to be secured and maintained for any length of Page 366 U. S. 435 time, a weekly period of rest must be allowed. . . . On economic and social grounds alike, this weekly period of rest is best provided on Sunday. [ Footnote 11 ]" The proponents of Sunday closing legislation are no longer exclusively representatives of religious interests. Recent New Jersey Sunday legislation was supported by labor groups and trade associations, Note, 73 Harv.L.Rev. 730-731; modern English Sunday legislation was promoted by the National Federation of Grocers and supported by the National Chamber of Trade, the Drapers' Chamber of Trade, and the National Union of Shop Assistants. 308 Parliamentary Debates, Commons 2158-2159. Throughout the years, state legislatures have modified, deleted from and added to their Sunday statutes. As evidenced by the New Jersey laws mentioned above, current changes are commonplace. Almost every State in our country presently has some type of Sunday regulation, and over forty possess a relatively comprehensive system. Note, 73 Harv.L.Rev. 732-733; Note, 12 Rutgers L.Rev. 506. Some of our States now enforce their Sunday legislation through Departments of Labor, e.g., 6 S.C.Code Ann. (1952), § 64 5. Thus have Sunday laws evolved from the wholly religious sanctions that originally were enacted. Moreover, litigation over Sunday closing laws is not novel. Scores of cases may be found in the state appellate courts relating to sundry phases of Sunday enactments. [ Footnote 12 ] Religious objections have been raised there on numerous occasions, but sustained only once, in Ex parte Newman, 9 Cal. 502 (1858), and that decision was overruled three years later, in Ex parte Andrews, 18 Cal. 678. A substantial number of cases in varying postures bearing Page 366 U. S. 436 on state Sunday legislation have reached this Court. [ Footnote 13 ] Although none raising the issues now presented has gained plenary hearing, language used in some of these cases further evidences the evolution of Sunday laws as temporal statutes. Mr. Justice Field wrote in Soon Hing v. Crowley, 113 U. S. 703 , at p. 113 U. S. 710 : "Laws setting aside Sunday as a day of rest are upheld not from any right of the government to legislate for the promotion of religious observances, but from its right to protect all persons from the physical and moral debasement which comes from uninterrupted labor. Such laws have always been deemed beneficent and merciful laws, especially to the poor and dependent, to the laborers in our factories and workshops and in the heated rooms of our cities, and their validity has been sustained by the highest courts of the States." While a member of the California Supreme Court, Mr. Justice Field dissented in Ex parte Newman, supra, at pp. 519-520, 528, saying: "Its requirement is a cessation from labor. In its enactment, the Legislature has given the sanction of law to a rule of conduct which the entire civilized world recognizes as essential to the physical and moral wellbeing of society. Upon no subject is there such a concurrence of opinion among philosophers, moralists and statesmen of all nations as on the necessity of periodical cessations from labor. One Page 366 U. S. 437 day in seven is the rule, founded in experience, and sustained by science. . . . The prohibition of secular business on Sunday is advocated on the ground that, by it, the general welfare is advanced, labor protected, and the moral and physical wellbeing of society promoted." This was quoted with approval by Mr. Justice Harlan in Hennington v. Georgia, supra, who also stated: "It is none the less a civil regulation because the day on which the running of freight trains is prohibited is kept by many under a sense of religious duty. The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness and health of the people, it was within its discretion to fix the day when all labor, within the limits of the State, works of necessity and charity excepted, should cease." Id. at 163 U. S. 304 . And Mr. Chief Justice Fuller cited both of these passages in Petit v. Minnesota, supra. Before turning to the Maryland legislation now here under attack, an investigation of what historical position Sunday Closing Laws have occupied with reference to the First Amendment should be undertaken, Everson v. Board of Education, supra, at p. 330 U. S. 14 . This Court has considered the happenings surrounding the Virginia General Assembly's enactment of "An act for establishing religious freedom," 12 Hening's Statutes of Virginia 84, written by Thomas Jefferson and sponsored by James Madison, as best reflecting the long and intensive struggle for religious freedom in America, as particularly relevant in the search for the First Amendment's meaning. See the opinions in Everson v. Board of Education, supra. I n 1776, nine years before the bill's Page 366 U. S. 438 passage, Madison co-authored Virginia's Declaration of Rights, which provided, inter alia, that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience. . . ." 9 Hening's Statutes of Virginia 109, 111-112. Virginia had had Sunday legislation since early in the seventeenth century; in 1776, the laws penalizing "maintaining any opinions in matters of religion, forbearing to repair to church, or the exercising any mode of worship whatsoever" (emphasis added), were repealed, and all dissenters were freed from the taxes levied for the support of the established church. Id. at 164. The Sunday labor prohibitions remained; apparently, they were not believed to be inconsistent with the newly enacted Declaration of Rights. Madison had sought also to have the Declaration expressly condemn the existing Virginia establishment. [ Footnote 14 ] This hope was finally realized when "A Bill for Establishing Religious Freedom" was passed in 1785. In this same year, Madison presented to Virginia legislators "A Bill for Punishing . . . Sabbath Breakers," which provided in part: "If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings for every such offence, deeming every apprentice, servant, or slave so employed, and every day he shall be so employed as constituting a distinct offence. [ Footnote 15 ]" This became law the following year, and remained during the time that Madison fought for the First Amendment in the Congress. It was the law of Virginia, and similar Page 366 U. S. 439 laws were in force in other States, when Madison stated at the Virginia ratification convention: "Happily for the states, they enjoy the utmost freedom of religion. . . . Fortunately for this commonwealth, a majority of the people are decidedly against any exclusive establishment. I believe it to be so in the other states. . . . I can appeal to my uniform conduct on this subject, that I have warmly supported religious freedom. [ Footnote 16 ]" In 1799, Virginia pronounced "An act for establishing religious freedom" as "a true exposition of the principles of the bill of rights and constitution," and repealed all subsequently enacted legislation deemed inconsistent with it. 2 Shepherd, Statutes at Large of Virginia, 149. Virginia's statute banning Sunday labor stood. [ Footnote 17 ] In Reynolds v. United States, 98 U. S. 145 , the Court relied heavily on the history of the Virginia bill. That case concerned a Mormon's attack on a statute making bigamy a crime. The Court said: "In connection with the case we are now considering, it is a significant fact that, on the 8th of December, 1788, after the passage of the act establishing religious freedom, and after the convention of Virginia had recommended as an amendment to the Constitution of the United States the declaration in a bill of rights that 'all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience,' the legislature Page 366 U. S. 440 of that State substantially enacted the statute of James I., death penalty included, because, as recited in the preamble, 'it hath been doubted whether bigamy or poligamy be punishable by the laws of this Commonwealth.' 12 Hening's Stat. 691. From that day to this, we think it may safely be said there never has been a time in any State of the Union when polygamy has not been an offence against society, cognizable by the civil courts and punishable with more or less severity. In the face of all of this evidence, it is impossible to believe that the constitutional guaranty of religious freedom was intended to prohibit legislation in respect to this most important feature of social life." Id. at 98 U. S. 165 . In the case at bar, we find the place of Sunday Closing Laws in the First Amendment's history both enlightening and persuasive. But in order to dispose of the case before us, we must consider the standards by which the Maryland statutes are to be measured. Here, a brief review of the First Amendment's background proves helpful. The First Amendment states that "Congress shall make no law respecting an establishment of religion. . . ." U.S.Const., Amend. I. The Amendment was proposed by James Madison on June 8, 1789, in the House of Representatives. It then read, in part: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." (Emphasis added.) Annals of Congress 434. We are told that Madison added the word "national" to meet the scruples of States which then had an established church. 1 Stokes, Church and State in the United Page 366 U. S. 441 States, 541. After being referred to committee, it was considered by the House, on August 15, 1789, acting as a Committee of the Whole. Some assistance in determining the scope of the Amendment's proscription of establishment may be found in that debate. In its report to the House, the committee, to which the subject of amendments to the Constitution had been submitted, recommended the insertion of the language, "no religion shall be established by law." I Annals of Congress 729. Mr. Gerry "said it would read better if it was that no religious doctrine shall be established by law." Id. at 730. Mr. Madison "said, he apprehended the meaning of the words to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience. . . . He believed that the people feared one sect might obtain a preeminence, or two combine together, and establish a religion to which they would compel others to conform." Id. at 730-731. The Amendment, as it passed the House of Representatives nine days later, read, in part: "Congress shall make no law establishing religion. . . ." Records of the United States Senate, 1A-C2 (U.S.Nat.Archives). It passed the Senate on September 9, 1789, reading, in part: "Congress shall make no law establishing articles of faith or a mode of worship. . . ." Ibid. An early commentator opined that the "real object of the amendment was . . . to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government." 3 Story, Commentaries on the Constitution of the United States, 728. But the First Amendment, in its final form, Page 366 U. S. 442 did not simply bar a congressional enactment establishing a church; it forbade all laws respecting an establishment of religion. Thus, this Court has given the Amendment a "broad interpretation . . . in the light of its history and the evils it was designed forever to suppress. . . ." Everson v. Board of Education, supra, at pp. 330 U. S. 14 -15. It has found that the First and Fourteenth Amendments afford protection against religious establishment far more extensive than merely to forbid a national or state church. Thus, in McCollum v. Board of Education, 333 U. S. 203 , the Court held that the action of a board of education permitting religious instruction during school hours in public school buildings and requiring those children who chose not to attend to remain in their classrooms to be contrary to the "Establishment" Clause. However, it is equally true that the "Establishment" Clause does not ban federal or state regulation of conduct whose reason or effect merely happens to coincide or harmonize with the tenets of some or all religions. In many instances, the Congress or state legislatures conclude that the general welfare of society, wholly apart from any religious considerations, demands such regulation. Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. Davis v. Beason, 133 U. S. 333 ; Reynolds v. United States, supra. The same could be said of theft, fraud, etc., because those offenses were also proscribed in the Decalogue. Thus, these broad principles have been set forth by this Court. Those cases dealing with the specific problems arising under the "Establishment" Clause which have reached this Court are few in number. The most extensive discussion of the "Establishment" Clause's latitude Page 366 U. S. 443 is to be found in Everson v. Board of Education, supra, at pp. 330 U. S. 15 -16: "The 'establishment of religion' clause of the First Amendment means at least this: neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups, and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'" Under challenge was a statute authorizing repayment to parents of their children's transportation expenses to public and Catholic schools. The Court, speaking through MR. JUSTICE BLACK, recognized that "it is undoubtedly true that children are helped to get to church schools," and "[t]here is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State." Id. at 330 U. S. 17 . But the Court found that the purpose and effect of the statute in question was general "public welfare legislation," Page 366 U. S. 444 id. at 330 U. S. 16 ; that it was to protect all school children from the "very real hazards of traffic," id. at 330 U. S. 17 ; that the expenditure of public funds for school transportation, to religious schools or to any others, was like the expenditure of public funds to provide policemen to safeguard these same children or to provide "such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks," id. at 330 U. S. 17 -18. [ Footnote 18 ] In light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that, as presently written and administered, most of them, at least, are of a secular, rather than of a religious, character, and that presently they bear no relationship to establishment of religion as those words are used in the Constitution of the United States. Throughout this century and longer, both the federal and state governments have oriented their activities very largely toward improvement of the health, safety, recreation and general wellbeing of our citizens. Numerous Page 366 U. S. 445 laws affecting public health, safety factors in industry, laws affecting hours and conditions of labor of women and children, weekend diversion at parks and beaches, and cultural activities of various kinds, now point the way toward the good life for all. Sunday Closing Laws, like those before us, have become part and parcel of this great governmental concern wholly apart from their original purposes or connotations. The present purpose and effect of most of them is to provide a uniform day of rest for all citizens; the fact that this day is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare, rather than one of mere separation of church and State. We now reach the Maryland statutes under review. The title of the major series of sections of the Maryland Code dealing with Sunday closing -- Art. 27, §§ 492-534C -- is "Sabbath Breaking"; § 492 proscribes work or bodily labor on the "Lord's day," and forbids persons to "profane the Lord's day" by gaming, fishing et cetera; § 522 refers to Sunday as the "Sabbath day." As has been mentioned above, many of the exempted Sunday activities in the various localities of the State may only be conducted during the afternoon and late evening; most Christian church services, of course, are held on Sunday morning and early Sunday evening. Finally, as previously noted, certain localities do not permit the allowed Sunday activities to be carried on within one hundred yards of any church where religious services are being held. This is the totality of the evidence of religious purpose which may be gleaned from the face of the present statute and from its operative effect. Page 366 U. S. 446 The predecessors of the existing Maryland Sunday laws are undeniably religious in origin. The first Maryland statute dealing with Sunday activities, enacted in 1649, was entitled "An Act concerning Religion." 1 Archives of Maryland 244-247. It made it criminal to "profane the Sabbath or Lords day called Sunday by frequent swearing, drunkennes or by any unciville or disorderly recreation, or by working on that day when absolute necessity doth not require it." Id. at 245. A 1692 statute entitled "An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province," 13 Archives of Maryland 425-430, after first stating the importance of keeping the Lord's Day holy and sanctified and expressing concern with the breach of its observance throughout the State, then enacted a Sunday labor prohibition which was the obvious precursor of the present § 492. [ Footnote 19 ] There was a reenactment in 1696 entitled "An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday." 19 Archives of Maryland 418-420. By 1723, the Sabbath-breaking section of the statute assumed the present form of § 492, omitting the specific prohibition against Sunday swearing and the patently religiously motivated title. Bacon, Laws of Maryland (1723), c. XVI. There are judicial statements in early Maryland decisions which tend to support appellants' position. In an 1834 case involving a contract calling for delivery on Sunday, Page 366 U. S. 447 the Maryland Court of Appeals remarked that "Ours is a christian community, and a day set apart as the day of rest, is the day consecrated by the resurrection of our Saviour, and embraces the twenty-four hours next ensuing the midnight of Saturday." Kilgour v. Miles, 6 Gill and Johnson 268, 274. This language was cited with approval in Judefind v. State, 78 Md. 510, 514, 28 A. 405, 406 (1894). It was also stated there: "It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religion -- of all sects and denominations that observe that day -- as rest from work and ordinary occupation enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a Court in what professes to be a Christian land to declare a law unconstitutional because it requires rest from bodily labor on Sunday (except works of necessity and charity), and thereby promotes the cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, as it undoubtedly is, there is all the more reason for the enforcement of laws that help to preserve it. Whilst Courts have generally sustained Sunday laws as 'civil regulations,' their decisions will have no less weight if they are shown to be in accordance with divine law, as well as human." Id. at 515-516, 28 A. at 407. But it should be noted that, throughout the Judefind decision, the Maryland court specifically rejected the contention that the laws interfered with religious liberty and stated that the laws' purpose was to provide the "advantages of having a weekly day of rest, from a mere physical and political standpoint.'" Id. at 513, 28 A. at 406. Considering the language and operative effect of the current statutes, we no longer find the blanket prohibition Page 366 U. S. 448 against Sunday work or bodily labor. To the contrary, we find that § 521 of Art. 27, the section which appellants violated, permits the Sunday sale of tobaccos and sweets and a long list of sundry articles which we have enumerated above; we find that § 509 of Art. 27 permits the Sunday operation of bathing beaches, amusement parks and similar facilities; we find that Art. 2B, § 28, permits the Sunday sale of alcoholic beverages, products strictly forbidden by predecessor statutes; we are told that Anne Arundel County allows Sunday bingo and the Sunday playing of pinball machines and slot machines, activities generally condemned by prior Maryland Sunday legislation. [ Footnote 20 ] Certainly, these are not works of charity or necessity. Section 521's current stipulation that shops with only one employee may remain open on Sunday does not coincide with a religious purpose. These provisions, along with those which permit various sports and entertainments on Sunday, seem clearly to be fashioned for the purpose of providing a Sunday atmosphere of recreation, cheerfulness, repose and enjoyment. Coupled with the general proscription against other types of work, we believe that the air of the day is one of relaxation, rather than one of religion. The existing Maryland Sunday laws are not simply verbatim reenactments of their religiously oriented antecedents. Only § 492 retains the appellation of "Lord's day," and even that section no longer makes recitation of religious purpose. It does talk in terms of "profan[ing] the Lord's day," but other sections permit the activities Page 366 U. S. 449 previously thought to be profane. Prior denunciation of Sunday drunkenness is now gone. Contemporary concern with these statutes is evidenced by the dozen changes made in 1959, and by the recent enactment of a majority of the exceptions. Finally, the relevant pronouncements of the Maryland Court of Appeals dispel any argument that the statutes' announced purpose is religious. In Hiller v. Maryland, 124 Md. 385, 92 A. 842 (1914), the court had before it a Baltimore ordinance prohibiting Sunday baseball. The court said: "What the eminent chief judge said with respect to police enactments which deal with the protection of the public health, morals and safety apply with equal force to those which are concerned with the peace, order and quiet of the community on Sunday, for these social conditions are well recognized heads of the police power. Can the Court say that this ordinance has no real and substantial relation to the peace and order and quiet of Sunday, as a day of rest, in the City of Baltimore?" Id. at 393, 92 A. at 844. See also Levering v. Williams, 134 Md. 48, 5459, 106 A. 176, 178-179 (1919). And the Maryland court declared in its decision in the instant case: "The legislative plan is plain. It is to compel a day of rest from work, permitting only activities which are necessary or recreational." McGowan v. State, supra, at p. 123, 151 A.2d at 159. After engaging in the close scrutiny demanded of us when First Amendment liberties are at issue, we accept the State Supreme Court's determination that the statutes' present purpose and effect is not to aid religion, but to set aside a day of rest and recreation. But this does not answer all of appellants' contentions. We are told that the State has other means at its disposal Page 366 U. S. 450 to accomplish its secular purpose, other courses that would not even remotely or incidentally give state aid to religion. On this basis, we are asked to hold these statutes invalid on the ground that the State's power to regulate conduct in the public interest may only be executed in a way that does not unduly or unnecessarily infringe upon the religious provisions of the First Amendment. See Cantwell v. Connecticut, supra, at pp. 310 U. S. 304 -305. However relevant this argument may be, we believe that the factual basis on which it rests is not supportable. It is true that, if the State's interest were simply to provide for its citizens a periodic respite from work, a regulation demanding that everyone rest one day in seven, leaving the choice of the day to the individual, would suffice. However, the State's purpose is not merely to provide a one-day-in-seven work stoppage. In addition to this, the State seeks to set one day apart from all others as a day of rest, repose, recreation and tranquility -- a day which all members of the family and community have the opportunity to spend and enjoy together, a day on which there exists relative quiet and disassociation from the everyday intensity of commercial activities, a day on which people may visit friends and relatives who are not available during working days. [ Footnote 21 ] Page 366 U. S. 451 Obviously, a State is empowered to determine that a "rest one day in seven" statute would not accomplish this purpose; that it would not provide for a general cessation of activity, a special atmosphere of tranquility, a day which all members of the family or friends and relatives might spend together. Furthermore, it seems plain that the problems involved in enforcing such a provision would be exceedingly more difficult than those in enforcing a "common day of rest" provision. Moreover, it is common knowledge that the first day of the week has come to have special significance as a rest day in this country. People of all religions and Page 366 U. S. 452 people with no religion regard Sunday as a time for family activity, for visiting friends and relatives, for late sleeping, for passive and active entertainments, for dining out, and the like. "Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer. . . ." 308 Parliamentary Debates, Commons 2159. Sunday is a day apart from all others. [ Footnote 22 ] The cause is irrelevant; the fact exists. It would seem unrealistic for enforcement purposes and perhaps detrimental to the general welfare to require a State to choose a common day of rest other than that which most persons would select of their own accord. For these reasons, we hold that the Maryland statutes are not laws respecting an establishment of religion. The distinctions between the statutes in the case before us and the state action in McCollum v. Board of Education, supra, the only case in this Court finding a violation of the "Establishment" Clause, lend further substantiation to our conclusion. In McCollum, state action permitted religious instruction in public school buildings during school hours and required students not attending the religious instruction to remain in their classrooms during that time. The Court found that this system had the effect of coercing the children to attend religious classes; no such coercion to attend church services is present in the situation at bar. In McCollum, the only alternative available to the nonattending students was to remain in their classrooms; the alternatives open to nonlaboring persons in the instant case are far more diverse. In McCollum, there was direct cooperation between state officials and religious ministers; no such direct participation exists under the Maryland laws. In McCollum, tax-supported buildings were used to aid religion; in the Page 366 U. S. 453 instant case, no tax monies are being used in aid of religion. Finally, we should make clear that this case deals only with the constitutionality of § 521 of the Maryland statute before us. We do not hold that Sunday legislation may not be a violation of the "Establishment" Clause if it can be demonstrated that its purpose -- evidenced either on the face of the legislation, in conjunction with its legislative history, or in its operative effect -- is to use the State's coercive power to aid religion. Accordingly, the decision is Affirmed. [For opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN, see post, p. 366 U. S. 459 .] [For dissenting opinion of MR. JUSTICE DOUGLAS, see post, p. 366 U. S. 561 .] | 366 U.S. 420 app| APPENDIX TO OPINION OF THE COURT " Md.Ann.Code, Art. 27" " Sabbath Breaking." " § 492. -- Working on Sunday; Permitting children or servants to game, fish, hunt, etc. -- No person whatsoever shall work or do any bodily labor on the Lord's day, commonly called Sunday, and no person having children or servants shall command, or wittingly or willingly suffer any of them to do any manner of work or labor on the Lord's day (works of necessity and charity always excepted), nor shall suffer or permit any children or servants to profane the Lord's day by gaming, fishing, fowling, hunting or unlawful pastime or recreation, and every person transgressing this section and being hereof convicted before a justice of the peace shall forfeit five dollars, to be applied to the use of the county. " Page 366 U. S. 454 " § 509. -- Beaches, amusement parks, picnic groves, etc., in Anne Arundel County. -- It shall be lawful to operate, work at, or be employed in the occupations of operating any bathing beach, bathhouse, amusement park, dancing saloon, the sale or selling of any novelties, souvenirs, accessories, or other merchandise essential to, or customarily sold at, or incidental to, the operation of the aforesaid occupations and businesses, at retail, picnic groves, amusements, games, amusement rides, amusement devices, entertainments, shows and the hiring or renting of boats, tables, chairs, beach umbrellas, on the first day of the week, commonly called Sunday, within Anne Arundel County, and §§ 492, 521 and 522 of this article are repealed, insofar and to the extent that they prohibit the operating of and/or the working of or employment of persons in the operation of any bathing beach, bathhouse, amusement park, dancing saloon, the sale or selling at retail of any merchandise, essential to or customarily sold or incidental to the operation of the aforesaid occupations or businesses, picnic groves, amusements, games, amusement rides, amusement devices, entertainments, shows, and the hiring and renting of boats, tables, chairs, beach umbrellas, on the first day of the week, commonly called Sunday, in Anne Arundel County." " § 521. -- Sale, etc., of merchandise on Sunday; exceptions. " "(a) Sunday sales of merchandise prohibited; excepted articles. -- No person in this State shall sell, dispose of, barter, or deal in, or give away any articles of merchandise on Sunday, except retailers, who may sell and deliver on said day tobacco, cigars, cigarettes, candy, sodas and soft drinks, ice, ice cream, ices and other confectionery, milk, bread, fruits, gasoline, oils and greases." "(b) Additional excepted articles in Anne Arundel County; certain establishments excepted. -- In Anne Arundel County, in addition to the articles of merchandise Page 366 U. S. 455 hereinbefore mentioned, retailers may sell, barter, deal in, and deliver on Sunday the following articles of merchandise: butter, eggs, cream, soap and other detergents, disinfectants, vegetables, meats, and all other food or food stuffs prepared or intended for human consumption, automobile accessories and parts, boating and fishing accessories, artificial and natural flowers and shrubs, toilet goods, hospital supplies, thermometers, camera films, souvenirs, surgical instruments, rubber goods, paper goods, drugs, medicines, patent medicines, and all other articles used for the relief of pain or prescribed by a physician; provided, however, that nothing in this subtitle shall be construed to prevent the operation of any retail establishment on Sunday, the operation of which does not entail the employment of more than one person, not including the owner or proprietor." "(c) Penalty for violation; second and subsequent offenses; revocation of license. -- Any person violating any one of the provisions of this section shall be liable to indictment in any court in this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum of not less than twenty nor more than fifty dollars, in the discretion of the court, for the first offense, and if convicted a second time for a violation of this section, the person or persons so offending shall be fined a sum not less than $50 nor more than $500, and be imprisoned for not less than 10 nor more than 30 days, in the discretion of the court, and his, her or their license, if any was issued, shall be declared null and void by the judge of said court, and it shall not be lawful for such person or persons to obtain another license for the period of twelve months from the time of such conviction, nor shall a license be obtained by any other person or persons to carry on said business on the premises or elsewhere, if the person, so as aforesaid convicted, has any interest whatever therein, or shall derive any profit whatever therefrom, and in case Page 366 U. S. 456 of being convicted more than twice for a violation of this section, such person or persons on each occasion shall be imprisoned for not less than thirty nor more than sixty days, and fined a sum not less than double that imposed on such person or persons on the last preceding conviction, and his, her or their license, if any was issued, shall be declared null and void by the court, and no new license shall be issued to such person or persons for a period of two years from the time of such conviction, nor to anyone else to carry on said business wherein he or she is in anywise interested, as before provided for the second violation of the provisions of this section; all the fines to be imposed under this section shall be paid to the State." "(d) Apothecaries: sale of newspapers and periodicals. -- This section is not to apply to apothecaries and such apothecaries may sell on Sunday drugs, medicines, and patent medicines as on week days, and this section shall not apply to the sale of newspapers and periodicals." " § 622. -- Keeping open or using dancing saloon, opera house, tenpin alley, barber saloon or ball alley on Sunday. -- It shall not be lawful to keep open or use any dancing saloon, opera house, tenpin alley, barber saloon or ball alley within this State on the Sabbath day, commonly called Sunday, and any person or persons, or body politic or corporate, who shall violate any provision of this section, or cause or knowingly permit the same to be violated by a person or persons in his, her or its employ shall be liable to indictment in any court of this State having criminal jurisdiction, and upon conviction thereof shall be fined a sum not less than fifty dollars nor more than one hundred dollars, in the discretion of the court, for the first offense, and if convicted a second time for a violation of this section, the person or persons, or body politic or corporate shall be fined a sum not less than one hundred nor more than five hundred dollars, and if a natural person shall be imprisoned, not less than ten nor Page 366 U. S. 457 more than thirty days in the discretion of the court, and in the case of any conviction or convictions under this section subsequent to the second, such person or persons, body politic or corporate shall be fined on each occasion a sum at least double that imposed upon him, her, them or it on the last preceding conviction, and if a natural person, shall be imprisoned not less than thirty nor more than sixty days in the discretion of the court; all fines to be imposed under this section shall be paid to the State." " Md.Ann.Code, Art. 2B" " § 28. -- Anne Arundel County. " "(a) Special Sunday licenses. -- " "(1) Notwithstanding any other provision of this article, no license for sale of alcoholic beverages issued by the board of license commissioners for Anne Arundel County (except 'special licenses' provided for in § 22 of this article) shall be deemed to nor shall it permit or authorize the holder thereof to sell any alcoholic beverages in Anne Arundel County after 2 A.M. on Sundays, except as hereinafter provided." "(2) Any person holding a license for the sale of alcoholic beverages in Anne Arundel County (except persons holding any Class BP, WP, LP, or LT license, 'Package Goods -- off sale license,' 'six day tavern license,' or 'special licenses') issued by the board of license commissioners for Anne Arundel County, shall, upon application made as for new licenses and approval thereof by the board of license commissioners for Anne Arundel County, as provided for by §§ 60 and 67(c) of this article, be issued a license to be known as a 'special Sunday license,' upon payment of the fee therefor as provided herein." "(3) Such 'special Sunday license' shall authorize the holder thereof to sell alcoholic beverages of the same kind, and subject to the same limitations as to hours, alcoholic content of the beverages to be sold thereunder, restrictions Page 366 U. S. 458 and provisions, as govern such other license for the sale of alcoholic beverages, issued to and held by the holder of such 'special Sunday license,' on each Sunday. No 'special Sunday license' shall be issued to any person who does not hold an alcoholic beverage license of some other class issued by the board of license commissioners for Anne Arundel County." " § 90 -- Sundays. -- " "(a) Bar and counter sales. -- " "(1) No retail dealer holding a Class B or C license shall be permitted to sell any alcoholic beverage at a bar or counter on Sunday." "(2) Provided, that, in Anne Arundel County it shall be lawful to sell, vend, serve, deliver and/or consume any alcoholic beverages permitted by law to be sold in the first, second, third, fourth, fifth, seventh and eighth districts of Anne Arundel County at any bar or counter on any day on which the sale of alcoholic beverages is permitted by law." "(b) General restrictions. -- " "(1) In the jurisdictions in which this subsection is applicable, it shall be unlawful for anyone to sell or for any licensed dealer to deliver, give away or otherwise dispose of any alcoholic beverages on Sunday. Any person selling or any licensed dealer delivering, giving away or otherwise disposing of such beverages in such jurisdictions on Sunday shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not exceeding fifty dollars ($50.00) for the first offense and for each succeeding offense shall be fined not exceeding one hundred dollars ($100.00), or imprisoned in the county jail for not more than thirty (30) days, or be both fined and imprisoned, in the discretion of the court." "(2) This subsection shall be applicable and have effect in Caroline, Carroll, Cecil, Dorchester, Garrett, Harford, Kent, Queen Anne's, Somerset, Talbot, Washington, Wicomico and Worcester counties, provided that it shall not apply to or affect special Class C licenses Page 366 U. S. 459 issued under the provisions of this article, nor shall it apply to special Class C licenses issued in Washington County for temporary use." [ Footnote 1 ] These statutes, in their entirety, are found in Md.Ann.Code, 1957, Art. 27, §§ 492-534C; Art. 2B, §§ 28(a), 90-106; Art. 66C, §§ 132(d), 698(d). Those sections specifically referred to hereafter may be found in an Appendix to this opinion, post, p. 366 U. S. 453 . [ Footnote 2 ] Companion arguments made by appellants are that the exceptions to the Sunday sale's prohibition so undermine the alleged purpose of Sunday as a day of rest as to bear no rational relationship to it, and thereby render the statutes violative of due process; that the distinctions drawn by the statutes are so unreasonable as to violate due process. [ Footnote 3 ] More recently we declared: "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U. S. 141 . Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental Examiners, 294 U. S. 608 . The legislature may select one phase of one field and apply a remedy there, neglecting the others. AFL v. American Sash Co., 335 U. S. 538 . The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. " Williamson v. Lee Optical, 348 U. S. 483 , 348 U. S. 489 . (Emphasis added.) [ Footnote 4 ] Whether § 509 is to be read this way or is to be read to permit the sale of such merchandise by all vendors in Anne Arundel County is unclear. The Maryland Court of Appeals found it unnecessary to reach this question of state law. For purposes of this argument, we accept the construction of § 509 set forth by appellants. [ Footnote 5 ] Cantwell v. Connecticut, 310 U. S. 296 , 310 U. S. 303 ; Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 ; West Virginia State Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 ; Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 5 ; McCollum v. Board of Education, 333 U. S. 203 , 333 U. S. 210 . [ Footnote 6 ] MR. JUSTICE BLACK is of the opinion that appellants do have standing to raise this contention. He believes that their claim is without merit for the reasons expressed in Braunfeld v. Brown, post, p. 366 U. S. 599 , at pp. 366 U. S. 602 -610, and Gallagher v. Crown Kosher Super Market, post, p. 366 U. S. 617 , at pp. 366 U. S. 630 -631. [ Footnote 7 ] Madison's Memorial and Remonstrance Against Religious Assessments, Par. 8, reprinted in the Appendix to Mr. Justice Rutledge's dissenting opinion in Everson v. Board of Education, supra, at p. 330 U. S. 68 . [ Footnote 8 ] Cf. Doremus v. Board of Education, 342 U. S. 429 , where complainants failed to show direct and particular economic detriment. [ Footnote 9 ] English statutes subsequent to this are cited and discussed in Lewis, op. cit. supra, pp. 111-142. [ Footnote 10 ] A 1695 New York Sunday law provided: "Whereas, the true and sincere worship of God according to his holy will and commandments, is often profaned and neglected by many of the inhabitants and sojourners in this province, who do not keep holy the Lord's day, but in a disorderly manner accustom themselves to travel, laboring, working, shooting, fishing, sporting, playing, horse-racing, frequenting of tippling houses and the using many other unlawful exercises and pastimes, upon the Lord's day, to the great scandal of the holy Christian faith, be it enacted, etc." Id. at 200-201. [ Footnote 11 ] Ministry of Munitions, Health of Munition Workers Committee, Report on Sunday Labour, Memorandum No. 1 (1915), 5. [ Footnote 12 ] See cases collected at 50 Am.Jur. 802 et seq.; 24 A.L.R.2d 813 et seq.; 57 A.L.R.2d 975 et seq. [ Footnote 13 ] See Soon Hing v. Crowley, 113 U. S. 703 ; Hennington v. Georgia, 163 U. S. 299 ; Petit v. Minnesota, 177 U. S. 164 ; Friedman v. New York, 341 U.S. 907; McGee v. North Carolina, 346 U.S. 802; Gundaker Central Motors, Inc. v. Gassert, 354 U.S. 933; Grochowiak v. Pennsylvania, 358 U. S. 47 ; Ullner v. Ohio, 358 U. S. 131 ; Kidd v. Ohio, 358 U. S. 132 . [ Footnote 14 ] Brant, James Madison, The Virginia Revolutionist, 245-246. [ Footnote 15 ] 2 The Papers of Thomas Jefferson 555. [ Footnote 16 ] 3 Elliot's Debates (2d ed. 1836) 330. [ Footnote 17 ] In Judefind v. State, 78 Md. 510, 515, 28 A. 405, 407 (1894), the Maryland Court of Appeals stated, "Article thirty-six of our Declaration of Rights guarantees religious liberty; but the members of the distinguished body that adopted that Constitution never supposed they were giving a death blow to Sunday laws by inserting that Article." [ Footnote 18 ] Mr. Justice Rutledge, joined by MR. JUSTICE FRANKFURTER, Mr. Justice Jackson and Mr. Justice Burton, filed a lengthy dissenting opinion in which the First Amendment's history was studied in detail. He defined the "establishment" problem as follows: "Compulsory attendance upon religious exercises went out early in the process of separating church and state, together with forced observance of religious forms and ceremonies. Test oaths and religious qualification for office followed later. These things none devoted to our great tradition of religious liberty would think of bringing back. Hence, today, apart from efforts to inject religious training or exercises and sectarian issues into the public schools, the only serious surviving threat to maintaining that complete and permanent separation of religion and civil power which the First Amendment commands is through use of the taxing power to support religion, religious establishments, or establishments having a religious foundation whatever their form or special religious function. " Id. at 330 U. S. 44 . (Emphasis added.) [ Footnote 19 ] "[N]o Person or Persons within this Province shall work or do any bodily Labour or Occupation upon any Lords Day commonly called Sunday, nor shall command or willfully suffer or permitt any of his or their children Servants or Slaves to work or labour as aforesaid (the absolute works of necessity and mercy allways Excepted), nor shall suffer or permitt any of his her or their Children Servants or Slaves or any other under their Authority to abuse or Prophane the Lords Day by drunkenness, Swearing Gaming, fowling fishing, hunting or any other Sports Pastimes or Recreations whatsoever." Id. at 426. [ Footnote 20 ] A 1674 Maryland statute provided, in part: "[T]hat noe ordinary Keeper shall from and after the publicacon hereof directly nor indirectly upon the Sabbath or Lords Day draw or sell any strong Liquors nor permit or suffer in or about their house or houses any tipling or gaming att Cards, Dice, ninepinn playing or other such unlawfull exercises whatsoever. . . ." 2 Archives of Maryland 414. [ Footnote 21 ] This purpose has been articulated in various ways at different times. The parliamentary debates on the British Shops (Sunday Trading Restriction) Bill in 1936 are particularly instructive. The sponsor of the Bill stated: "I realise also that the State today is interfering more and more with family life and more and more controlling the family liberty, and, were this a Bill to restrict liberty, and above all to restrict the liberty of the family, I would not be responsible for introducing it. But I hope to show to the House that it is a Bill which is necessary to secure the family life and liberty of hundreds of thousands of our people. . . . They have the right to a holiday on Sunday, to be able to rest from work on that day and to go out into the parks or into the country on a summer day. That is the liberty for which they are asking, and that is the liberty which this Bill would give to them." 308 Parliamentary Debates, Commons 2157-2158. Another member stated: "As a family man, let me say that my family life would be unduly disturbed if any member had his Sunday on a Tuesday. The value of a Sunday is that everybody in the family is at home on the same day. What is the use of talking about a six-day working week in which six members of a family would each have his day of rest on a different day of the week?" Id. at 2198. Reports of the International Labour Conferences are also revealing: "Social custom requires that the same rest-day should as far as possible be accorded to the members of the same working family and to the working class community as a whole. It is a fact that, originally, religious motives determined the rest-day, and that the tradition thus established has subsequently been maintained by law. It appears to be a universal rule that workers in the same area or in the same country have the same rest-day, and that the rest-day coincides with the day established by tradition or custom, and the International Labour Office proposes that this rule should be maintained." Rep. VII, International Labour Conference, 3d Sess.1921, 127-128. "A study of national standards shows that the most usual practice is to grant the weekly rest collectively on specified days of the week. This tendency to ensure that the weekly rest is taken at the same time by all workers on the day established by tradition or custom has an obvious social purpose, namely to enable the workers to take part in the life of the community and in the special forms of recreation which are available on certain days." Rep. VII(1), International Labour Conference, 39th Sess.1956, 24. [ Footnote 22 ] The Constitution itself provides for a Sunday exception in the calculation of the ten days for presidential veto. U.S.Const., Art. I, § 7. Separate opinion of MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins. * So deeply do the issues raised by these cases cut that it is not surprising that no one opinion can wholly express the views even of all the members of the Court who join in its result. Individual opinions in constitutional controversies have been the practice throughout the Court's history.** Such expression of differences in view or even in emphasis converging toward the same result makes for the clarity of candor, and thereby enhances the authority of the judicial process. For me, considerations are determinative here which call for separate statement. The long history of Sunday legislation, so decisive if we are to view the statutes now Page 366 U. S. 460 attacked in a perspective wider than that which is furnished by our own necessarily limited outlook, cannot be conveyed by a partial recital of isolated instances or events. The importance of that history derives from its continuity and fullness -- from the massive testimony which it bears to the evolution of statutes controlling Sunday labor and to the forces which have, during three hundred years of Anglo-American history at the least, changed those laws, transmuted them, made them the vehicle of mixed and complicated aspirations. Since I find in the history of these statutes insights controllingly relevant to the constitutional issues before us, I am constrained to set that history forth in detail. And I also deem it incumbent to state how I arrive at concurrence with THE CHIEF JUSTICE's principal conclusions without drawing on Everson v. Board of Education, 330 U. S. 1 . I Because the long colonial struggle for disestablishment -- the struggle to free all men, whatever their theological views, from state-compelled obligation to acknowledge and support state-favored faiths -- made indisputably fundamental to our American culture the principle that the enforcement of religious belief as such is no legitimate concern of civil government, this Court has held that the Fourteenth Amendment embodies and applies against the States freedoms that are loosely indicated by the not rigidly precise but revealing phrase "separation of church and state." Illinois ex rel. McCollum v. Board of Education, 333 U. S. 203 . The general principles of church-state separation were found to be included in the Amendment's Due Process Clause in view of the meaning which the presuppositions of our society infuse into the concept of "liberty" protected by the clause. This is the source of the limitations imposed upon the States. To the extent that those limitations Page 366 U. S. 461 are akin to the restrictions which the First Amendment places upon the action of the central government, it is because -- as with the freedom of thought and speech of which Mr. Justice Cardozo spoke in Palko v. Connecticut, 302 U. S. 319 -- it is accurate to say concerning the principle that a government must neither establish nor suppress religious belief, that, "[w]ith rare aberrations, a pervasive recognition of that truth can be traced in our history, political and legal." Id. at 302 U. S. 327 . But the several opinions in Everson and McCollum, and in Zorach v. Clauson, 343 U. S. 306 , make sufficiently clear that "separation" is not a self-defining concept. "[A]greement, in the abstract, that the First Amendment was designed to erect a 'wall of separation between church and State' does not preclude a clash of views as to what the wall separates." Illinois ex rel. McCollum v. Board of Education, supra, at 333 U. S. 213 (concurring opinion). By its nature, religion -- in the comprehensive sense in which the Constitution uses that word -- is an aspect of human thought and action which profoundly relates the life of man to the world in which he lives. Religious beliefs pervade, and religious institutions have traditionally regulated, virtually all human activity. It is a postulate of American life, reflected specifically in the First Amendment to the Constitution but not there alone, that those beliefs and institutions shall continue, as the needs and longings of the people shall inspire them, to exist, to function, to grow, to wither, and to exert with whatever innate strength they may contain their many influences upon men's conduct, free of the dictates and directions of the state. However, this freedom does not and cannot furnish the adherents of religious creeds entire insulation from every civic obligation. As the state's interest in the individual becomes more comprehensive, its concerns and the concerns of religion perforce overlap. State codes and the dictates of faith touch the same activities. Page 366 U. S. 462 Both aim at human good, and, in their respective views of what is good for man, they may concur or they may conflict. No constitutional command which leaves religion free can avoid this quality of interplay. Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibitions of murder, theft and adultery reinforce commands of the decalogue. Nor do such regulations, in their coincidence with tenets of faith, always support equally the beliefs of all religious sects: witness the civil laws forbidding usury and enforcing monogamy. Because these laws serve ends which are within the appropriate scope of secular state interest, they may be enforced against those whose religious beliefs do not proscribe, and even sanction, the activity which the law condemns. Reynolds v. United States, 98 U. S. 145 ; Davis v. Beason, 133 U. S. 333 ; Cleveland v. United States, 329 U. S. 14 . This is not to say that governmental regulations which find support in their appropriateness to the achievement of secular, civil ends are invariably valid under the First or Fourteenth Amendment, whatever their effects in the sphere of religion. If the value to society of achieving the object of a particular regulation is demonstrably outweighed by the impediment to which the regulation subjects those whose religious practices are curtailed by it, or if the object sought by the regulation could with equal effect be achieved by alternative means which do not substantially impede those religious practices, the regulation cannot be sustained. Cantwell v. Connecticut, 310 U. S. 296 . This was the ground upon which the Court struck down municipal license taxes as applied to religious colporteurs in Follett v. Town of McCormick, 321 U. S. 573 ; Murdock v. Pennsylvania, 319 U. S. 105 , and Jones v. Opelika, 319 U. S. 103 . In each of those cases, it was believed that the State's need for revenue, which could be Page 366 U. S. 463 satisfied by taxing any of a variety of sources, did not justify a levy imposed upon an activity which in the light of history could reasonably be viewed as sacramental. But see Cox v. New Hampshire, 312 U. S. 569 , in which the Court, balancing the public benefits secured by a regulatory measure against the degree of impairment of individual conduct expressive of religious faith which it entailed, sustained the prohibition of an activity similarly regarded by its practicants as sacramental. And see Prince v. Massachusetts, 321 U. S. 158 . Within the discriminating phraseology of the First Amendment, distinction has been drawn between cases raising "establishment" and "free exercise" questions. Any attempt to formulate a bright-line distinction is bound to founder. In view of the competition among religious creeds, whatever "establishes" one sect disadvantages another, and vice versa. But it is possible historically, and therefore helpful analytically -- no less for problems arising under the Fourteenth Amendment, illuminated as that Amendment is by our national experience, than for problems arising under the First -- to isolate in general terms the two largely overlapping areas of concern reflected in the two constitutional phrases, "establishment" and "free exercise," [ Footnote 2/1 ] and which emerge more Page 366 U. S. 464 or less clearly from the background of events and impulses which gave those phrases birth. In assuring the free exercise of religion, the Framers of the First Amendment were sensitive to the then-recent history of those persecutions and impositions of civil disability with which sectarian majorities in virtually all of the Colonies had visited deviation in the matter of conscience. [ Footnote 2/2 ] This protection of unpopular creeds, however, was not to be the full extent of the Amendment's guarantee of freedom from governmental intrusion in matters of faith. The battle in Virginia, hardly four years won, where James Madison had led the forces of disestablishment in successful opposition to Patrick Henry's proposed Assessment Bill levying a general tax for the support of Christian teachers, [ Footnote 2/3 ] was a vital and compelling Page 366 U. S. 465 memory in 1789. The lesson of that battle, in the words of Jefferson's Act for Establishing Religious Freedom, whose passage was its verbal embodiment, [ Footnote 2/4 ] was "that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion is depriving him of the comfortable liberty of giving his contributions to the particular pastor whose morals he would make his pattern, and whose powers he feels most persuasive to righteousness, and is withdrawing from the ministry those temporal rewards which, proceeding from an approbation of their personal conduct, are an additional incitement to earnest and unremitting labours for the instruction of mankind. . . . [ Footnote 2/5 ]" What Virginia had long practiced, and what Madison, Jefferson and others fought to end, was the extension of civil government's support to religion in a manner which made the two in some degree interdependent, and thus threatened the freedom of each. The purpose of the Establishment Clause was to assure that the national legislature would not exert its power in the service of any purely religious end; that it would not, as Virginia and virtually all of the Colonies had done, make of religion, as religion, an object of legislation. Of course, the immediate object of the First Amendment's prohibition was the established church as it had been known in England and in most of the Colonies. But, with foresight, those who drafted and adopted the words "Congress shall make no law respecting an establishment of religion" did not limit the constitutional proscription to any particular, dated form of state supported theological venture. The Establishment Clause withdrew from Page 366 U. S. 466 the sphere of legitimate legislative concern and competence a specific, but comprehensive, area of human conduct: man's belief or disbelief in the verity of some transcendental idea, and man's expression in action of that belief or disbelief. Congress may not make these matters, as such, the subject of legislation, nor, now, may any legislature in this country. Neither the National Government nor, under the Due Process Clause of the Fourteenth Amendment, a State may, by any device, support belief or the expression of belief for its own sake, whether from conviction of the truth of that belief or from conviction that, by the propagation of that belief, the civil welfare of the State is served, or because a majority of its citizens holding that belief are offended when all do not hold it. With regulations which have other objectives the Establishment Clause, and the fundamental separationist concept which it expresses, are not concerned. These regulations may fall afoul of the constitutional guarantee against infringement of the free exercise or observance of religion. Where they do, they must be set aside at the instance of those whose faith they prejudice. But once it is determined that a challenged statute is supportable as implementing other substantial interests than the promotion of belief, the guarantee prohibiting religious "establishment" is satisfied. To ask what interest, what objective, legislation serves, of course, is not to psychoanalyze its legislators, but to examine the necessary effects of what they have enacted. If the primary end achieved by a form of regulation is the affirmation or promotion of religious doctrine -- primary in the sense that all secular ends which it purportedly serves are derivative from, not wholly independent of, the advancement of religion -- the regulation is beyond the power of the state. This was the case in McCollum. Or if a statute furthers both secular and religious ends Page 366 U. S. 467 by means unnecessary to the effectuation of the secular ends alone -- where the same secular ends could equally be attained by means which do not have consequences for promotion of religion -- the statute cannot stand. A State may not endow a church although that church might inculcate in its parishioners moral concepts deemed to make them better citizens, because the very raison d'etre of a church, as opposed to any other school of civilly serviceable morals, is the predication of religious doctrine. However, inasmuch as individuals are free, if they will, to build their own churches and worship in them, the State may guard its people's safety by extending fire and police protection to the churches so built. It was on the reasoning that parents are also at liberty to send their children to parochial schools which meet the reasonable educational standards of the State, Pierce v. Society of Sisters, 268 U. S. 510 , that this Court held in the Everson case that expenditure of public funds to assure that children attending every kind of school enjoy the relative security of buses, rather than being left to walk or hitchhike, is not an unconstitutional "establishment," even though such an expenditure may cause some children to go to parochial schools who would not otherwise have gone. The close division of the Court in Everson serves to show what nice questions are involved in applying to particular governmental action the proposition, undeniable in the abstract, that not every regulation some of whose practical effects may facilitate the observance of a religion by its adherents affronts the requirement of church-state separation. In an important sense, the constitutional prohibition of religious establishment is a provision of more comprehensive availability than the guarantee of free exercise, insofar as both give content to the prohibited fusion of church and state. The former may be invoked by the corporate operator of a seven-day department store whose Page 366 U. S. 468 state-compelled Sunday closing injures it financially -- or by the department store's employees, whatever their faith, who are convicted for violation of a Sunday statute, as well as by the Orthodox Jewish retailer or consumer who claims that the statute prejudices him in his ability to keep his faith. But it must not be forgotten that the question which the department store operator and employees may raise in their own behalf is narrower than that posed by the case of the Orthodox Jew. [ Footnote 2/6 ] Their "establishment" contention can prevail only if the absence of any substantial legislative purpose other than a religious one is made to appear. See Selective Draft Law Cases, 245 U. S. 366 . In the present cases, the Sunday retail sellers and their employees and customers, in attacking statutes banning various activities on a day which most Christian creeds consecrate, do assert that these statutes have no other purpose. They urge, first, that the legislators' motives Page 366 U. S. 469 were religious. But the private and unformulated influences which may work upon legislation are not open to judicial probing. "The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted." McCray v. United States, 195 U. S. 27 , 195 U. S. 56 . "Inquiry into the hidden motives which may move [a legislature] to exercise a power constitutionally conferred upon it is beyond the competency of courts." Sonzinsky v. United States, 300 U. S. 506 , 300 U. S. 513 -514. Veazie Bank v. Fenno , 8 Wall. 533; Arizona v. California, 283 U. S. 423 ; Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U. S. 508 . These litigants also argue, however, that, when the state statutory provisions are regarded in their legislative context, religion is apparent on their face: they point to the use of the terms "Lord's day" and "Sabbath" and "desecration," to exceptions whose hours permit activities only at times on Sunday when religious services are customarily not held, to explicit prohibition of otherwise permitted activity in the vicinity of churches, to regulations which condition the allowance of conduct on its consistency with the "due observance" of the day. Of course, since these various provisions regarding exemption from the Sunday ban of certain recreational activities have no possible application to the litigants in the present cases, they are not themselves before the Court, and their constitutionality is not now in issue. But they are put forward as evidence of the purpose of the statutes which are attacked here, and, as such, we may properly look to them, and also to the history of the body of state Sunday regulations, which, it is urged, further demonstrates sectarian creedal purpose. As a basis for appraising these arguments that the statutes are religious legislation, and preliminary Page 366 U. S. 470 to determining the claims of infringement of conscience raised in the Gallagher and Braunfeld cases, it is necessary to survey the long historical development and present-day position of civil Sunday regulation. II For these purposes, the span of centuries which saw the enunciation of the Fourth Commandment, [ Footnote 2/7 ] Constantine's edict proscribing labor on the venerable day of the Sun, [ Footnote 2/8 ] and the Sunday prohibitions of Carlovingian, Merovingian and Saxon rulers, and later of the English kings of the thirteenth and fourteenth centuries, may be passed over. [ Footnote 2/9 ] What is of concern here is the Sunday institution as it evolved in modern England, the American Colonies, and the States of the Union under the Constitution. The first significant English Sunday regulation, for this purpose, was the statute of Henry VI in 1448, which, after reciting "the abominable injuries and offences done to Almighty God, and to his Saints, . . . because of fairs and markets upon their high and principal feasts, . . . in which principal and festival days, for great earthly covetise, the people is more willingly vexed, and in bodily labour soiled, than in other . . . days, . . . as though they did nothing remember the horrible defiling of their souls in buying and selling, with many deceitful lies and false perjury, with drunkenness and strifes, and so specially Page 366 U. S. 471 withdrawing themselves and their servants from divine service . . . ," ordained that all fairs and markets should cease to show forth goods or merchandise on Sundays, Good Friday, and the principal feast days. [ Footnote 2/10 ] A short-lived ordinance of Edward VI a century later, limiting the ban on bodily labor to Sundays and enumerated holy days, demonstrated in its preamble a similar sectarian purpose, [ Footnote 2/11 ] and in 1625 Charles I, announcing that "there is nothing more acceptable to God than the true and sincere service and worship of him . . . and that the holy keeping of the Lord's day is a principal part of the true service of God," prohibited all meetings of the people out of their parishes for sports and pastimes on Sunday, and all bear-baiting, bull-baiting, interludes, common plays, and other unlawful exercises and pastimes on that day. [ Footnote 2/12 ] Several years later, the same king declared it reproachful of God and religion, and hence made it unlawful, Page 366 U. S. 472 for butchers to slaughter or carriers, drovers, waggoners, etc., to travel on the Lord's day; [ Footnote 2/13 ] then, in 1677, [ Footnote 2/14 ] "For the better Observation and keeping Holy the Lord's Day," the statute, 29 Charles II, c. 7, which is still the basic Sunday law of Britain, was enacted: "that all and every Person and Persons whatsoever, shall on every Lord's Day apply themselves to the Observation of the same, by exercising themselves thereon in the Duties of Piety and true Religion, publickly and privately; . . . and that no Tradesman, Artificer, Workman, Labourer or other Person whatsoever, shall do or exercise any worldly Labour, Business or Work of their ordinary Callings, upon the Lord's Day, or any part thereof (Works of Necessity and Charity only excepted;) . . . and that no Person or Persons whatsoever, shall publickly cry, shew forth, or expose to Sale, any Wares, Merchandizes, Fruit, Herbs, Goods or Chattels whatsoever, upon the Lord's Day. . . . [ Footnote 2/15 ]" In 1781, a Page 366 U. S. 473 statute, 21 Geo. III, c. 49, reciting that various public entertainments and explications of scriptural texts by incompetent persons tended "to the great encouragement of irreligion and profaneness," closed all rooms and houses in which public entertainment, amusement or debates, for an admission charge, were held. [ Footnote 2/16 ] These Sunday laws were indisputably works of the English Establishment. Their prefatory language spoke their religious inspiration, [ Footnote 2/17 ] exceptions made from time to time were expressly limited to preserve inviolable the hours of the divine service, [ Footnote 2/18 ] and in their administration Page 366 U. S. 474 a spirit of inquisitorial piety was evident. [ Footnote 2/19 ] But even in this period of religious predominance, notes of a secondary civil purpose could be heard. Apart from the counsel of those who had, from the time of the Reformation, insisted that the Fourth Commandment itself embodied a precept of social, rather than sacramental significance, [ Footnote 2/20 ] claims Page 366 U. S. 475 were asserted in the eighteenth century on behalf of Sunday rest, in part, in the service of health and welfare. [ Footnote 2/21 ] Blackstone wrote that ". . . besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing Christianity, and the corruption of morals which usually follows its profanation, the keeping one day in the seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes, by the help of conversation and society, the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God so necessary to make them good citizens, but which yet Page 366 U. S. 476 would be worn out and defaced by an unremitted continuance of labor, without any stated times of recalling them to the worship of their Maker. [ Footnote 2/22 ]" In 1788, the schedule to the act, 28 Geo. III, c. 48, obligated master chimney sweeps to have their apprentices washed at least once a week, providing that, on Sunday the master should send the apprentice to worship, should allow him to have religious instruction, and should not allow him to wear his sweeping dress; the act also regulated the sweeps' hours of work. In 1832, a Commons Select Committee on the Observance of the Sabbath heard the testimony of a medical doctor as to the physically injurious effects of seven-day unremitted labor, [ Footnote 2/23 ] and although the report of the Committee reveals a primarily religious cast of mind, it discloses also a sensitivity to the plight of the journeyman bakers, seven thousand of whom had petitioned the House for one day's repose weekly, and to the wishes of shopkeepers and tradesmen forced by competition to work on Sunday, although "most desirous of a day of rest." [ Footnote 2/24 ] The Committee recommended the enactment of severer sanctions for Lord's day violations: "The objects to be attained by Legislation may be considered to be, first, a solemn and decent outward Observance of the Lord's-day, as that portion of the week which is set apart by Divine Command for Public Worship, and next, the securing to every member of the Community without any exception, and however low his station, the uninterrupted enjoyment of that Day of Rest which has been in Mercy provided for him, and the privilege of employing it, as well in Page 366 U. S. 477 the sacred Exercises for which it was ordained as in the bodily relaxation which is necessary for his wellbeing, and which, though a secondary end, is nevertheless also of high importance. [ Footnote 2/25 ]" But, whatever the nature of the propulsions underlying state-enforced Sunday labor stoppage during these centuries before the twentieth, it is clear that its effect was the creation of an institution of Sunday as a day apart. The origins of the institution were religious, certainly, but through long-established usage it had become a part of the life of the English people. [ Footnote 2/26 ] It was a day of rest not merely in a physical, hygienic sense, but in the sense of a recurrent time in the cycle of human activity when the rhythms of existence changed, a day of particular associations which came to have their own autonomous value for life. [ Footnote 2/27 ] When that value was threatened by the pressures of the Industrial Revolution, agitation began for new Page 366 U. S. 478 legislative action to preserve the traditional English Sunday. [ Footnote 2/28 ] At the turn of the century, the Factory and Workshop Act, 1901, prohibited the Sunday employment of women and children in industrial establishments. [ Footnote 2/29 ] The Shops Act, 1912, in its institution of a five-and-a-half-day week for shop assistants, built upon the base of existing Sunday closing law. [ Footnote 2/30 ] When, during the war, the pressures of Page 366 U. S. 479 national defense compelled continuous factory operation, a Committee of the Ministry of Munitions appointed to investigate industrial fatigue as this affected the health and efficiency of munitions workers, recommended to Parliament reinauguration of Sunday work stoppage: ". . . The problem of Sunday labour, although materially affected by various industrial questions and the established custom of Sunday rest, is -- as regards Munitions Works -- primarily a question of the extent to which workers actually require weekly or periodic rests if they are to maintain their health and energy over long periods. Intervals of rest are needed to overcome mental, as well as physical, fatigue. In this connection, account has to be taken not only of the hours of labour (overtime, 12-hour shifts, 8-hour shifts), the environment of the work, and the physical strain involved, but also the mental fatigue or boredom resulting from continuous attention to work. As one Manager put it, it is the monotony of the work which kills -- the men get sick of it." " * * * *" ". . . [I]f the maximum output is to be secured and maintained for any length of time, a weekly period of rest must be allowed. . . . On economic and social grounds alike, this weekly period of rest is best provided on Sunday. . . . [ Footnote 2/31 ] " Page 366 U. S. 480 In 1936, the conflict between the economic pressures for seven-day commercial activity and the resistance to those pressures culminated in the Shops (Sunday Trading Restriction) Act of that year, which, with a complex pattern of exceptions, prohibited Sunday trading upon pain of penalties more severe, and hence better calculated to assure obedience, than the nominal fines which had obtained under the seventeenth century Lord's day ban. [ Footnote 2/32 ] The Parliamentary Debates on the 1936 Act are instructive. With extremely rare exceptions, [ Footnote 2/33 ] no intimation of religious purpose is to be discovered in them. [ Footnote 2/34 ] The opening speech by Mr. Loftus, who introduced the bill, is representative: ". . . [I]t is a Bill which is necessary to secure the family life and liberty of hundreds of thousands of our people. . . ." " * * * *" Page 366 U. S. 481 ". . . I will explain to the House that there are thousands of shopkeepers who hate opening on Sunday -- they dislike the whole idea -- but are forced to open because their neighbours open. They are forced to open not for the sake of the Sunday trading, but because, if they let their customers get into the habit on Sunday of going to other shops, they may lose their week-day custom. . . . They have the right to a holiday on Sunday, to be able to rest from work on that day and to go out into the parks or into the country on a summer day. That is the liberty for which they are asking, and that is the liberty which this Bill would give to them. As regards the support behind the Bill, it is promoted by the Early Closing Association, with 300 affiliated associations, and the National Federation of Grocers, representing 400,000 individual shops, and is supported by the National Chamber of Trade, the Drapers' Chamber of Trade, the National Federation of the Boot Trade, and as regards the employes -- and this is important -- it is supported by the National Union of Shop Assistants and by the National Union of Distributive Workers. [ Footnote 2/35 ]" Speakers asserted the necessity for maintaining "the traditional quality of the Sunday in this country." [ Footnote 2/36 ] One particularly staunch Labour supporter of the measure argued: ". . . Frankly, I am afraid of a seven-day week. I see it coming gradually, and a seven-day week Page 366 U. S. 482 means six days' pay for seven days' work. I have worked seven days a week in my time, and I say that, if I can help it, nobody else shall work seven days for six days' pay. It is clear that, if one shopkeeper opens in a street, the whole street is bound to open and if one street opens, the whole town must open automatically. . . . I am not speaking as a Sabbatarian. I stand for the six-day working week with one day's rest in seven, but I do not want that day's rest arranged on the lines suggested by the hon. Member . . . who, apparently, wants to turn my Sunday into a Tuesday or a Wednesday. The argument is that all we need do is to say there shall be a six-day working week with one day's rest in seven, and that it does not matter whether the Sunday comes on a Friday or a Tuesday. As a family man, let me say that my family life would be unduly disturbed if any member had his Sunday on a Tuesday. The value of a Sunday is that everybody in the family is at home on the same day. What is the use of talking about a six-day working week in which six members of a family would each have his day of rest on a different.day of the week? [ Footnote 2/37 ]" The bill was strongly supported by labor and trade groups, [ Footnote 2/38 ] and passed by an overwhelming margin. [ Footnote 2/39 ] Thus, the English experience demonstrates the intimate relationship between civil Sunday regulation and the interest of a state in preserving to its people a recurrent time of mental and physical recuperation from the strains and pressures of their ordinary labors. It demonstrates also, of course, the intimate historical connection between the choice of Sunday as this time of rest and the doctrines Page 366 U. S. 483 of the Christian church. Long before the emergence of modern notions of government, religion had set Sunday apart. Through generations, the people were accustomed to it as a day when ordinary uses ceased. If it might once -- or elsewhere -- have been equally practicable to fulfill the same need of the workers and traders for periodic relaxation by the selection of some other cycle, it was no longer practicable in England. Some hypothetical man might do better with one-day-in-eight, or one-day-in-four, but the Englishman was used to one-day-in-seven. And that day was Sunday. Through associations fostered by tradition, that day had a character of its own which became, in itself, a cultural asset of importance: a release from the daily grind, a preserve of mental peace, an opportunity for self-disposition. Certainly, legislative fiat could have attempted to switch the day to Tuesday. But Parliament, naturally enough, concluded that such an attempt might prove as futile as the ephemeral decade of the French Republic of 1792. [ Footnote 2/40 ] Page 366 U. S. 484 III . In England's American settlements, too, civil Sunday regulation early became an institution of importance in shaping the colonial pattern of life. Every Colony had a law prohibiting Sunday labor. These had been enacted Page 366 U. S. 485 in many instances prior to the last quarter of the seventeenth century, and they were continued in force throughout the period that preceded the adoption of the Federal Page 366 U. S. 486 Constitution and the Bill of Rights. [ Footnote 2/41 ] This is not in itself, of course, indicative of the purpose of those laws, or of their consistency with the guarantee of religious freedom which the First Amendment, restraining the power of the central Government, secured. Most of the States were only partly disestablished in 1789. [ Footnote 2/42 ] Only in Virginia [ Footnote 2/43 ] and in Rhode Island, which had never had an establishment, [ Footnote 2/44 ] had the ideal of complete church-state separation been realized. Other States were fast approaching that ideal, however, and everywhere the spirit of liberty in religion was in the ascendant. Ratifying Conventions in New York, New Hampshire and North Carolina, as well as in Virginia and Rhode Island, proposed an anti-establishment amendment to the Constitution or signified that, in their understanding the Constitution embodied such a safeguard. [ Footnote 2/45 ] All of these five States had Sunday laws at the time that their Conventions spoke. Indeed, in four of the five, their legislatures had reaffirmed the Sunday labor ban within five years or less immediately prior to that date. [ Footnote 2/46 ] Page 366 U. S. 487 The earlier among the colonial Sunday statutes were unquestionably religious in purpose. Their preambles recite that profanation of the Lord's day "to he great Reproach of the Christian Religion," [ Footnote 2/47 ] or "to the great offence of the Godly welaffected among us," [ Footnote 2/48 ] must be suppressed; that "the keeping holy the Lord's day, is a principal part of the true service of God"; [ Footnote 2/49 ] that neglecting the Sabbath "pulls downe the judgments of God upon that place or people that suffer the same. . . ." [ Footnote 2/50 ] The first Pennsylvania Sunday law announces a purpose "That Looseness, irreligion, and Atheism may not Creep in under pretense of Conscience. . . ." [ Footnote 2/51 ] Sometimes Page 366 U. S. 488 reproach of God is made an operative element of the offense. [ Footnote 2/52 ] Prohibitions of Sunday labor are frequently coupled with admonitions that all persons shall "carefully apply themselves to Duties of Religion and Piety, publickly and privately . . . ," [ Footnote 2/53 ] and are found in comprehensive ecclesiastical codes which also prohibit blasphemy, [ Footnote 2/54 ] lay taxes for the support of the church, [ Footnote 2/55 ] or compel attendance at divine services. [ Footnote 2/56 ] Page 366 U. S. 489 But even the seventeenth century legislation does not show an exclusively religious preoccupation. The same Pennsylvania law which speaks of the suppression of atheism also ordains Sunday rest "for the ease of the Creation," and shows solicitude that servants, as well as their masters, may be free on that day to attend such spiritual pursuits as they may wish. [ Footnote 2/57 ] The Rhode Island Assembly in 1679 enacted: "Voted, Whereas there hath complaint been made that sundry persons being eville minded, have presumed Page 366 U. S. 490 to employ in servile labor, more than necessity requireth, their servants, and alsoe hire other mens' servants and sell them to labor on the first day of the week: . . . bee it enacted . . . That if any person or persons shall employ his servants or hire and employ any other man's servant or servants, and set them to labor as aforesaid [he shall be penalized]. [ Footnote 2/58 ] " Page 366 U. S. 491 In the latter half of the eighteenth century, the Sunday laws, while still giving evidence of concern for the "immorality" of the practices they prohibit, tend no longer to be prefixed by preambles in the form of theological treatises. [ Footnote 2/59 ] Now it appears to be the community, rather than the Deity, which is offended by Sunday labor. New York's statute of 1788 no longer refers to the Lord's day, but to "the first day of the week commonly called Sunday." [ Footnote 2/60 ] Where preambles do appear, they display a duplicity of purpose. The Massachusetts Act of 1792 begins: "Whereas the observance of the Lord's Day is highly promotive of the welfare of a community, by affording necessary seasons for relaxation from labour and the cares of business; for moral reflections and conversation on the duties of life . . . ; for public and private worship of the Maker, Governor and Judge of the world, and for those acts of charity which support and adorn a Christian society: And whereas some thoughtless and irreligious persons, inattentive to the duties and benefits of the Lord's Day, profane the same, by unnecessarily pursuing their worldly business and recreations on that day, to their own great damage, as members of a Christian Page 366 U. S. 492 society; to the great disturbance of well disposed persons, and to the great damage of the community, by producing dissipation of manners and immoralities of life. . . ." An enactment of Vermont in 1797 is similar. [ Footnote 2/61 ] More significant is the history of Sunday legislation in Virginia. Even before the English statute of 29 Charles II, that Colony had had laws compelling Sunday attendance at worship [ Footnote 2/62 ] and forbidding Sunday labor. [ Footnote 2/63 ] In 1776, the General Convention at Williamsburg adopted a Declaration of Rights, providing, inter alia, that " . . . all men are equally entitled to the free exercise of religion, according to the dictates of conscience . . . ," [ Footnote 2/64 ] and, in the same year, the acts of Parliament compelling church attendance and punishing deviation in belief were declared void, dissenters were exempted from the tax for support of the established church, and the levy of that tax was suspended. [ Footnote 2/65 ] Eight years later came the battle over the Assessment Bill. Under Madison's leadership the forces supporting entire freedom of religion wrote the definitive quietus to the Virginia establishment, and Jefferson's Bill for Establishing Religious Freedom was enacted in 1786: "I. Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal Page 366 U. S. 493 punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to . . . propagate it by coercions on either, as was in his Almighty power to do; that the impious presumption of legislators and rulers, civil as well as ecclesiastical, who being themselves but fallible and uninspired men, have assumed dominion over the faith of others, setting up their own opinions and modes of thinking as the only true and infallible, and as such endeavouring to impose them on others, hath established and maintained false religions over the greatest part of the world, and through all time; . . . that to suffer the civil magistrate to intrude his powers into the field of opinion, and to restrain the profession or propagation of principles on supposition of their ill tendency, is a dangerous fallacy, . . . that it is time enough for the rightful purposes of civil government, for its officers to interfere when principles break out into overt acts against peace and good order, and finally, that truth is great and will prevail if left to herself. . . ." "II. Be it enacted . . . That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. [ Footnote 2/66 ]" In this bill breathed the full amplitude of the spirit which inspired the First Amendment, and this Court has looked Page 366 U. S. 494 to the bill, and to the Virginia history which surrounded its enactment, as a gloss on the signification of the Amendment. See the opinions in Everson v. Board of Education, 330 U. S. 1 . The bill was drafted for the Virginia Legislature as No. 82 of the Revised Statutes returned to the Assembly by Jefferson and Wythe on June 18, 1779. [ Footnote 2/67 ] Bill No. 84 of the Revision provided: "If any person on Sunday shall himself be found labouring at his own or any other trade or calling, or shall employ his apprentices, servants or slaves in labour, or other business, except it be in the ordinary household offices of daily necessity, or other work of necessity or charity, he shall forfeit the sum of ten shillings. . . . [ Footnote 2/68 ]" This bill was presented to the Assembly by Madison in 1785, [ Footnote 2/69 ] and was enacted in 1786. [ Footnote 2/70 ] Apparently neither Thomas Jefferson nor James Madison regarded it as Page 366 U. S. 495 repugnant to religious freedom. Nor did the Virginia legislators who thirteen years later reaffirmed the Bill for Establishing Religious Freedom as "a true exposition of the principles of the bill of rights and constitution," by repealing all laws which they deemed inconsistent with it. [ Footnote 2/71 ] The Sunday law of 1786 was not among those repealed. IV Legislation currently in force in forty-nine of the fifty States illegalizes on Sunday some form of conduct lawful if performed on weekdays. [ Footnote 2/72 ] In several States only one or a few activities are banned -- the sale of alcoholic beverages, [ Footnote 2/73 ] hunting, [ Footnote 2/74 ] barbering, [ Footnote 2/75 ] pawnbroking, [ Footnote 2/76 ] trading Page 366 U. S. 496 in automobiles [ Footnote 2/77 ] -- but thirty-four jurisdictions broadly ban Sunday labor, or the employment of labor, or selling or keeping open for sale, or some two or more of these comprehensive categories of affairs. In many of these States, and in others having no statewide prohibition of industrial or commercial activity, municipal Sunday ordinances are ubiquitous. [ Footnote 2/78 ] Most of these regulations are the product of many reenactments and amendments. Although some are still built upon the armatures Page 366 U. S. 497 of earlier statutes, they are all, like the laws of Maryland, Massachusetts and Pennsylvania which are before us in these cases, [ Footnote 2/79 ] recently reconsidered legislation. As expressions of state policy, they must be deemed as contemporary as their latest-enacted exceptions in favor of moving pictures [ Footnote 2/80 ] or severer bans of Sunday motor vehicle trading. [ Footnote 2/81 ] In all, they reflect a widely felt present-day need, for whose satisfaction old laws are shaped and new laws enacted. To be sure, the Massachusetts statute now before the Court, and statutes in Pennsylvania and Maryland, still call Sunday the "Lord's day" or the "Sabbath." So do the Sunday laws in many other States. [ Footnote 2/82 ] But the continuation Page 366 U. S. 498 of seventeenth century language does not, of itself, prove the continuation of the purposes for which the colonial governments enacted these laws, or that these are the purposes for which their successors of the twentieth have retained them and modified them. We know, Page 366 U. S. 499 for example, that Committees of the New York Legislature, considering that State's Sabbath Laws on two occasions more than a century apart, twice recommended no repeal of those laws, both times on the ground that the laws did not involve "any partisan religious issue, but Page 366 U. S. 500 rather economic and health regulation of the activities of the people on a universal day of rest, [ Footnote 2/83 ]" and that a Massachusetts legislative committee rested on the same views. [ Footnote 2/84 ] Sunday legislation has been supported not only Page 366 U. S. 501 by such clerical organizations as the Lord's Day Alliance, but also by labor and trade groups. [ Footnote 2/85 ] The interlocking sections of the Massachusetts Labor Code construct their six-day-week provisions upon the basic premise of "Sunday Page 366 U. S. 502 rest." [ Footnote 2/86 ] Other States have similar laws. [ Footnote 2/87 ] When, in Pennsylvania, motion pictures were excepted from the Lord's day statute, a "day of rest in seven clause" for motion picture personnel was written into the exempting statute to Page 366 U. S. 503 fill the gap. [ Footnote 2/88 ] Puerto Rico's closing law, which limits the weekday hours of commercial establishments as well as proscribing their Sunday operation, does not express a religious purpose. [ Footnote 2/89 ] Rhode Island and South Carolina now enforce portions of their Sunday employment bans through their respective Departments of Labor. [ Footnote 2/90 ] It cannot be fairly denied that the institution of Sunday as a time whose occupations and atmosphere differ from those of other days of the week has now been a portion of the American cultural scene since well before the Constitution; that, for many millions of people, life has a hebdomadal rhythm in which this day, with all its particular associations, is the recurrent note of repose. [ Footnote 2/91 ] Cultural history establishes not a few practices and prohibitions religious in origin which are retained as secular Page 366 U. S. 504 institutions and ways long after their religious sanctions and justifications are gone. [ Footnote 2/92 ] In light of these considerations, can it reasonably be said that no substantial nonecclesiastical Page 366 U. S. 505 purpose relevant to a well ordered social life exists for Sunday restrictions? It is urged, however, that, if a day of rest were the legislative purpose, statutes to secure it would take some other form than the prohibition of activity on Sunday. [ Footnote 2/93 ] Such statutes, it is argued, would provide for one day's labor Page 366 U. S. 506 stoppage in seven, leaving the choice of the day to the individual; or, alternatively, would fix a common day of rest on some other day -- Monday or Tuesday. But, in all fairness, certainly, it would be impossible to call unreasonable a legislative finding that these suggested alternatives were unsatisfactory. A provision for one day's closing per week, at the option of every particular enterpriser, might be disruptive of families whose members are employed by different enterprises. [ Footnote 2/94 ] Enforcement might be more difficult, both because violation would be less easily discovered and because such a law would not be seconded, as is Sunday legislation, by the community's moral temper. More important, "one day a week" laws do not accomplish all that is accomplished by Sunday laws They provide only a periodic physical rest, not that atmosphere of entire community repose which Sunday has traditionally brought and which, a legislature might reasonably believe, is necessary to the welfare of those who, for Page 366 U. S. 507 many generations have been accustomed to its recuperative effects. The same considerations might also be deemed to justify the choice of Sunday as the single common day when labor ceases. For, to many who do not regard it sacramentally, Sunday is nevertheless a day of special, long established associations, whose particular temper makes it a haven that no other day could provide. The will of a majority of the community, reflected in the legislative process during scores of years, presumably prefers to take its leisure on Sunday. [ Footnote 2/95 ] The spirit of any people expresses in goodly measure the heritage which links it to its past. Disruption of this heritage by a regulation which, like the unnatural labors of Claudius' shipwrights, does not divide the Sunday from the week, might prove a measure ill-designed to secure the desirable community repose for which Sunday legislation is designed. At all events, Maryland, Massachusetts and Pennsylvania, like thirty-one other States with similar regulations, could reasonably so find. Certainly, from failure to make a substitution for Sunday in securing a socially desirable day of surcease from subjection to labor and routine a purpose cannot be derived to establish or promote religion. The question before the Court in these cases is not a new one. During a hundred and fifty years, Sunday laws have been attacked in state and federal courts as disregarding constitutionally demanded Church-State separation, or infringing protected religious freedoms, or on the ground that they subserved no end within the legitimate compass of legislative power. One California court in 1858 held California's Sunday statute unconstitutional. [ Footnote 2/96 ] Page 366 U. S. 508 That decision was overruled three years later. [ Footnote 2/97 ] Every other appellate court that has considered the question has found the statutes supportable as civil regulations [ Footnote 2/98 ] and Page 366 U. S. 509 not repugnant to religious freedom. [ Footnote 2/99 ] These decisions are assailed as latter-day justifications upon specious civil grounds of legislation whose religious purposes were either overlooked or concealed by the judges who passed upon it. Page 366 U. S. 510 Of course, it is for this Court ultimately to determine whether federal constitutional guarantees are observed or undercut. But this does not mean that we are to be indifferent to the unanimous opinion of generations Page 366 U. S. 511 of judges who, in the conscientious discharge of obligations as solemn as our own, have sustained the Sunday laws as not inspired by religious purpose. The Court did not ignore that opinion in Friedman v. New York, 341 U.S. 907; McGee v. North Carolina, 346 U.S. 802; Kidd v. Ohio, 358 U. S. 132 , and Ullner v. Ohio, 358 U. S. 131 , dismissing for want of a substantial federal question appeals from state decisions sustaining Sunday laws which were obnoxious to the same objections urged in the present cases. [ Footnote 2/100 ] I cannot ignore that consensus of view now. The statutes of Maryland, Massachusetts and Pennsylvania which we here examine are not constitutionally forbidden fusions of church and state. [ Footnote 2/101 ] Page 366 U. S. 512 V Appellees in the Gallagher case and appellants in the Braunfeld case contend that, as applied to them, Orthodox Jewish retailers and their Orthodox Jewish customers, the Massachusetts Lord's day statute and the Pennsylvania Sunday retail sales act violate the Due Process Clause of the Fourteenth Amendment because, in effect, the statutes deter the exercise and observance of their religion. The argument runs that, by compelling the Sunday closing of retail stores and thus making unavailable for business and shopping uses one-seventh part of the week, these statutes force them either to give up the Sabbath observance -- an essential part of their faith -- or to forego advantages enjoyed by the non-Sabbatarian majority of the community. They point out, moreover, that, because of the prevailing five-day working week of a large proportion of the population, Sunday is a day peculiarly profitable to retail sellers and peculiarly convenient to retail shoppers. The records in these cases support them in this. The claim which these litigants urge assumes a number of aspects. First, they argue that any "one common day Page 366 U. S. 513 of closing" regulation which selected a day other than their Sabbath would be ipso facto unconstitutional in its application to them because of its effect in preferring persons who observe no Sabbath, therefore creating economic pressures which urge Sabbatarians to give up their usage. The creation of this pressure by the Sunday statutes, it is said, is not so necessary a means to the achievement of the ends of day of rest legislation as to justify its employment when weighed against the injury to Sabbatarian religion which it entails. Six-day week regulation, with the closing day left to individual choice, is urged as a more reasonable alternative. Second, they argue that, even if legitimate state interests justify the enforcement against persons generally of a single common day of rest, the choice of Sunday as that day violates the rights of religious freedom of the Sabbatarian minority. By choosing a day upon which Sunday-observing Christians worship and abstain from labor, the statutes are said to discriminate between religions. The Sunday observer may practice his faith and yet work six days a week, while the observer of the Jewish Sabbath, his competitor, may work only during five days, to the latter's obvious disadvantage. Orthodox Jewish shoppers whose jobs occupy a five-day week have no week-end shopping day, while Sunday-observing Christians do. Leisure to attend Sunday services, and relative quiet throughout their duration, is assured by law, but no equivalent treatment is accorded to Friday evening and Saturday services. Sabbatarians feel that the power of the State is employed to coerce their observance of Sunday as a holy day; that the State accords a recognition to Sunday Christian doctrine which is withheld from Sabbatarian creeds. All of these prejudices could be avoided, it is argued, without impairing the effectiveness of common day of rest regulation, either by fixing as the rest time some day which is held sacred by no sect, or by providing Page 366 U. S. 514 for a Sunday work ban from which Sabbatarians are excepted, on condition of their abstaining from labor on Saturday. Failure to adopt these alternatives in lieu of Sunday statutes applicable to Sabbatarians is said to constitute an unconstitutional choice of means. Finally, it is urged that if, as means, these statutes are necessary to the goals which they seek to attain, nevertheless the goals themselves are not of sufficient value to society to justify the disadvantage which their attainment imposes upon the religious exercise of Sabbatarians. The first of these contentions has already been discussed. The history of Sunday legislation convincingly demonstrates that Sunday statutes may serve other purposes than the provision merely of one day of physical stoppage in seven. These purposes fully justify common day of rest statutes which choose Sunday as the day. In urging that an exception in favor of those who observe some other day as sacred would not defeat the ends of Sunday legislation, and therefore that failure to provide such an exception is an unnecessary -- hence an unconstitutional -- burden on Sabbatarians, the Gallagher appellees and Braunfeld appellants point to such exceptions in twenty-one of the thirty-four jurisdictions which have statutes banning labor or employment or the selling of goods on Sunday. [ Footnote 2/102 ] Actually, in less than half of these twenty-one States does the exemption extend to Page 366 U. S. 515 sales activity as well as to labor. [ Footnote 2/103 ] There are tenable reasons why a legislature might choose not to make such an exception. To whatever extent persons who come within the exception are present in a community, their activity would disturb the atmosphere of general repose, and reintroduce into Sunday the business tempos of the week. Administration would be more difficult, with violations less evident and, in effect, two or more days to police Page 366 U. S. 516 instead of one. If it is assumed that the retail demand for consumer items is approximately equivalent on Saturday and on Sunday, the Sabbatarian, in proportion as he is less numerous, and hence the competition less severe, might incur through the exception a competitive advantage over the non-Sabbatarian, who would then be in a position, presumably, to complain of discrimination against his religion. [ Footnote 2/104 ] Employers who wished to avail themselves of the exception would have to employ only their co-religionists, [ Footnote 2/105 ] and there might be introduced into private employment practices an element of religious differentiation which a legislature could regard as undesirable. [ Footnote 2/106 ] Finally, a relevant consideration which might cause a State's lawmakers to reject exception for observers of another day than Sunday is that administration of such a provision may require judicial inquiry into religious belief. A legislature could conclude that, if all that is made requisite to qualify for the exemption is an abstinence from labor on some other day, there would be nothing to prevent an enterpriser from closing on his slowest business day, to take advantage of the whole of Page 366 U. S. 517 the profitable weekend trade, thereby converting the Sunday labor ban, in effect, into a "day of rest in seven" statute, with choice of the day left to the individual. All of the state exempting statutes seem to reflect this consideration. Ten of them require that a person claiming exception "conscientiously" believe in the sanctity of another day or "conscientiously" observe another day as the Sabbath. [ Footnote 2/107 ] Five demand that he keep another day as "holy time." [ Footnote 2/108 ] Three allow the exemption only to members of a "religious" society observing another day, [ Footnote 2/109 ] and a fourth provides for proof of membership in such a society by the certificate of a preacher or of any three adherents. [ Footnote 2/110 ] In Illinois the claimant must observe some day as a "Sabbath," and in New Jersey he must prove that he devotes that day to religious exercises. [ Footnote 2/111 ] Connecticut, one of the jurisdictions demanding conscientious belief, requires in addition that he who seeks the benefit of the exception file a notice of such belief with the prosecuting attorney. [ Footnote 2/112 ] Page 366 U. S. 518 Indicative of the practical administrative difficulties which may arise in attempts to effect, consistently with the purposes of Sunday closing legislation, an exception for persons conscientiously observing another day as Sabbath are the provisions of § 53 of the British Shops Act, 1950, [ Footnote 2/113 ] continuing in substance § 7 of the Shops (Sunday Trading Restriction) Act, 1936. [ Footnote 2/114 ] These were the product of experience with earlier forms of exemptions which had proved unsatisfactory, [ Footnote 2/115 ] and the new 1936 provisions were enacted only after the consideration and rejection of a number of proposed alternatives. [ Footnote 2/116 ] They allow shops Page 366 U. S. 519 which are registered under the section and which remain closed on Saturday to open for trade until 2 p.m. on Sunday. Applications for registration must contain a declaration that the shop occupier "conscientiously objects on religious grounds to carrying on trade or business on the Jewish Sabbath," [ Footnote 2/117 ] and any person who, to procure registration, "knowingly or recklessly makes an untrue statement or untrue representation," is subject to fine and imprisonment. Whenever upon representations made to them the local authorities find reason to believe that a registered occupier is not a person of the Jewish religion or "that a conscientious objection on religious grounds . . . is not genuinely held," the authorities may furnish particulars of the case to a tribunal established after consultation with the London Committee of Deputies of the British Jews, [ Footnote 2/118 ] which tribunal, if in their opinion the occupier is not a person of the Jewish religion or does not genuinely hold a conscientious objection to trade on the Jewish Sabbath, shall so report to the local authorities, and upon this report the occupier's registration is to be revoked. [ Footnote 2/119 ] Surely, in light of the delicate Page 366 U. S. 520 enforcement problems to which these provisions bear witness, the legislative choice of a blanket Sunday ban applicable to observers of all faiths cannot be held unreasonable. A legislature might in reason find that the alternative of exempting Sabbatarians would impede the effective operation of the Sunday statutes, produce harmful collateral effects, and entail, itself, a not inconsiderable intrusion into matters of religious faith. However preferable, personally, one might deem such an exception, I cannot find that the Constitution compels it. It cannot, therefore, be said that Massachusetts and Pennsylvania have imposed gratuitous restrictions upon the Sunday activities of persons observing the Orthodox Jewish Sabbath in achieving the legitimate secular ends at which their Sunday statutes may aim. The remaining question is whether the importance to the public of those ends is sufficient to outweigh the restraint upon the religious exercise of Orthodox Jewish practicants which the restriction entails. See Prince v. Massachusetts, 321 U. S. 158 ; Cox v. New Hampshire, 312 U. S. 569 . The nature of the legislative purpose is the preservation of a traditional institution which assures to the community a time during which the mind and body are released from the demands and distractions of an increasingly mechanized and competition-driven society. The right to this Page 366 U. S. 521 release has been claimed by workers and by small enterprisers, especially by retail merchandisers, over centuries, and finds contemporary expression in legislation in three-quarters of the States. The nature of the injury which must be balanced against it is the economic disadvantage to the enterpriser, and the inconvenience to the consumer, which Sunday regulations impose upon those who choose to adhere to the Sabbatarian tenets of their faith. These statutes do not make criminal, do not place under the onus of civil or criminal disability, any act which is itself prescribed by the duties of the Jewish or other religions. They do create an undeniable financial burden upon the observers of one of the fundamental tenets of certain religious creeds, a burden which does not fall equally upon other forms of observance. This was true of the tax which this Court held an unconstitutional infringement of the free exercise of religion in Follett v. Town of McCormick, 321 U. S. 573 . But unlike the tax in Follett, the burden which the Sunday statutes impose is an incident of the only feasible means to achievement of their particular goal. And again unlike Follett, the measure of the burden is not determined by fixed legislative decree, beyond the power of the individual to alter. Upon persons who earn their livelihood by activities not prohibited on Sunday, and upon those whose jobs require only a five-day week, the burden is not considerable. Like the customers of Crown Kosher Super Market in the Gallagher case, they are inconvenienced in their shopping. This is hardly to be assessed as an injury of preponderant constitutional weight. The burden on retail sellers competing with Sunday-observing and nonobserving retailers is considerably greater. But, without minimizing the fact of this disadvantage, the legislature may have concluded that its severity might be offset by the industry and commercial initiative of the individual merchant. More is demanded of him, admittedly, whether, in the Page 366 U. S. 522 form of additional labor or of material sacrifices, than is demanded of those who do not choose to keep his Sabbath. More would be demanded of him, of course, in a State in which there were no Sunday laws and in which his competitors chose -- like "Two Guys from Harrison-Allentown" -- to do business seven days a week. In view of the importance of the community interests which must be weighed in the balance, is the disadvantage wrought by the non-exempting Sunday statutes an impermissible imposition upon the Sabbatarian's religious freedom? Every court which has considered the question during a century and a half has concluded that it is not. [ Footnote 2/120 ] This Court so concluded in Friedman v. New York, 341 U.S. 907. On the basis of the criteria for determining constitutionality, as opposed to what one might desire as a matter of legislative policy, a contrary conclusion cannot be reached. VI Two further grounds of unconstitutionality are urged in all these cases, based upon the selection in the challenged statutes of the activities included in, or excluded Page 366 U. S. 523 from, the Sunday ban. First it is argued that, if the aim of the statutes is to secure a day of peace and repose, the laws of Massachusetts and Maryland, by their exceptions, and the retail sales act of Pennsylvania, by its enumeration of the articles whose sale is forbidden, operate so imperfectly in the service of this aim show so little rational relation to it -- that they must be accounted as arbitrary and therefore violative of due process. The extensive range of recreational and commercial Sunday activity permitted in these States is said to deprive the statutes of any reasonable basis. The distinctions drawn by the laws between what may be sold or done and what may not, it is claimed, are unsupported by reason. Second, these claimants argue that the same discriminations between items which may and may not be sold, and in some cases between the persons who may and those who may not sell identical items, deprive them of the equal protection of the laws. Although these contentions require the Court to examine separately and with particularity the provisions of each of the three States' statutes which are attacked, the general considerations which govern these cases are the same. It is clear that, in fashioning legislative remedies by fine distinctions to fit specific needs, "The range of the State's discretion is large." Bain Peanut Co. v. Pinson, 282 U. S. 499 , 282 U. S. 501 . This is especially so where, by the nature of its subject, regulation must take account of traditional and prevailing local customs. See Kotch v. Board of River Port Pilot Comm'rs, 330 U. S. 552 . "The Constitution does not require things which are different, in fact, or opinion to be treated in law as though they were the same." Tigner v. Texas, 310 U. S. 141 , 310 U. S. 147 . "Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. . . . Or the reform may take one step at a time, addressing itself to the phase of the Page 366 U. S. 524 problem which seems most acute to the legislative mind. . . . The legislature may select one phase of one field and apply a remedy there, neglecting the others." Williamson v. Lee Optical, Inc., 348 U. S. 483 , 348 U. S. 489 . Neither the Due Process nor the Equal Protection Clause demands logical tidiness. Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61 . No finicky or exact conformity to abstract correlation is required of legislation. The Constitution is satisfied if a legislature responds to the practical living facts with which it deals. Through what precise points in a field of many competing pressures a legislature might most suitably have drawn its lines is not a question for judicial reexamination. It is enough to satisfy the Constitution that, in drawing them the principle of reason has not been disregarded. See Goesaert v. Cleary, 335 U. S. 464 . And what degree of uniformity reason demands of a statute is, of course, a function of the complexity of the needs which the statute seeks to accommodate. In the case of Sunday legislation, an extreme complexity of needs is evident. This is so, first, because one of the prime objectives of the legislation is the preservation of an atmosphere -- a subtle desideratum, itself the product of a peculiar and changing set of local circumstances and local traditions. But in addition, in the achievement of that end, however formulated, numerous compromises must be made. Not all activity can halt on Sunday. Some of the very operations whose doings most contribute to the rush and clamor of the week must go on throughout that day as well, whether because life depends upon them, or because the cost of stopping and restarting them is simply too great, or because to be without their services would be more disruptive of peace than to have them continue. Many activities have a double aspect: providing entertainment or recreation for some persons, they Page 366 U. S. 525 entail labor and workday tedium for others. [ Footnote 2/121 ] Cogent expression of the intricate problems which these various countervalent pressures pose was given by Mr. Lloyd in the course of the debate in Commons on the English Sunday closing act of 1936: ". . . We should all like to see shopkeepers and their staffs as far as possible in a position to observe Sunday in a normal way, like most other people. On the other hand, we know that there are certain reasonable needs of the public which require to be met even on a Sunday, and I think we should also all agree that the fewest possible number of people should have to give up their Sunday in order to cater for those public needs. I think we should probably reach a large measure of general agreement on the principle that only those shops should remain open which are essential to meet the requirements of the public, and only to the extent that they are essential. . . . Therefore, the problem is to strike a just balance between the reasonable needs of the Page 366 U. S. 526 public and the equally reasonable desire of the great bulk of those engaged in the distributive trades to enjoy their share of Sunday rest and recreation." "If that is accepted, it follows at once that the crux of any Bill of this kind lies in the scope and the nature of the exemptions to the general principle of closing on Sunday. . . . [ Footnote 2/122 ]" Moreover, the variation from activity to activity in the degree of disturbance which Sunday operation entails, and the similar variation in degrees of temptation to flout the law, and in degrees of ability to absorb and ignore various legal penalties, make exceedingly difficult the devising of effective, yet comprehensively fair, schemes of sanctions. Early in the history of the Sunday laws, there developed mechanisms which served to adapt their wide general prohibitions both to practical exigencies and to the evolving concerns and desires of the public. Where it was found that persons in certain activities tended with particular frequency to engage in violations, those activities were singled out for harsher punishment. [ Footnote 2/123 ] On the other hand, practices found necessary or convenient to popular habits were specifically excepted from the ban. [ Footnote 2/124 ] Under the basic English Sunday statute, 29 Charles II, c. 7, a wide general exception obtained for "Works of Necessity Page 366 U. S. 527 and Charity"; [ Footnote 2/125 ] this provision found its way into the American colonial laws, [ Footnote 2/126 ] and has descended into all of their successors currently in force. [ Footnote 2/127 ] The effect of the phrase has been to give the courts a wide range of discretion in determining exceptions. But reasonable men can and do differ as to what is "necessity." [ Footnote 2/128 ] In every jurisdiction Page 366 U. S. 528 legislatures, presumably deeming themselves fitter tribunals for decisions of this sort than were courts, acted to resolve the question against, or in favor of, various particular activities. Some pursuits were expressly declared not works of necessity, or were specially banned. [ Footnote 2/129 ] Page 366 U. S. 529 Others were expressly permitted: series of exceptions, giving the laws resiliency in the course of cultural change, proliferated. [ Footnote 2/130 ] Today, as Appendix II to this opinion, post, p. 366 U. S. 551 , shows, the general pattern in over half of the States and in England [ Footnote 2/131 ] is similar. Broad general prohibitions Page 366 U. S. 530 are qualified by numerous precise exemptions, often with provision for local variation within a State, and are frequently bolstered by special provisions more heavily penalizing named activities. The regulations of Maryland, Massachusetts and Pennsylvania are not atypical in this regard, although they are undoubtedly among the more complex of the statutory patterns. The degree of explicitness of these provisions in so many jurisdictions demonstrates the intricacy of the adjustments which they are designed to make. How delicate those adjustments can be is strikingly illustrated, once again, by a remark of the sponsor of the British closing bill of 1936, the most extensively documented modern Sunday statute. Supporting an amendment which permitted local authority to authorize the opening, during Page 366 U. S. 531 a portion of the year, of shops in areas frequented as seaside resorts, Mr. Loftus said: ". . . In a Bill such as this one must have elasticity. . . . We had a unanimous demand from the Association of Fish Fryers, representing the trade all over England, asking that fish-frying shops should be closed on Sundays, and we agreed and took them out of the First Schedule [which exempts shops selling meals or refreshments]. But then we heard from Blackpool, which is visited every year by, I suppose, millions of poor people, cotton operatives and others, who like to get cheap meals of fried fish on Sunday afternoons and Sunday evenings, and we feel there must be some provision in the Bill to allow the grant of exemptions in such a case. The difficulty is to avoid putting in a Clause which is open to abuse and I submit that there are two provisions which provide a safeguard. The first is that the local authority must approve the granting of exemptions, and the second is that the local authority cannot approve unless two-thirds of those particular shops in its locality are in favour of exemption. Having no desire that hardships should be inflicted on poor class people I would ask the House to accept the Clause. [ Footnote 2/132 ]" Certainly, when relevant considerations of policy demand decisions and distinctions so fine, courts must accord to the legislature a wide range of power to classify and to delineate. It is true that, unlike their virtually unanimous attitude on the issue of religious freedom, state courts have not always sustained Sunday legislation against the charge of unconstitutional discrimination. Statutes and ordinances have been struck down as arbitrary [ Footnote 2/133 ] or as violative of state constitutional prohibitions Page 366 U. S. 532 of special legislation. [ Footnote 2/134 ] A far greater number of courts, in similar classes of cases, have sustained the legislation. [ Footnote 2/135 ] But the very diversity of judicial opinion a to what is reasonable Page 366 U. S. 533 classification -- like the conflicting views on what is such "necessity" as will justify Sunday operations -- testifies that the question of inclusion with regard to Sunday bans is one where judgments rationally differ, and hence Page 366 U. S. 534 where a State's determinations must be given every fair presumption of a reasonable support in fact. The restricted scope of this Court's review of state regulatory legislation under the Equal Protection Clause is of longstanding. Page 366 U. S. 535 Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61 , 220 U. S. 78 -79. The applicable principles are that a state statute may not be struck down as offensive of equal protection in its schemes of classification unless it is obviously arbitrary, and that, except in the case of a statute whose discriminations are so patently without reason that no conceivable situation of fact could be found to justify them, the claimant who challenges the statute bears the burden of affirmative demonstration that, in the actual state of facts which surround its operation, its classifications lack rationality. When these standards are applied, first, to the Maryland statute challenged in the McGowan case, appellants' claims under the Due Process and Equal Protection Clauses show themselves clearly untenable. Counsel contend that the Sunday sales prohibition, Md.Code Ann., 1957, Art. 27, § 521, is rendered arbitrary by its exception of retail sales of tobacco items and soft drinks, Page 366 U. S. 536 ice and ice cream, confectionery, milk, bread, fruit, gasoline products, newspapers and periodicals, and of drugs and medical supplies by apothecaries -- by the further exemption in Anne Arundel County, under § 509, of certain recreational activities and sales incidental to them -- and by the permissibility under other state and local regulations of various amusements and public entertainments on Sunday, Sunday beer and liquor sales, and Sunday pinball machines and bingo. The short answer is that these kinds of commodity exceptions, and most of these exceptions for amusements and entertainments, can be found in the comprehensive Sunday statutes of England, Puerto Rico, a dozen American States, and many other countries having uniform day of rest legislation. [ Footnote 2/136 ] Surely unreason cannot be so widespread. The notion that, with these matters excepted, the Maryland statute lacks all rational foundation is baseless. The exceptions relate to products and services which a legislature could reasonably find necessary to the physical and mental health of the people or to their recreation and relaxation on a day of repose. Other sales activity and, under Art. 27, § 492, all other labor, are forbidden. That more or fewer activities than fall within the exceptions could with equal rationality have been excluded from the general ban does not make irrational the selection which has actually been made. There is presented in this record not a trace of evidence as to the habits and customs of the population of Maryland or of Anne Arundel County, nothing that suggests that the pattern of legislation which their representatives have devised is not reasonably related to local circumstances determining their ways of Page 366 U. S. 537 life. Appellants have wholly failed to meet their burden of proof. Counsel for McGowan urge that the allowance, limited to Anne Arundel County, of retail sales of merchandise customarily sold at bathing beaches, bathhouses, amusement parks and dancing saloons, violates the equal protection of the laws both by discriminating between Anne Arundel retailers and those in other counties and by discriminating among classes of persons within Anne Arundel County who compete in sales of the same articles. [ Footnote 2/137 ] Clearly appellants, who were convicted for selling within the county, would not ordinarily have standing to raise the issue of possible discrimination against out-of-county merchants; in any event, on this record, it is dubious that the contention was adequately raised below. Suffice to say, for purposes of the due process issue which appellants did raise, that the provision of different Sunday regulations for different regions of a State is not ipso facto arbitrary. See Salsburg v. Maryland, 346 U. S. 545 ; Missouri v. Lewis, 101 U. S. 22 , 101 U. S. 31 . [ Footnote 2/138 ] As for the asserted discrimination in favor of those who sell at the beach or the park articles not permitted to Page 366 U. S. 538 be sold elsewhere, the answer must be that between such beach-side enterprisers and the general suburban merchandising store at which appellants are employed there is a reasonable line of demarcation. The reason of the exemption dictates the human logic of its scope. The legislature has found it desirable that persons seeking certain forms of recreation on Sunday have the convenience of purchasing on that day items which add enjoyment to the recreation and which, perhaps, could not or would not be provided for by a vacationer prior to the day of his Sunday outing. On the other hand, the policy of securing to the maximum possible number of distributive employees their Sunday off might reasonably preclude allowing every retail establishment in the county to open to serve this convenience. A tenable resolution, surely, is to permit these particular sales only on the premises where the items will be needed and used. The enforcement problem which could arise from permitting general merchandising outlets to open for the sale of these items alone, but not for the sale of thousands of other items at adjacent counters and shelves, might, in itself, justify the limitation of the exception to the group of on-the-premises merchants who are less likely to stock articles extraneous to the use of the enumerated amusement facilities. The Massachusetts statute attacked in the Gallagher case contains a wider range of exceptions but, again, none that this record shows to be patently baseless and therefore constitutionally impermissible. The court below believed that reason was offended by such provisions as those which allow, apparently, digging for clams but not dredging for oysters, or which permit certain professional sports during the hours from 1:30 to 6:30 p.m. while restricting their amateur counterparts to 2 to 6, or which make lawful (as the court below read the statute) Sunday pushcart vending by conscientious Sabbatarians, but not Page 366 U. S. 539 Sunday vending within a building. But the record below, on the basis of which a federal court has been asked to enjoin the enforcement of a state statute, contains no evidence concerning clam-digging or oyster-dredging, nothing to indicate that these two activities have anything more in common -- requiring similar treatment -- than that, in each, there is involved the pursuit of mollusca. There is nothing in the record concerning professional or amateur athletic events, and certainly nothing to support the conclusion that the problem of Sunday regulation of pushcarts is so similar to the problem of Sunday regulation of indoor markets as to require uniform treatment for both. [ Footnote 2/139 ] These various differently treated situations may be different in fact or they may not. A statute is not to be struck down on supposition. It is true, as appellees there claim, that Crown Kosher Super Market may not sell on Sunday products which other retail establishments may sell on that day: bread (which may be sold during certain hours by innkeepers, common victuallers, confectioners and fruiterers, and, along with other bakery products, by bakers), confectionery, frozen desserts and dessert mix, and soda water (which may be sold by innkeepers, common victuallers, confectioners and fruiterers, and druggists), tobacco (which may be sold by innkeepers, common victuallers, druggists, and regular newsdealers), etc. (The sale of drugs and newspapers on Sunday is permitted generally.) But although Crown Kosher undoubtedly suffers an element of competitive disadvantage from these provisions, the provisions themselves are not irrational. Their purpose, apparently, is to permit dealers specializing in certain products whose distribution on Sunday is regarded as necessary, to sell those products and also such other among the same group Page 366 U. S. 540 of necessaries as are generally found sold together with the products in which they specialize, thus fostering the maximum dissemination of the permitted products with the minimum number of retail employees required to work to disseminate them. Shops such as newsdealers, druggists, and confectioners may in Massachusetts tend, for all we know, to be smaller, less noisy, more widely distributed, so that access to them from residential areas entails less traveling, than is the case with other stores. They may tend to hire fewer employees. They may present, because they specialize in products whose sale is permitted, less of a policing problem than would general markets selling these and many other products. [ Footnote 2/140 ] Again, there is nothing in the record to support the conclusion that Massachusetts has failed to afford to the Crown Kosher Super Market treatment which is equivalent to that enjoyed by all other retailers of a class not rationally distinguishable from Crown. "The prohibition of the Equal Protection Clause goes no further than the invidious discrimination. We cannot say that that point has been reached here." Williamson v. Lee Optical, Inc., 348 U. S. 483 , 348 U. S. 489 . Nor, on the record of the McGinley case, can any other conclusion be reached as to the 1959 Pennsylvania Sunday retail sales act. Appellants in this case argue that to punish by a fine of up to one hundred dollars per sale -- or two hundred dollars per sale within one year after the first offense -- the retail selling of some twenty enumerated broad categories of commodities while punishing all other sales and laboring activity by the four dollars per Sunday Page 366 U. S. 541 fine fixed by the earlier Lord's day statute [ Footnote 2/141 ] is arbitrary and violative of equal protection. But the court below found, and in this it is supported by the legislative history of the 1959 act, [ Footnote 2/142 ] that the enactment providing severer penalties for these classes of sales was responsive to the appearance in the Commonwealth, only shortly before the act's passage, of a new kind of large-scale mercantile enterprise which, absorbing without difficulty a four dollar a week fine, made a profitable business of persistent violation of the earlier statute. These new enterprises may have attracted a disturbing volume of Sunday traffic; they may have employed more retail salesmen, and under different conditions, than other kinds of businesses in the State; some of the legislators, apparently, so believed. [ Footnote 2/143 ] The danger may have been apprehended that not only would these violations of longstanding State legislation continue, but that competition would force open other enterprises which had for years closed on Sunday. Under this threat, the 1959 statute was designed. I t applies not only to the new merchandisers -- if that were so, quite obviously, different constitutional problems would arise. Rather it singles out the area where a danger has been made most evident and, within that area, treats all business enterprises equally. That in so doing it may have drawn the line between the sale of a sofa cover, punished by a hundred-dollar fine, and the sale of an automobile seat cover, punished by a four dollar fine, is not sufficient to void the legislation. "[A] State may classify with reference to the evil to be prevented, and . . . , if the class discriminated against is or reasonably might be considered to define those from whom the evil mainly is to be feared, it properly may be Page 366 U. S. 542 picked out. A lack of abstract symmetry does not matter. The question is a practical one dependent upon experience. The demand for symmetry ignores the specific difference that experience is supposed to have shown to mark the class. It is not enough to invalidate the law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named." Mr. Justice Holmes, in Patsone v. Pennsylvania, 232 U. S. 138 , 232 U. S. 144 . Even less should a legislature be required to hew the line of logical exactness where the statutory distinction challenged is merely one which sets apart offenses subject to penalties of differing degrees of severity, not one which divides the lawful from the unlawful. "Judgment on the deterrent effect of the various weapons in the armory of the law can lay little claim to scientific basis. Such judgment as yet is largely a prophecy based on meager and uninterpreted experience. . . ." ". . . Moreover, the whole problem of deterrence is related to still wider considerations affecting the temper of the community in which law operates. The traditions of a society, the habits of obedience to law, the effectiveness of the law-enforcing agencies, are all peculiarly matters of time and place. They are thus matters within legislative competence." Tigner v. Texas, 310 U. S. 141 , 310 U. S. 148 , 310 U. S. 149 . Appellants in McGinley, like appellants in the McGowan and appellees in the Gallagher cases, have had full opportunity to demonstrate the arbitrariness of the statute which they challenge. On this record, they have entirely failed to satisfy the burden which they carry. Friedman v. New York, 341 U.S. 907; McGee v. North Carolina, 346 U.S. 802; Towery v. North Carolina, 347 U.S. 925. Cf. Missouri, K. & T. R. Co. v. Cade, 233 U. S. 642 . The Braunfeld case, however, comes here in a different posture. Appellants, plaintiffs below, allege in their Page 366 U. S. 543 amended complaint that the 1959 Pennsylvania Sunday retail sales act is irrational and arbitrary. The three-judge court dismissed the amended complaint for failure to state a claim. Speaking for myself alone, and not for MR. JUSTICE HARLAN on this point, I think that this was too summary a disposition. However difficult it may be for appellants to prove what they allege, they must be given an opportunity to do so if they choose to avail themselves of it, in view of the Court's decisions in this series of cases. I would remand No. 67 to the District Court. * [NOTE: This opinion applies also to No. 36, Two Guys From Harrison-Allentown, Inc. v. McGinley, District Attorney, Lehigh County, Pennsylvania, et al., post, p. 366 U. S. 582 ; No. 67, Braunfeld et al. v. Brown, Commissioner of Police of Philadelphia, et al., post, p. 366 U. S. 599 , and No. 11, Gallagher, Chief of Police of Springfield, Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al., post, p. 366 U. S. 617 .] ** "In pursuance of my practice in giving an opinion on all constitutional questions, I must present my views on this." Mr. Justice Johnson, concurring, in Cherokee Nation v. Georgia , 5 Pet. 1, 30 U. S. 20 . See Mr. Justice Story, dissenting, in Briscoe v. Bank of the Commonwealth of Kentucky , 11 Pet. 257, 36 U. S. 329 ; Mr. Chief Justice Taney, dissenting, Rhode Island v. Massachusetts , 12 Pet. 657, 37 U. S. 752 . And see Mr. Justice Bradley, concurring, in the Legal Tender Cases , 12 Wall. 457, 79 U. S. 554 : "I . . . should feel that it was out of place to add anything further on the subject were it not for its great importance. On a constitutional question involving the powers of the government, it is proper that every aspect of it, and every consideration bearing upon it, should be presented, and that no member of the court should hesitate to express his views." [ Footnote 2/1 ] "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . ." Madison had proposed an amendment that "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed." I Annals of Cong. 434. Commenting on a subsequent form of what was to become the First Amendment, he said that "he apprehended the meaning of the words to be that Congress should not establish a religion and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Id. at 730. [ Footnote 2/2 ] See Cobb, The Rise of Religious Liberty in America (1902), passim; Sweet, The Story of Religion in America (rev. ed.1939), 54, 76-77, 98-112, 129, 139-142; Sweet, Religion in Colonial America (1942), passim; I Channing, History of the United States (1933), 356-381, 470-474. And see Jefferson's Notes on Virginia, in II Writings of Thomas Jefferson (Memorial ed.1903) 217-219. The Virginia Convention which ratified the Federal Constitution proposed as a needed amendment to it: "That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others." III Elliot's Debates (2d ed. 1836) 659. See also the amendment proposed by the North Carolina Convention which declined to ratify, IV id. at 244, and the understanding of the Constitution expressed by Rhode Island, I id. at 334, and New York, I id. at 328. Cf. the amendment proposed by New Hampshire, I id. at 326. [ Footnote 2/3 ] See James, The Struggle for Religious Liberty in Virginia (1900); Eckenrode, Separation of Church and State in Virginia (1910); I Randall, Life of Thomas Jefferson (1858), 219-223; Cobb, The Rise of Religious Liberty in America (1902), 490-499; Sweet, The Story of Religion in America (rev. ed.1939), 276-279. [ Footnote 2/4 ] The history of the Virginia episode is treated extensively in the opinions in Everson v. Board of Education, 330 U. S. 1 . [ Footnote 2/5 ] 12 Hening, Statutes of Virginia (1823), 84, 85. [ Footnote 2/6 ] As appellant retailers and retail employees in the McGowan and McGinley cases have urged neither here nor below any question of infringement of their own rights of conscience, I agree with THE CHIEF JUSTICE that they have no standing to raise the "free exercise" issue. United States v. Raines, 362 U. S. 17 . The Court need not determine at this time what averments or what proofs, in a proper case, would be required in order to raise such issues in their behalf. Unlike appellants in Braunfeld and appellees in Gallagher, they have not urged that their remaining shut on any day of the week for any reason causes Sunday closing to disadvantage them peculiarly. They assert a right to operate seven days a week -- a right in which they claim an economic, not a conscientious, interest. Nor, on this record, is it necessary to decide whether these Sunday retail sellers might have standing to complain of the disadvantage of their enforced Sunday closing to conscientious Sabbatarian customers or potential customers. Cf. Barrows v. Jackson, 346 U. S. 249 ; Pierce v. Society of Sisters, 268 U. S. 510 . Nowhere below have they presented evidence that any such actual or hypothetical customer is thus disadvantaged. [ Footnote 2/7 ] See Exodus 20:8-11, 23:12, 31:12-17; Deuteronomy 5:12-15. [ Footnote 2/8 ] Codex Justin., liber III, Tit. XII, 3. See II Schaff, History of the Christian Church (1867), 380, n. 1. Later edicts of the emperors were more unequivocally Christian in temper, e.g., that of 386 A. D., Codex Theo., liber VIII, Tit. VIII, 3. See Pharr, The Theodosian Code (1952), 209. [ Footnote 2/9 ] See Lewis, A Critical History of Sunday Legislation (1888), 1-90; Neale, Feasts and Fasts (1845), 86-137; Johnson and Yost, Separation of Church and State (1948), 219-221; XII Encyclopedia of Religion and Ethics (Hastings ed.1921), 103-106; Savage, Sunday in Church History, in How Shall We Keep Sunday (1898) 27. [ Footnote 2/10 ] 27 Henry VI, c. 5. [ Footnote 2/11 ] 5 & 6 Edw. VI, c. 3. "Forasmuch as at all times men be not so mindful to laud and praise God, so ready to resort and hear God's holy word, and to come to the holy communion and other laudable rites, which are to be observed in every christian congregation, as their bounden duty doth require: . . . therefore to call men to remembrance of their duty, and to help their infirmity, it hath been wholsomly provided, that there should be some certain times and days appointed, wherein the christian should cease from all other kind of labours, and should apply themselves only and wholly unto the aforsaid holy works, properly pertaining unto true religion. . . ." Violations were to be punished by the censures of the church, administered by the bishops, archbishops and other persons having ecclesiastical jurisdiction. The purpose of this ordinance was apparently to restrict to a fixed and relatively limited number the days upon which labor should cease, the multiplication of saints' days having risen until they came to consume an alarming proportion of the year. It was repealed under Queen Mary. [ Footnote 2/12 ] 1 Charles I, c. 1. This regulation, while prescribing civil penalties, preserved the concurrent jurisdiction of the ecclesiastical courts to punish Sabbath breaking. [ Footnote 2/13 ] 3 Charles I, c. 2. [ Footnote 2/14 ] For a survey of the extensive Sunday regulations promulgated under the Commonwealth, see Lewis, op. cit. supra, 366 U.S. 420 fn2/9|>note 9, at 115-142. [ Footnote 2/15 ] Work was punished by penalty of five shillings, selling by forfeiture of the goods. The ban against butchers and herders traveling on Sunday was repeated, under fine of twenty shillings. Dressing of meat in families and dressing or selling of meat in inns and victualling houses "for such as otherwise cannot be provided" was permitted, as was the crying or selling of milk before 9 a.m. and after 4 p.m. Later statutes made numerous other exceptions to the English Sunday ban: see, e.g., 9 Anne, c. 23, § 20, exempting hackney coaches; the Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, exempting motion pictures at the option of local authority and under stipulated conditions, and also making lawful certain musical entertainments, lectures and debates, and the operation of museums, galleries zoological and botanical gardens, etc., and the evolving regulation of Sunday baking, 34 Geo. III, c. 61; 1 & 2 Geo. IV, c. 50, § 11; 3 Geo. IV, L. & P., c. 106, § 16; 6 & 7 Wm. IV, c. 37, § 14; Baking Industry (Hours of Work) Act, 1954, 2 & 3 Eliz. II, c. 57, § 12. The Sunday Observation Prosecution Act, 1871, 34 & 35 Vict., c. 87, provided that no prosecutions under the statute, 29 Charles II, c. 7, might be brought without the consent of a chief police officer, a stipendiary magistrate, or two justices of the peace. [ Footnote 2/16 ] Common informer practice under this statute has since been abolished. Common Informers Act, 1951, 14 & 15 Geo. VI, c. 39. [ Footnote 2/17 ] See Fennell v. Ridler, 5 B. & C. 406, 407-408 (1826): "The spirit of the act [of 29 Charles II] is to advance the interests of religion, to turn a man's thoughts from his worldly concerns, and to direct them to the duties of piety and religion, and the act cannot be construed according to its spirit unless it is so construed as to check the career of worldly traffic. . . . Labour may be private and not meet the public eye, and so not offend against public decency, but it is equally labour, and equally interferes with a man's religious duties." [ Footnote 2/18 ] The Book of Sports published by James I in 1618 and republished by Charles I in 1633 provided: "as for our good people's lawful recreation, our pleasure . . . is that, after the end of divine service, our good people be not disturbed . . . from any lawful recreation, such as dancing, . . . leaping, vaulting, or any other such harmless recreation. . . ." "And likewise we bar from the benefit and liberty all such known recusants, either men or women, as will abstain from coming to church or divine service, being therefore unworthy of any lawful recreation after said service, that will not first come to church and serve God. Prohibiting in like sort the said recreations to any that, though conform in religion, are not present in the church at the service of God, before their going to the said recreations." "Our pleasure, likewise is, that they to whom it belongeth in office, shall present and punish sharply all such as in abuse of this our liberty will use their exercises before the end of all divine services for that day." Lewis, op. cit. supra, 366 U.S. 420 fn2/9|>note 9, at 106-107. See Govett, The King's Book of Sports (1890). See also the excepting proviso to the statute, 10 & 11 Wm. III, c. 24, § 14, respecting Billingsgate Market. Certain importation and selling of fish "before or after Divine Service on Sundays" is not to be deemed prohibited. [ Footnote 2/19 ] Such a spirit may be seen in various royal proclamations enjoining strict enforcement of the Sunday laws, see Whitaker, The Eighteenth-Century English Sunday (1940), 56, 172-173, and in the language of charges to the grand juries encouraging their performance of their duties under the laws, see id. at 53, 57-58. Private societies formed as self-appointed agents of administration of the Sunday laws ere religious in orientation. See id. at 62, 69, 121-123, 195-197. [ Footnote 2/20 ] The injunction to observe the Sabbath day in Deuteronomy 5:14 is that, on that day, ". . . thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within thy gates; that thy manservant and thy maidservant may rest as well as thou." Among Christian explicators of the Old Testament, a social inspiration was early ascribed to this language. See Milton, A Treatise on Christian Doctrine, book 2, c. 7, in V Prose Works of John Milton (Sumner trans. 1877) 67. Luther, in the Large Catechism, part I, Third Commandment, wrote: ". . . we keep holydays not for the sake of intelligent and learned Christians, for they have no need of it. We keep them, first, for the sake of bodily necessity. Nature teaches and demands that the mass of the people -- servants and mechanics, who the whole week attend to their work and trades -- retire for a day of rest and recreation." I Lenker, Luther's Catechetical Writings (1907), 60. See also Luther's Treatise on Good Works (1520), Third Commandment, XVII, in I Works of Martin Luther (1915), 241. Compare Calvin's Institutes: among the three reasons for Sabbath observance, the Lord "resolved to give a day of rest to servants and those who are under the authority of others, in order that they should have some respite from toil." Calvin, Institutes of the Christian Religion (Battles trans.1960), book II, c. 8, § 28, at p. 395. And see Early Writings of John Hooper, D. D. (Carr ed. 1843) 337: "Then likewise God by this commandment provideth for the temporal and civil life of man, and likewise for all things that be necessary and expedient for man in this life. If man, and beast that is man's servant, should without repose and rest always labour, they might never endure the travail of the earth. God therefore, as he that intendeth the conservation and wealth of man and the thing created to man's use, commandeth this rest and repose from labour, that his creatures may endure and serve as well their own necessary affairs and business, as preserve the youth and offspring of man and beast. . . ." [ Footnote 2/21 ] In 1778, there appeared an essay by Vicesimus Knox, M. A. supporting state-enforced Sunday observance on grounds of health and custom as well as of religion. See Whitaker, The Eighteenth-Century English Sunday (1940), 148. It is reported that, in 1728, the members of the Gloucester Company or Fraternity of Barbers had undertaken to enforce by fine a self-imposed prohibition of Sunday labor, apparently to assure that those who wanted a six-day work week would not be compelled by competition to labor on the whole seven. See id. at 59-60. [ Footnote 2/22 ] IV Blackstone Commentaries (Lewis ed. 1897) *63. Compare the Report of the Committee on the Judiciary on the petition praying "the repeal of all laws . . . enforcing the observation of a day of the week as the Sabbath . . . ," Mass.Leg.Docs., H.Doc. No. 125 (1851), 9-10. [ Footnote 2/23 ] Report from Select Committee on the Observance of the Sabbath Day, in 7 H.C., Sessional Papers (1831-1832), at pp. 116-117. [ Footnote 2/24 ] Id. at p. 6. See id. at pp. 5-8. [ Footnote 2/25 ] Id. at pp. 9-10. [ Footnote 2/26 ] See Trevelyan's comment quoted in the foreword to Skottowe, The Law Relating to Sunday (1936); Whitaker, Sunday in Tudor and Stuart Times (1933); Whitaker, The Eighteenth-Century English Sunday (1940), especially at 192, 199-201. [ Footnote 2/27 ] Addison, writing in No. 112 of the Spectator, July 9, 1711: "I am always very well pleased with a country Sunday, and think, if keeping holy the seventh day were only a human institution, it would be the best method that could have been thought of for polishing and civilizing of mankind. It is certain the country people would soon degenerate into a kind of savages and barbarians were there not such frequent returns of a stated time in which the whole village meet together with their best faces, and in their cleanest habits, to converse with one another upon different subjects, hear their duties explained to them, and join together in adoration of the supreme Being. Sunday clears away the rust of the whole week, not only as it refreshes in their minds the notions of religion, but as it puts both the sexes upon appearing in their most agreeable forms, and exerting all such qualities as are apt to give them a figure in the eye of the village." The Spectator (Am. ed. 1859), at 160. See the attempt to capture the peculiar atmosphere of Sunday in the opening lines to the second book of Crabbe's The Village (1783). [ Footnote 2/28 ] In 1895, the late president of a grocers' association, testifying on a proposed bill regulating the closing hours of shops, urged that the Commons Committee recommend Sunday closing to the House; the many English grocers who wanted their Sunday off were alarmed at the threat of increased trade by competitors which would force their own opening on Sunday. Report from the Select Committee on Shops (Early Closing) Bill (Commons 1895) 158-159. The Report from the Select Committee of the House of Lords on the Sunday Closing (Shops) Bill [H.L.] (1905) did recommend Sunday closing legislation, which it found supported by all but one of the more than three hundred shopkeepers associations whose views were ascertained. The Committee's Report, at VI-VII, quotes the testimony of a witness (a clergyman, it may be noted), that ". . . the great need that impresses all of us busy workers in my part of London is the fact that, because of the noise and rush, we do want to safeguard the lives of our people by their having one day in seven. It is necessary for brain and for body, quite apart from the religious aspect of the question, for the moment, and by the stress at which we are all living down there Sunday has become practically like any other day. . . . The British population say that they would lose their custom in a great measure if they, in self-defence, did not open on Sunday. The feeling is very dominant that the result is that many of them have to work, whether they like it or not, seven days a week." ( See also testimony to the same effect, id. at 3-4, 17, 20, 30, 36, 40.) [ Footnote 2/29 ] 1 Edw. VII, c. 22, § 34. Continued, as amended, in the Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 77. [ Footnote 2/30 ] 2 Geo. V, c. 3, §§ 1, 4, provides for a half-day closing and a half-day off for employees "[o]n at least one week day in each week." (§ 1.) Other twentieth century legislation indicates recognition of the interweaving effects of the Sunday laws and other hours-of-labor legislation. The statute of 2 & 3 Eliz. II, c. 57, § 12, repealed the Sunday laws affecting the baking industry as part of a new program of hours regulation for that industry. The Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, permitting Sunday cinema at local option, subjects the allowance of Sunday operation to the condition that no person may be employed therein who has worked on each of the six days next preceding, except in emergencies, in which case the employee must get his day's rest subsequently. [ Footnote 2/31 ] Ministry of Munitions, Health of Munition Workers Committee, Report on Sunday Labour, Memorandum No. 1 [Cmd. 8132] (1915), 3, 5. The Committee had not been directed specifically to investigate the Sunday labor question, but in its inquiries generally into hours of labor, it discovered that "employers and workers were specially concerned at the present time with the problem of Sunday labour," and the Committee was "so impressed with the urgency and importance of this question," that it determined to submit a preliminary report on this subject alone. Id. at 3. [ Footnote 2/32 ] 26 Geo. V & 1 Edw. VIII, c. 53. See also the Retail Meat Dealers' Shops (Sunday Closing) Act, 1936, 26 Geo. V & 1 Edw. VIII, c. 30. These acts are continued in the Shops Act, 1950, 14 Geo. VI, c. 28, part IV. [ Footnote 2/33 ] See 308 H. C. Deb. 2216 and 2223 (5th ser.1935-1936) (suggesting that persons ought not be made to work on a day when they would want to attend religious services); id. at 2211. The strongest Christian religious sentiment was demonstrated by an opponent of the bill, see 311, id. at 497. Other opposing speakers waved the shibboleth of religious motive in an attempt to discredit the measure. See 308, id. at 2190-2191; 311, id. at 2097; but see 308, id. at 2179-2182; 101 H.L.Deb. 262 (5th ser. 1935-1936) (two opponents admit absence of religious purpose or effect). [ Footnote 2/34 ] This is especially significant in England where, of course, no constitutional compulsion exists to encourage Parliament to "make a record" concealing a clandestine sectarian aim. [ Footnote 2/35 ] 308 H.C.Deb. 2157-2159 (5th ser.1935-1936). See also id. at 2165-2167, 2174, 2183, 2186, 2207, 2211, 2213, 2223-2224; 101 H.L.Deb. 254-255, 266 (5th ser.1935-1936). [ Footnote 2/36 ] 308 H.C.Deb. 2209 (5th ser.1935-1936). See also 311, id. at 453-454, 490. Throughout the debates, it is emphasized that the bill was "a Sunday Trading Restriction Bill, and not . . . a Bill to have one day's rest in seven." 311, id. at 456; see id. at 2106. Yet it was not the sacred quality of the day that was meant. [ Footnote 2/37 ] 308, id. at 2197-2198. [ Footnote 2/38 ] See 308, id. at 2186, 2194-2195, 2206; 311, id. at 2095. [ Footnote 2/39 ] Although a private member's bill, the measure passed on the second reading in Commons by a 191-to-8 vote. 308, id. at 2230. [ Footnote 2/40 ] Even on the Continent, the forces which in the latter half of the nineteenth century pressed for the amelioration of the working conditions of the laborer expressed themselves in part in Sunday legislation. Germany, Austria, the Swiss Federal Government, Denmark, Norway and Russia in the 1870's, 80's and 90's promulgated regulations prohibiting Sunday employment -- in some cases only for women and children; in others, for all workers in enumerated industries -- or closing factories or commercial establishments during part or all of the day. See Congress International du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 339-344; Congress International du Repos du Dimanche, Bruxelles, 1897, Rapports et Compte Rendu (1898), 9-24, 139-159, 229-234; Congress International du Repos du Dimanche, Paris, 1900, Rapports et Compte Rendu (1900), Rapports No. I, II, VII; Mackenzie, ed., The World's Rest-Day, An Account of the Thirteenth International Congress on the Lord's Day, Edinburgh, 1908 (1909), 168-187; Report of the Joint Special Committee to Revise, Consolidate and Arrange the General Laws . . . Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 1160 (1907), Appendix, at 57-66. In the late 1880's, a German plebiscite conducted by Bismarck showed strong popular support among both employers and employees for Sunday closing. See Congress International du Repos Hebdomadaire, Paris, 1889, Compte-Rendu (1890), 360-364. The development of the European Sunday closing movement is reflected in the proceedings of the various conventions of an institution which convened sometimes as the International Congress on Sunday rest, sometimes as the International Congress for weekly rest. See the reports cited, supra; see also, e.g., Jackson, ed., Sunday Rest in the Twentieth Century, An Account of the International Sunday Rest Congress at St. Louis, 1904 (1905); Congresso Internazionale Pro Riposo Settimanale, Resoconto, Milano, 1906 (undated); Sunday, The World's Rest Day, Fourteenth International Lord's Day Congress, Oakland, California, 1915 (1916). At the first meeting of this group, in Geneva in 1876, the delegates displayed a primarily religious outlook, although much was also said of the physical and moral betterment of the worker through periodic rest. Congress sur l'observation du Dimanche, Geneve, 1876, Actes (1876), 120, 187-191, 353-367. A major objective of the Conference was to secure Sunday off for the railroad employees. When, after several intervening conventions, the International Congress met in Paris in 1889, it was under the presidency of Leon Say, and its temper was rather secular than clerical. It took the name of the Congress International du Repos Hebdomadaire, and though it contained members both of conservative-religious and of socialist tendencies, the latter were more vocal, and especially took the lead in formulating the Congress' program of state-enforced, rather than merely voluntary, industrial closing. See Congress International du Repos Hebdomadaire, Paris 1889, Compte-Rendu (1890), 83-93, 103-108, 344-380. Yet the group resolved to demand not merely some one indiscriminate day of rest weekly, but Sunday: "1. Sunday rest is possible to varying degrees in every industry. 2. This is the day of rest which is most suitable both to the employer and to the worker, as well from the point of view of the individual as from that of the family, and because it is good that the day of rest should be, as much as possible, the same for all." Id. at 160 (translated from the French); see also id. at 126, 167, 197. ( Compare the Convention Concerning Weekly Rest in Commerce and Offices, 1957, Convention 106 of the General Conference of the International Labour Organization, Geneva, 1957, H.R.Doc. No. 432, 85th Cong., 2d Sess. 7-12, providing for a weekly day of rest which shall, where possible, "coincide with the day of the week established as a day of rest by the traditions or customs of the country or district." Art. 6, § 3. So far as possible, the traditions and customs of religious minorities are to be respected. Art. 6, § 4. Similarly, The International Labour Conference's Draft Convention Concerning the Application of the Weekly Rest in Industrial Undertakings, adopted at the Third Session of the General Conference in Geneva in 1921, establishes 24 consecutive hours of rest per seven days for industrial workers, to be fixed, wherever possible "so as to coincide with the days already established by the traditions or customs of the county or district." Art. 2. International Labour Conference, 3d Sess., Draft Conventions & Recommendations (1921), 30.) At Chicago, four years later, both clerical and laborite perspectives were again represented; George E. McNeill, one of the pioneers of the American labor movement, spoke, and the representative of the Brotherhood of Railway Trainmen and other railroad workers' organizations, L. S. Coffin, supported Sunday rest. The Sunday Problem, Its Present Day Aspects, Papers Presented at the International Congress on Sunday Rest, Chicago, 1893 (1894), 43, 95. In 1897, at Brussels, the spirit was again predominantly secular; the Congress debated extensively the question whether governmental action to compel a day of rest was advisable, or whether the matter could best be handled by persuasion of individual employers, and the sense of the meeting strongly favored governmental intervention. Congress International du Repos du Dimanche, Bruxelles 1897, Rapports et Compte Rendu (1898), 35-47, 161-171, 377-385, 387-393, 538-559. See also Congress International du Repos du Dimanche, Paris, 1900, Rapports et Compte Rendu (1900). Later meetings of the Congress tended to be religion-oriented, although secular interests continued to find voice. See Jackson, ed., op. cit. supra, at 59-77, 85-96; Mackenzie, ed., op. cit. supra, at 187. [ Footnote 2/41 ] See Appendix I to this opinion, post, p. 366 U. S. 543 . Hereafter the colonial Sunday statutes will be cited by date and Colony. [ Footnote 2/42 ] Cobb, The Rise of Religious Liberty in America (1902), 482-517; Sweet, The Story of Religion in America (rev. ed.1939), 274-280. [ Footnote 2/43 ] See James Madison's essay, "Monopolies. Perpetuities. Corporations. Ecclesiastical Endowments," in Fleet, Madison's "Detatched Memoranda," 3 Wm. & Mary Q. 534, 551, 554-556 (1946). See authorities cited in 366 U.S. 420 fn2/3|>note 3, supra. [ Footnote 2/44 ] See Proceedings of the First General Assembly of "The Incorporation of Providence Plantations," and the Code of Laws, 1647 (1847), 50: ". . . and, otherwise than thus what is herein forbidden, all men may walk as their consciences persuade them, every one in the name of his GOD. . . ." See Cobb, The Rise of Religious Liberty in America (1902), 423-440. [ Footnote 2/45 ] See 366 U.S. 420 fn2/2|>note 2, supra. [ Footnote 2/46 ] New Hampshire enacted Sunday laws in 1785 and 1789, New York in 1788, Virginia in 1786. Rhode Island in 1784 exempted from her Sunday labor ban members of Sabbatarian societies, but specified that the exemption did not extend to allow such persons to keep shops open or to do mechanical labor in compact places; in 1798, Rhode Island again enacted a comprehensive Sunday law with the same exceptions. [ Footnote 2/47 ] Delaware, 1740. [ Footnote 2/48 ] Massachusetts (Plymouth), 1658. [ Footnote 2/49 ] Georgia, 1762. See also Maryland, 1696; New York, 1685; South Carolina, 1712. See the statute of 1 Charles I, quoted in text at 366 U.S. 420 fn2/12|>note 12, supra. The law of the Massachusetts Bay Colony in 1653 recited that playing, walking, drinking, sporting, and traveling on the Lord's day tend "much to the Dishonour of God, the Reproach of Religion, Grieving the Souls of Gods Servants, and the Prophanation of his Holy Sabbath, the Sanctification whereof is sometimes put for all Duties, immediately respecting the service of God contained in the first Table. . . ." [ Footnote 2/50 ] Connecticut, 1668. [ Footnote 2/51 ] Pennsylvania, 1682; see also the statutes of 1690, 1700. The "Body of Laws" of 1682 declared religious tolerance for all persons believing in a Supreme Being: "But to the end That Looseness, irreligion, and Atheism may not Creep in under pretense of Conscience in this Province, Be It further Enacted . . . That, according to the example of the primitive Christians, and for the ease of the Creation, Every first day of the week, called the Lord's day, People shall abstain from their usual and common toil and labour, That whether Masters, Parents, Children, or Servants, they may the better dispose themselves to read the Scriptures of truth at home, or frequent such meetings of religious worship abroad, as may best sute their respective persuasions." [ Footnote 2/52 ] The New Haven Code of 1656 provides: "Whosoever shal prophane the Lord's Day, or any part of it, either by sinful servile work, or by unlawful sport, recreation or otherwise, whether willfully, or in a careless neglect, shal be duly punished by fine, imprisonment, or corporally, according to the nature and measure of the sinn, and offence. But if the court upon examination, by clear and satisfying evidence, find that the sin was proudly, presumptuously, and with a high hand committed against the known command and authority of the blessed God, such a person, therein despising and reproaching the Lord, shal be put to death, that all others may fear and shun such provoaking Rebellious courses. Numb. 15: from 30 to 36 verse." The Plymouth Colony law of 1671 is similar. And see the act published in the Bay Colony in 1647, by which to "deny the moralities of the fourth commandement" is branded among other heresies and made punishable by banishment.Laws and Liberties of Massachusetts, 1648 (reprinted 1929), 24. [ Footnote 2/53 ] Massachusetts, 1692. See also New Hampshire, 1700; North Carolina, 1741. These statutes are patterned on 29 Charles II, c. 7, quoted in text at 366 U.S. 420 fn2/15|>note 15, supra. [ Footnote 2/54 ] Maryland, 1649; cf. Virginia, 1705 (atheism). [ Footnote 2/55 ] Maryland, 1692, "An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province." [ Footnote 2/56 ] See the Connecticut statute set forth in the Acts and Laws, 1750; Georgia, 1762; Massachusetts, 1761. Compulsory church attendance laws in the New England Colonies dated from before the middle of the seventeenth century. See the Code of 1650 of the General Court of Connecticut (1822) 46, and the Bay Colony's act published in 1647, Laws and Liberties of Massachusetts, 1648 (reprinted 1929), 20. [ Footnote 2/57 ] See 366 U.S. 420 fn2/51|>note 51, supra. This latter object, not the compulsion of conscience, but the liberation of all individuals from Sunday labor and Sunday disturbance so that they might worship God as their own consciences dictated, was, at one period, not infrequently put forward as the justifying purpose of the Sunday laws. State v. Ambs, 20 Mo. 214, 218 (1854); George v. George, 47 N.H. 27, 34 (1866); Lindemnuller v. People, 33 Barb. 548, 564 (N.Y.Sup.Ct. 1861); Johnston v. Commonwealth, 22 Pa. 102, 115 (1853). As the habits and preoccupations of the people themselves changed, it was but a short step from this reasoning to the recognition that Sunday laws serve the purpose of providing leisure and peace favorable to the pursuit of whatever aspirations, religious or secular, various individuals may choose. See text at 366 U.S. 420 fn2/35|>note 35, supra. Sensitive to emerging new popular needs and desires, legislatures were later to reshape the Sunday laws by complex patterns of exceptions permitting numerous recreational activities which, far from according with the original puritanical inspiration of the Lord's day acts, were precisely those games and sports which colonial legislation most severely condemned. See, e.g., Virginia, 1610; Connecticut, 1668. The development of these evolving exceptions is discussed briefly in text at notes 366 U.S. 420 fn2/124|>124-131, infra; its product may be seen in Appendix II to this opinion, post, p. 366 U. S. 551 . What it is significant to note at this point is that the continuity which marks the history of the Sunday laws is a continuity both of enduring and changing social demands. The enduring feature has been man's need for a day set apart, a day of community repose: this he has persistently, continuingly demanded. The changing feature has been the way in which he chooses to spend his day. The need which the "Body of Laws" recognized in Pennsylvania in 1682 was both the same and different than that expressed by Luther, see 366 U.S. 420 fn2/20|>note 20, supra, and that which twentieth century Sunday legislation accommodates. It is the need for a recurrent time when the common concerns of the working week cease to make their demands, and there is a peace that is general to the community -- whether the individual finds it at church, at home, at the beach, in the country, or at the baseball game. [ Footnote 2/58 ] 3 Records of the Colony of Rhode Island and Providence Plantations, 1678-1706 (1858), 30-31. The first Rhode Island Sunday law was an enactment of 1673 prohibiting the dispensing of alcoholic beverages on Sunday. Its preamble is this: "Voted, this Assembly consideringe that the King hath granted us that not any in this Collony are to be molested in the liberty of their consciences, who are not disturbers of the civille peace, and wee are perswaded that a most flourishing civil government with loyalty may be best propagated where liberty of conscience by any corporall power is not obstructed that is not to any unchastness of body, and not by a body doeinge any hurt to a body, neither indeavoringe soe to doe, and although wee know by man not any can be forced to worship God or for to keep holy or not to keep holy any day; but forasmuch as the first dayes of weeks, it is usuall for parents and masters not to imploy their children or servants as upon other dayes, and some others alsoe that are not under such government, accountinge it as a spare time, and soe spend it in debaistness or tipplinge and unlawfull games and wantonness, and most abhominably there practiced by those that live with the English at such times to resort to townes. Therefore, this Assembly, not to oppose or propagate any worship, but as by preventinge debaistnes, although wee know masters or parents cannot and are not by violence, to indeavor to force any under their govornment, to any worshipper from any worshipp, that is not debaistness or disturbant to the civille peace, but they are to require them, and if that will not prevaile, if they can they should compell them not to doe what is debaistnes, or unciville or inhuman, not to frequent any imodest company or practices." [ Footnote 2/59 ] See New Jersey, 1798: Delaware, 1795 (this statute does recite that its purpose is to deter those who "profane" the Lord's day); New Hampshire, 1785 and 1789 (these acts were, however, recommended to be read by ministers to their congregations). It is true that the Pennsylvania statute of 1794 is an act for the prevention of immorality and that the New Jersey statute of 1790 is "An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . . ," but even these enactments show a very different tenor than that of earlier legislation in the same Colonies. See, e.g., Pennsylvania, 1682; New Jersey, 1693. [ Footnote 2/60 ] Compare New York's legislation of 1685, 1695. [ Footnote 2/61 ] An Act to enforce the due observation of the Sabbath. 1 Laws of Vermont (1808) 275. [ Footnote 2/62 ] The earliest law was that of 1610. For the Colony in Virginea Britannia, Lawes Divine, Morall and Martially (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844), II, 10-11. This was followed by an Act of 1623-1624. 1 Hening, Statutes of Virginia (1823), 123. And see id. at 144. [ Footnote 2/63 ] See Appendix I to this opinion, post, p. 366 U. S. 549 . The most important statutes are those of 1629 and 1705, 1 Hening, Statutes of Virginia (1823), 144; 3 Hening, Statutes of Virginia (1823), 358. [ Footnote 2/64 ] 9 Hening, Statutes of Virginia (1821), 109, 111-112. [ Footnote 2/65 ] Id. at 164. [ Footnote 2/66 ] 12 Hening, Statutes of Virginia (1823), 84-86. [ Footnote 2/67 ] 2 Papers of Thomas Jefferson (Boyd ed.1950) 305-324, 545-553. For the story of the Revision, see Jefferson's Autobiography, in I Writings of Thomas Jefferson (Memorial ed.1903) 62-67; I Randall, Life of Thomas Jefferson (1858), 202-203, 208, 216 et seq. [ Footnote 2/68 ] 2 Papers of Thomas Jefferson (Boyd ed.1950) 555. The bill was entitled: "A Bill for Punishing Disturbers of Religious Worship and Sabbath Breakers." It also forbade the arrest for any civil cause of any minister of the gospel while engaged in public preaching or performing religious worship in any church, and punished any person who should maliciously disturb any worshipping congregation or misuse any minister therein. There is evidence to attribute the original draft of the provision to Jefferson, id. at 314-321; in any event, we know that, with the other revisers, he studied and reworked every bill in the revision until it satisfied him. Autobiography, in I Writings of Thomas Jefferson (Memorial ed.1903) 66. [ Footnote 2/69 ] Journal of the House of Delegates, Commonwealth of Virginia, Oct. 17, 1785 (1828), 12-14. [ Footnote 2/70 ] 12 Hening, Statutes of Virginia (1823), 336. The wording of the statute as passed differs slightly from that of the bill reported by the revisers. [ Footnote 2/71 ] 2 Shepherd, Statutes of Virginia (1835), 149. [ Footnote 2/72 ] Appendix II to this opinion, post, p. 366 U. S. 551 . Only Alaska has no such legislation. [ Footnote 2/73 ] See Delaware, Iowa, Wyoming. Many States which have broader Sunday statutes also provide special regulations for the sale of intoxicants on Sunday. Significantly, even those who have assailed the ban on Sunday labor as an unconstitutional religious establishment assert the constitutionality of Sunday alcohol control. See, e.g., Lewis, A Critical History of Sunday Legislation (1888), ix. They point to the contemporary justification for the prohibition of liquor sales on that day: the greater danger of abusive use of alcohol during a time when virtually all persons are at leisure. Admitting that there are also cogent contemporary reasons for a Sunday labor ban, they assert that the history of Sunday labor legislation reveals that these legitimate reasons are not those which, in fact, underlie it. But the roots of Sunday alcohol control are as deeply bedded in early Sabbath anti-tippling statutes as are those of Sunday labor laws in Lord's day acts. See the Connecticut statute set forth in the Acts and Laws, 1750; Delaware, 1740; Maryland, 1674; Massachusetts Bay, 1653; Massachusetts, 1761; New Hampshire, 1715; New York, 1685. See State v. Eskridge, 31 Tenn. 413 (1852). Indeed, the most severe efforts to enforce Sunday prohibitions in England were for centuries directed against tippling. See Whitaker, The Eighteenth-Century English Sunday (1940), passim; Whitaker, Sunday in Tudor and Stuart Times (1933), passim. [ Footnote 2/74 ] See North Carolina. Many States with more comprehensive bans also specifically proscribe hunting. See, e.g., Connecticut, Kentucky, Mississippi, Tennessee, Virginia. [ Footnote 2/75 ] See, e.g., Arizona, Colorado, Montana. [ Footnote 2/76 ] Oregon. Cf. Michigan, New Jersey, Pennsylvania, Rhode Island. [ Footnote 2/77 ] Colorado, Wisconsin. Cf., e.g., Connecticut, Maine, Michigan, Pennsylvania. [ Footnote 2/78 ] Some States have specific legislation enabling municipalities to regulate Sunday business ( e.g., Nebraska, North Dakota), or to suppress desecration of the Sabbath ( e.g., Michigan, Mississippi, Rhode Island). Often such authority is written into a city's charter. See, e.g., State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953), app. dism'd for want of a substantial federal question, 346 U.S. 802. In some cases charter authority to regulate a given business or activity has been held to support Sunday regulation of that business or activity. See, e.g., Hicks v. City of Dublin, 56 Ga.App. 63, 191 S.E. 659 (1937). Where no other enabling provision is found, it is virtually unanimously held that power to enact Sunday ordinances exists under the general grant of police power to a municipality. E.g., In re Sumida, 177 Cal. 388, 170 P. 823 (1918); Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894); Karwisch v. Mayor of Atlanta, 44 Ga. 204 (1871); Humphrey Chevrolet, Inc. v. City of Evanston, 7 Ill. 2d 402 , 131 N.E.2d 70 (1955); Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838 (1926) (subsequently overruled on another point); City of Elizabeth v. Windsor-Fifth Avenue, Inc., 31 N.J.Super. 187, 106 A.2d 9 (1954); Ex parte Johnson, 20 Okla.Cr. 66, 201 P. 533 (1921); Mayor of Nashville v. Linck, 80 Tenn. 499 (1852); City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927); State ex rel. Smith v. Wertz, 91 W.Va. 622, 114 S.E. 242 (1922). [ Footnote 2/79 ] There have been more than seventy amendments to the Massachusetts Sunday regulation over the past century. See the opinion below, 176 F. Supp. 466 , 472, n. 2. The latest amendments prior to the bringing of suit in the Gallagher case were in 1957. Mass.Acts 1957, cc. 300, 356, §§ 16, 17, 18. By Mass.Acts 1960, c. 812, § 3, the provisions of chapter 136, Massachusetts' general Sunday regulations, were made applicable to all or part of certain legal holidays, e.g., January first, July fourth, Thanksgiving Day. The Pennsylvania statute which is considered here was enacted in 1959. Pa.Laws 1959, No. 212. And in the same year that State's Lord's Day statute was three times amended. Pa.Laws 1959, Nos. 278, 540, 684. Maryland amended the provisions which are now its Code, Art. 27, §§ 492 to 534A, seven times in 1959. Maryland Laws 1959, cc. 232, 236, 248, 503, 510, 715, 811. [ Footnote 2/80 ] E.g., N.D.Laws 1959, c. 131; Tenn. Acts 1957, c. 219. [ Footnote 2/81 ] E.g., Fla.Laws 1959, c. 59-295; Me.Laws 1959, c. 302; Okla.Laws 1959, p. 210. [ Footnote 2/82 ] Maine, Minnesota, Mississippi, North Dakota, Oklahoma, West Virginia. Cf. Indiana, Missouri. But see Alabama, Illinois, New Mexico, Ohio. Language can also be found in judicial opinions interpreting Sunday statutes which attributes religious purpose to them. See O'Donnell v. Sweeney, 5 Ala. 467, 469 (1843); Weldon v. Colquitt, 62 Ga. 449, 451-452 (1879); State v. Beaudette, 122 Me. 44, 45, 118 A. 719, 720 (1922); Pearce v. Atwood, 13 Mass. 324, 346-348 (1816); Bennett v. Brooks, 91 Mass. 118, 119-121 (1864); Davis v. City of Somerville, 128 Mass. 594, 596 (1880); Commonwealth v. White, 190 Mass. 578, 580-582, 77 N.E. 636, 637 (1906); Commonwealth v. McCarthy, 244 Mass. 484, 486, 138 N.E. 835, 836-837 (1923); Allen v. Duffie, 43 Mich. 1, 7-9, 4 N.W. 427, 431-433 (1880); Brimhall v. Van Campen, 8 Minn. 13, 22 (1862); Kountz v. Price, 40 Miss. 341, 348 (1866); People v. Ruggles, 8 Johns. 290, 296-297 (N.Y.Sup.Ct. 1811); Sellers v. Dugan, 18 Ohio 489, 490, 492 (1849); Commonwealth v. American Baseball Club, 290 Pa. 136, 143, 138 A. 497, 499 (1927); Commonwealth v. Coleman, 60 Pa.Super. 380, 385-386 (1915); Parker v. State, 84 Tenn. 476, 477 479, 1 S.W. 202-203 (1886); Graham v. State, 134 Tenn. 285, 292, 183 S.W. 983, 985 (1915). And see Smith v. Boston & Maine R. Co., 120 Mass. 490, 493 (1876); Society for the Visitation of the Sick v. Commonwealth, 52 Pa. 125, 135 (1866). Even some decisions sustaining the constitutionality of the statutes have found their justification, in part, in the preservation of Christian traditions. Shover v. State, 10 Ark. 259 (1850); State v. Ambs, 20 Mo. 214 (1854); State ex rel. Temple v. Barnes, 22 N.D. 18, 132 N.W. 215 (1911); City Council v. Benjamin, 2 Strob.L. 508 (S.C. 1848). Cf. Varney v. French, 19 N.H. 233 (1848); Adams v. Gay, 19 Vt. 358, 366 (1847). But most of these latter decisions date from an era when day of rest conceptions were not yet fully developed: the then prevailing notions of the police power did not accord to state legislatures authority to protect a man from the harm to himself of uninterrupted labor. Compare Thomasson v. State, 15 Ind. 449, 454 (1860) (speaking of the "patriarchal theory of government") with, e.g., People v. Klinck Packing Co., 214 N.Y. 121, 108 N.E. 278 (1915) (sustaining New York's six-day week statute by analogy to the Sunday law cases). The large majority of decisions applying the Sunday laws in cases where their constitutionality as possible infringements of religious liberty was not in issue have regarded the laws as having either an exclusively secular function or a function accommodating both the civil and religious needs of the community. As to the former, see, e.g., State v. Shuster, 145 Conn. 554, 145 A.2d 196 (1958); Rogers v. State, 60 Ga.App. 722, 4 S.E.2d 918 (1939); Carr v. State, 175 Ind. 241, 93 N.E. 1071 (1911); Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N.E.2d 808 (1958); City of Harlan v. Scott, 290 Ky. 585, 162 S.W.2d 8 (1942); Levering v. Park Commissioners, 134 Md. 48, 106 A. 176 (1919); State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N.W. 325 (1904); City of St. Louis v. Delassus, 205 Mo. 578, 104 S.W. 12 (1907) (subsequently overruled on another point); State v. Chicago, Burlington & Quincy R. Co., 239 Mo.196, 143 S.W. 785 (1912); State v. Malone, 238 Mo.App. 939, 192 S.W.2d 68 (1946); More v. Clymer, 12 Mo.App. 11 (1882); Auto-Rite Supply Co. v. Mayor of Woodbridge, 25 N.J. 188, 135 A.2d 515 (1957); Rodman v. Robinson, 134 N.C. 503, 47 S.E. 19 (1904); State v. Ricketts, 74 N.C. 187 (1876); Bloom v. Richards, 2 Ohio St. 387 (1853); McGatrick v. Wason, 4 Ohio St. 566 (1855); Krieger v. State, 12 Okla.Cr. 566, 160 P. 36 (1916); State v. Smith, 19 Okla.Cr. 184, 198 P. 879 (1921); State v. James, 81 S.C.197, 62 S.E. 214 (1908); Francisco v. Commonwealth, 180 Va. 371, 23 S.E.2d 234 (1942); State v. Baltimore & Ohio R. Co., 15 W.Va. 362 (1879); State ex rel. Smith v. Wertz, 91 W.Va. 622, 114 S.E. 242 (1922), and see Stark v. Backus, 140 Wis. 557, 123 N.W. 98 (1909). As to the latter, see Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388 (1917); State v. Hurliman, 143 Conn. 502, 123 A.2d 767 (1956); Richmond v. Moore, 107 Ill. 429 (1883); State v. Mead, 230 Iowa 1217, 300 N.W. 523 (1941); Cleveland v. City of Bangor, 87 Me. 259, 32 A. 892 (1895); Matter of Rupp, 33 App.Div. 468, 53 N.Y.S. 927 (1898); People v. Moses, 140 N.Y. 214, 35 N.E. 499 (1893); Moore v. Owen, 58 Misc. 332, 109 N.Y.S. 585 (N.Y.Sup.Ct.1908); Melvin v. Easley, 52 N.C. 356 (1860); Johnston v. Commonwealth, 22 Pa. 102 (1853). Cf. the cases finding foundation for the laws in long-established usage. Commonwealth v. Louisville & Nashville R. Co., 80 Ky. 291 (1882); Mohney v. Cook, 26 Pa. 342 (1855); Commonwealth v. Nesbit, 34 Pa. 398 (1859); Commonwealth v. Jeandelle, 3 Phila. 509 (Pa.Q.S. 1859). And see People v.Law, 142 N.Y.S.2d 440 (Spec.Sess.1955); People v. Binstock, 7 Misc.2d 1039, 170 N.Y.S.2d 133 (Spec.Sess.1957). [ Footnote 2/83 ] State of New York, Second Report of the Joint Legislative Committee on Sabbath Law, N.Y.Leg.Doc. No. 48 (1953) 9. See Report of the Committee on the Judiciary, on the petition praying the repeal of the laws for the observance of the sabbath, &c., 5 State of New York, Assembly Docs., Doc. No. 262 (1838). This latter report, denying any intention to enforce the duties of religious conscience, id. at 7, regarded retention of the Sunday law as advisable, "Viewing the sabbath merely as a civil institution, venerable from its age, consecrated as a day of rest by the usage of our fathers, and cherished by the common consent of mankind throughout the nations of christendom. . . ." Id. at 5. "The experience of mankind has shewn that occasional rest is necessary for the health of the laborer and for his continued ability to toil; that" "the interval of relaxation which Sunday affords to the laborious part of mankind, contributes greatly to the comfort and satisfaction of their lives, both as it refreshes them for the time, and as it relieves their six days' labor by the prospect of a day of rest always approaching. . . ." Id. at 7. The Committee did regard as a third consideration of importance the necessity of taking account of the moral temper of the Christian majority of the community, and of affording the laborer an opportunity to attend church if he so wished. Id. at 6-8. [ Footnote 2/84 ] "The committee are of one mind as to the need of a weekly day of rest for the preservation of the health and strength of the community, and would therefor recommend legislation to secure to all citizens the right of one clear day's rest in seven. Insofar as possible, Sunday should be maintained as the weekly day of rest, and whenever the needs of the community, public convenience or demand compel labor on Sunday, persons thus employed should be given a legal right to rest on some other day of the week." Report of the Joint Special Committee to Revise, Consolidate and Arrange the General Laws . . . Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 1160 (1907) 9. For a similar, more recent expression, see Report Submitted by the Legislative Research Council Relative to Legal Holidays and Their Observance, Mass.Leg.Docs., S.Doc. No. 525 (1960), 24-25. In the legislative debates on the bill which became the 1959 Pennsylvania Sunday retail sales act, the charge of religious purpose was persistently made by the bill's opponents, but such a purpose was disavowed by every speaker who favored the bill. 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1137-1140, 2564-2565, 2682-2685. See, e.g., the remarks of Mr. Walker, id. at 1139: "As I read this bill, I find nothing in it which is of a religious nature. The bill is prompted by the thousands of letters that we have all received in the Senate of Pennsylvania asking us to do something for the men and women who work in the department stores. These people are not asking to go to church; they are asking for a day of rest." It is apparent even from the objections raised by the opponents that various economic interests, among them those of organized retailers' and labor groups, were influential in supporting the measure. See especially id. at 2682-2683. [ Footnote 2/85 ] Jacoby, Remember the Sabbath Day? -- The Nature and Causes of the Changes in Sunday Observance Since 1800 (Dissertation in Sociology, Microfilm, University of Pennsylvania Library (1942)), pp. 137-140, 147-148, 154-155, 200-202, c. 9; Kirstein, Stores and Unions (1950), 19-21; State of New York, Second Report of the Joint Legislative Committee on Sabbath Law, N.Y.Leg.Doc. No. 48 (1953) 16 et seq.; Report of the Unpaid Special Commission to Investigate . . . the Laws Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 2413 (1954), 6; 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1139, 2553. See the Sunday Business resolution of the 1959 and 1960 Conventions of the National Retail Merchants Association, 41 Stores 6-7 (Feb.1959); 42 Stores 13 (Feb.1960), and see 366 U.S. 420 fn2/40|>note 40 supra. Frequently legislation closing establishments of a given trade is the product of lobbying efforts by associations of traders seeking to quash the competitive pressures which force unwanted Sunday labor. See Gundaker Central Motors, Inc. v. Gassert, 23 N.J. 71, 127 A.2d 566 (1956), app.dism'd for want of a substantial federal question, 354 U.S. 933; Breyer v. State, 102 Tenn. 103, 50 S.W. 769 (1899). But see Sunday Observance, Hearings before the Subcommittee on Judiciary of the Committee on the District of Columbia, House of Representatives, on H.R. 7189 and H.R. 10311, 69th Cong., 1st Sess. (1926) (labor and trade groups oppose Sunday legislation supported primarily by clerical faction). Increasingly, the religious proponents of Sunday legislation have themselves come to couch their arguments in terms of hygienic and social, rather than transcendental, values. See Gilfillan, The Sabbath Viewed in the Light of Reason, Revelation, and History (Am. ed. 1862), 209-227; Floody, Scientific Basis of Sabbath and Sunday (2d ed.1906), 311-315; McMillan, Influence of the Weekly Rest-Day on Human Welfare (1927). [ Footnote 2/86 ] Mass.Gen.Laws Ann., 1958, c. 149, §§ 47 to 51. Section 47 provides: "Whoever, except at the request of the employee, requires an employee engaged in any commercial occupation or in the work of any industrial process not subject to the following section or in the work of transportation or communication to do on Sunday the usual work of his occupation, unless he is allowed during the six days next ensuing twenty-four consecutive hours without labor, shall be punished by a fine of not more than fifty dollars; but this and the following section shall not be construed as allowing any work on Sunday not otherwise authorized by law." Section 48 provides: "Every employer of labor engaged in carrying on any manufacturing, mechanical or mercantile establishment or workshop . . . shall allow every person . . . [with exceptions: see §§ 49, 50] employed in such manufacturing, mechanical or mercantile establishment or workshop at least twenty-four consecutive hours of rest, which shall include an unbroken period comprising the hours between eight o'clock in the morning and five o'clock in the evening, in every seven consecutive days. No employer shall operate any such manufacturing, mechanical or mercantile establishment or workshop on Sunday unless he has complied with section fifty-one. . . ." Section 51 is: "Before operating on Sunday, every employer subject to section forty-eight . . . shall post in a conspicuous place on the premises a schedule containing a list of his employees who are required or allowed to work on Sunday, and designating the day of rest for each. No employee shall be required or allowed to work on the day of rest designated for him." Note the evolution of these sections through Mass.Acts 1907, c. 577, codified in the Labor Code of 1909, Mass.Acts 1909, c. 514, § 52; Mass.Acts 1913, c. 619. [ Footnote 2/87 ] See Ill.Rev.Stat., 1959, c. 48, §§ 8a to 8g; N.H.Rev.Stat.Ann., 1955, §§ 275.32, 275.33; N.Y.Lab.Law § 161; Ore.Wage and Hour Comm'n Orders Nos. 8 (1959), 9 (1952), 12 (1953), CCH Lab.Law Rep. State Laws (1960), pp. 57,561, 57,562, 57,564. Cf. West's Wis.Stat.Ann., 1957, § 103.85. And see Purdon's Pa.Stat.Ann., 1952, Tit. 43, § 361. [ Footnote 2/88 ] Purdon's Pa.Stat.Ann., 1960 Supp., Tit. 4, § 60. See also Me.Rev.Stat., 1954, c. 134, § 41; Sunday Entertainments Act, 1932, 22 & 23 Geo. V, c. 51, § 1(1)(a). Cf. P.R.Laws Ann., 1955, Tit. 29, § 295. [ Footnote 2/89 ] P.R.Laws Ann., 1955, Tit. 33, § 2201. Cf. Colo.Rev.Stat.Ann., 1953, § 27-1-4; R.I.Gen.Laws, 1956, § 5-16-5. [ Footnote 2/90 ] R.I.Gen.Laws, 1956, §§ 25-1-6, 25-1-8; S.C.Code, 1952, Tit. 64, § 5. See also Mllis v. Celanese Corp., 234 S.C. 380, 108 S.E.2d 547 (1959). [ Footnote 2/91 ] See Mead, The Pattern of Leisure in Contemporary American Culture, 313 Annals of The American Academy of Political and Social Science 11-12 (Sept.1957). [ Footnote 2/92 ] Among the many examples that might be found in Frazer's Golden Bough, see his discussions of incest and murder, The Golden Bough (3d ed., A. reprint 1951), II The Magic Art 107-117; Taboo and the Perils of the Soul 218-219. For other classic instances in various fields, see Weston, From Ritual to Romance (Anchor ed.1957), passim, especially 81-100; Gilbert Murray, "Excursus on the Ritual Forms Preserved in Greek Tragedy," in Harrison, Themis (1912), 341 et seq.; Kluckhohn and Leighton, The Navaho (1946), 162-163; Tawney, Religion and The Rise of Capitalism (3d Mentor ed.1950), passim. See Weekly Rest in Commerce and Offices, Report A, International Labour Conference, 26th Sess., Geneva, 1940 (1939), 2: "Sunday rest laws, from the Fourth Commandment downwards, have always been social as well as religious in intention, seeking to provide a periodic rest from daily toil as well as an opportunity for religious observance." Among the weekly rest legislation of the many nations surveyed by the International Labor Organization's pertinent reports, the system most common is to provide for a uniform rest day, usually on Sunday. See id., passim, especially at 71-74; Weekly Rest in Commerce and Offices, Report VII(1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), passim, especially at 18, 24-26. "This tendency to ensure that the weekly rest is taken at the same time by all workers on the day established by tradition or custom has an obvious social purpose, namely to enable the workers to take part in the life of the community and in the special forms of recreation which are available on certain days." Id. at 24. Commenting on the worldwide practice of weekly rest, the ILO reporters observe: "Quite often, the practice originated as a religious observance and developed into a tradition which has persisted despite the disappearance of the original reasons or the decline in the part played by religious institutions in the social structure. At a very early stage, this religious observance was backed by civil law, and even today traces of this can often be found in constitutions and civil codes, in municipal by laws, and in the regulations of many countries concerning opening and closing hours of commercial and other establishments. Labour legislation has endeavoured to maintain and extend this practice in the light of the economic needs of modern society. . . ." Id. at 3. [ Footnote 2/93 ] The District Court in the Gallagher case believed that the Massachusetts Lord's day statute could not reasonably be regarded as a day of rest provision, first, because its extensive exceptions allowed many persons to labor seven days a week and, second, because Massachusetts has other statutes providing for twenty-four consecutive hours of rest every seven days. Mass.Gen.Laws Ann., 1958, c. 149, §§ 47 to 51. These latter provisions, however, by their express terms, supplement, do not supplant, the Sunday prohibitions. The two objections to some extent answer each other: the existence of the six-day law is justified by, and in part provides for, the deficiencies of the Lord's day statute as day of rest legislation. But, in any event, the Lord's day statute is not merely day of rest legislation. It is common day of rest legislation. To certain persons who, for reasons deemed compelling by the Massachusetts Legislature, cannot share in this common day -- simply because not all activity can cease, even on Sunday -- the Labor Code at least assures a day of physical rest. Compare the conclusions found in Weekly Rest in Commerce and Offices, Report VII(1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), 52. It may be noted that a large majority of the thirty-four States having comprehensive Sunday restrictions also have some six-day week provisions in their labor or child labor codes or regulations. See Appendix II to this opinion, post, p. 366 U. S. 551 . The District Court, in concluding that the Massachusetts Lord's day statute is religious legislation, took account of its origins in colonial laws, of its language and the language of the Massachusetts courts in cases applying it, of the statutory exceptions permitting certain recreational activity only in the afternoon hours and, in some cases, at a designated distance from places of worship, and of statements in an amicus brief indicating that amici had an interest in preventing the secularization of Sunday. The implications of history and of the statutory language have already been discussed herein. The opinions in the Massachusetts cases adverted to by the court below, the latest decided in 1923, are insufficient to establish that the Massachusetts legislation as applied in 1960 to prohibit the Sunday operation of supermarkets lacks substantial secular purposes and effects. See 366 U.S. 420 fn2/101|>note 101, infra. The validity of applications of the statute possibly affected by the afternoon hour exceptions is not now presented; suffice to say that these exceptions do not render the legislation unconstitutional in its entirety or in the circumstances of this litigation. And the purposes, views and intentions of amici, of course, cannot be attributed to the legislature of the State of Massachusetts. [ Footnote 2/94 ] See text at 366 U.S. 420 fn2/37|>note 37, supra. Cf. Report of the Unpaid Special Commission to Investigate . . . the Laws Relating to the Observance of the Lord's Day, Mass.Leg.Docs., H.Doc. No. 2413 (1954), 9: "The wave of materialism which is sweeping the country makes it most important that one day be set aside for worship, rest and to give all persons an opportunity to strengthen the bulwark of our American civilization -- the home." Compare Report on the Weekly Rest Day in Industrial and Commercial Employment, Report VII, International Labour Conference, 3d Sess., Geneva, 1921 (1921), 127: "Social custom requires that the same rest day should, as far as possible, be accorded to the members of the same working family and to the working class community as a whole." [ Footnote 2/95 ] See 366 U.S. 420 fn2/92|>note 92, supra. See also the resolution of the International Congress for weekly rest, 1889, quoted in 366 U.S. 420 fn2/40|>note 40, supra. [ Footnote 2/96 ] Ex parte Newman, 9 Cal. 502. Justice Field's dissent in this case has become a leading pronouncement on the constitutionality of Sunday laws. [ Footnote 2/97 ] Ex parte Andrews, 18 Cal. 678. The controlling California constitutional guarantee of religious freedom comports only an analogue to the First Amendment's "free exercise," not an analogue to the "establishment" clause. [ Footnote 2/98 ] E.g., Petit v. Minnesota, 177 U. S. 164 . Cf. Hennington v. Georgia, 163 U. S. 299 ; Soon Hing v. Crowley, 113 U. S. 703 , 113 U. S. 710 . In re Sumida, 177 Cal. 388, 170 P. 823 (1918); McClelland v. City of Denver, 36 Colo. 486, 86 P. 126 (1906) (barbering prohibited); Rosenbaum v. City & County of Denver, 102 Colo. 530, 81 P.2d 760 (1938) (automobile sales prohibited); Mosko v. Dunbar, 135 Colo. 172, 309 P.2d 581 (1957) (automobile sales prohibited); Walsh v. State, 33 Del. [3 W. W. Harr.] 514, 139 A. 257 (1927), semble; Gillooley v. Vaughan, 92 Fla. 943, 956, 110 So. 653, 657 (1926) (cabarets and cinema prohibited); State v. Dolan, 13 Idaho 693, 92 P. 995 (1907); State v. Cranston, 59 Idaho 561, 85 P.2d 682 (1938); McPherson v. Village of Chebanse, 114 Ill. 46, 28 N.E. 454 (1885) (ordinance held authorized by police power); Voglesong v. State, 9 Ind. 112 (1857); Foltz v. State, 33 Ind. 215 (1870); State v. Linsig, 178 Iowa 484, 159 N.W. 995 (1916); People v. DeRose, 230 Mich. 180, 203 N.W. 95 (1925) (ordinance closing markets held authorized by police power); In re Berman, 344 Mich. 598, 75 N.W.2d 8 (1956) (ordinance prohibiting sale of furniture held authorized by police power); State v. Dean, 149 Minn. 410, 184 N.W. 275 (1921); Power v. Nordstrom, 150 Minn. 228, 184 N.W. 967 (1921) (ordinance closing cinema, shows, theater, held authorized by police power); Paramount-Richards Theatres, Inc. v. City of Hattiesburg, 210 Miss. 271, 49 So. 2d 574 (1950); State v. Loomis, 75 Mont. 88, 242 P. 344 (1925) (closing dance halls); Gundaker Central Motors, Inc. v. Gassert, 23 N.J. 71, 127 A.2d 566 (1956), app. dism'd for want of a substantial federal question, 354 U.S. 933 (automobile trading prohibited); People v. Havnor, 149 N.Y. 195, 43 N.E. 541 (1896), writ of error dism'd, 170 U. S. 408 (barbering prohibited); State v. Weddington, 188 N.C. 643, 125 S.E. 257 (1924) (ordinance held authorized by police power); State v. Haase, 97 Ohio App. 377, 116 N.E.2d 224 (1953); Ex parte Johnson, 20 Okla.Cr. 66, 201 P. 533 (1921) (ordinance closing cinema and theaters held authorized by police power); Ex parte Johnson, 77 Okla.Cr. 360, 141 P.2d 599 (1943) (barbering prohibited); Ex parte Northrup, 41 Ore. 489, 69 P. 445 (1902) (barbering prohibited); State v. Nicholls, 77 Ore. 415, 151 P. 473 (1915); Breyer v. State, 102 Tenn. 103, 50 S.W. 769 (1899) (barbering prohibited); State v. Sopher, 25 Utah 318, 71 P. 482 (1903); Norfolk & Western R. Co. v. Commonwealth, 93 Va. 749, 24 S.E. 837 (1896) (statute prohibiting operation of railroads held sustainable as exercise of police power); State v. Nichols, 28 Wash. 628, 69 P. 372 (1902); City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927) (comprehensive ordinance found authorized by police power). See also Kreider v. State, 103 Ark. 438, 440, 147 S.W. 449, 450 (1912); State v. Miller, 68 Conn. 373, 377-378, 36 A. 795, 796 (1896); State v. Diamond, 56 N.D. 854, 857-858, 219 N.W. 831, 832-833 (1928); Rich v. Commonwealth, 198 Va. 445, 449, 453, 94 S.E.2d 549, 552, 555 (1956). Compare Pacesetter Homes, Inc. v. Village of South Holland, 18 Ill. 2d 247 , 163 N.E.2d 464 (1960), admitting legislative power to prohibit Sunday activity disturbing to the community, but striking down a blanket closing ordinance with virtually none of the usual exceptions as too extreme to be justified under this rationale. [ Footnote 2/99 ] E.g., Frolickstein v. Mayor of Mobile, 40 Ala. 725 (1867); Lane v. McFadyen, 259 Ala. 205, 66 So. 2d 83 (1953) (issue not raised by litigants; court nevertheless considers it); Elliott v. State, 29 Ariz. 389, 242 P. 340 (1926) (dictum); Shover v. State, 10 Ark. 259 (1850); Scales v. State, 47 Ark. 476, 1 S.W. 769 (1886); Ex parte Koser, 60 Cal. 177 (1882); Karwisch v. Mayor of Atlanta, 44 Ga. 204 (1871), settling the issue left open in Sanders v. Johnson, 29 Ga. 526 (1859); Humphrey Chevrolet, Inc. v. City of Evanston, 7 Ill. 2d 402 , 131 N.E.2d 70 (1955) (at least as applied to corporate and non-Sabbatarian parties); State v. Blair, 130 Kan. 863, 288 P. 729 (1930); State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Strand Amusement Co. v. Commonwealth, 241 Ky. 48, 43 S.W.2d 321 (1931), semble; State v. Bott, 31 La.Ann. 663 (1879) (forbidding liquor sales); State ex rel. Walker v. Judge, 39 La.Ann. 132, 1 So. 437 (1887); Judefind v. State, 78 Md. 510, 28 A. 405 (1894) (considered dictum); Hiller v. State, 124 Md. 385, 92 A. 842 (1914) (prohibiting sports); Commonwealth v. Has, 122 Mass. 40 (1877); Commonwealth v. Chernock, 336 Mass. 384, 145 N.E.2d 920 (1957); Scougale v. Sweet, 124 Mich. 311, 82 N.W. 1061 (1900) (considered dictum); State v. Petit, 74 Minn. 376, 77 N.W. 225 (1898), aff'd, 177 U. S. 164 : State v. Weiss, 97 Minn. 125, 105 N.W. 1127 (1906); State v. Ambs, 20 Mo. 214 (1854); Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838 (1926) (closing bakeries) (subsequently overruled on another point); In re Caldwell, 82 Neb. 544, 118 N.W. 133 (1908), semble; Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N.W. 332 (1931) (prohibiting automobile sales), semble; Two Guys from Harrison, Inc. v. Furman, 32 N.J.199, 160 A.2d 265 (1960); Lindemnuller v. People, 33 Barb. 548 (N.Y.Sup.Ct. 1861) (closing theaters); Newendorff v. Duryea, 69 N.Y. 557 (1877) (same); People v. Friedman, 302 N.Y. 75 , 96 N.E.2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907; State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953), app. dism'd for want of a substantial federal question, 346 U.S. 802; State ex rel. Temple v. Barnes, 22 N.D. 18, 132 N.W. 215 (1911) (closing theaters); State v. Powell, 58 Ohio St. 324, 50 N.E. 900 (1898) (prohibiting sports); State v. Kidd, 167 Ohio St. 521, 150 N.E.2d 413 (1958), app. dism'd for want of a substantial federal question, 358 U. S. 131 , 132; Commonwealth v. Wolf, 3 S. & R. 48 (Pa. 1817); Specht v. Commonwealth, 8 Pa. 312 (1848); Commonwealth v. Bauder, 188 Pa.Super. 424, 145 A.2d 915 (1958); City Council v. Benjamin, 2 Strob.L. 508 (S.C. 1848); Yepapas v. Richardson, 149 S.C. 52, 146 S.E. 686 (1929); Ex parte Sundstrom, 25 Tex.App. 133, 8 S.W. 207 (1888); Sayeg v. State, 114 Tex.Cr.R. 153, 25 S.W.2d 865 (1930), semble; Clark v. State, 167 Tex.Cr.R. 204, 319 S.W.2d 726 (1959), semble; Pirkey Bros. v. Commonwealth, 134 Va. 713, 114 S.E. 764 (1922) (issue not raised by litigants; court nevertheless considers it); Crook v. Commonwealth, 147 Va. 593, 136 S.E. 565 (1927) (same); State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), writ of error dism'd, 210 U.S. 438 (prohibiting barbering); State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949). Following the decision in the Gallagher case below, and relying on it, a Pennsylvania Court of Quarter Sessions recently held the 1959 Pennsylvania Sunday retail sales act unconstitutional on the grounds that its incidence is discriminatory and arbitrary, and that it operates to prefer Sunday-observing religions. Commonwealth v. Cavalerro, 142 Legal Intelligencer 519 (Phila., Apr. 22, 1960) (Pa.Q.S. 1960). Another Pennsylvania court of first impression shortly thereafter reached the same conclusions. Bargain City U.S.A. Inc. v. Dilworth, 142 Legal Intelligencer 813 (Phila., June 22, 1960) (Pa.C.P. 1960). These appear to be the only two standing state court decisions striking down Sunday laws, as, in part, violative of religious freedom, in a century and a half of litigation. In District of Columbia v. Robinson, 30 App.D.C. 283 (1908), the Court of Appeals, while recognizing the validity as civil regulations of modern Sunday closing statutes, held the 1723 Maryland Sunday law obsolete and inapplicable in the District of Columbia, largely on the ground that its purpose was religious. Compare O'Hanlon v. Myers, 10 Rich.L. 128 (S.C. 1856). In Brunswick-Balke-Collander Co. v. Evans, 228 F. 991 (D.C.D.Ore.1916), app. dism'd, 248 U.S. 587, a Federal District Court sustained Oregon's general closing law against contentions that it violated religious freedom. Cf. Swann v. Swann, 21 F. 299 (C.C.E.D. Ark. 1884); In re King, 46 F. 905 (C.C.W.D.Tenn. 1891). [ Footnote 2/100 ] Appeals in cases challenging Sunday laws as violative of the Due Process Clause were also dismissed for want of a substantial federal question in Gundaker Central Motors, Inc. v. Gassert, 354 U.S. 933, and Grochowiak v. Pennsylvania, 358 U. S. 47 . [ Footnote 2/101 ] This does not, of course, imply an opinion of the legitimacy of all the Sunday provisions of all the States, or of every application of the statutes now before this Court. It is true that the Massachusetts courts have at times expressed an intention to apply the Massachusetts Lord's day statute in accordance with the temper in which its historical antecedents were enacted. Compare the language of Davis v. City of Somerville, 128 Mass. 594 (1880); Commonwealth v. Dextra, 143 Mass. 28, 8 N.E. 756 (1886); Commonwealth v. White, 190 Mass. 578, 77 N.E. 636 (1906); Commonwealth v. McCarthy, 244 Mass. 484, 138 N.E. 835 (1923), with the Virginia cases, Francisco v. Commonwealth, 180 Va. 371, 23 S.E.2d 234 (1942), and Rich v. Commonwealth, 198 Va. 445, 94 S.E.2d 549 (1956). See Commonwealth v. Sampson, 97 Mass. 407 (1867). But see Stone v. Graves, 145 Mass. 353, 13 N.E. 906 (1887). It will be time enough to pass upon the constitutionality of such applications as do not reasonably come within the rationale of the present decision, and of Commonwealth v. Has, 122 Mass. 40, 42 (1877), if and when those cases arise. See Brattle Films, Inc. v. Commissioner of Public Safety, 333 Mass. 58, 127 N.E.2d 891 (1955). [ Footnote 2/102 ] Wisconsin, which does not have a general ban on Sunday labor, but does have a statute prohibiting automobile trading on that day, also makes an exception in favor of those who conscientiously observe the Jewish Sabbath. West's Wis.Stat.Ann., 1961 Supp. § 218.01(3)(a) 21. Other jurisdictions having statutes which cover only one or a few enumerated activities provide no Sabbatarian exception. Fla.Laws 1959, Special Acts, c. 59-1650, a local option shop-closing statute applicable to Orange County, does contain such an exception, and, in Michigan, there are similar excepting clauses attached to barbering and auto-trading bans, as well as to the general Sunday laws. Mich.Stat.Ann., 1957 Rev. Vol., §§ 18.122, 9.2702. [ Footnote 2/103 ] In Kansas, Massachusetts, Missouri, New Jersey, New York, North Dakota, Rhode Island, South Dakota, Texas, Washington, and probably in Connecticut and Maine, the exception does not cover the sale of goods. Kan.Gen.Stat.Ann., 1949, § 21-953, State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Mass.Gen.Laws Ann., 1958, c. 136, § 6, Commonwealth v. Has, 122 Mass. 40 (1877); Commonwealth v. Starr, 144 Mass. 359, 11 N.E. 533 (1887); Commonwealth v. Kirshen, 194 Mass. 151, 80 N.E. 2 (1907); Vernon's Mo.Stat.Ann., 1953, § 563.700; N.J.Stat.Ann., 1953, § 2A:171-4; McKinney's N.Y.Laws, Pen.Law § 2144, People v. Friedman, 302 N.Y. 75 , 96 N.E.2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907; cf. People v. Adler, 174 App.Div. 301, 160 N.Y.S. 539 (1916) (manufacturing activities); N.D.Century Code, 1960, § 12-21-17; R.I.Gen.Laws, 1956, § 11-40-4 (shops, mechanical work in compact places, etc.); S.D.Code, 1939, § 13.1710; Vernon's Tex.Stat., 1952, Pen.Code, Art. 284; Wash.Rev.Code, 1959, § 9.76.020, State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949); Conn.Gen.Stat.Rev.1958, § 53-303; Me.Rev.Stat., 1954, c. 134, § 44. Cf. State v. Weiss, 97 Minn. 125, 105 N.W. 1127 (1906). The exemption in Indiana, Kentucky, Michigan, Nebraska, Ohio, Oklahoma, Virginia and West Virginia does extend to selling, but in the last two named States an exempted person may not employ other persons not of his belief on Sunday. Burns' Ind.Stat.Ann., 1956 Replacement Vol., § 10-4301; Ky.Rev.Stat., 1960, § 436.160, Cohen v. Webb, 175 Ky. 1, 192 S.W. 828 (1917); Mich.Stat.Ann., 1957 Rev.Vol., §§ 18.855, 18.856(1), Builders Assn. v. City of Detroit, 295 Mich. 272, 294 N.W. 677 (1940), semble; Neb.Rev.Stat., 1956 Reissued Vol., § 28-940; Page's Ohio Rev.Code Ann., 1954, § 3773.24; Okla.Stat.Ann., 1958, Tit. 21, § 909, Krieger v. State, 12 Okla.Cr. 566, 160 P. 36 (1916); Va.Code, 1960 Replacement Vol., § 18.1-359: W.Va.Code Ann., 1955, c. 61, Art. 8, § 18 [6073]. The meaning of the provision in Illinois, Ill.Rev.Stat., 1959, c. 38, § 549, is not clear. [ Footnote 2/104 ] See 101 H.L.Deb. 430 (5th ser.1935-1936); 311 H.C.Deb. 492 (5th ser.1935-1936). On this ground some state courts have even held Sabbatarian exceptions invalid as discriminatory. City of Shreveport v. Levy, 26 La.Ann. 671 (1874); Kislingbury v. Treasurer of Plainfield, 10 N.J. Misc. 798, 160 A. 654 (C.P. 1932). See State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949), reserving the question. However, in Johns v. State, 78 Ind. 332 (1881), the exemption was sustained. [ Footnote 2/105 ] See Va.Code, 1960 Replacement Vol., § 18.1-359; W.Va.Code Ann., 1955, c. 61, Art. 8, § 18 [6073]; Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 91. [ Footnote 2/106 ] Both Pennsylvania and Massachusetts have fair employment practices acts prohibiting religious discrimination in hiring. Purdon's Pa.Stat.Ann., 1960 Supp., Tit. 43, §§ 951 to 963; Mass.Gen.Laws Ann., 1958, c. 151B, §§ 1 to 10. [ Footnote 2/107 ] Connecticut, Indiana, Maine, Massachusetts, Michigan, Nebraska, Ohio, Texas, Virginia, West Virginia. Wisconsin's statute is similar. [ Footnote 2/108 ] New York, North Dakota, Oklahoma, South Dakota, Washington. [ Footnote 2/109 ] Kansas, Kentucky, Missouri. [ Footnote 2/110 ] Rhode Island. [ Footnote 2/111 ] This New Jersey excepting statute appears to be currently inoperative. The State's general labor ban has recently been held impliedly repealed by the enactment of a Sunday retail sales prohibition, Two Guys from Harrison, Inc. v. Furman, 32 N.J.199, 160 A.2d 265 (1960), and the excepting provision, by its terms, does not extend to Sunday selling by Sabbatarians. [ Footnote 2/112 ] And see In re Berman, 344 Mich. 598, 75 N.W.2d 8 (1956), determining the posture under a conscientious-Sabbatarian exception of a Sabbatarian owner of three stores who operated one himself, closing on Saturdays and opening on Sundays, and the other two through agents, opening Saturdays and closing Sundays. [ Footnote 2/113 ] 14 Geo. VI, c. 28. [ Footnote 2/114 ] 26 Geo. V & 1 Edw. VIII, c. 53. [ Footnote 2/115 ] Principally the Jewish exemption in the Hairdressers' and Barbers' Shops (Sunday Closing) Act, 1930, 20 & 21 Geo. V, c. 35, § 3. See 101 H.L.Deb. 439, 442 (5th ser.1935-1936); 311 H. C. Deb. 502 (5th ser.1935-1936). The 1930 act was repealed by the Shops Act, 1950, 14 Geo. VI, c. 28, Eighth Schedule, although § 67 of the latter act continues similar provisions for Scotland. The problem of special Sunday regulation for the Jewish population had involved Parliament at least since the turn of the century. Sections 47, 48 of the Factory and Workshop Act, 1901, 1 Edw. VII, c. 22, permitted Jewish employers certain exemptions from that act's prohibition of Sunday employment of women and children. The terms of the exemption are altered by the Factories Act, 1937, 1 Edw. VIII & 1 Geo. VI, c. 67, § 91. See also Report from the Select Committee of the House of Lords on the Sunday Closing (Shops) Bill [H.L.] (1905), 71-83, 142-147, 153-157. [ Footnote 2/116 ] Among these was a provision permitting any shopkeeper in London to elect to close on Saturdays instead of Sundays. See 311 H. C. Deb. 447-461 (5th ser.1935-1936). The Jewish exemption provisions of § 7 were the most strenuously debated provisions of the Shops (Sunday Trading Restriction) Act. See 308 H.C.Deb. 2188-2192, 2202-2203, 2217 (5th ser.1935-1936); 101 H.L.Deb. 263, 270, 427-434 (5th ser.1935-1936); 311 H.C.Deb. 447 461, 478-507 (5th ser.1935-1936). The recognized inadequacy of the exemption was in part responsible for the act's special provisions (§ 8) for the London area, where the bulk of the English Jewish trading population does business. Id. at 2087, 2090-2091, 2103-2104. [ Footnote 2/117 ] See the statutory form prescribed by the Shops Regulations, 1937, S. R. & O., 1937, No. 271, Schedules IV(a) and IV(b). [ Footnote 2/118 ] The constitution of the tribunals for Jews and for Seventh Day Adventists ( see 366 U.S. 420 fn2/119|>note 119, infra ) and the procedures of the tribunals are prescribed by the Shops Regulations, 1937, S. R. & O., 1937, No. 271, Reg. 4, and the Shops (Procedure for Jewish Tribunals) Regulations, 1937, S. R. & O., 1937, No. 1038. [ Footnote 2/119 ] Other provisions indicate the intricate problems of administration which the exemption raises. Section 53(3) provides that, in the case of shops occupied by a partnership or company, the application of the exemption is determined by the religion of the majority of the partners or directors. Section (5) prohibits the occupier of a shop registered for the exemption from keeping open any other shop on Saturday, and prohibits any person who has made a statutory declaration of conscientious objection for purposes of registration from working in, or employing any other person in, or being concerned in the control of, a firm which employs any other person in, a shop open on Saturday. Compare In re Berman, 366 U.S. 420 fn2/112|>note 112, supra. Subsection (9) permits cancellation of the registration of any shop at the application of the occupier, but provides that registration shall not be cancelled within twelve months of the date upon which application for registration was made, and subsection (10) precludes the same occupier's again registering the shop for exemption. Section 53(12) makes the exception provisions applicable as well to members of any religious body regularly observing the Jewish Sabbath as to Jews, and provides that for such persons the function served in the case of Jews by the London Committee of Deputies of the British Jews shall be served by "such body as appears to the Secretary of State to represent such persons." [ Footnote 2/120 ] Frolickstein v. Mayor of Mobile, 40 Ala. 725 (1867); Scales v. State, 47 Ark. 476 (1886); State v. Haining, 131 Kan. 853, 293 P. 952 (1930); Commonwealth v. Has, 122 Mass. 40 (1877); Commonwealth v. Chernock, 336 Mass. 384, 145 N.E.2d 920 (1957); State v. Weiss, 97 Minn. 125, 105 N.W. 1127 (1906); Komen v. City of St. Louis, 316 Mo. 9, 289 S.W. 838 (1926) (subsequently overruled on another point); State v. Fass, 62 N.J.Super. 265, 162 A.2d 608 (County Ct.1960); People v. Friedman, 302 N.Y. 75 , 96 N.E.2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907; Silverberg Bros. v. Douglass, 62 Misc. 340, 114 N.Y.S. 824 (Sup.Ct.1909); Commonwealth v. Wolf, 3 S. & R. 48 (Pa. 1817); Specht v. Commonwealth, 8 Pa. 312 (1848); City Council v. Benjamin, 2 Strob.L. 508 (S.C. 1848); Xepapas v. Richardson, 149 S.C. 52, 146 S.E. 686 (1929), semble; State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), writ of error dism'd, 210 U.S. 438 (prohibiting barbering). And see State ex rel. Walker v. Judge, 39 La.Ann. 132, 141, 1 So. 437 444 (1887); cf. Ex parte Sundstrom, 25 Tex.App. 133 (1888). [ Footnote 2/121 ] Consider Mr. Loftus' comments on the proposed Shops (Sunday Trading Restriction) Bill before the House of Commons in 1936: "During the last 20 years, there has been a very great change in the habits of our people -- a change for the better. Vast masses of our people, in fact, literally millions, go out into the countryside on fine Sunday afternoons in the Summer, and that is good for their health; it is good for the mind, as well as the body, that they should do so. Going into the country . . . , they have been accustomed to certain facilities in the way of obtaining refreshment, fresh fruit, flowers and vegetables to bring home, and it would be regretted, particularly by the working classes, if there was any interference by legislation that would stop those facilities or check the tendency of our people to go into the country and to take advantage of the amenities of the countryside." ". . . The first principle is to frame such exemptions as will not unduly interfere with the ordinary health and habits of our people. . . ." 308 H.C.Deb. 2159 (5th ser.1935-1936). [ Footnote 2/122 ] Id. at 2200-2201. [ Footnote 2/123 ] The statute 29 Charles II, c. 7, punished worldly labor of one's ordinary calling by a forfeiture of five shillings, punished traveling by drovers or butchers by a forfeiture of twenty shillings, and punished the exhibition of merchandise for sale by forfeiture of the goods. Early American colonial legislation similarly provided greater fines for engaging in some than in other Sunday activity. See, e.g., 1., Delaware, 1740; Massachusetts, 1692; New Hampshire, 1700; New Jersey, 1798. [ Footnote 2/124 ] The statute 29 Charles II, c. 7, itself contained several exceptions, and subsequent statutes added others. See notes 366 U.S. 420 fn2/15|>15, 366 U.S. 420 fn2/18|>18, supra. The original Sunday edict of Constantine in 321 A.D. had exempted farm labor. [ Footnote 2/125 ] The statute 27 Henry VI, c. 5, had excepted "necessary victual" from its prohibition of sales at fairs and markets; 5 & 6 Edw. VI, c. 3, had contained a broad exception for labor at harvest or at any other time in the year when necessity required. [ Footnote 2/126 ] See, e.g., Jefferson's bill quoted in text at 366 U.S. 420 fn2/68|>note 68, supra. Other laws made specific exceptions as well: the Pennsylvania statute of 1705, for example, exempted not only works of necessity and charity, but the dressing of victuals in cookshops, watermen landing passengers, butchers slaughtering and selling meat or fishermen selling fish in the morning in summer, and the sale of milk before 9 a.m. and after 5 p.m. [ Footnote 2/127 ] Where statutes ban the keeping open of places of business as well as laboring, the exception is frequently worded to apply only to the latter. See Commonwealth v. Detra, 143 Mass. 28 (1886). [ Footnote 2/128 ] See Williams v. State, 167 Ga. 160, 144 S.E. 745 (1928) (sale of gasoline is necessity); Jacobs v. Clark, 112 Vt. 484, 28 A.2d 369 (1942) (same is not necessity); Commonwealth v. Louisville & Nashville R. Co., 80 Ky. 291 (1882) (operating railroad is necessity); cf. Philadelphia, W. & B.R. Co. v. Lehman, 56 Md. 209 (1881); Sparhawk v. Union Passenger R. Co., 54 Pa. 401 (1867) (same is not necessity); State v. Needham, 134 Kan. 155, 4 P.2d 464 (1931) (distribution of newspapers is necessity); Commonwealth v. Matthews, 152 Pa. 166, 25 A. 548 (1893) (same is not necessity); Augusta & S. R. Co. v. Renz, 55 Ga. 126 (1875) (operating streetcar is necessity); Johnston v. Commonwealth, 22 Pa. 102 (1853) (operating bus is not necessity); Turner v. State, 67 Ind. 595 (1879) (cutting ripe wheat is necessity); State v. Goff, 20 Ark. 289 (1859) (same is not necessity); Wilkinson v. State, 59 Ind. 416 (1877) (hauling ripe watermelons is necessity), Commonwealth v. White, 190 Mass. 578, 77 N.E. 636 (1906) (picking ripe cranberries is not necessity); Rich v. Commonwealth, 198 Va. 445, 94 S.E.2d 549 (1956) (where evidence of widespread retail sale of groceries is not rebutted, jury cannot find that sale of groceries is not necessity); State v. James, 81 S.C.197, 62 S.E. 214 (1908) (sale of ice and meat is not necessity); State v. Corologos, 101 Vt. 300, 143 A. 284 (1928) (sale of confectionery is not necessity as matter of law, although jury could so find); cf. State ex rel. Smith v. Wertz, 91 W.Va. 622, 114 S.E. 242 (1922); Thompson v. City of Atlanta, 178 Ga. 281, 172 S.E. 915 (1934), and Rosenbaum v. State, 131 Ark. 251, 199 S.W. 388 (1917) (operation of motion picture theater is not necessity); Williams v. Commonwealth, 179 Va. 741, 750, 20 S.E.2d 493, 496 (1942) (concurring opinion) (operation of motion picture theater is necessity); McGatrick v. Wason, 4 Ohio St. 566 (1855) (loading ship with navigation-closing weather impending is necessity); Commonwealth v. Sampson, 97 Mass. 407 (1867) (gathering seaweed which tide threatens to float away is not necessity); Hennersdorf v. State, 25 Tex.App. 597, 8 S.W. 926 (1888) (manufacturing ice is necessity); State v. McBee, 52 W.Va. 257, 43 S.E. 121 (1902) (pumping oil is not necessity as matter of law, although jury could so find); State v. Ohmer, 34 Mo.App. 115 (1889) (retail sale of tobacco is not necessity); Francisco v. Commonwealth, 180 Va. 371, 23 S.E.2d 234 (1942) (jury may find retail sale of beer necessity). [ Footnote 2/129 ] In Petit v. Minnesota, 177 U. S. 164 , this Court sustained against a claim of arbitrary classification a statute which, in express terms, provided that its exception for works of necessity should not include barbering. In other jurisdictions, the same result was reached by judicial interpretation of the "necessity" clause. State v. Linsig, 178 Iowa 484, 159 N.W. 995 (1916); Ex parte Kennedy, 42 Tex.Cr.R. 148, 58 S.W. 129 (1900); State v. Sopher, 25 Utah 318, 71 P. 482 (1903). Cf. Commonwealth v. Dextra, 143 Mass. 28, 8 N.E. 756 (1886); Stark v. Backus, 140 Wis. 557, 123 N.W. 98 (1909). Statutes prohibiting Sunday barbering were enacted in a number of States. These were voided as discriminatory in Ex parte Jentzsch, 112 Cal. 468, 44 P. 803 (1896); Eden v. People, 161 Ill. 296, 43 N.E. 1108 (1896); Armstrong v. State, 170 Ind. 188, 84 N.E. 3 (1908); State v. Granneman, 132 Mo. 326, 33 S.W. 784 (1896); cf. Ragio v. State, 86 Tenn. 272, 6 S.W. 401 (1888), but have been generally sustained. McClelland v. City of Denver, 36 Colo. 486, 86 P. 126 (1906); State v. Murray, 104 Neb. 51, 175 N.W. 666 (1919); People v. Bellet, 99 Mich. 151, 57 N.W. 1094 (1894); People v. Havnor, 149 N.Y. 195, 43 N.E. 541 (1896), writ of error dism'd, 170 U. S. 408 ; Ex parte Johnson, 77 Okla.Cr. 360, 141 P.2d 599 (1943); Ex parte Northrup, 41 Ore. 489, 69 P. 445 (1902); Breyer v. State, 102 Tenn. 103, 50 S.W. 769 (1899); State v. Bergfeldt, 41 Wash. 234, 83 P. 177 (1905), overruling City of Tacoma v. Krech, 15 Wash. 296, 46 P. 255 (1896). [ Footnote 2/130 ] One may trace in these exceptions the evolving habits of life of the people. Compare State v. Hogreiver, 152 Ind. 652, 53 N.E. 921 (1899), sustaining a statute specifically prohibiting Sunday baseball, with Carr v. State, 175 Ind. 241, 93 N.E. 1071 (1911), sustaining a statute excepting baseball from the general Sunday prohibition. [ Footnote 2/131 ] The Shops Act, 1950, 14 Geo. VI, c. 28, excepts from the general Sunday ban the keeping open of a shop to sell liquor, meal or refreshments (whether or not for consumption on the premises, but excluding fried fish and chips sold at a fish and chip shop), newly cooked provisions and cooked tripe, table waters, chocolates, sweets, sugar confectionery and ice cream, flowers, fruit and vegetables (other than tinned), milk and cream (other than tinned), medicines and medical and surgical appliances (by certain registered shops), aircraft, motor or cycle supplies or accessories, tobacco and smokers' requisites, newspapers, periodicals and magazines, books and stationery at rail and bus terminals and aerodromes, guide books, photographs, reproductions, photographic films and plates and souvenirs at public or specially approved galleries, museums, etc., passport photos, requisites for games or sports sold on the premises where the sport is played, fodder for horses, mules, etc. Post office and funeral business is permitted. (§ 47 & Fifth Schedule.) Local authority may permit the opening of shops before 10 a.m. for the sale of bread and flour, confectionery, fish, groceries and grocer's products. (§ 48 & Sixth Schedule.) Local authority may prohibit sales of meals and refreshments for consumption off the premises (exempted by the Fifth Schedule) in the case of classes of shops in which sales for on-the-premises consumption do not constitute a substantial part of the business carried on. (§ 49.) Where the area of a local authority is a district frequented as a holiday resort during certain seasons of the year, the local authority may provide by order that shops of such classes as it designates may open on specified Sundays (not to exceed eighteen per year) for the sale of bathing and fishing articles, photographic requisites, toys, souvenirs and fancy goods, books, stationery, photographs, reproductions and postcards, and food. (§ 51 & Seventh Schedule.) Special provisions applicable to the London area permit local councils to authorize the opening before 2 p.m. of shops where street markets or (in some regions) shops were customarily opened on Sunday prior to the date of the original act, 1936, where, in the latter case, the councils find that "having regard to the character and habits of the population in the district," Sunday closing would cause undue hardship; but if such an exempting order is made, it must fix some weekday closing day for these shops, which may differ for different classes of shops. (§ 54.) In the case of these local exempting orders, provision is made for a plebiscite among the shopkeepers affected. (§§ 52, 54(1), par. 2.) The act further excepts the sale and delivery of stores or necessaries to arriving or departing ships and aircraft and of goods to private clubs for club purposes, the cooking before 1:30 p.m. of food brought by customers to be cooked for consumption that day, and attendance as a barber upon invalids or upon residents of hotels or clubs therein. (§ 56.) This summary digest can scarcely suggest the complexity of the text. [ Footnote 2/132 ] 311 H.C.Deb. 465 (5th ser.1935-1936). [ Footnote 2/133 ] Elliott v. State, 29 Ariz. 389, 242 P. 340 (1926) (banning enumerated businesses; court distinguishes general closing statute with exceptions); Bocci & Sons Co. v. Town of Lawndale, 208 Cal. 720, 284 P. 654 (1930) (exceptions for classes of businesses); Justesen's Food Stores, Inc. v. City of Tulare, 12 Cal. 2d 324 , 84 P.2d 140 (1938) (closing food stores; exceptions for classes of businesses); Deese v. City of Lodi, 21 Cal. App. 2d 631 , 69 P.2d 1005 (1937) (exceptions for classes of businesses); Allen v. City of Colorado Springs, 101 Colo. 498, 75 P.2d 141 (1937) (exceptions for classes of businesses and commodities); Henderson v. Antonacci, 62 So. 2d 5 (Fla.1952) (exceptions for classes of businesses and commodities); Kelly v. Blackburn, 95 So. 2d 260 (Fla.1957) (exceptions for newspapers and cinema); City of Mt. Vernon v. Julian, 369 Ill. 447, 17 N.E.2d 52 (1938) (exceptions for classes of businesses); Auto-Rite Supply Co. v. Mayor of Woodbridge, 41 N.J.Super. 303, 124 A.2d 612 (1956), aff'd on other grounds, 25 N.J. 188, 135 A.2d 515 (1957) (banning sale of enumerated classes of commodities); Chan Sing v. Astoria, 79 Ore. 411, 155 P. 378 (1916) (closing shops selling enumerated classes of commodities); Broadbent v. Gibson, 105 Utah 53, 140 P.2d 939 (1943) (exceptions for classes of businesses, some restricted to sale of specified commodities); Gronlund v. Salt Lake City, 113 Utah 284, 194 P.2d 464 (1948) (sales ban with exceptions for classes of commodities; court distinguishes statutory scheme banning all labor and sales with exceptions). Cf. State v. Trahan, 214 La. 100, 36 So. 2d 652 (1948), and Arrigo v. City of Lincoln, 154 Neb. 537, 48 N.W.2d 643 (1951) (exceptions for classes of businesses), holding unconstitutional Sunday statutes in particular applications deemed discriminatory. [ Footnote 2/134 ] City of Denver v. Bach, 26 Colo. 530, 58 P. 1089 (1899) (closing classes of businesses); City of Springfield v. Smith, 322 Mo. 1129, 19 S.W.2d 1 (1929) (banning enumerated entertainments); Ex parte Ferguson, 62 Okla.Cr. 145, 70 P.2d 1094 (1937) (banning sale of enumerated commodities) (alternative holding); Ex parte Hodges, 65 Okla.Cr. 69, 83 P.2d 201 (1938) (exceptions for classes of businesses) (alternative holding). Cf. McKaig v. Kansas City, 363 Mo. 1033, 256 S.W.2d 815 (1953) (automobile sales), disapproving City of St. Louis v. Delassus, 205 Mo. 578, 104 S.W. 12 (1907), and Komen v. City of St. Louis, 316 Mo. 9, 289 S. W, 838 (1926). [ Footnote 2/135 ] Lane v. McFadyen, 259 Ala. 205, 66 So. 2d 83 (1953) (banning merchandising with exceptions for classes of businesses); Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W.2d 679 (1956) (ordinance applied only to single class of business); Hickinbotham v. Williams, 227 Ark. 126, 296 S.W.2d 897 (1956) (banning enumerated businesses); Ex parte Koser, 60 Cal. 177 (1882) (exceptions for classes of businesses); In re Sumida, 177 Cal. 388, 170 P. 823 (1918) (exceptions for classes of businesses); State v. Hurliman, 143 Conn. 502, 123 A.2d 767 (1956) (exceptions for classes of services, activities and commodities, the latter to be sold by persons who sell them on weekdays); State v. Shuster, 145 Conn. 554, 145 A.2d 196 (1958) (same); Theisen v. McDavid, 34 Fla. 440, 16 So. 321 (1894) (excepting sales of classes of commodities); State v. Dolan, 13 Idaho 693, 92 P. 995 (1907) (exceptions for classes of services and commodities); State v. Cranston, 59 Idaho 561, 85 P.2d 682 (1938) (exceptions for classes of businesses, services and commodities); Humphrey Chevrolet, Inc. v. City of Evanston, 7 Ill. 2d 402 , 131 N.E.2d 70 (1955) (exceptions for classes of commodities); Ness v. Supervisors of Elections, 162 Md. 529, 160 A. 8 (1932) (unspecified); People v. DeRose, 230 Mich. 180, 203 N.W. 95 (1925) (banning classes of businesses and sales of classes of commodities); People v. Krotkiewicz, 286 Mich. 644, 82 N.W. 852 (1938) (banning sales of classes of commodities); People's Appliance, Inc. v. City of Flint, 358 Mich. 34, 99 N.W.2d 522 (1959) (banning businesses selling classes of commodities); State ex rel. Hoffman v. Justus, 91 Minn. 447, 98 N.W. 325 (1904) (exceptions for classes of commodities); Liberman v. State, 26 Neb. 464, 42 N.W. 419 (1889) (exceptions for classes of businesses and commodities); In re Caldwell, 82 Neb. 544, 118 N.W. 133 (1908) ("common" labor banned); State v. Somberg, 113 Neb. 761, 204 N.W. 788 (1925) (banning classes of businesses and sales of classes of commodities); City of Elizabeth v. Windsor-Fifth Avenue, Inc., 31 N.J.Super. 187, 106 A.2d 9 (1954) (banning businesses selling classes of commodities); Masters-Jersey, Inc. v. Mayor of Paramus, 32 N.J. 296, 160 A.2d 841 (1960) (exceptions for classes of commodities); Richman v. Board of Comm'rs, 122 N.J.L. 180, 4 A.2d 501 (1939) (banning businesses selling a class of commodities, semble); People v. Friedman, 302 N.Y. 75 , 96 N.E.2d 184 (1950), app. dism'd for want of a substantial federal question, 341 U.S. 907 (exceptions for classes of businesses, commodities, other activities); State v. Medlin, 170 N.C. 682, 86 S.E. 597 (1915) (exception for a class of business, restricted to sale of specified classes of commodities); State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949) (exceptions for classes of commodities to be sold by classes of businesses); State v. McGee, 237 N.C. 633, 75 S.E.2d 783 (1953), app. dism'd for want of a substantial federal question, 346 U.S. 802 (exceptions for classes of businesses, commodities, other activities); State v. Towery, 239 N.C. 274, 79 S.E.2d 513 (1954), app. dism'd for want of a substantial federal question, 347 U.S. 925 (exceptions for classes of businesses, some restricted to sales of specified classes of commodities); State v. Diamond, 56 N.D. 854, 219 N.W. 831 (1928) (exceptions for classes of commodities); State v. Haase, 97 Ohio App. 377, 116 N.E.2d 224 (1953) (exceptions for classes of recreational activities); State v. Kidd, 167 Ohio St. 521, 150 N.E.2d 413 (1958), app. dism'd for want of a substantial federal question, 358 U. S. 132 (exceptions for classes of recreational activities); Commonwealth v. Bauder, 188 Pa.Super. 424, 145 A.2d 915 (1958) (exceptions for classes of recreational activities); Bothwell v. York City, 291 Pa. 363, 140 A. 130 (1927) (banning classes of recreational activities); Mayor of Nashville v. Linck, 80 Tenn. 499 (1883) (exceptions for sales of classes of commodities by classes of businesses); Kirk v. Olgiati, 203 Tenn. 1, 308 S.W.2d 471 (1957) (banning classes of businesses); Ex parte Sundstrom, 25 Tex.App. 133, 8 S.W. 207 (1888) (exceptions for classes of commodities); Searcy v. State, 40 Tex.Cr.R. 460, 51 S.W. 1119 (1899) (exceptions for classes of commodities); Sayeg v. State, 114 Tex.Cr.R. 153, 25 S.W.2d 865 (1930) (exceptions for classes of commodities); City of Seattle v. Gervasi, 144 Wash. 429, 258 P. 328 (1927) (exceptions for classes of commodities); State v. Grabinski, 33 Wash. 2d 603, 206 P.2d 1022 (1949) (exceptions for classes of commodities). See also Rosenbaum v. City & County of Denver, 102 Colo. 530, 81 P.2d 760 (1938) (banning automobile trading); Moskco v. Dunbar, 135 Colo. 172, 309 P.2d 581 (1957) (banning automobile trading); Gillooley v. Vaughan, 92 Fla. 943, 110 So. 653 (1926) (banning classes of amusements); Stewart Motor Co. v. City of Omaha, 120 Neb. 776, 235 N.W. 332 (1931) (banning automobile trading); ABC Liquidators, Inc. v. Kansas City, 322 S.W.2d 876 (Mo.1959) (banning auctions); State v. Loomis, 75 Mont. 88, 242 P. 344 (1925) (banning, e.g., classes of dance halls); Gundaker Central Motors, Inc. v. Gassert, 23 N.J. 71, 127 A.2d 566 (1956), app. dism'd for want of a substantial federal question, 354 U.S. 933 (banning automobile trading); Ex parte Johnson, 20 Okla.Cr. 66, 201 P. 533 (1921) (banning cinema and theaters); Consolidated Enterprises, Inc. v. State, 150 Tenn. 148, 263 S.W. 74 (1924) (banning cinema and theaters). Statutory provisions whose effect was to punish some Sunday activities more severely than others have been sustained. State v. Hogreiver, 152 Ind. 652, 53 N.E. 921 (1899); Tinder v. Clarke Auto Co., 238 Ind. 302, 149 N.E.2d 808 (1958); State v. Murray, 104 Neb. 51, 175 N.W. 666 (1919); Commonwealth v. Grochowiak, 184 Pa.Super. 522, 136 A.2d 145 (1957), app. dism'd for want of a substantial federal question, 358 U. S. 47 ; Breyer v. State, 102 Tenn. 103, 50 S.W. 769 (1899). Cf. Sherman v. Mayor of Paterson, 82 N.J.L. 345, 82 A. 889 (1912). For cases sustaining state statutes applicable in some, but not all, localities, see People v. Havnor, 149 N.Y. 195, 43 N.E. 541 (1896); Bohl v. State, 3 Tex.App. 683 (1878), and compare Sarner v. Township of Union, 55 N.J.Super. 523, 151 A.2d 208 (1959), with Two Guys from Harrison, Inc. v. Furman, 32 N.J.199, 160 A.2d 265 (1960). [ Footnote 2/136 ] See 366 U.S. 420 fn2/131|>note 131, supra; Appendix II to this opinion, post, p. 366 U. S. 551 ; Weekly Rest in Commerce and Offices, Report VII(1), International Labour Conference, 39th Sess., Geneva, 1956 (1955), 27-52; Weekly Rest in Commerce and Offices, Report A, International Labour Conference, 26th Sess., Geneva, 1940 (1939), 82-127. [ Footnote 2/137 ] It is unclear whether the exception here assailed permits the sale of merchandise essential to, or customarily sold at, bathing beaches, bathhouses, etc., only at those enumerated places or by all retailers within the county. Since the Maryland Court of Appeals left this question of construction open below, I assume the interpretation most favorable to appellants' claim. [ Footnote 2/138 ] Many of the jurisdictions which have Sunday laws provide some form of local option procedure for the creation of exceptions. This is only to recognize the obvious fact that conditions of limited geographical range may be determinative in striking the balance of forbidden and permissible Sunday activity which best accords with popular habits and desires. In Maryland, the State Legislature itself does the job of adapting the general statewide law to local circumstances. This difference in method can scarcely entail different federal constitutional consequences. [ Footnote 2/139 ] See Eldorado Ice Cream Co. v. Clark, [1938] 1 K.B. 715, holding the sale of ice cream from a box tricycle without the prohibition of the Shops (Sunday Trading Restriction) Act. [ Footnote 2/140 ] Consider the alternative suggested by the ordinance sustained in In re Sumida, 177 Cal. 388, 170 P. 823 (1918), requiring that, where an establishment housing both permitted and prohibited businesses remains open on Sunday for transaction of the former, a five-foot-high permanent partition or screen must be erected to separate the two business areas. [ Footnote 2/141 ] See Friedeborn v. Commonwealth, 113 Pa. 242, 6 A. 160 (1886). [ Footnote 2/142 ] See 36 Pennsylvania Legislative Journal, 143d General Assembly (1959), 1139. [ Footnote 2/143 ] See id. at 1142-1143, 2568. | 366 U.S. 420 app1| APPENDIX I TO OPINION OF MR. JUSTICE FRANKFURTER PRINCIPAL COLONIAL SUNDAY STATUTES AND THEIR CONTINUATION UNTIL THE END OF THE EIGHTEENTH CENTURY CONNECTICUT: New Haven Colony: 1656: Prophanation of the Lord's Day, New Haven's Settling in New England. And Some Laws for Government (1656), reprinted in Hinman, The Blue Laws (1838), 132, 206. See also Prince, An Examination of Peters' "Blue Laws," H.R.Doc. No. 295, 55th Cong., 3d Sess. 95, 109, 113-114, 123-125. Connecticut Colony: 1668: 2 Public Records of the Colony of Connecticut, 1665-1678 (1852), 88 (traveling, playing). 1672: Prophanation of the Sabbath, Laws of Connecticut, 1673 (Brinley reprint 1865) 58. 1676: 2 Public Records of the Colony of Connecticut, 1665-1678 (1852) 280. Page 366 U. S. 544 See An Act for the due Observation, and keeping the Sabbath, or Lord's Day, and for Preventing, and Punishing Disorders, and Prophaneness on the same, Acts and Laws of His Majesty's English Colony of Connecticut in New-England (1750), 139; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1784), 213; An Act for the due Observation of the Sabbath or Lord's-Day, Acts and Laws of the State of Connecticut (1796), 368. DELAWARE: 1740: An Act to prevent the Breach of the Lord's Day commonly called Sunday, Laws of the Government of New-Castle, Kent and Sussex Upon Delaware (1741) 121. 1795: An Act more effectually to prevent the profanation of the Lord's day, commonly called Sunday, 2 Laws of Delaware, 1700-1797 (1797) 1209. GEORGIA: 1762: An Act For preventing and punishing Vice, Profaneness, and Immorality, and for keeping holy the Lord's Day, commonly called Sunday, Acts Passed by the General Assembly of Georgia, 1761-1762 (ca. 1763) 10. See Marbury and Crawford, Digest of the Laws of Georgia, 1755-1800 (1802) 410. MARYLAND: 1649: An Act concerning Religion, 1 Archives of Maryland (Proceedings and Acts of the General Assembly), 1637/8-1664 (1883) 244. 1654: Concerning the Sabbath Day, id. at 343. 1674: An Act against the Prophaning of the Sabbath day, 2 Archives of Maryland (Proceedings and Acts of Page 366 U. S. 545 the General Assembly), 1666-1676 (1884) 414 (innkeepers). 1692: An Act for the Service of Almighty God and the Establishment of the Protestant Religion within this Province, 13 Archives of Maryland (Proceedings and Acts of the General Assembly), 1684-1692 (1894) 425. 1696: An Act for Sanctifying & keeping holy the Lord's Day Commonly called Sunday, 19 Archives of Maryland (Proceedings and Acts of the General Assembly), 1693-1697 (1899) 418. 1723: An Act to punish Blasphemers, Swearers, Drunkards, and Sabbath-Breakers . . . , Bacon, Laws of Maryland (1765) Sf2. See 1 Dorsey, General Public Statutory Law of Maryland, 1692-1839 (1840) 65. MASSACHUSETTS: Plymouth Colony: 1650: Prophanacon the Lord's Day, Compact with the Charter and Laws of the Colony of New Plymouth (1836) 92. 1658: Id. at 113 (traveling). 1671: General Laws of New Plimouth, c. III, §§ 9, 10 (1672), in id. at 247. Massachusetts Bay Colony: 1653: Sabbath, Colonial Laws of Massachusetts (reprinted from the edition of 1672 with the supplements through 1686) (1887) 132 (traveling, sporting, drinking). 1668: For the better Prevention of the Breach of the Sabbath, id. at 134. 1692: An Act for the better Observation and Keeping the Lord's Day, Acts and Laws of His Majesty's Province Page 366 U. S. 546 of the Massachusetts-Bay in New-England, in Charter of the Province of the Massachusetts-Bay in New-England (1759 [ sic ]) 13. 1761: An Act for Repealing the several Laws now in Force which relate to the Observation of the Lord's-Day, and for making more effectual Provision for the due Observation thereof, id. at 392. 1782: An Act for Making More Effectual Provision for the Due Observation of the Lord's Day . . . , Acts and Laws of Massachusetts, 1782 (reprinted 1890) 63. 1792: An Act providing for the due Observation of the Lord's Day, 2 Laws of Massachusetts, 1780-1800 (1801) 536. See also the act of 1629 set forth in Blakely, American State Papers on Freedom in Religion (4th rev. ed.1949), at 29-30. NEW HAMPSHIRE: 1700: An Act for the better Observation and Keeping the Lords Day, Acts and Laws Passed by the General Court of His Majesties Province of New-Hampshire in New-England, 1726 (reprinted 1886) 7. 1715: An Act for the Inspecting, and Suppressing of Disorders in Licensed Houses, id. at 57 (innkeepers). 1785: An Act for the Better Observation and Keeping the Lords Day, 5 Laws of New Hampshire (First Constitutional Period), 1784-1792 (1916) 75. 1789: An Act for the better Observation of the Lord's day . . . , id. at 372. 1799: An Act for the better observation of the Lords day . . . , 6 Laws of New Hampshire (Second Constitutional Period), 1792-1801 (1917) 592. Page 366 U. S. 547 NEW JERSEY: 1675: Leaming and Spicer, Grants, Concessions and Original Constitutions of the Province of New-Jersey with the Acts Passed during the Proprietary Governments (ca. 1752) 98. 1683: Against prophaning the Lord's Day, id. at 245. 1693: An Act for preventing Profanation of the Lords Day, id. at 519. 1704: An Act for Suppressing of Immorality, 1 Nevill, Acts of the General Assembly of the Province of New Jersey, 1703-1752 (1752) 3. 1790: An Act to promote the Interest of Religion and Morality, and for suppressing of Vice . . . , Acts of the Fourteenth General Assembly of the State of New Jersey, c. 311 (1790) 619. 1798: An Act for suppressing vice and immorality, Laws of New Jersey, Revised and Published under the Authority of the Legislature (1800) 329. NEW YORK: 1685: A Bill against Sabbath breaking, 1 Colonial Laws of New York, 1664-1775 (1894) 173. 1695: An Act against profanation of the Lords Day, called Sunday, id. at 356. 1788: An Act for suppressing immorality, Laws of New York, 1785-1788 (1886) 679. NORTH CAROLINA: 1741: An Act for the better observation and keeping of the Lord's day, commonly called Sunday, and for the more effectual suppression of vice and immorality, 1 Laws of North Carolina (1821), 142. Page 366 U. S. 548 PENNSYLVANIA: 1682: The Great Law or The Body of Laws, in Charter and Laws of the Province of Pennsylvania, 1682-1700 (with the Duke of Yorke's Book of Laws, 1676-1682) (1879) 107. 1690: The Law Concerning Liberty of Conscience (A Petition of Right, First Law), id. at 192. 1700: The Law Concerning Liberty of Conscience, 2 Statutes at Large of Pennsylvania (1896) 3. 1705: An Act to Restrain People from Labor on the First Day of the Week, id. at 175. 1779: An Act for the Suppression of Vice and Immorality, 9 Statutes at Large of Pennsylvania (1903) 333. 1786: An Act for the Prevention of Vice and Immorality . . 12 Statutes at Large of Pennsylvania (1906) 313. 1794: An Act for the Prevention of Vice and Immorality . . . , 15 Statutes at Large of Pennsylvania (1911) 110. RHODE ISLAND: 1673: 2 Records of the Colony of Rhode Island and Providence Plantations, 1664-1677 (1857) 503 (alcoholic beverages). 1679: 3 Records of the Colony of Rhode Island and Providence Plantations, 1678-1706 (1858) 30 (employing servants). 1679: An Act Prohibiting Sports and Labours on the First Day of the Week, Acts and Laws, of His Majesty's Colony of Rhode-Island and Providence-Plantations (1730) 27. Page 366 U. S. 549 1784: Rhode Island Acts and Resolves, Aug. 1784 (1784) 9 (excepting members of Sabbatarian societies; but exception does not extend to opening shops, to mechanical work in compact places, etc.). 1798: An Act prohibiting Sports and Labour on the first Day of the Week, Public Laws of Rhode-Island and Providence Plantations (1798) 577. SOUTH CAROLINA: 1692: An Act for the better Observance of the Lord's Day, commonly called Sunday, 2 Statutes at Large of South Carolina (1837) 74. 1712: An Act for the better observation of the Lord's Day, commonly called Sunday, id. at 396. See Grimke, Public Laws of South-Carolina (1790) 19. VIRGINIA: 1610: For the Colony in Virginea Britannia, Lawes Divine, Morall and Martially (1612), in 3 Force, Tracts Relating to the Colonies in North America (1844) II, 10 (gaming). 1629: 1 Hening, Statutes of Virginia (1823) 144. 1642-1643: Id. at 261 (traveling, shooting). 1657: The Sabbath to bee kept holy, id. at 434 (traveling, shooting, lading). 1661-1662: Sundays not to bee profaned, 2 Hening, Statutes of Virginia (1823) 48. 1691: An act for the more effectual suppressing the severall sins and offences of swaring, cursing, profaineing Gods holy name, Sabbath abuseing, drunkenness, fornication, and adultery, 3 Hening, Statutes of Virginia (1823) 71. Page 366 U. S. 550 1705: An act for the effectual suppression of vice, and restraint and punishment of blasphemous, wicked, and dissolute persons, id. at 358. 1786: An act for punishing disturbers of Religious Worship and Sabbath breakers, 12 Hening, Statutes of Virginia (1823) 336. In some of the Colonies the English Sunday laws were also in effect. See, e.g., Martin, Collection of the Statutes of England in Force in North-Carolina (1792) 379. Page 366 U. S. 551 | 366 U.S. 420 app2| APPENDIX II TO OPINION OF MR. JUSTICE FRANKFURTER ANALYSIS OF IMPORTANT STATE SUNDAY STATUTES CURRENTLY IN FORCE This Appendix sets forth the important state legislative provisions currently in force prohibiting or regulating private activity on Sunday. In reducing these often complex laws to tabular form, a certain simplification has been required. Provisions in different States which are found in a single category, e.g., "Trade in Alcoholic Beverages," or "Racing," may differ considerably in detail. This Appendix does not include references to: (1) provisions declaring Sunday a holiday or non-business day; (2) provisions closing the courts on Sunday or prohibiting the service of judicial process on that day; (3) provisions giving various government employees Sunday off or excepting Sunday from the days of labor for state prisoners; (4) penalty sections where Sunday laws are parts of general regulatory codes, e.g., fish and game laws; (5) jurisdictional provisions or provisions authorizing arrest and detention on Sunday of offenders against the various Sunday laws, unless these are of special interest, and (6) definition provisions, statutes of limitation of prosecution, and similar ancillary provisions. Page 366 U. S. 552 [Refer to vol. 366 U.S., pp. 552-560 for an extensive statutory tabulation not presently suitable for electronic presentation.] Page 366 U. S. 561 MR. JUSTICE DOUGLAS, dissenting.* The question is not whether one day out of seven can be imposed by a State as a day of rest. The question is not whether Sunday can, by force of custom and habit, be retained as a day of rest. The question is whether a State can impose criminal sanctions on those who, unlike the Christian majority that makes up our society, worship on a different day or do not share the religious scruples of the majority. If the "free exercise" of religion were subject to reasonable regulations, as it is under some constitutions, or if all laws "respecting the establishment of religion" were not proscribed, I could understand how rational men, representing a predominantly Christian civilization, might think these Sunday laws did not unreasonably interfere with anyone's free exercise of religion and took no step toward a burdensome establishment of any religion. But that is not the premise from which we start, as there is agreement that the fact that a State, and not the Federal Government, has promulgated these Sunday laws does not change the scope of the power asserted. For the classic view is that the First Amendment should be applied to the States with the same firmness as it is enforced against the Federal Government. See Lovell v. Griffin, 303 U. S. 444 , 303 U. S. 450 ; Minersville District v. Gobitis, 310 U. S. 586 , 310 U. S. 593 ; Murdock v. Pennsylvania, 319 U. S. 105 , 319 U. S. 108 ; Board of Education v. Barnette, 319 U. S. 624 , 319 U. S. 639 ; Staub v. City of Baxley, 355 U. S. 313 , 355 U. S. 321 ; Talley v. Page 366 U. S. 562 California, 362 U. S. 60 . The most explicit statement perhaps was in Board of Education v. Barnette, supra, 366 U. S. 639 . "In weighing arguments of the parties, it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment because it also collides with the principles of the First is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a 'rational basis' for adopting. But freedoms of speech and of press, of assembly, and of worship, may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect. It is important to note that, while it is the Fourteenth Amendment which bears directly upon the State, it is the more specific limiting principles of the First Amendment that finally govern this case." With that as my starting point, I do not see how a State can make protesting citizens refrain from doing innocent acts on Sunday because the doing of those acts offends sentiments of their Christian neighbors. The institutions of our society are founded on the belief that there is an authority higher than the authority of the State; that there is a moral law which the State is powerless to alter; that the individual possesses rights, conferred by the Creator, which government must respect. Page 366 U. S. 563 The Declaration of Independence stated the now familiar theme: "We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness." And the body of the Constitution, as well as the Bill of Rights, enshrined those principles. The Puritan influence helped shape our constitutional law and our common law; as Dean Pound has said: The Puritan "put individual conscience and individual judgment in the first place." The Spirit of the Common Law (1921), p. 42. For these reasons, we stated in Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 , "We are a religious people whose institutions presuppose a Supreme Being." But those who who fashioned the First Amendment decided that, if and when God is to be served, His service will not be motivated by coercive measures of government. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" -- such is the command of the First Amendment made applicable to the State by reason of the Due Process Clause of the Fourteenth. This means, as I understand it, that, if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government. This necessarily means, first, that the dogma, creed, scruples, or practices of no religious group or sect are to be preferred over those of any others; second, that no one shall be interfered with by government for practicing the religion of his choice; third, that the State may not require anyone to practice a religion, or even any religion, and fourth, that the State cannot compel one so to conduct himself as not to offend the religious scruples of another. The idea, as I understand it, was to limit the power of government to act in religious matters ( Board of Page 366 U. S. 564 Education v. Barnette, supra; McCollum v. Board of Education, 333 U. S. 203 ), not to limit the freedom of religious men to act religiously nor to restrict the freedom of atheists or agnostics. The First Amendment commands government to have no interest in theology or ritual; it admonishes government to be interested in allowing religious freedom to flourish -- whether the result is to produce Catholics, Jews, or Protestants, or to turn the people toward the path of Buddha, or to end in a predominantly Moslem nation, or to produce in the long run atheists or agnostics. On matters of this kind, government must be neutral. This freedom plainly includes freedom from religion, with the right to believe, speak, write, publish and advocate anti-religious programs. Board of Education v. Barnette, supra, 319 U. S. 641 . Certainly the "free exercise" clause does not require that everyone embrace the theology of some church or of some faith, or observe the religious practices of any majority or minority sect. The First Amendment, by its "establishment" clause, prevents, of course, the selection by government of an "official" church. Yet the ban plainly extends farther than that. We said in Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 16 , that it would be an "establishment" of a religion if the Government financed one church or several churches. For what better way to "establish" an institution than to find the fund that will support it? The "establishment" clause protects citizens also against any law which selects any religious custom, practice, or ritual, puts the force of government behind it, and fines, imprisons, or otherwise penalizes a person for not observing it. The Government plainly could not join forces with one religious group and decree a universal and symbolic circumcision. Nor could it require all children to be baptized or give tax exemptions only to those whose children were baptized. Could it require a fast from sunrise to sunset throughout the Moslem month of Ramadan? I should think not. Page 366 U. S. 565 Yet why then can it make criminal the doing of other acts, as innocent as eating, during the day that Christians revere? Sunday is a word heavily overlaid with connotations and traditions deriving from the Christian roots of our civilization that color all judgments concerning it. This is what the philosophers call "word magic." "For most judges, for most lawyers, for most human beings, we are as unconscious of our value patterns as we are of the oxygen that we breathe." Cohen, Legal Conscience (1960), p. 169. The issue of these cases would therefore be in better focus if we imagined that a state legislature, controlled by orthodox Jews and Seventh-Day Adventists, passed a law making it a crime to keep a shop open on Saturdays. Would a Baptist, Catholic, Methodist, or Presbyterian be compelled to obey that law or go to jail or pay a fine? Or suppose Moslems grew in political strength here and got a law through a state legislature making it a crime to keep a shop open on Fridays. Would the rest of us have to submit under the fear of criminal sanctions? Dr. John Cogley recently summed up [ Footnote 3/1 ] the dominance of the three-religion influence in our affairs: "For the foreseeable future, it seems, the United States is going to be a three-religion nation. At the present time, all three are characteristically 'American,' Page 366 U. S. 566 some think flavorlessly so. For religion in America is almost uniformly 'respectable,' bourgeois, and prosperous. In the Protestant world, the 'church' mentality has triumphed over the more venturesome spirit of the 'sect.' In the Catholic world, the mystical is muted in favor of booming organization and efficiently administered good works. And in the Jewish world the prophet is too frequently without honor, while the synagogue emphasis is focused on suburban togetherness. There are exceptions to these rules, of course; each of the religious communities continues to cast up its prophets, its rebels and radicals. But a Jeremiah, one fears, would be positively embarrassing to the present position of the Jews; a Francis of Assisi upsetting the complacency of American Catholics would be rudely dismissed as a fanatic, and a Kierkegaard, speaking with an American accent, would be considerably less welcome than Norman Vincent Peale in most Protestant pulpits." This religious influence has extended far, far back of the First and Fourteenth Amendments. Every Sunday School student knows the Fourth Commandment: "Remember the sabbath day, to keep it holy." "Six days shalt thou labour, and do all thy work:" "But the seventh day is the sabbath of the LORD thy God: in it thou shalt not do any work, nor thy son, nor thy daughter, thy manservant, nor thy Page 366 U. S. 567 maidservant, nor thy cattle, nor thy stranger that is within thy gates:" "For in six days the LORD made heaven and earth, the sea, and all that, in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it." Exodus 20:8-11. This religious mandate for observance of the Seventh Day became, under Emperor Constantine, a mandate for observance of the First Day "in conformity with the practice of the Christian Church." See Richardson v. Goddard , 23 How. 28, 64 U. S. 41 . This religious mandate has had a checkered history, but in general its command, enforced now by the ecclesiastical authorities, now by the civil authorities, and now by both, has held good down through the centuries. [ Footnote 3/2 ] The general pattern of these laws in the United States was set in the eighteenth century, and derives most directly from a seventeenth century English statute. 29 Charles II, c. 7. Judicial comment on the Page 366 U. S. 568 Sunday laws has always been a mixed bag. Some judges have asserted that the statutes have a "purely" civil aim, i.e., limitation of work time and provision for a common and universal leisure. But other judges have recognized the religious significance of Sunday and that the laws existed to enforce the maintenance of that significance. In general, both threads of argument have continued to interweave in the case law on the subject. Prior to the time when the First Amendment was held applicable to the States by reason of the Due Process Clause of the Fourteenth, the Court at least by obiter dictum approved State Sunday laws on three occasions: Soon Hing v. Crowley, 113 U. S. 703 , in 1885; Hennington v. Georgia, 163 U. S. 299 , in 1896; Petit v. Minnesota, 177 U. S. 164 , in 1900. And in Friedman v. New York, 341 U.S. 907, the Court, by a divided vote, dismissed [ Footnote 3/3 ] "for want of a substantial federal question" an appeal from a New York decision upholding the validity of a Sunday law against an attack based on the First Amendment. The Soon Hing, Hennington, and Petit cases all rested on the police power of the State -- the right to safeguard the health of the people by requiring the cessation of normal activities one day out of seven. The Court in the Soon Hing case rejected the idea that Sunday laws rested on the power of government "to legislate for the promotion of religious observances." 113 U.S. at 113 U. S. 710 . The New York Court of Appeals in the Friedman case followed the reasoning of the earlier cases, [ Footnote 3/4 ] 302 N.Y. 75 , 80, 96 N.E.2d 184, 186. Page 366 U. S. 569 The Massachusetts Sunday law involved in one of these appeals was once characterized by the Massachusetts court as merely a civil regulation providing for a "fixed period of rest." Commonwealth v. Has, 122 Mass. 40, 42. That decision was, according to the District Court in the Gallagher case, "an ad hoc improvisation" made "because of the realization that the Sunday law would be more vulnerable to constitutional attack under the state Constitution if the religious motivation of the statute were more explicitly avowed." 176 F. Supp. 466 , 473. Certainly, prior to the Has case, the Massachusetts courts had indicated that the aim of the Sunday law was religious. See Pearce v. Atwood, 13 Mass. 324, 345-346; Bennett v. Brooks, 91 Mass. 118, 121. After the Has case, the Massachusetts court construed the Sunday law as a religious measure. In Davis v. Somerville, 128 Mass. 594, 596, 35 Am.Rep. 399, 400, it was said: "Our Puritan ancestors intended that the day should be not merely a day of rest from labor, but also a day devoted to public and private worship and to religious meditation and repose, undisturbed by secular cares or amusements. They saw fit to enforce the observance of the day by penal legislation, and the statute regulations which they devised for that purpose have continued in force, without any substantial modification, to the present time." And see Commonwealth v. Detra, 143 Mass. 28, 8 N.E. 756. In Commonwealth v. White, 190 Mass. 578, 581, 77 N.E. 636, 637, the court refused to liberalize its construction of an exception in its Sunday law for works of "necessity." That word, it said, "was originally inserted to secure the observance of the Lord's day in accordance with Page 366 U. S. 570 the views of our ancestors, and it ever since has stood, and still stands, for the same purpose." In Commonwealth v. McCarthy, 244 Mass. 484, 486, 138 N.E. 835, 836, the court reiterated that the aim of the law was "to secure respect and reverence for the Lord's day." The Pennsylvania Sunday laws before us in Nos. 36 and 67 have received the same construction. "Rest and quiet, on the Sabbath day, with the right and privilige of public and private worship, undisturbed by any mere worldly employment, are exactly what the statute was passed to protect." Sparhawk v. Union Passenger R. Co., 54 Pa. 401, 423. And see Commonwealth v. Nesbit, 34 Pa. 398, 405, 406-408. A recent pronouncement by the Pennsylvania Supreme Court is found in Commonwealth v. American Baseball Club, 290 Pa. 136, 143, 138 A. 497, 499: "Christianity is part of the common law of Pennsylvania . . . , and its people are christian people. Sunday is the holy day among christians." The Maryland court, in sustaining the challenged law in No. 8, relied on Judefind v. State, 78 Md. 510, 28 A. 405, and Levering v. Park Commissioner, [ Footnote 3/5 ] 134 Md. 48, 106 A. 176. In the former, the court said: "It is undoubtedly true that rest from secular employment on Sunday does have a tendency to foster and encourage the Christian religion -- of all sects and denominations that observe that day -- as rest from work and ordinary occupation enables many to engage in public worship who probably would not otherwise do so. But it would scarcely be asked of a Court, in what professes to be a Christian land, to declare a law unconstitutional because it requires rest from bodily labor on Sunday, (except works of necessity and charity,) and thereby promotes the Page 366 U. S. 571 cause of Christianity. If the Christian religion is, incidentally or otherwise, benefited or fostered by having this day of rest, as it undoubtedly is, there is all the more reason for the enforcement of laws that help to preserve it." 78 Md. at 515-516, 128 A. at 407. In the Levering case, the court relied on the excerpt from the Judefind decision just quoted. 134 Md. at 54-55, 106 A. at 178. We have then in each of the four cases Sunday laws that find their source in Exodus, that were brought here by the Virginians and by the Puritans, and that are today maintained construed, and justified because they respect the views of our dominant religious groups and provide a needed day of rest. The history was accurately summarized a century ago by Chief Justice Terry of the Supreme Court of California in Ex parte Newman, 9 Cal. 502, 509: "The truth is, however much it may be disguised, that this one day of rest is a purely religious idea. Derived from the Sabbatical institutions of the ancient Hebrew, it has been adopted into all the creeds of succeeding religious sects throughout the civilized world, and whether it be the Friday of the Mohammedan, the Saturday of the Israelite, or the Sunday of the Christian, it is alike fixed in the affections of its followers, beyond the power of eradication, and in most of the States of our Confederacy, the aid of the law to enforce its observance has been given under the pretence of a civil, municipal, or police regulation." That case involved the validity of a Sunday law under a provision of the California Constitution guaranteeing the "free exercise" of religion. Calif.Const., 1849, Art. I, § 4. Justice Burnett stated why he concluded that the Page 366 U. S. 572 Sunday law, there sought to be enforced against a man selling clothing on Sunday, infringed California's constitution: ' "Had the act made Monday, instead of Sunday, a day of compulsory rest, the constitutional question would have been the same. The fact that the Christian voluntarily keeps holy the first day of the week does not authorize the Legislature to make that observance compulsory. The Legislature cannot compel the citizen to do that which the Constitution leaves him free to do or omit at his election. The act violates as much the religious freedom of the Christian as of the Jew. Because the conscientious views of the Christian compel him to keep Sunday as a Sabbath, he has the right to object when the Legislature invades his freedom of religious worship and assumes the power to compel him to do that which he has the right to omit if he pleases. The principle is the same whether the act of the Legislature compels us to do that which we wish to do or not to do. . . ." "Under the Constitution of this State, the Legislature cannot pass any act the legitimate effect of which is forcibly to establish any merely religious truth or enforce any merely religious observances. The Legislature has no power over such a subject. When, therefore, the citizen is sought to be compelled by the Legislature to do any affirmative religious act, or to refrain from doing anything, because it violates simply a religious principle or observance, the act is unconstitutional." Id. at 513-515. The Court picks and chooses language from various decisions to bolster its conclusion that these Sunday laws, in the modern setting, are "civil regulations." No matter how much is written, no matter what is said, the parentage of these laws is the Fourth Commandment, and they Page 366 U. S. 573 serve and satisfy the religious predispositions of our Christian communities. [ Footnote 3/6 ] After all, the labels a State places on its laws are not binding on us when we are confronted with a constitutional decision. We reach our own conclusion as to the character, effect, and practical operation of the regulation in determining its constitutionality. Carpenter v. Shaw, 280 U. S. 363 , 280 U. S. 367 -368; Dyer v. Sims, 341 U. S. 22 , 341 U. S. 29 ; Memphis Steam Landry v. Stone, 342 U. S. 389 , 342 U. S. 392 ; Society for Savings v. Bowers, 349 U. S. 143 , 349 U. S. 151 ; Gomillion v. Lightfoot, 364 U. S. 339 , 364 U. S. 341 -342. It seems to me plain that, by these laws, the States compel one, under sanction of law, to refrain from work or recreation on Sunday because of the majority's religious views about that day. The State, by law, makes Sunday a symbol of respect or adherence. Refraining from work or recreation in deference to the majority's religious feelings about Sunday is within every person's choice. By what authority can government compel it? Cases are put where acts that are immoral by our standards, but not by the standards of other religious Page 366 U. S. 574 groups are made criminal. That category of cases, until today, has been a very restricted one confined to polygamy ( Reynolds v. United States, 98 U. S. 145 ) and other extreme situations. The latest example is Prince v. Massachusetts, 321 U. S. 158 , which upheld a statute making it criminal for a child under twelve to sell papers, periodicals, or merchandise on a street or in any public place. It was sustained in spite of the finding that the child thought it was her religious duty to perform the act. But that was a narrow holding which turned on the effect which street solicitation might have on the child solicitor: "The state's authority over children's activities is broader than over like actions of adults. This is peculiarly true of public activities and in matters of employment. A democratic society rests, for its continuance, upon the healthy, well rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parent's claim to control of the child or one that religious scruples dictate contrary action." Id. 321 U. S. 168 -169. None of the acts involved here implicates minors. None of the actions made constitutionally criminal today involves the doing of any act that any society has deemed to be immoral. The conduct held constitutionally criminal today embraces the selling of pure, not impure, food; wholesome, Page 366 U. S. 575 not noxious, articles. Adults, not minors, are involved. The innocent acts, now constitutionally classified as criminal, emphasize the drastic break we make with tradition. These laws are sustained because, it is said, the First Amendment is concerned with religious convictions or opinion, not with conduct. But it is a strange Bill of Rights that makes it possible for the dominant religious group to bring the minority to heel because the minority, in the doing of acts which intrinsically are wholesome and not antisocial, does not defer to the majority's religious beliefs. Some have religious scruples against eating pork. Those scruples, no matter how bizarre they might seem to some, are within the ambit of the First Amendment. See United States v. Ballard, 322 U. S. 78 , 322 U. S. 87 . Is it possible that a majority of a state legislature having those religious scruples could make it criminal for the nonbeliever to sell pork? Some have religious scruples against slaughtering cattle. Could a state legislature, dominated by that group, make it criminal to run an abattoir? The Court balances the need of the people for rest, recreation, late sleeping, family visiting and the like against the command of the First Amendment that no one need bow to the religious beliefs of another. There is in this realm no room for balancing. I see no place for it in the constitutional scheme. A legislature of Christians can no more make minorities conform to their weekly regime than a legislature of Moslems, or a legislature of Hindus. The religious regime of every group must be respected -- unless it crosses the line of criminal conduct. But no one can be forced to come to a halt before it or refrain from doing things that would offend it. That is my reading of the Establishment Clause and the Free Exercise Clause. Any other reading imports, I fear, an element common in other societies but foreign to us. Thus, Nigeria, in Article 23 of her Constitution, after Page 366 U. S. 576 guaranteeing religious freedom, adds, "Nothing in this section shall invalidate any law that is reasonably justified in a democratic society in the interest of defence, public safety, public order, public morality, or public health." And see Article 25 of the Indian Constitution. That may be a desirable provision. But when the Court adds it to our First Amendment, as it does today, we make a sharp break with the American ideal of religious liberty as enshrined in the First Amendment. The State can, of course, require one day of rest a week: one day when every shop or factory is closed. Quite a few States make that requirement. [ Footnote 3/7 ] Then the "day of rest" becomes purely and simply a health measure. But the Sunday laws operate differently. They force minorities to obey the majority's religious feelings of what is due and proper for a Christian community; they provide a coercive spur to the "weaker brethren," to those who are indifferent to the claims of a Sabbath through apathy or scruple. Can there be any doubt that Christians, now aligned vigorously in favor of these laws, would be as strongly opposed if they were prosecuted under a Moslem law that forbade them from engaging in secular activities on days that violated Moslem scruples? There is an "establishment" of religion in the constitutional sense if any practice of any religious group has the sanction of law behind it. There is an interference with the "free exercise" of religion if what in conscience one Page 366 U. S. 577 can do or omit doing is required because of the religious scruples of the community. Hence, I would declare each of those laws unconstitutional as applied to the complaining parties, whether or not they are members of a sect which observes as its Sabbath a day other than Sunday. When these laws are applied to Orthodox Jews, as they are in No. 11 and in No. 67, or to Sabbatarians, their vice is accentuated. If the Sunday laws are constitutional, kosher markets are on a five-day week. Thus, those laws put an economic penalty on those who observe Saturday, rather than Sunday, as the Sabbath. For the economic pressures on these minorities, created by the fact that our communities are predominantly Sunday-minded, there is no recourse. When, however, the State uses its coercive powers -- here the criminal law -- to compel minorities to observe a second Sabbath not their own, the State undertakes to aid and "prefer one religion over another" -- contrary to the command of the Constitution. See Everson v. Board of Education, supra, 330 U. S. 15 . In large measure, the history of the religious clause of the First Amendment was a struggle to be free of economic sanctions for adherence to one's religion. Everson v. Board of Education, supra, 330 U. S. 11 -14. A small tax was imposed in Virginia for religious education. Jefferson and Madison led the fight against the tax, Madison writing his famous Memorial and Remonstrance against that law. Id. 330 U. S. 12 . As a result, the tax measure was defeated, and instead Virginia's famous "Bill for Religious Liberty," written by Jefferson, was enacted. Id. 330 U. S. 12 . That Act provided: [ Footnote 3/8 ] "That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise Page 366 U. S. 578 suffer on account of his religious opinions or belief. . . ." The reverse side of an "establishment" is a burden on the "free exercise" of religion. Receipt of funds from the State benefits the established church directly; laying an extra tax on nonmembers benefits the established church indirectly. Certainly the present Sunday laws place Orthodox Jews and Sabbatarians under extra burdens because of their religious opinions or beliefs. Requiring them to abstain from their trade or business on Sunday reduces their workweek to five days unless they violate their religious scruples. This places them at a competitive disadvantage and penalizes them for adhering to their religious beliefs. "The sanction imposed by the state for observing a day other than Sunday as holy time is certainly more serious economically than the imposition of a license tax for preaching, [ Footnote 3/9 ]" which we struck down in Murdock v. Pennsylvania, 319 U. S. 105 , and in Follett v. McCormick, 321 U. S. 573 . The special protection which Sunday laws give the dominant religious groups and the penalty they place on minorities whose holy day is Saturday constitute, in my view, state interference with the "free exercise" of religion. [ Footnote 3/10 ] Page 366 U. S. 579 I dissent from applying criminal sanctions against any of these complainants, since to do so implicates the States in religious matters contrary to the constitutional mandate. [ Footnote 3/11 ] Reverend Allan C. Parker, Jr., Pastor of the Page 366 U. S. 580 South Park Presbyterian Church, Seattle, Washington, has stated my views: "We forget that, though Sunday-worshiping Christians are in the majority in this country among religious people, we do not have the right to force our practice upon the minority. Only a Church which deems itself without error and intolerant of error can justify its intolerance of the minority." "A Jewish friend of mine runs a small business establishment. Because my friend is a Jew, his business is closed each Saturday. He respects my right to worship on Sunday, and I respect his right to worship on Saturday. But there is a difference. As a Jew, he closes his store voluntarily, so that he will be able to worship his God in his fashion. Fine, but, as a Jew living under Christian-inspired Sunday closing laws, he is required to close his store on Sunday so that I will be able to worship my God in my fashion." "Around the corner from my church, there is a small Seventh Day Baptist church. I disagree with the Seventh Day Baptists on many points of doctrine. Among the tenets of their faith with which I disagree is the 'seventh day worship.' But they are good neighbors and fellow Christians, and, while we disagree, we respect one another. The good people of my congregation set aside their jobs on the first of the week and gather in God's house for worship. Of course, it is easy for them to set aside their jobs, since Sunday closing laws -- inspired by the Church -- keep them from their work. At the Seventh Day Baptist church, the people set aside their jobs on Saturday to worship God. This takes real sacrifice, because Saturday is a good day for business. But that is not all -- they are required by law to set aside Page 366 U. S. 581 their jobs on Sunday while more orthodox Christians worship." ". . . I do not believe that, because I have set aside Sunday as a holy day, I have the right to force all men to set aside that day also. Why should my faith be favored by the State over any other man's faith? [ Footnote 3/12 ]" With all deference, none of the opinions filed today in support of the Sunday laws has answered that question. * [NOTE: This opinion applies also to No. 36, Two Guys From Harrison-Allentown, Inc. v. McGinley, District Attorney, Lehigh County, Pennsylvania, et al., post, p. 366 U. S. 582 ; No. 67, Braunfeld et al. v. Brown, Commissioner of Police of Philadelphia, et al., post, p. 366 U. S. 599 , and No. 11, Gallagher, Chief of Police of Springfield, Massachusetts, et al. v. Crown Kosher Super Market, Inc., et al., post, p. 366 U. S. 617 .] [ Footnote 3/1 ] The Problems of Pluralism, Danforth Lectures, Miami University, Oxford, Ohio (1960). Other writers suggest that America is still subject to a customary and nonlegal "Protestant establishment" which comes to the surface only on certain political issues. Thus, a Rabbi Arthur Hartzberg was able to analyze the "religious issue" of the recent presidential campaign in these terms: "As we have seen, the First Amendment was the battleground, at the end of the 18th century, of a major transition in American society in which the old Protestant establishment was forced to yield to the newer ethos of Protestant nonconformity. Today in American society we are witnessing a change perhaps as important -- the full entry of the post-bellum immigrant groups into the national life. Though the battle once again seems to be raging around the First Amendment, it would appear from the foregoing analysis that the true issue is not the separation of church and state, but the symbolic significance for American life and culture of having a non-Protestant -- whether he be a Catholic, a Jew, or an avowed atheist -- as President of the United States." Hartzberg, "The Protestant Establishment,' Catholic Dogma, and the Presidency," Commentary (October 1960), p. 285. [ Footnote 3/2 ] Blackstone's Commentaries, Bk. IV, c. 4, entitled "Of Offenses Against God and Religion," says in part: "IX. Profanation of the Lord's day, vulgarly (but improperly) called Sabbath-breaking, is a ninth offence against God and religion, punished by the municipal law of England. For, besides the notorious indecency and scandal of permitting any secular business to be publicly transacted on that day in a country professing christianity, and the corruption of morals which usually follows its profanation, the keeping one day in seven holy, as a time of relaxation and refreshment as well as for public worship, is of admirable service to a state, considered merely as a civil institution. It humanizes by the help of conversation and society the manners of the lower classes, which would otherwise degenerate into a sordid ferocity and savage selfishness of spirit; it enables the industrious workman to pursue his occupation in the ensuing week with health and cheerfulness; it imprints on the minds of the people that sense of their duty to God, so necessary to make them good citizens, but which yet would be worn out and defaced by an unremitted continuance of labour without any stated times of recalling them to the worship of their Maker." [ Footnote 3/3 ] See also Ullner v. Ohio, 358 U. S. 131 ; Kidd v. Ohio, 358 U. S. 132 ; McGee v. North Carolina, 346 U.S. 802; cf. Grochowiak v. Pennsylvania, 358 U. S. 47 ; Gundaker Cent. Motors, Inc. v. Gassert, 354 U.S. 933; Towery v. North Carolina, 347 U.S. 925. [ Footnote 3/4 ] As respects the First Amendment, the court said: "It does not set up a church, make attendance upon religious worship compulsory, impose restrictions upon expression of religious belief, work a restriction upon the exercise of religion according to the dictates of one's conscience, provide compulsory support, by taxation or otherwise, of religious institutions, nor in any way enforce or prohibit religion." 302 N.Y. at 79, 96 N.E.2d at 186. [ Footnote 3/5 ] Cf. Bowman v. Secular Society, Ltd. [1917] A.C. 406, 464 (opinion of Lord Sumner). [ Footnote 3/6 ] Today we retreat from that jealous regard for religious freedom which struck down a statute because it was "a handy implement for disguised religious persecution." Board of Education v. Barnette, supra, 319 U. S. 644 (concurring opinion). It does not do to say, as does the majority, "Sunday is a day apart from all others. The cause is irrelevant; the fact exists." The cause of Sunday's being a day apart is determinative; that cause should not be swept aside by a declaration of parochial experience. The judgment the Court is called upon to make is a delicate one. But, in the light of our society's religious history, it cannot be avoided by arguing that a hypothetical lawgiver could find nonreligious reasons for fixing Sunday as a day of rest. The effect of that history is, indeed, still with us. Sabbath is no less Sabbath because it is now less severe in its strictures, or because it has come to be expedient for some nonreligious purposes. The Constitution must guard against "sophisticated as well as simple-minded modes" of violation. Lane v. Wilson, 307 U. S. 268 , 307 U. S. 275 . [ Footnote 3/7 ] Or the State may merely fix a maximum hours' limitation in other terms, either for particular classes of employees, particular classes of employment, or straight across the board. See laws and decisions gathered in 1 & 2 CCH Labor Law Reporter, State Laws, par. 44,500 et seq. On argument, there was much made over the desirability of fixing a single day for rest, either on grounds of administrative convenience or on grounds of the need for leisure. In light of the history and meaning of the shared leisure of Sunday, this aim still has religious overtones. Cf. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 , 343 U. S. 505 . [ Footnote 3/8 ] Hening, Stat. Va. (1823), p. 86. [ Footnote 3/9 ] Pfeffer, Church, State, and Freedom (1953), p. 235. [ Footnote 3/10 ] ". . . assuming that the idle Sunday is an 'institution' of Christianity, does a statute which for that reason requires men to be idle on Sunday give a preference to one particular religion? How can it be maintained that it does not unless a similar institution of every other religion be honored with like recognition? As to the individual aspect of the case, if the law is to assist Christianity by making idleness compulsory on its sacred day, thereby presumably commending it to those who reject it and strengthening its hold upon its devotees, is there not a 'preference' given to a religion unless the Hebrew and all other faiths have a like recognition extended to their sacred day? And as to the social aspect, assuming that it is an advantage to have other people kept extraordinarily quiet while we pray, and to have an especial 'peace' established by law on the day we select for public worship, and that we have the right to prevent our neighbor from earning his living at a certain time because the practice of his avocation interferes with our religious exercises, must it not be called a 'preference' to do all this for the Christian's benefit, and not to do it for the benefit of the followers of Moses, or Mahomet, or Confucius or Buddha?" Ringgold, Legal Aspects of the First Day of the Week (1891), pp. 68-69. [ Footnote 3/11 ] It is argued that the wide acceptance of Sunday laws at the time of the adoption of the First Amendment makes it fair to assume that they were never thought to come within the "establishment" Clause, and that the presence in the country at that time of large numbers of Orthodox Jews makes it clear that those laws were not thought to run afoul of the "free exercise" Clause. Those reasons would be compelling if the First Amendment had, at the time of its adoption, been applicable to the States. But since it was then applicable only to the Federal Government, it had no possible bearing on the Sunday laws of the States. The Fourteenth Amendment, adopted years later, made the First Amendment applicable to the States for the first time. That Amendment has had unsettling effects on many customs and practices -- a process consistent with Jefferson's precept "that laws and institutions must go hand in hand with the progress of the human mind." 15 The Writings of Thomas Jefferson (Memorial ed.1904), p.41. Moreover, there is solid evidence to suggest that the Jewish population of our Nation was then minuscule. "Despite the roseate estimates of some Jewish writers on the subject, it is safe to say there were never more than one thousand Jews living among the three million and more inhabitants of the colonies. The Newport community in its heyday totaled at most one hundred and fifty to one hundred and seventy-five Jews. Perhaps New York had as many or more. Philadelphia, Charleston and Savannah were certainly smaller communities. Even when combining their Jewish populations with the lonely groups in the back county, we still are far from an impressive total." Goodman, American Overture: Jewish Rights in Colonial Times (1947), p. 3. [ Footnote 3/12 ] 56 Liberty, January-February 1961, No. 1, pp. 21-22.

In *McGowan v. Maryland*, the U.S. Supreme Court upheld a Maryland law prohibiting certain Sunday sales, finding it did not violate the Equal Protection or Due Process Clauses of the Fourteenth Amendment, nor the Establishment Clause of the First Amendment. The Court held that the law's classifications were rationally related to legitimate government interests, and that similar laws existed at the time of the First Amendment's adoption, suggesting they were not seen as religious establishments. This case highlights the Court's interpretation of the Establishment Clause and the leeway given to states in creating laws that affect certain groups differently.

Religion

Engel v. Vitale

https://supreme.justia.com/cases/federal/us/370/421/

U.S. Supreme Court Engel v. Vitale, 370 U.S. 421 (1962) Engel v. Vitale No. 468 Argued April 3, 1962 Decided June 25, 1962 370 U.S. 421 CERTIORARI TO THE COURT OF APPEALS OF NEW YORK Syllabus Because of the prohibition of the First Amendment against the enactment of any law "respecting an establishment of religion," which is made applicable to the States by the Fourteenth Amendment, state officials may not compose an official state prayer and require that it be recited in the public schools of the State at the beginning of each school day -- even if the prayer is denominationally neutral and pupils who wish to do so may remain silent or be excused from the room while the prayer is being recited. Pp. 370 U. S. 422 -436. 10 N.Y.2d 174, 176 N.E.2d 579, reversed. Page 370 U. S. 422 MR. JUSTICE BLACK delivered the opinion of the Court. The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and Page 370 U. S. 423 legislative powers over the State's public school system. [ Footnote 1 ] These state officials composed the prayer which they recommended and published as a part of their "Statement on Moral and Spiritual Training in the Schools," saying: "We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program." Shortly after the practice of reciting the Regents' prayer was adopted by the School District, the parents of ten pupils brought this action in a New York State Court insisting that use of this official prayer in the public schools was contrary to the beliefs, religions, or religious practices of both themselves and their children. Among other things, these parents challenged the constitutionality of both the state law authorizing the School District to direct the use of prayer in public schools and the School District's regulation ordering the recitation of this particular prayer on the ground that these actions of official governmental agencies violate that part of the First Amendment of the Federal Constitution which commands that "Congress shall make no law respecting an establishment of religion" -- a command which was "made applicable to the State of New York by the Fourteenth Amendment of the said Constitution." The New York Court of Appeals, over the dissents of Judges Dye and Fuld, sustained an order of the lower state courts which had upheld the power of New York to use the Regents' prayer as a part of the daily procedures of its public schools so long as the schools did not compel any pupil to join in the prayer over his or his parents' objection. [ Footnote 2 ] Page 370 U. S. 424 We granted certiorari to review this important decision involving rights protected by the First and Fourteenth Amendments. [ Footnote 3 ] We think that, by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity. It is a solemn avowal of divine faith and supplication for the blessings of the Almighty. The nature of such a prayer has always been Page 370 U. S. 425 religious, none of the respondents has denied this, and the trial court expressly so found: "The religious nature of prayer was recognized by Jefferson, and has been concurred in by theological writers, the United States Supreme Court, and State courts and administrative officials, including New York's Commissioner of Education. A committee of the New York Legislature has agreed." "The Board of Regents as amicus curiae, the respondents, and intervenors all concede the religious nature of prayer, but seek to distinguish this prayer because it is based on our spiritual heritage. . . . [ Footnote 4 ]" The petitioners contend, among other things, that the state laws requiring or permitting use of the Regents' prayer must be struck down as a violation of the Establishment Clause because that prayer was composed by governmental officials as a part of a governmental program to further religious beliefs. For this reason, petitioners argue, the State's use of the Regents' prayer in its public school system breaches the constitutional wall of separation between Church and State. We agree with that contention, since we think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that, in this country, it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. It is a matter of history that this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America. The Book of Common Prayer, Page 370 U. S. 426 which was created under governmental direction and which was approved by Acts of Parliament in 1548 and 1549, [ Footnote 5 ] set out in minute detail the accepted form and content of prayer and other religious ceremonies to be used in the established, tax supported Church of England. [ Footnote 6 ] The controversies over the Book and what should be its content repeatedly threatened to disrupt the peace of that country as the accepted forms of prayer in the established church changed with the views of the particular ruler that happened to be in control at the time. [ Footnote 7 ] Powerful groups representing some of the varying religious views of the people struggled among themselves to impress their particular views upon the Government and Page 370 U. S. 427 obtain amendments of the Book more suitable to their respective notions of how religious services should be conducted in order that the official religious establishment would advance their particular religious beliefs. [ Footnote 8 ] Other groups, lacking the necessary political power to influence the Government on the matter, decided to leave England and its established church and seek freedom in America from England's governmentally ordained and supported religion. It is an unfortunate fact of history that, when some of the very groups which had most strenuously opposed the established Church of England found themselves sufficiently in control of colonial governments in this country to write their own prayers into law, they passed laws making their own religion the official religion of their respective colonies. [ Footnote 9 ] Indeed, as late as the time of the Revolutionary Page 370 U. S. 428 War, there were established churches in at least eight of the thirteen former colonies and established religions in at least four of the other five. [ Footnote 10 ] But the successful Revolution against English political domination was shortly followed by intense opposition to the practice of establishing religion by law. This opposition crystallized rapidly into an effective political force in Virginia, where the minority religious groups such as Presbyterians, Lutherans, Quakers and Baptists had gained such strength that the adherents to the established Episcopal Church were actually a minority themselves. In 1785-1786, those opposed to the established Church, led by James Madison and Thomas Jefferson, who, though themselves not members of any of these dissenting religious groups, opposed all religious establishments by law on grounds of principle, obtained the enactment of the famous "Virginia Bill for Religious Liberty" by which all religious groups were placed on an equal footing so far as the State was concerned. [ Footnote 11 ] Similar though less far-reaching Page 370 U. S. 429 legislation was being considered and passed in other states. [ Footnote 12 ] By the time of the adoption of the Constitution, our history shows that there was a widespread awareness among many Americans of the dangers of a union of Church and State. These people knew, some of them from bitter personal experience, that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services. They knew the anguish, hardship and bitter strife that could come when zealous religious groups struggled with one another to obtain the Government's stamp of approval from each King, Queen, or Protector that came to temporary power. The Constitution was intended to avert a part of this danger by leaving the government of this country in the hands of the people, rather than in the hands of any monarch. But this safeguard was not enough. Our Founders were no more willing to let the content of their prayers and their privilege of praying whenever they pleased be influenced by the ballot box than they were to let these vital matters of personal conscience depend upon the succession of monarchs. The First Amendment was added to the Constitution to stand as a guarantee that neither the power nor the prestige of the Federal Government would be used to control, support or influence the kinds of prayer the American people can say -- Page 370 U. S. 430 that the people's religions must not be subjected to the pressures of government for change each time a new political administration is elected to office. Under that Amendment's prohibition against governmental establishment of religion, as reinforced by the provisions of the Fourteenth Amendment, government in this country, be it state or federal, is without power to prescribe by law any particular form of prayer which is to be used as an official prayer in carrying on any program of governmentally sponsored religious activity. There can be no doubt that New York's state prayer program officially establishes the religious beliefs embodied in the Regents' prayer. The respondents' argument to the contrary, which is largely based upon the contention that the Regents' prayer is "nondenominational" and the fact that the program, as modified and approved by state courts, does not require all pupils to recite the prayer, but permits those who wish to do so to remain silent or be excused from the room, ignores the essential nature of the program's constitutional defects. Neither the fact that the prayer may be denominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause, of the First Amendment, both of which are operative against the States by virtue of the Fourteenth Amendment. Although these two clauses may, in certain instances, overlap, they forbid two quite different kinds of governmental encroachment upon religious freedom. The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not. This is not to say, of course, that Page 370 U. S. 431 laws officially prescribing a particular form of religious worship do not involve coercion of such individuals. When the power, prestige and financial support of government is placed behind a particular religious belief, the indirect coercive pressure upon religious minorities to conform to the prevailing officially approved religion is plain. But the purposes underlying the Establishment Clause go much further than that. Its first and most immediate purpose rested on the belief that a union of government and religion tends to destroy government and to degrade religion. The history of governmentally established religion, both in England and in this country, showed that whenever government had allied itself with one particular form of religion, the inevitable result had been that it had incurred the hatred, disrespect and even contempt of those who held contrary beliefs. [ Footnote 13 ] That same history showed that many people had lost their respect for any religion that had relied upon the support of government to spread its faith. [ Footnote 14 ] The Establishment Clause Page 370 U. S. 432 thus stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its "unhallowed perversion" by a civil magistrate. [ Footnote 15 ] Another purpose of the Establishment Clause rested upon an awareness of the historical fact that governmentally established religions and religious persecutions go hand in hand. [ Footnote 16 ] The Founders knew that, only a few years after the Book of Common Prayer became the only accepted form of religious services in the established Church of England, an Act of Uniformity was passed to compel all Englishmen to attend those services and to make it a criminal offense to conduct or attend religious gatherings of any other kind [ Footnote 17 ] -- a law Page 370 U. S. 433 which was consistently flouted by dissenting religious groups in England and which contributed to widespread persecutions of people like John Bunyan who persisted in holding "unlawful [religious] meetings . . . to the great disturbance and distraction of the good subjects of this kingdom. . . ." [ Footnote 18 ] And they knew that similar persecutions had received the sanction of law in several of the colonies in this country soon after the establishment of official religions in those colonies. [ Footnote 19 ] It was in large part to get completely away from this sort of systematic religious persecution that the Founders brought into being our Nation, our Constitution, and our Bill of Rights, with its prohibition against any governmental establishment of religion. The New York laws officially prescribing the Regents' prayer are inconsistent both with the purposes of the Establishment Clause and with the Establishment Clause itself. It has been argued that to apply the Constitution in such a way as to prohibit state laws respecting an Page 370 U. S. 434 establishment of religious services in public schools is to indicate a hostility toward religion or toward prayer. Nothing, of course, could be more wrong. The history of man is inseparable from the history of religion. And perhaps it is not too much to say that, since the beginning of that history, many people have devoutly believed that "More things are wrought by prayer than this world dreams of." It was doubtless largely due to men who believed this that there grew up a sentiment that caused men to leave the cross-currents of officially established state religions and religious persecution in Europe and come to this country filled with the hope that they could find a place in which they could pray when they pleased to the God of their faith in the language they chose. [ Footnote 20 ] And there were men of this same faith in the Page 370 U. S. 435 power of prayer who led the fight for adoption of our Constitution and also for our Bill of Rights with the very guarantees of religious freedom that forbid the sort of governmental activity which New York has attempted here. These men knew that the First Amendment, which tried to put an end to governmental control of religion and of prayer, was not written to destroy either. They knew, rather, that it was written to quiet well justified fears which nearly all of them felt arising out of an awareness that governments of the past had shackled men's tongues to make them speak only the religious thoughts that government wanted them to speak and to pray only to the God that government wanted them to pray to. It is neither sacrilegious nor anti-religious to say that each separate government in this country should stay out of the business of writing or sanctioning official prayers and leave that purely religious function to the people themselves and to those the people choose to look to for religious guidance. [ Footnote 21 ] Page 370 U. S. 436 It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others -- that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago. To those who may subscribe to the view that, because the Regents' official prayer is so brief and general there can be no danger to religious freedom in its governmental establishment, however, it may be appropriate to say in the words of James Madison, the author of the First Amendment: "[I]t is proper to take alarm at the first experiment on our liberties. . . . Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? That the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment may force him to conform to any other establishment in all cases whatsoever? [ Footnote 22 ]" The judgment of the Court of Appeals of New York is reversed, and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. MR. JUSTICE FRANKFURTER took no part in the decision of this case. MR. JUSTICE WHITE took no part in the consideration or decision of this case. Page 370 U. S. 437 [ Footnote 1 ] See New York Constitution, Art. V, § 4; New York Education Law, §§ 101, 120 et seq. , 202, 214-219, 224, 245 et seq. , 704, and 801 et seq. [ Footnote 2 ] 10 N.Y.2d 174, 176 N.E.2d 579. The trial court's opinion, which is reported at 18 Misc.2d 659, 191 N.Y.S.2d 453, had made it clear that the Board of Education must set up some sort of procedures to protect those who objected to reciting the prayer: "This is not to say that the rights accorded petitioners and their children under the 'free exercise' clause do not mandate safeguards against such embarrassments and pressures. It is enough on this score, however, that regulations, such as were adopted by New York City's Board of Education in connection with its released time program, be adopted, making clear that neither teachers nor any other school authority may comment on participation or nonparticipation in the exercise nor suggest or require that any posture or language be used or dress be worn or be not used or not worn. Nonparticipation may take the form either of remaining silent during the exercise, or, if the parent or child so desires, of being excused entirely from the exercise. Such regulations must also make provision for those nonparticipants who are to be excused from the prayer exercise. The exact provision to be made is a matter for decision by the board, rather than the court, within the framework of constitutional requirements. Within that framework would fall a provision that prayer participants proceed to a common assembly while nonparticipants attend other rooms, or that nonparticipants be permitted to arrive at school a few minutes late or to attend separate opening exercises, or any other method which treats with equality both participants and nonparticipants." 18 Misc.2d at 696, 191 N.Y.S.2d at 492-493. See also the opinion of the Appellate Division affirming that of the trial court, reported at 11 App.Div.2d 340, 206 N.Y.S.2d 183. [ Footnote 3 ] 368 U.S. 924. [ Footnote 4 ] 18 Mis. .2d at 671-672, 191 N.Y.S.2d at 468-469. [ Footnote 5 ] 2 & 3 Edward VI, c. 1, entitled "An Act for Uniformity of Service and Administration of the Sacraments throughout the Realm"; 3 & 4 Edward VI, c. 10, entitled "An Act for the abolishing and putting away of divers Books and Images." [ Footnote 6 ] The provisions of the various versions of the Book of Common Prayer are set out in broad outline in the Encyclopaedia Britannica, Vol. 18 (1957 ed.), pp. 420-423. For a more complete description, see Pullan, The History of the Book of Common Prayer (1900). [ Footnote 7 ] The first major revision of the Book of Common Prayer was made in 1552, during the reign of Edward VI. 5 & 6 Edward VI, c. 1. In 1553, Edward VI died and was succeeded by Mary, who abolished the Book of Common Prayer entirely. 1 Mary, c. 2. But upon the accession of Elizabeth in 1558, the Book was restored with important alterations from the form it had been given by Edward VI. 1 Elizabeth, c. 2. The resentment to this amended form of the Book was kept firmly under control during the reign of Elizabeth, but, upon her death in 1603, a petition signed by more than 1,000 Puritan ministers was presented to King James I asking for further alterations in the Book. Some alterations were made, and the Book retained substantially this form until it was completely suppressed again in 1645 as a result of the successful Puritan Revolution. Shortly after the restoration in 1660 of Charles II, the Book was again reintroduced, 13 & 14 Charles II, c. 4, and again with alterations. Rather than accept this form of the Book, some 2,000 Puritan ministers vacated their benefices. See generally Pullan, The History of the Book of Common Prayer (1900), pp. vii-xvi; Encyclopaedia Britannica (1957 ed.), Vol. 1, pp. 421-422. [ Footnote 8 ] For example, the Puritans twice attempted to modify the Book of Common Prayer, and once attempted to destroy it. The story of their struggle to modify the Book in the reign of Charles I is vividly summarized in Pullan, History of the Book of Common Prayer, at p. xiii: "The King actively supported those members of the Church of England who were anxious to vindicate its Catholic character and maintain the ceremonial which Elizabeth had approved. Laud, Archbishop of Canterbury, was the leader of this school. Equally resolute in his opposition to the distinctive tenets of Rome and of Geneva, he enjoyed the hatred of both Jesuit and Calvinist. He helped the Scottish bishops, who had made large concessions to the uncouth habits of Presbyterian worship, to draw up a Book of Common Prayer for Scotland. It contained a Communion Office resembling that of the book of 1549. It came into use in 1637, and met with a bitter and barbarous opposition. The vigour of the Scottish Protestants strengthened the hands of their English sympathisers. Laud and Charles were executed, Episcopacy was abolished, the use of the Book of Common Prayer was prohibited." [ Footnote 9 ] For a description of some of the laws enacted by early theocratic governments in New England, see Parrington, Main Currents in American Thought (1930), Vol. 1, pp. 5-50; Whipple, Our Ancient Liberties (1927), pp. 63-78; Wertenbaker, The Puritan Oligarchy (1947). [ Footnote 10 ] The Church of England was the established church of at least five colonies: Maryland, Virginia, North Carolina, South Carolina and Georgia. There seems to be some controversy as to whether that church was officially established in New York and New Jersey, but there is no doubt that it received substantial support from those States. See Cobb, The Rise of Religious Liberty in America (1902), pp. 338, 408. In Massachusetts, New Hampshire and Connecticut, the Congregationalist Church was officially established. In Pennsylvania and Delaware, all Christian sects were treated equally in most situations, but Catholics were discriminated against in some respects. See generally Cobb, The Rise of Religious Liberty in America (1902). In Rhode Island, all Protestants enjoyed equal privileges, but it is not clear whether Catholics were allowed to vote. Compare Fiske, The Critical Period in American History (1899), p. 76, with Cobb, The Rise of Religious Liberty in America (1902), pp. 437-438. [ Footnote 11 ] 12 Hening, Statutes of Virginia (1823), 84, entitled "An act for establishing religious freedom." The story of the events surrounding the enactment of this law was reviewed in Everson v. Board of Education, 330 U. S. 1 , both by the Court, at pp. 330 U. S. 11 -13, and in the dissenting opinion of Mr. Justice Rutledge, at pp. 330 U. S. 33 -42. See also Fiske, The Critical Period in American History (1899), pp. 78-82; James, The Struggle for Religious Liberty in Virginia (1900); Thom, The Struggle for Religious Freedom in Virginia: The Baptists (1900); Cobb, The Rise of Religious Liberty in America (1902), pp. 74-115, 482-499. [ Footnote 12 ] See Cobb, The Rise of Religious Liberty in America (1902), pp. 482-509. [ Footnote 13 ] "[A]ttempts to enforce by legal sanctions acts obnoxious to so great a proportion of Citizens tend to enervate the laws in general, and to slacken the bands of Society. If it be difficult to execute any law which is not generally deemed necessary or salutary, what must be the case where it is deemed invalid and dangerous?, and what may be the effect of so striking an example of impotency in the Government, on its general authority." Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183, 190. [ Footnote 14 ] "It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author, and to foster in those who still reject it a suspicion that its friends are too conscious of its fallacies to trust it to its own merits. . . . [E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less, in all places, pride and indolence in the Clergy; ignorance and servility in the laity; in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect point to the ages prior to its incorporation with Civil policy." Id. at 187. [ Footnote 15 ] Memorial and Remonstrance against Religious Assessments, II Writings of Madison at 187. [ Footnote 16 ] "[T]he proposed establishment is a departure from that generous policy which, offering an asylum to the persecuted and oppressed of every Nation and Religion, promised a lustre to our country and an accession to the number of its citizens. What a melancholy mark is the Bill of sudden degeneracy? Instead of holding forth an asylum to the persecuted, it is itself a signal of persecution. . . . Distant as it may be in its present form from the Inquisition, it differs from it only in degree. The one is the first step, the other the last, in the career of intolerance. The magnanimous sufferer under this cruel scourge in foreign Regions must view the Bill as a Beacon on our Coast, warning him to seek some other haven where liberty and philanthropy in their due extent may offer a more certain repose from his troubles." Id. at 188. [ Footnote 17 ] 5 & 6 Edward VI, c. 1, entitled "An Act for the Uniformity of Service and Administration of Sacraments throughout the Realm." This Act was repealed during the reign of Mary, but revived upon the accession of Elizabeth. See note 7 supra. The reasons which led to the enactment of this statute were set out in its preamble: "Where there hath been a very godly Order set forth by the Authority of Parliament for Common Prayer and Administration of the Sacraments to be used in the Mother Tongue within the Church of England, agreeable to the Word of God and the Primitive Church, very comfortable to all good People desiring to live in Christian Conversation, and most profitable to the Estate of this Realm, upon the which the Mercy, Favour and Blessing of Almighty God is in no wise so readily and plenteously poured as by Common Prayers, due using of the Sacraments, and often preaching of the Gospel, with the Devotion of the Hearers: (1) And yet this notwithstanding, a great Number of People in divers Parts of this Realm, following their own Sensuality, and living either without Knowledge or due Fear of God, do willfully and damnably before Almighty God abstain and refuse to come to their Parish Churches and other Places where Common Prayer, Administration of the Sacraments, and Preaching of the Word of God, is used upon Sundays and other Days ordained to be Holydays." [ Footnote 18 ] Bunyan's own account of his trial is set forth in A Relation of the Imprisonment of Mr. John Bunyan, reprinted in Grace Abounding and The Pilgrim's Progress (Brown ed.1907), at 103-132. [ Footnote 19 ] For a vivid account of some of these persecutions, see Wertenbaker, The Puritan Oligarchy (1947). [ Footnote 20 ] Perhaps the best example of the sort of men who came to this country for precisely that reason is Roger Williams, the founder of Rhode Island, who has been described as "the truest Christian amongst many who sincerely desired to be Christian." Parrington, Main Currents in American Thought (1930), Vol. 1, at p. 74. Williams, who was one of the earliest exponents of the doctrine of separation of church and state, believed that separation was necessary in order to protect the church from the danger of destruction which he thought inevitably flowed from control by even the best-intentioned civil authorities: "The unknowing zeale of Constantine and other Emperours did more hurt to Christ Jesus his Crowne and Kingdome then the raging fury of the most bloody Neroes. In the persecutions of the later, Christians were sweet and fragrant, like spice pounded and beaten in morters: But those good Emperours, persecuting some erroneous persons, Arrius, &c. and advancing the professours of some Truths of Christ (for there was no small number of Truths lost in those times) and maintaining their Religion by the materiall Sword, I say by this meanes Christianity was ecclipsed, and the Professors of it fell asleep. . . ." Williams, The Bloudy Tenent, of Persecution, for cause of Conscience, discussed in A Conference betweene Truth and Peace (London, 1644), reprinted in Narragansett Club Publications, Vol. III, p. 184. To Williams, it was no part of the business or competence of a civil magistrate to interfere in religious matters: "[W]hat imprudence and indiscretion is it in the most common affaires of Life, to conceive that Emperours, Kings and Rulers of the earth must not only be qualified with politicall and state abilities to make and execute such Civille Lawes which may concerne the common rights, peace and safety (which is worke and businesse, load and burthen enough for the ablest shoulders in the Commonweal), but also furnished with such Spirituall and heavenly abilities to governe the Spirituall and Christian Commonweale. . . ." Id. at 366. See also id. at 136-137. [ Footnote 21 ] There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance. [ Footnote 22 ] Memorial and Remonstrance against Religious Assessments, II Writings of Madison 183, at 185-186. MR. JUSTICE DOUGLAS, concurring. It is customary in deciding a constitutional question to treat it in its narrowest form. Yet at times the setting of the question gives it a form and content which no abstract treatment could give. The point for decision is whether the Government can constitutionally finance a religious exercise. Our system at the federal and state levels is presently honeycombed with such financing. [ Footnote 2/1 ] Nevertheless, I think it is an unconstitutional undertaking whatever form it takes. First, a word as to what this case does not involve. Page 370 U. S. 438 Plainly, our Bill of Rights would not permit a State or the Federal Government to adopt an official prayer and penalize anyone who would not utter it. This, however, is not that case, for there is no element of compulsion or coercion in New York's regulation requiring that public schools be opened each day with the following prayer: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country." The prayer is said upon the commencement of the school day, immediately following the pledge of allegiance to the flag. The prayer is said aloud in the presence of a teacher, who either leads the recitation or selects a student to do so. No student, however, is compelled to take part. The respondents have adopted a regulation which provides that "Neither teachers nor any school authority shall comment on participation or non-participation . . . , nor suggest or request that any posture or language be used or dress be worn or be not used or not worn." Provision is also made for excusing children, upon written request of a parent or guardian, from the saying of the prayer or from the room in which the prayer is said. A letter implementing and explaining this regulation has been sent to each taxpayer and parent in the school district. As I read this regulation, a child is free to stand or not stand, to recite or not recite, without fear of reprisal or even comment by the teacher or any other school official. In short, the only one who need utter the prayer is the teacher, and no teacher is complaining of it. Students can stand mute, or even leave the classroom, if they desire. [ Footnote 2/2 ] Page 370 U. S. 439 McCollum v. Board of Education, 333 U. S. 203 , does not decide this case. It involved the use of public school facilities for religious education of students. Students either had to attend religious instruction or "go to some other place in the school building for pursuit of their secular studies. . . . Reports of their presence or absence were to be made to their secular teachers." Id. at 333 U. S. 209 . The influence of the teaching staff was therefore brought to bear on the student body to support the instilling of religious principles. In the present case, school facilities are used to say the prayer, and the teaching staff is employed to lead the pupils in it. There is, however, no effort at indoctrination, and no attempt at exposition. Prayers, of course, may be so long and of such a character as to amount to an attempt at the religious instruction that was denied the public schools by the McCollum case. But New York's prayer is of a character that does not involve any element of proselytizing, as in the McCollum case. The question presented by this case is therefore an extremely narrow one. It is whether New York oversteps the bounds when it finances a religious exercise. What New York does on the opening of its public schools is what we do when we open court. Our Crier has from the beginning announced the convening of the Court and then added "God save the United States and this Honorable Court." That utterance is a supplication, a prayer in which we, the judges, are free to join, but which we need not recite any more than the students need recite the New York prayer. What New York does on the opening of its public schools is what each House of Congress [ Footnote 2/3 ] does at the opening Page 370 U. S. 440 of each day's business. [ Footnote 2/4 ] Reverend Frederick B. Harris is Chaplain of the Senate; Reverend Bernard Braskamp is Chaplain of the House. Guest chaplains of various denominations also officiate. [ Footnote 2/5 ] Page 370 U. S. 441 In New York, the teacher who leads in prayer is on the public payroll, and the time she takes seems minuscule as compared with the salaries appropriated by state legislatures and Congress for chaplains to conduct prayers in the legislative halls. Only a bare fraction of the teacher's time is given to reciting this short 22-word prayer, about the same amount of time that our Crier spends announcing the opening of our sessions and offering a prayer for this Court. Yet, for me, the principle is the same, no matter how briefly the prayer is said, for, in each of the instances given, the person praying is a public official on the public payroll, performing a religious exercise in a governmental institution. [ Footnote 2/6 ] It is said that the Page 370 U. S. 442 element of coercion is inherent in the giving of this prayer. If that is true here, it is also true of the prayer with which this Court is convened, and of those that open the Congress. Few adults, let alone children, would leave our courtroom or the Senate or the House while those prayers are being given. Every such audience is in a sense a "captive" audience. At the same time, I cannot say that to authorize this prayer is to establish a religion in the strictly historic meaning of those words. [ Footnote 2/7 ] A religion is not established in the usual sense merely by letting those who choose to do so say the prayer that the public school teacher leads. Yet once government finances a religious exercise, it inserts a divisive influence into our communities. [ Footnote 2/8 ] The New York Court said that the prayer given does not conform to all of the tenets of the Jewish, Unitarian, and Ethical Culture groups. One of the petitioners is an agnostic. "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 . Under our Bill of Rights, free play is given for Page 370 U. S. 443 making religion an active force in our lives. [ Footnote 2/9 ] But "if a religious leaven is to be worked into the affairs of our people, it is to be done by individuals and groups, not by the Government." McGowan v. Maryland, 366 U. S. 420 , 366 U. S. 563 (dissenting opinion). By reason of the First Amendment, government is commanded "to have no interest in theology or ritual" ( id. at 366 U. S. 564 ), for on those matters "government must be neutral." Ibid. The First Amendment leaves the Government in a position not of hostility to religion, but of neutrality. The philosophy is that the atheist or agnostic -- the nonbeliever -- is entitled to go his own way. The philosophy is that, if government interferes in matters spiritual, it will be a divisive force. The First Amendment teaches that a government neutral in the field of religion better serves all religious interests. My problem today would be uncomplicated but for Everson v. Board of Education, 330 U. S. 1 , 330 U. S. 17 , which allowed taxpayers' money to be used to pay "the bus fares of parochial school pupils as a part of a general program under which" the fares of pupils attending public and other schools were also paid. The Everson case seems in retrospect to be out of line with the First Amendment. Its result is appealing, as it allows aid to be given to needy children. Yet, by the same token, public funds could be used to satisfy other needs of children in parochial schools -- lunches, books, and tuition being obvious examples. Mr. Justice Rutledge stated in dissent what I think is durable First Amendment philosophy: "The reasons underlying the Amendment's policy have not vanished with time or diminished in force. Page 370 U. S. 444 Now, as when it was adopted, the price of religious freedom is double. It is that the church and religion shall live both within and upon that freedom. There cannot be freedom of religion, safeguarded by the state, and intervention by the church or its agencies in the state's domain or dependency on its largesse. Madison's Remonstrance, Par. 6, 8. The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation, it vanishes with the resting. Id., Par. 7, 8. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident groups. Id. Par. 8, 11. It is the very thing Jefferson and Madison experienced and sought to guard against, whether in its blunt or in its more screened forms. Ibid. The end of such strife cannot be other than to destroy the cherished liberty. The dominating group will achieve the dominant benefit; or all will embroil the state in their dissensions. Id., Par. 11." Id. pp. 53-54. What New York does with this prayer is a break with that tradition. I therefore join the Court in reversing the judgment below. [ Footnote 2/1 ] "There are many 'aids' to religion in this country at all levels of government. To mention but a few at the federal level, one might begin by observing that the very First Congress, which wrote the First Amendment, provided for chaplains in both Houses and in the armed services. There is compulsory chapel at the service academies, and religious services are held in federal hospitals and prisons. The President issues religious proclamations. The Bible is used for the administration of oaths. N.Y.A. and W.P.A. funds were available to parochial schools during the depression. Veterans receiving money under the 'G.I.' Bill of 1944 could attend denominational schools, to which payments were made directly by the government. During World War II, federal money was contributed to denominational schools for the training of nurses. The benefits of the National School Lunch Act are available to students in private as well as public schools. The Hospital Survey and Construction Act of 1946 specifically made money available to nonpublic hospitals. The slogan 'In God We Trust' is used by the Treasury Department, and Congress recently added God to the pledge of allegiance. There is Bible reading in the schools of the District of Columbia, and religious instruction is given in the District's National Training School for Boys. Religious organizations are exempt from the federal income tax, and are granted postal privileges. Up to defined limits -- 15 percent of the adjusted gross income of individuals and 5 percent of the net income of corporations -- contributions to religious organizations are deductible for federal income tax purposes. There are no limits to the deductibility of gifts and bequests to religious institutions made under the federal gift and estate tax laws. This list of federal 'aids' could easily be expanded, and, of course, there is a long list in each state." Fellman, The Limits of Freedom (1959), pp. 40-41. [ Footnote 2/2 ] West Point Cadets are required to attend chapel each Sunday. Reg., c. 21, § 2101. The same requirement obtains at the Naval Academy (Reg., c. 9, §0901, (1)(a)), and at the Air Force Academy except First Classmen. Catalogue, 1962-1963, p. 110. And see Honeywell, Chaplains of the United States Army (1958); Jorgensen, The Service of Chaplains to Army Air Units, 1917-1946, Vol. I (1961). [ Footnote 2/3 ] The New York Legislature follows the same procedure. See, e.g., Vol. 1, N.Y.Assembly Jour., 184th Sess., 1961, p. 8; Vol. 1, N.Y. Senate Jour., 184th Sess., 1961, p. 5. [ Footnote 2/4 ] Rules of the Senate provide that each calendar day's session shall open with prayer. See Rule III, Senate Manual, S.Doc. No. 2, 87th Cong., 1st Sess. The same is true of the Rules of the House. See Rule VII, Rules of the House of Representatives, H.R.Doc. No. 459, 86th Cong., 2d Sess. The Chaplains of the Senate and of the House receive $8,810 annually. See 75 Stat. 320, 324. [ Footnote 2/5 ] It would, I assume, make no difference in the present case if a different prayer were said every day or if the ministers of the community rotated, each giving his own prayer. For some of the petitioners in the present case profess no religion. The Pledge of Allegiance, like the prayer, recognizes the existence of a Supreme Being. Since 1954, it has contained the words "one Nation under God, indivisible, with liberty and justice for all." 36 U.S.C. § 17. The House Report recommending the addition of the words "under God" stated that those words in no way run contrary to the First Amendment, but recognize "only the guidance of God in our national affairs." H.R.Rep. No. 1693, 83d Cong., 2d Sess., p. 3. And see S.Rep. No. 1287, 83d Cong., 2d Sess. Senator Ferguson, who sponsored the measure in the Senate, pointed out that the words "In God We Trust" are over the entrance to the Senate Chamber. 100 Cong.Rec. 6348. He added: "I have felt that the Pledge of Allegiance to the Flag which stands for the United States of America should recognize the Creator who we really believe is in control of the destinies of this great Republic." "It is true that, under the Constitution, no power is lodged anywhere to establish a religion . This is not an attempt to establish a religion; it has nothing to do with anything of that kind. It relates to belief in God, in whom we sincerely repose our trust. We know that America cannot be defended by guns, planes, and ships alone. Appropriations and expenditures for defense will be of value only if the God under whom we live believes that we are in the right. We should at all times recognize God's province over the lives of our people and over this great Nation." Ibid. And see 100 Cong.Rec. 7757 et seq. for the debates in the House. The Act of March 3, 1865, 13 Stat. 517, 518, authorized the phrase "In God We Trust" to be placed on coins. And see 17 Stat. 427. The first mandatory requirement for the use of that motto on coins was made by the Act of May 18, 1908, 35 Stat. 164. See H.R.Rep. No. 1106, 60th Cong., 1st Sess.; 42 Cong.Rec. 3384 et seq. The use of the motto on all currency and coins was directed by the Act of July 11, 1955, 69 Stat. 290. See H.R.Rep. No. 662, 84th Cong., 1st Sess.; S.Rep. No. 637, 84th Cong., 1st Sess. Moreover, by the Joint Resolution of July 30, 1956, our national motto was declared to be "In God We Trust." 70 Stat. 732. In reporting the Joint Resolution, the Senate Judiciary Committee stated: "Further official recognition of this motto was given by the adoption of the Star-Spangled Banner as our national anthem. One stanza of our national anthem is as follows: " " O, thus be it ever when freemen shall stand" " Between their lov'd home and the war's desolation," " Blest with vict'ry and peace may the heav'n rescued land" " Praise the power that hath made and preserved us a nation," " Then conquer we must when our cause it is just," " And this be our motto -- 'In God is our trust.'" " And the Star-Spangled Banner in triumph shall wave" " O'er the land of the free and the home of the brave." "In view of these words in our national anthem, it is clear that 'In God we trust' has a strong claim as our national motto." S.Rep. No. 2703, 84th Cong., 2d Sess., p. 2. [ Footnote 2/6 ] The fact that taxpayers do not have standing in the federal courts to raise the issue ( Frothingham v. Mellon, 262 U. S. 447 ) is, of course, no justification for drawing a line between what is done in New York, on the one hand, and, on the other, what we do and what Congress does in this matter of prayer. [ Footnote 2/7 ] The Court analogizes the present case to those involving the traditional Established Church. We once had an Established Church, the Anglican. All baptisms and marriages had to take place there. That church was supported by taxation. In these and other ways, the Anglican Church was favored over the others. The First Amendment put an end to placing any one church in a preferred position. It ended support of any church or all churches by taxation. It went further and prevented secular sanction to any religious ceremony, dogma, or rite. Thus, it prevents civil penalties from being applied against recalcitrants or nonconformists. [ Footnote 2/8 ] Some communities have a Christmas tree purchased with the taxpayers' money. The tree is sometimes decorated with the words "Peace on earth, goodwill to men." At other times, the authorities draw from a different version of the Bible which says "Peace on earth to men of goodwill." Christmas, I suppose, is still a religious celebration, not merely a day put on the calendar for the benefit of merchants. [ Footnote 2/9 ] Religion was once deemed to be a function of the public school system. The Northwest Ordinance, which antedated the First Amendment, provided in Article III that "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged." MR. JUSTICE STEWART, dissenting. A local school board in New York has provided that those pupils who wish to do so may join in a brief prayer at the beginning of each school day, acknowledging their dependence upon God and asking His blessing upon them Page 370 U. S. 445 and upon their parents, their teachers, and their country. The Court today decides that, in permitting this brief nondenominational prayer, the school board has violated the Constitution of the United States. I think this decision is wrong. The Court does not hold, nor could it, that New York has interfered with the free exercise of anybody's religion. For the state courts have made clear that those who object to reciting the prayer must be entirely free of any compulsion to do so, including any "embarrassments and pressures." Cf. West Virginia State Board of Education v. Barnette, 319 U. S. 624 . But the Court says that, in permitting school children to say this simple prayer, the New York authorities have established "an official religion." With all respect, I think the Court has misapplied a great constitutional principle. I cannot see how an "official religion" is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our Nation. The Court's historical review of the quarrels over the Book of Common Prayer in England throws no light for me on the issue before us in this case. England had then and has now an established church. Equally unenlightening, I think, is the history of the early establishment and later rejection of an official church in our own States. For we deal here not with the establishment of a state church, which would, of course, be constitutionally impermissible, but with whether school children who want to begin their day by joining in prayer must be prohibited from doing so. Moreover, I think that the Court's task, in this as in all areas of constitutional adjudication is not responsibly aided by the uncritical invocation of metaphors like the "wall of separation," a phrase nowhere to Page 370 U. S. 446 be found in the Constitution. What is relevant to the issue here is not the history of an established church in sixteenth century England or in eighteenth century America, but the history of the religious traditions of our people, reflected in countless practices of the institutions and officials of our government. At the opening of each day's Session of this Court we stand, while one of our officials invokes the protection of God. Since the days of John Marshall, our Crier has said, "God save the United States and this Honorable Court." [ Footnote 3/1 ] Both the Senate and the House of Representatives open their daily Sessions with prayer. [ Footnote 3/2 ] Each of our Presidents, from George Washington to John F. Kennedy, has, upon assuming his Office, asked the protection and help of God. [ Footnote 3/3 ] Page 370 U. S. 449 The Court today says that the state and federal governments are without constitutional power to prescribe any particular form of words to be recited by any group of the American people on any subject touching religion. [ Footnote 3/4 ] One of the stanzas of "The Star-Spangled Banner " made our National Anthem by Act of Congress in 1931, [ Footnote 3/5 ] contains these verses: "Blest with victory and peace, may the heav'n rescued land" "Praise the Pow'r that hath made and preserved us a nation," "Then conquer we must, when our cause it is just." "And this be our motto 'In God is our Trust.'" In 1954, Congress added a phrase to the Pledge of Allegiance to the Flag so that it now contains the words "one Nation under God, indivisible, with liberty and justice for all." [ Footnote 3/6 ] In 1952, Congress enacted legislation calling upon the President each year to proclaim a National Day of Prayer. [ Footnote 3/7 ] Since 1865, the words "IN GOD WE TRUST" have been impressed on our coins. [ Footnote 3/8 ] Page 370 U. S. 450 Countless similar examples could be listed, but there is no need to belabor the obvious. [ Footnote 3/9 ] It was all summed up by this Court just ten years ago in a single sentence: "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306 , 343 U. S. 313 . I do not believe that this Court, or the Congress, or the President has, by the actions and practices I have mentioned, established an "official religion" in violation of the Constitution. And I do not believe the State of New York has done so in this case. What each has done has been to recognize and to follow the deeply entrenched and highly cherished spiritual traditions of our Nation -- traditions which come down to us from those who almost two hundred years ago avowed their "firm Reliance on the Protection of divine Providence" when they proclaimed the freedom and independence of this brave new world. [ Footnote 3/10 ] I dissent. [ Footnote 3/1 ] See Warren, The Supreme Court in United States History, Vol. 1, p. 469. [ Footnote 3/2 ] See Rule III, Senate Manual, S.Doc. No. 2, 87th Cong., 1st Sess. See Rule VII, Rules of the House of Representatives, H.R.Doc. No. 459, 86th Cong., 2d Sess. [ Footnote 3/3 ] For example: On April 30, 1789, President George Washington said: ". . . it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes, and may enable every instrument employed in its administration to execute with success the functions allotted to his charge. In tendering this homage to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. . . ." " * * * *" "Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall take my present leave, but not without resorting once more to the benign Parent of the Human Race in humble supplication that, since He has been pleased to favor the American people with opportunities for deliberating in perfect tranquillity, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union and the advancement of their happiness, so His divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend." On March 4, 1797, President John Adams said: "And may that Being who is supreme over all, the Patron of Order, the Fountain of Justice, and the Protector in all ages of the world of virtuous liberty, continue His blessing upon this nation and its Government and give it all possible success and duration consistent with the ends of His providence." On March 4, 1805, President Thomas Jefferson said: ". . . I shall need, too, the favor of that Being in whose hands we are, who led our fathers, as Israel of old, from their native land and planted them in a country flowing with all the necessaries and comforts of life; who has covered our infancy with His providence and our riper years with His wisdom and power, and to whose goodness I ask you to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations." On March 4, 1809, President James Madison said: "But the source to which I look . . . is in . . . my fellow citizens, and in the counsels of those representing them in the other departments associated in the care of the national interests. In these my confidence will under every difficulty be best placed, next to that which we have all been encouraged to feel in the guardianship and guidance of that Almighty Being whose power regulates the destiny of nations, whose blessings have been so conspicuously dispensed to this rising Republic, and to whom we are bound to address our devout gratitude for the past, as well as our fervent supplications and best hopes for the future." On March 4, 1865, President Abraham Lincoln said: ". . . Fondly do we hope, fervently do we pray, that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue until all the wealth piled by the bondsman's two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash shall be paid by another drawn with the sword, as was said three thousand years ago, so still it must be said 'the judgments of the Lord are true and righteous altogether.'" "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations." On March 4, 1885, President Grover Cleveland said: ". . . And let us not trust to human effort alone, but humbly acknowledging the power and goodness of Almighty God, who presides over the destiny of nations, and who has at all times been revealed in our country's history, let us invoke His aid and His blessing upon our labors." On March 5, 1917, President Woodrow Wilson said: ". . . I pray God I may be given the wisdom and the prudence to do my duty in the true spirit of this great people." On March 4, 1933, President Franklin D. Roosevelt said: "In this dedication of a Nation, we humbly ask the blessing of God. May He protect each and every one of us. May He guide me in the days to come." On January 21, 1957, President Dwight D. Eisenhower said: "Before all else, we seek, upon our common labor as a nation, the blessings of Almighty God. And the hopes in our hearts fashion the deepest prayers of our whole people." On January 20, 1961, President John F. Kennedy said: "The world is very different now. . . . And yet the same revolutionary beliefs for which our forebears fought are still at issue around the globe -- the belief that the rights of man come not from the generosity of the state, but from the hand of God." " * * * *" "With a good conscience our only sure reward, with history the final judge of our deeds, let us go forth to lead the land we love, asking His blessing and His help, but knowing that, here on earth, God's work must truly be our own." [ Footnote 3/4 ] My brother DOUGLAS says that the only question before us is whether government "can constitutionally finance a religious exercise." The official chaplains of Congress are paid with public money. So are military chaplains. So are state and federal prison chaplains. [ Footnote 3/5 ] 36 U.S.C. § 170. [ Footnote 3/6 ] 36 U.S.C. § 172. [ Footnote 3/7 ] 36 U.S.C. § 185. [ Footnote 3/8 ] 13 Stat. 517, 518; 17 Stat. 427; 35 Stat. 164; 69 Stat. 290. The current provisions are embodied in 31 U.S.C. §§ 324, 324a. [ Footnote 3/9 ] I am at a loss to understand the Court's unsupported ipse dixit that these official expressions of religious faith in and reliance upon a Supreme Being "bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance." See ante, p. 370 U. S. 435 , n. 21. I can hardly think that the Court means to say that the First Amendment imposes a lesser restriction upon the Federal Government than does the Fourteenth Amendment upon the States. Or is the Court suggesting that the Constitution permits judges and Congressmen and Presidents to join in prayer, but prohibits school children from doing so? [ Footnote 3/10 ] The Declaration of Independence ends with this sentence: "And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor."

In Engel v. Vitale, the Supreme Court ruled that state officials cannot compose an official state prayer and require its recitation in public schools, even if it is denominationally neutral and participation is voluntary. The Court held that such actions violate the Establishment Clause of the First Amendment, which prohibits the government from establishing an official religion or favoring one religion over another. This decision affirmed the separation of church and state and protected religious freedom in public education.